Civil rights laws belong to all Americans.
On June 23, 1982, Morris Abram appeared on William F. Buckley’s Firing Line program to discuss his recently published autobiography. The episode was titled “Odyssey of a Southern Liberal.” Two decades had passed since the two had faced off in debate at Emory. As Buckley recalled that evening:
Twenty-odd years ago I was engaged by Emory College in Atlanta to debate with a local liberal about whom, now I confess, I knew very little, other than that he was defiantly Jewish, defiantly liberal, anti-segregationist, and a lawyer. The auditorium was crowded, and I found myself facing one of the most ferocious advocates in my experience, even then extensive. It transpired that he had spent days in the library researching everything I had done and, more importantly, not done. It was a high-pitched evening, and the next day I visited his offices where he showed me a blueprint for a serene and integrated, happy America.1
This time the atmosphere was much more congenial. Buckley began his questioning by asking Abram about the case of Allan Bakke, a white applicant denied admission to the Davis Medical School of the University of California, whose lawsuit against the school had been ruled upon by the U.S. Supreme Court four years earlier. The medical school had set aside sixteen of its one hundred slots for black applicants, and Bakke contended that in the absence of this program, he would have been admitted based upon his qualifications.2
The court ruled that while racial quotas are unconstitutional, race could be considered in college admissions for purposes of achieving a more diverse student body. Abram told Buckley that he believed the Bakke decision was “a muddle,” since it didn’t come down on either side of the controversy over racial preference. His view, as it was at the time of the Emory debate twenty years earlier, was that the constitution was intended to be color-blind, drawing no distinctions between people on the basis of race, ethnic origin, religion, or sex. Although the civil rights movement, he pointed out, had taken the same position during the desegregation cases, “the movement by and large has departed and now wants racial preferences.”3
Abram was even more disturbed, he said, by the more recent Supreme Court decision, Fullilove v. Klutznick, upholding the federal appropriation setting aside for minority contractors a certain percentage of public works funding. Not only was this law discriminatory against struggling contractors not of Hispanic or black origin, it opened the door to corruption through “all kinds of fabrications and falsifications and maneuvers and devices to give contractors a black or Hispanic front behind which whites or other majority elements could operate.”4 Both the Bakke and Fullilove opinions reflected divisions among the justices, even among those who agreed on their outcomes.
This was not the first time Abram had challenged the direction in which his old allies in the civil rights movement had moved. In a symposium appearing in Commentary magazine in January 1980, he noted that liberals, Jews notably among them, had traditionally supported reforms designed to help those who were disadvantaged either by prejudice or by educational and economic disparity. Although “wise men” understood that absolute equality could never be achieved, “equality before the law, neutrality as to ethnicity, religion, or sex, were the proper goals of the advocates of equal opportunity.”5
During the 1960s, his views on this subject were entirely consistent with those of virtually all civil rights activists. After all, these were the views advanced by those civil rights organizations arguing for a color-blind interpretation of the Constitution that, in the landmark Brown case, sought to bring an end to the practice of classifying and legislating based on race. But beginning in the late 1960s came a demand that government “should classify and treat Americans on a basis which liberals had denounced for one hundred years as contemptible and invidious.” This view was now regarded as liberalism, and “those who resisted were branded as conservatives, neoconservatives, or reactionaries.”6
This turn of events, in Abram’s view, represented a reversal of the progress in the law, as described by the renowned nineteenth-century jurist Sir Henry Maine. Maine held that what distinguished the modern world from the ancient one was that individuals had become autonomous agents, no longer tied to their status at birth. And to Abram, the new version of civil rights represented a complete inversion of what distinguished liberalism from conservatism, since “the liberal thrust throughout history has always been against these conservative-sponsored rigidities in which one’s place in society was ascribed at birth.”7
In May 1981, Abram appeared before the Senate Judiciary Committee’s Subcommittee on the Constitution studying the constitutionality of affirmative action programs. He warned the panel of the potentially negative consequences of allowing discrimination based on birth to take precedence over the rule of law. A color-conscious interpretation of the Constitution, he argued, provides a loaded weapon for those who would use it for some other urgent purpose.” Furthermore, the Balkanization of ethnic groups, if allowed to proceed very far, will lead to problems here similar to those currently wracking Lebanon and Ireland, “duplicated, triplicated to the tenth exponential power.”8
In an op-ed that appeared in the New York Times the following month, Abram noted his support for affirmative action as it was originally intended—namely, an effort designed to reach out broadly to disadvantaged persons on behalf of equality of opportunity. Unfortunately, he argued, this policy had become “skewed into a program of quotas, goals, and timetables,” to further equality of result, a turn that “has been grafted into our conscience and consciousness by imaginative legal craftsmanship.”
The fundamental principle of addressing the problem of discrimination, he wrote, is that a person should be treated as an individual, “with due regard for his or her distinctive abilities and character.” By contrast, the practice of preferential treatment deals with that person “as a member of a group with a person’s merit counting for little or nothing as compared to one’s gender or skin color.” Furthermore, insofar as the policies of preferential treatment are aimed at the skilled, the educated, and the middle class, “they leave those in direct need in the pit.”
Abram also took on the argument that these policies should be regarded as temporary: “An ethnic spoils system, once introduced, is bound to become entrenched and requires a suspension of the Fourteenth Amendment, a step no less hazardous than the suspension for a time of free speech and press.”9
Responding to an earlier piece in the Times on the decline of black political power in New York, Abram had placed much of the blame at the feet of black leadership itself. In a letter entitled “Misguided Black Political Strategy,” Abram described the strategy of black leaders in advocating racial preferences in housing, education, hiring, and promotion as “ill-conceived,” and having the effect of breaking up the coalition politics that had served the civil rights movement well during the 1950s and 1960s. “It is particularly distressing,” he wrote, “that the coalition that had gained so much ground during the years of Truman, Kennedy, and Johnson should be in such total disarray now when it may be needed more than ever.”10
Abram attributed much of the decline in black voting strength to an increase in the number of female-headed households fostering a black underclass that not only doesn’t vote but also cannot do useful work in a service economy. He took both the Times and black leadership to task, the former for excluding this issue as if it weren’t relevant to the issue of black political decline, and the latter for not addressing it.11 In a handwritten note to his son-in-law Steven Novak that he attached to the published letter, Abram wrote that it marked his departure “from the main thrust of the civil rights establishment.”12
Abram’s association with the Lawyers Committee for Civil Rights Under Law had gone back to its founding when President Kennedy summoned a group of leading attorneys to the White House and appealed to them to offer their expertise and advocacy skills in the battle for civil rights. Since that time, he had served on the organization’s executive committee. But his stand on the use of hiring quotas now put him on the opposite side of his committee colleagues.
In 1981 a lawsuit was brought against the U.S. government alleging that the Professional and Administrative Careers Examination (PACE), a written test used by the Civil Service Commission to fill positions in federal agencies, had an adverse impact on African Americans and Hispanics. Since the failure rate for black and Hispanic applicants was higher than for whites, the charge was that this disparate impact constituted de facto discrimination.
When the committee entered the suit on behalf of the plaintiffs, Abram registered a strong complaint. In a letter to Norman Redlich, dean of New York University’s School of Law and co-chairman of the committee, Abram objected to the committee’s participation in a lawsuit unrelated to the discrimination addressed by Title VII of the Civil Rights Act and its predecessor statutes dating back to the late nineteenth century. In a wide variety of circumstances, Abram noted, discrimination can be supported by the kind of disparate impact charged in the suit. Literacy tests, such as the one in Georgia Abram attacked in his 1949 amicus brief, was one such example, “the purpose of which was to put a screen around the discrimination rather than to set neutral tests for voter qualification.”13
But Abram doubted that any fair-minded member of the executive committee believed that the PACE exam was designed to bar blacks and Hispanics from working for the federal government rather than to provide for a qualified civil service. The Civil Service Reform Act of 1978 and its legislative history, he wrote, made clear that its minority recruitment program was intended solely as a recruitment program and not a program governing actual appointments. He continued, “It is because I believe so passionately in the principle of equality and non-discrimination that I now so strongly oppose efforts to traduce these principles by misapplication.”
Abram’s objections went unheeded, and the Lawyers Committee entered the case on the side of the plaintiffs. In early 1981, the two sides signed a consent decree approved by a federal court later in the year phasing out the PACE exam over a three-year period and replacing it with alternative examining procedures “which will eliminate adverse impact against blacks and Hispanics as much as feasible, and which will validly and fairly test the relative capacity of applicants to perform PACE occupations.”14
By 1983, with the closing down of the President’s Commission on Bio-Ethics, a restless Morris Abram began a personal lobbying campaign aimed at attaching himself to the Reagan administration at a time when it was looking to reshape the U.S. Commission on Civil Rights. Established by the Civil Rights Act of 1957, the commission was tasked with the mission “to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.”15
But as reflected in the Bakke and Fullilove cases, the very definition of what should constitute civil rights policy was now a matter of bitter debate and deep national division. Was it to make sure that the hard-won battles over the legislation of the 1960s were followed up with vigorous enforcement against racial and other forms of discrimination? Or was it to ensure that preferences be extended by law to those minorities, particularly blacks, who had suffered historical injustice?
In rejecting the latter definition, the Reagan administration was accused by its critics in the civil rights movement of undermining the very mission of the Civil Rights Commission. “Don’t tell me that cuts in food stamps aren’t a civil rights issue,” argued Joseph Rauh Jr., a veteran of many civil rights battles, now serving as the general counsel of the Leadership Conference on Civil Rights. “Food stamps are a form of recompense for past discrimination against minorities, blacks, Hispanics, whose parents didn’t get enough to eat, whose parents did not have the chance to grow and learn like white children. That is a racial issue.”16
To the commission’s critics, it had become a body guilty of conflating civil rights with interest group advocacy. Others objected to its intervention in issues beyond its mandate. One example they offered was the letter the commission sent to the president complaining that the administration was keeping the Equal Employment Opportunity Commission from taking a position in favor of racial quotas in a case involving the New Orleans Police Department.17
The first time Linda Chavez met Morris Abram was when the two, along with former San Jose State University President John Bunzel and Catholic University Law Professor Robert Destro, were brought together at a press conference in the Treaty Room of the Old Executive Office Building by President Reagan to announce their appointment to the Civil Rights Commission in May of 1983. All were registered Democrats.
Chavez had been assistant to American Federation of Teachers president Albert Shanker and editor of the federation’s publications. Although she was offered a position on the commission, she opted to accept the vacant position of staff director. She knew that Abram was outspoken on the issues that had brought the two of them to the attention of the White House and “were bona fide liberals on many issues but were disturbed by the idea of race preferences.”18
The appointments were made possible by the replacement of three of the most outspoken critics of the administration’s civil rights record. In response to questions raised at the press conference about whether the administration was violating the commission’s independence, Abram noted that the Carter administration had dropped its intention to appoint him to the commission when he informed officials of his opposition to racial quotas, a position that he agreed it had every right to take. He remarked, “I have not been asked with respect to this appointment what I may or may not do. And I will tell you this, I will follow the dictates of my conscience and the decisions of the Supreme Court.”19
Catholic University Law professor Marshall Breger was a senior fellow at the conservative Heritage Foundation when he was asked to help prepare Morris Abram for his upcoming hearing before the Senate Judiciary Committee. He recalled, “I don’t think anyone had anything against the other nominees. But he was the big one, you might say.” Breger said that he tried to sensitize Abram to the political situation he faced, because “this was still when he was, how should I phrase this, crossing the aisle. That was a bigger deal than I think he quite realized, because he saw it as a matter of principle.” They spent about three hours one day on potential lines of questioning, and one more hour the following day. “To me,” Breger said, “he was an iconic legal hero. So, there’s no doubt that when they asked me to prepare Morris Abram, I was a little, even in my arrogant youth, awestruck and humbled just by the thought of it.”20
The question of the independence of the commission became the line of attack against the Reagan appointees when they came before the Senate Judiciary Committee for their confirmation hearing. The committee convened on the morning of July 13, 1983, in a spacious hearing room of the Dirksen Senate Office Building. The irony of Chairman J. Strom Thurmond, who built his lengthy political career in support of racial segregation, offering a warm welcome to one of the South’s most tenacious fighters against the old system could easily have been lost on the audience about to witness a heated partisan battle. Of the many letters the committee received in support of the four nominees, the one Thurmond chose to read was a lengthy one from Rev. Martin Luther King Sr. in support of the Abram nomination. The letter read, “Morris Abram, from the time he arrived in Atlanta in 1948, was in the forefront of the public battle against racial discrimination. . . . I do not believe that any southern white people have had a longer experience in support of civil rights than Mr. Abram and whatever he does on the commission, he will do so on the basis of principle and conscience.”21
This was followed by the oral statements of the three senators who had attended the hearing to speak in Abram’s behalf: the two from his adopted state, Moynihan and D’Amato, and his longtime friend Henry Jackson. Pointing out that Abram stood in the tradition of Thurgood Marshall and Dr. Martin Luther King, Jackson quoted from a 1978 article the nominee had written for the Atlanta Constitution, in which he pointed out that the country cannot solve its problems by dividing Americans into competing ethnic and religious groups.22
The nominees received unqualified backing at the hearing from its first outside witness, the American Federation of Teachers’ leader, Albert Shanker, who had been Chavez’s boss at the union federation. Shanker, a foe of the Reagan administration on a host of issues, including civil rights, had fought against school systems in Boston and Jackson, Mississippi that had used racial quotas to determine teacher layoffs against the teacher federation’s position that seniority was the only fair way to manage them.23 In arguing for the Reagan nominees, Shanker characterized them as “Democrats of the JFK–Hubert Humphrey stripe with strong pro–civil rights positions.” Pointing out that most Americans were opposed to racial quotas, he asked whether the Democratic Party was really going to make the support of them a litmus test.24
But at the hearing, the committee’s Democrats were determined to fight the nominations not on the qualifications of the nominees or even directly on the question of racial preference. Rather, they contended that by replacing sitting commissioners with these appointments, President Reagan was undermining the independence of the commission. Senator Joseph Biden compared this action to President Roosevelt’s plan to pack the Supreme Court with those who supported his policies. The Judiciary Committee’s ranking Democrat Howard Metzenbaum remarked that up to this point, no president had sought “to chill the Commission’s independent voice.”25
What Linda Chavez thought most striking about the hearing was the unwillingness of those opposing all four nominees to acknowledge their records on civil rights and their genuine commitment to improving the social and economic conditions of blacks and other minorities. Dismissing the independence argument as “nonsense,” she added,
no, they really didn’t want to admit that what they were really worried about was having someone like Morris Abram, who was in his own right a civil rights champion, who had been there early in the civil rights movement in the sixties and marching alongside other great figures. They didn’t want a person with those credentials to come in and question the scheme in place at the time which was frankly to be lazy about trying to improve conditions for African Americans by simply imposing preferences, if not outright quotas, in college admissions. I just thought they were very disingenuous.26
Abram himself was not an uncritical supporter of the Reagan administration’s record on civil rights. He criticized it for not getting behind the extension of the Voting Rights Act and for favoring restoration of the tax-exempt status of Bob Jones University, a segregated institution. He said that on some issues such as these, the administration had “shot itself in the foot.”27
But to appointee Robert Destro, who would become a swing vote on the commission on some issues,
the idea was, you guys are taking one of our institutions. I was only thirty-two at the time, but when you bring in someone like Morris, and Bunzel, and add them to [black conservative chairman] Clarence Pendleton, all of a sudden you get a major threat to the normal way of looking at things The whole idea was that anyone like Morris who had been in this from the beginning was somehow anti-civil rights, I mean he and the civil rights establishment didn’t get along, but this was much more establishment versus interloper.28
Letters of support for Abram’s nomination came from other important civil rights figures from his past. While taking the opportunity to criticize the Reagan administration for mishandling the nominating process, Bayard Rustin wrote, “Morris Abram’s credentials in the struggle for civil rights need not be defended, for they are written with bold letters into American history.”29
Others whose experience with Abram dated back to his early days in Atlanta were equally emphatic. Grace Towns Hamilton pointed out that “For the thirty-five years I have known Morris Abram, he has not varied in his principles. He believes in human equality and he practiced his beliefs when very few southern whites surfaced in our struggle.”30 And according to Charles Weltner, one of only a handful of Southern congressmen to vote for the Civil Rights Act of 1964 and now a justice of the Georgia Supreme Court, “How soon some people forget how it was down here twenty years ago. The idea that Morris Abram’s appointment would frustrate the work of the commission is ridiculous.”31
The committee also received supportive letters from two prominent liberals, former Supreme Court Justice Arthur Goldberg and longtime ACLU leader Charles Morgan Jr. Noting that for three decades Abram had struggled to obtain the rights for all to be subjected to equal justice, Morgan pointed out that “unlike some of his critics, he has done that in tough times and hard places, without fear and hope of reward.” Noting that he had differed with Abram on a number of issues, including racial preference and school busing, he wrote, “these differences of opinion are insignificant when compared with our areas of agreement, and the president has the right to select those who agree with him.”32
The national Jewish “defense” organizations were generally supportive of the nominees, the most enthusiastic among them the Anti-Defamation League (ADL), a strong critic of racial quotas. National director Nathan Perlmutter charged that “behind the assaults on the president’s nominations, racial quotas and mandatory busing are being presented as a litmus test, a latter-day loyalty oath to determine one’s fealty to civil rights.”33
An exception was the United American Hebrew Congregations, the congregational arm of Reform Judaism in North America, which opposed the nominations, claiming they undermined the independence and integrity of the commission. Two years later, the Reform movement’s chief lobbyist in Washington, Rabbi David Saperstein, told the NAACP’s national convention that his million member organization’s position on affirmative action was in sync with that of the NAACP. “It’s cruelly unfair,” he remarked, “to measure the entire Jewish community by the Morris Abrams and the Ed Koches.”34
Shortly after the nominations were announced, Ralph Neas, executive director of the Leadership Conference on Civil Rights, released a statement opposing all the nominees. The statement was signed by the vast majority of member organizations, including the NAACP, AFL-CIO, ACLU, National Urban League, and League of Women Voters. Although the main reason cited was the independence issue, one of the founders of the conference said that the focus on that issue did not mean that many of the mainstream civil rights organizations were not also concerned with the nominees themselves and their opposition to affirmative action programs and court-ordered busing.35
In a letter to Neas, the ADL’s Perlmutter wrote, “What concerns me, beyond this casting of a shadow over Morris Abram’s reputation, is the seeming questioning of one’s devotion to civil rights if that person opposes the quota system. Your statement as carried did not comment on this, but in the shrill chorus of criticism of the president’s action, support for the quota system would seem to be the litmus test—an ironic ‘loyalty test’—for being considered as pro civil rights. This, of course, is demagogic and hypocritical.”36 The most extreme reaction in opposition to the nominees came from the NAACP’s executive director Benjamin Hooks: “I don’t know how we could have any more incompetent people anywhere in this nation, unless they openly wore Ku Klux Klan robes.”37
Regarding the nominee himself, Andrew Young, now the mayor of Atlanta, denied that Abram had ever been directly involved in the civil rights movement. He told reporters that Abram had gotten Martin Luther King Jr. out of jail “on a traffic ticket,” adding, “it didn’t require a great deal of courage.”38 Julian Bond wrote, “But, did Morris Abram get Martin Luther King Jr. out of jail? Whether he did or didn’t matters less today than whether his supporters believe that questionable credential overshadows Abram’s opposition to legal and time-tested remedies for racial discrimination. Even if [the account] is true, the decent acts of yesterday cannot excuse hostility to civil rights today.”39
In his testimony before the committee, Abram summed up his civil rights creed in one phrase, to which he said he hoped to die faithful: “Equal opportunity for all, with no guaranteed results for any.” He refused to believe that the country should proceed with proportionate representation in education and the workforce, as well as in the medical and legal professions, an idea rejected only recently by Justice Thurgood Marshall in a case involving discrimination against women with respect to financial annuities.40
Later in the hearing Abram elaborated on his position on racial and ethnic preference. One problem with the concept of proportional representation, he said, is that it is entirely divorced from the pool of talent. The reason our nation has flourished is that “we have permitted people who are immigrants and who are underprivileged to come forth in this nation of free enterprise and freedom, to flower.” And while his Georgia background made him particularly sensitive to the fact that many require assistance, need, not color or some other classification, should determine how that assistance is provided.
He continued, “The only reason, Mr. Chairman, that an America of such diverse creeds has not been torn apart by religious strife, as in Ireland and countries of the Middle East, is because the government is neutral on this question of religion. If government continues on a path of being unneutral as to jobs and food, on the basis of blood, can’t you see how we will be at each other’s throats?”41
The fight over President Reagan’s dismissal of commissioners continued into the fall and threatened the renewal of the commission’s authorization to operate. Just before its statutory expiration date, a compromise was reached between the White House and the Senate that restored two of the three dismissed commissioners by splitting the appointment between the administration and the Congress. The president was given the selection of the chairman, vice-chairman, and staff director with the consent not of the Senate but rather a majority of commissioners. Reagan reappointed black conservative Clarence Pendleton as chairman and for the other two slots selected Morris Abram and Linda Chavez, respectively. Mary Frances Berry and Blandina Cardenas Ramirez were brought back to the commission by the Senate and House Democratic leadership, respectively.42
But civil rights activists alleged they were double-crossed when congressional Republicans failed to renominate the two Republican women, supporters of affirmative action programs, they believed were part of the compromise. Throughout the remainder of the Reagan administration they continued to charge that the commission had lost its independence by lining up with the administration on such hot topic issues as busing and racial preference.43
Chavez’s goal as staff director was to restore the commission’s dual roles of overseeing federal civil rights programs and producing studies to guide public policy on matters related to race, ethnicity, and gender. For example, she initiated studies of social and economic indicators for blacks to try to explain why there were still disparities. She noted that the previous commission would look at the aggregate numbers and say there’s a gap in earnings, there’s a gap in education, so it must be the result of discrimination. “We tried to do a better job of disaggregating the numbers while looking at all the factors that went into determining such things as wages.”44
The two commissioners Chavez worked most closely with were Abram and John Bunzel, both of whom she would speak to about the commission’s work on a regular basis. She found Abram easy to work with, notable given the fact that “he was such a powerful alpha male personality.”45 Chavez was particularly proud of the commission’s work on “comparable worth,” an issue raised by those who contend that gender discrimination is the principal cause of the disparity in the earnings of men and women. Bunzel had been reluctant to see the commission take on this hot button issue, but the staff director found a strong ally in Abram. He played the role of getting his colleague not to object to the study, which Chavez said he was able to do because the two of them had a strong peer relationship as former college presidents: “Morris was very willing to play that role, which you sort of think of him coming in and wanting to take over. He was, of course, the vice-chairman, but Clarence Pendleton was the chairman. And he didn’t seem to have a problem with that, which I thought was remarkable for a man of his stature.”46
The issue of comparable worth had not been on commissioner Robert Destro’s radar screen. The midwestern son of a policeman, Destro was much more interested in the question of comparable police protection. Acknowledging discrimination in the workplace, he saw the issue of comparable worth as one fraught with danger to trade unions: “If you’re telling me a bunch of pointy-headed intellectuals should decide what jobs are worth in the workplace, you’re going to destroy the unions.”47
According to Destro, comparable worth is a form of affirmative action. “And Morris went after it the way he normally did.” In a New York Times op-ed Abram warned of dangers ahead if the country went down the path of equating jobs “that have entirely different market values.”48 Abram pointed out that the wage gap narrowed when other factors, such as schooling, education, marital status, and job choice were taken into consideration. By putting wage and salary decisions in the hands of bureaucrats and other “experts,” any deviations would result in lawsuits where employers would bear the burden of proof. And many women would suffer, since by raising wages in jobs to non-market levels, employers would seek ways to eliminate them through automation.
Abram left himself open to criticism through his provocative observation that comparable worth marked a departure from the civil rights revolution by moving us “from the assertion of civil and political equality, which we all support, to economic and social equality, which many of us do not support.” It was not until the next sentence that he clarified the statement to mean “guaranteed” equality, which negatively impacts freedom “by making government the arbiter of the rewards of human effort.”49
The response from the leadership of the Congressional Caucus for Women’s Issues was scathing. Congresswomen Patricia Schroeder and Olympia Snowe wrote that the “shameful” statement by the vice-chairman of the U.S. Commission on Civil Rights had revealed the commission’s agenda on this and other issues “with disgraceful clarity.” They declared his comment that many Americans do not support economic and social equality as “utterly backward and entirely unsupportable,” an observation that “flies in the face of our nation’s history and its aspirations.” Quoting President Reagan’s most recent state of the union address that minorities would not have full power until they had full economic power, they said that for once, the Civil Rights Commissioner was taking a position independent of the president.50
The reconstituted commission continued to draw controversy as it tried, in the words of its vice-chairman, to replace polemics with serious academic work in determining the causes of inequality among blacks, whites, and other groups. Abram said the new commissioners favored what he called “a fair shake” for individuals as opposed to preferences for particular groups in order to foster equality of results.
In a statement issued by the commission in February 1985, Chairman Pendleton and Vice-Chairman Abram called upon the civil rights community to acknowledge the difference between what they called “nondiscriminatory” affirmative action and racial preferences, whether called a quota or a goal. A competing statement was issued by the two commission holdovers from the Carter administration, Berry and Cardenas, who contended that “civil rights laws were not passed to give civil rights protection to all Americans,” but rather “out of a recognition that some Americans already had protection because they belong to a favored group; and others, including blacks, Hispanics, and women of all races, did not because they belonged to disfavored groups.” Abram told the New York Times that, by contrast, a majority of the commission disagreed with this perception, believing that civil rights laws were meant to apply to all Americans.51
Abram expanded on his opposition to both quotas and goals in employment in a 1984 debate with Berry published in the Bureau of National Research’s Employee Relations Weekly. Quotas and goals, he wrote, share the same root—namely, the mistaken assumption that the qualifications for any given job are distributed identically among groups, with the conclusion that each group must be represented proportionately in that job.52 By contrast, he pointed favorably to a decision in a class action lawsuit brought in the Northern District of Georgia charging a trucking company with discrimination in which the court granted an injunction against the disparate treatment of women (Kilgo v. Bowman). In his opinion Judge Marvin Shoob rejected the plaintiffs’ request for goals and quotas, requiring instead a detailed plan to prevent discrimination, the removal of all barriers impeding the hiring of women, and outreach and recruitment that included training and counseling programs to qualify them. The court ruled that “Preferential treatment on the grounds of sex, by means of a quota, is destructive of self-respect and merely substitutes one form of discrimination for another.”53
All the major civil rights groups scheduled to testify before the Civil Rights Commission’s two-day consultation and hearing on affirmative action the first week of March 1985 pulled out, claiming its majority had already made up its mind.54 Abram continued to pay a personal price for his outspoken views, telling a New York Times reporter that old friendships had chilled over honest political differences, something for which he grieved. His longtime friend Vernon Jordan, whom he had called “my brother in every confidence and dream” in a major address a decade earlier, declared the reconstituted commission “useless.” Because it had violated its historic mandate of independence, he said, it should be abolished.55
To Abram, his transformation from civil rights hero to civil rights villain over a period of two decades could be attributed to a misunderstanding of the difference in this country over the true meaning of the term. Abram believed that America’s constitutional democracy was built not on the proposition that people are guaranteed a piece of the economic pie; rather, “it is up to each individual to compete for economic goods, constitutionally protected from interference by guarantees of equal protection under law, due process, the Bill of Rights, and most fundamentally, the ballot.”56 So, while society must provide for the poor or disadvantaged, there is no constitutional right to health care or housing subsidies, “any more than a farmer has a constitutional right to a tobacco subsidy or Chrysler a bailout.”57
Abram believed that when economic and social goals became labelled “civil rights,” the movement lost a measure of its moral force and therefore its unity. “Americans, who were persuaded to salute civil rights as they did the flag,” he wrote, “were not willing to pledge allegiance to a certain level of food stamp spending.”58
As for the argument that racial preferences were needed to compensate black citizens for past discrimination, he argued that the logic of that proposition would lead black voters to be rewarded additional votes or that white voter registration should be suspended until the proportion of registered blacks were equivalent to the number of registered whites.59 The fact that no one would dare advocate such a measure demonstrated its absurdity. Abram’s effectiveness in arguing the case against racial quotas was a function of not only his skills as an advocate but also the clarity and consistency of his argument. But just as his obligations as a lawyer complicated his pure commitment to principle in the case of Lucido v. Cravath, Swain, and Moore in the 1970s, another case emerged at the very end of the decade that raised questions about whether those principles had to give way to the imperatives of representing clients.
The controversy involved a massive housing project located near the poor black East New York section of Brooklyn. At the time, Starrett City was one of the largest subsidized housing projects in the country, with forty-six apartment buildings totaling nearly six thousand units. In an effort to maintain racial integration, the owners imposed a quota on black families applying for apartments in order to keep the project from “tipping” to a segregated community by being abandoned by white residents. Since the tipping point for white families was believed originally to be any number below 70 percent of occupancy, black families were placed on a waiting list until that level of white residency (eventually reduced to 65 percent) was reached.
When the quota was challenged at the end of 1979 under the Fair Housing Act of 1968 in a class action suit brought by the NAACP and other civil rights organizations on behalf of five black families waiting for a subsidized apartment, Starrett City engaged Morris Abram to defend it. In the spring of 1984, an agreement was reached between the corporation and the lawyers for the black families, along with the NAACP, which forced the alteration of racial rental policies in eighty-six projects subsidized by the state housing authority, affecting the residents of nearly seventy thousand apartments.60
Challenged to explain why he was defending a clearly race-conscious policy, Abram said that in addition to carrying out his obligation to his client, the policy was perfectly legitimate inasmuch as it was promulgated to achieve the objective of the Fair Housing Act, which was to achieve integrated housing. “No one can say that this project isn’t superb,” he said. “Nobody can suggest that it is anti-black. But if you’re going to have integration, you have to respect the ‘tipping’ problem.”61 Abram said that the settlement the parties had agreed to “recognizes the need for a managed rent roll, managed occupancy, in order to preserve the principles of integration.”62
Following the settlement, the Reagan Justice Department indicated its intention to bring a suit challenging the legality of the quota, one now supported not only by Abram but also by the NAACP and other civil rights groups. In a letter to his friend William Bradford Reynolds, the Department’s civil rights chief, Abram argued that given the settlement agreement, it was not necessary for any court to determine what actions were authorized by the act. To Abram, the key points were not the difficult legal questions involved but rather the results of the policy. Why waste the scarce resources of the Civil Rights Division, he argued, when as a result of the policy, “Starrett City is one of the nation’s most successful, large integrated housing projects. For nearly ten years, persons of all races and a wide variety of ethnic groups have lived together in well-maintained moderate-low income housing built on a site reclaimed from a swamp and a garbage dump. . . . This progress should not be disrupted or disturbed.”63
In response, Reynolds expressed his respect for the effort to resolve the dispute in a manner satisfactory to all the parties involved. But the fact remained that the Justice Department had a fundamental disagreement with Abram’s interpretation of the act, the purpose of which was to prevent discrimination in housing on the basis of race. Discrimination to force a racial balance, Reynolds argued, was no more justified than one to force a racial imbalance.64
The lower courts agreed with the Justice Department’s position. But Abram persisted. Although by 1988 he was in semi-retirement from his law firm and no longer the lead counsel on the case, Abram sought to sharpen his colleagues’ petition to the Supreme Court for a hearing. He advised them to put up front the stark contrast between Reynolds’s views and “what we know to be the purpose of the Act.” He suggested the following language: “This petition for the writ asks the court to protect the largest, the most successful, integrated subsidized housing project in the United States from being turned into another large urban ghetto.”65 It was to no avail. The Supreme Court let the lower court decisions stand.
Not surprisingly, Abram came in for criticism from liberals who charged him with hypocrisy for his support of a discriminatory quota. According to the New Republic, Abram’s defense of Starrett City “profoundly subverts the neo-conservative position on quotas.” The Village Voice was less subtle, bestowing on Abram the “Let’s Pull up the Ladder After I Get into the Lifeboat Award,” which is “given to the New Yorker who does the most to diminish equal opportunity for blacks and Hispanics.”66
Before he left the Civil Rights Commission in 1986, Abram contributed to a Harvard Law Review symposium on affirmative action in which he divided its two contrasting groups of advocates into “fair shakers” and “social engineers.” While those in the former category believe that government should assure access to all spheres of public activity, be it social, economic, or political, those in the latter argue that it is the role of government to ensure that minorities are represented in all institutions and occupations in proportion to their percentage in the population, the absence of which would be proof of past and/or present discrimination.67
The first social engineers with whom Abram said he came into contact were those who devised the county unit system in his native state of Georgia. They justified assigning disproportionate power to rural interests in much the same way as their modern counterparts, arguing that they lacked not only the benefits of good schools, libraries, health services, and so forth, as in places like Atlanta, but also the potential power of the city’s voting blocs. Of course, those earlier engineers had more in mind than boosting the fortunes of rural voters, knowing that by dominating state politics, they could maintain the segregationist system they were able to do locally through intimidation.
Abram wrote that these early experiences made him wary of those advocating “code-colored group rights” and other substantive notions of justice inconsistent with the equality of everyone before the law. “The role of securing racial justice,” he came to believe, was best limited to “vigilant concern with equal opportunity, procedural regularity, and fair treatment of the individual.”68
Abram debunked the notion that all unequal results must be the result of discrimination. The idea of advocating for proportionality in occupations, repudiated as far back as the nineteenth century by none other than the preeminent black leader Frederick Douglass, ignores the fact, he pointed out, that minority groups (as well as majorities, he might have added), “do not necessarily have the same distribution of, among other characteristics, skills, interest, motivation, and age.”69
Abram cited the pronouncements of Justice William Douglas and constitutional scholar Alexander Bickel to debunk the idea that the U.S. Constitution can accommodate a color-conscious interpretation. In the case of DeFunis v. Odegaard, a forerunner of the Bakke case, Douglas noted that the Equal Protection clause of the Fourteenth Amendment “commands elimination of racial barriers, not their creation, in order to satisfy our theory as to how society should be organized.” And to Bickel, “The great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.”70
Returning to a theme he had written about a decade earlier and that Senator Jackson cited in his support for his nomination to the Civil Rights Commission, Abram noted the potential destructiveness of policies championed by the new social engineers to American society itself. Noting that this country is a highly pluralistic one where many have suffered discrimination, “how and by whom shall the varying grievances of different groups be weighed and judged in order to decide what varying levels of compensation society should pay?” Quoting Professor Paul Brest in a 1976 Harvard Law Review article reviewing the history of the anti-discrimination principle, most societies allocating power according to race and ethnicity “are strikingly oppressive, unequal, and unstable.” And in the ultimate irony, color-conscious policies have done, in the words of Harvard sociologist Nathan Glazer, “just about nothing” to improve the progress of black Americans.71
Finally, Abram turned to the current debate over the very definition of civil rights, the way it was being waged, and his own role as someone who was being written out of the very movement in which he played a key role. The reason the civil rights movement triumphed, he said, was because it had a broad-based appeal to the American people who in the end acknowledged the justice of equal opportunity for all. In turning traditional civil rights to redistributionist rights, large segments of the civil rights lobby have made support for those policies a precondition for being part of the movement, and losing the support of many of those, black and white, “who sustained the movement from the outset.” Abram ended the article by appealing to social engineers to refrain from masking their redistributionist goals as civil rights, since such rights belong to everyone, and are too important “to be captured by a set of special interests.”72
The Harvard Law Review article represented a valedictory for Abram’s long career in the struggle for civil rights. That year he submitted his resignation to President Reagan as vice-chairman of the U.S. Commission on Civil Rights, writing that he believed the civil rights movement “should return to first principles—the zealous regard for equal opportunity and the promotion of colorblind law and social policy.”73 In a letter to his daughter Ann in February 2000, one month before his death, he told her he would never forget those days, “when the entire civil rights establishment appeared to praise me and then opposed my appointment to the Civil Rights Commission because I did not favor racial preferences.”74 By the mid-1980s Abram had already turned to a larger stage, returning to the cause of international human rights that would command his attention for the remainder of his life.