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Published online by Cambridge University Press: 11 October 2021
This essay tells the story of the development of two of the most significant and controversial entitlement programs in twentieth-century U.S. history—collective bargaining and affirmative action. It focuses on the nexus between them—how New Deal empowerment of labor unions contributed to racial discrimination, and thus fed the Great Society race-based programs of affirmative action. The evolving relationship between the courts and the bureaucracies is emphasized, particularly how the judiciary went from an obstacle to an enabler of the entitlement state.
History Department, Hillsdale College, [email protected].
1 Graham, Hugh Davis, “The Great Society’s Civil Rights Legacy,” in The Great Society and the High Tide of Liberalism, ed. Sidney Milkis, and Mileur, Jerome M. (Amherst: University of Massachusetts Press, 2005), 376.Google Scholar
2 Gould, William B. IV “Title VII of the Civil Rights Act at Fifty: Ruminations on Past, Present, and Future,” Santa Clara Law Review 54 (2014): 371.Google Scholar
3 Kersch, Ken I., Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge: Cambridge University Press, 2004), 10.CrossRefGoogle Scholar
4 Even if Title VII were interpreted as requiring the color-blind, equal treatment of individuals, rather than race-conscious equal-group outcomes, it would still provide an entitlement rather than a right.
5 Address at Commonwealth Club, San Francisco, September 23, 1932, in Public Papers and Addresses of Franklin D. Roosevelt, compiled by Samuel L. Rosenman, ed., 13 vols. (New York: Macmillan and Harper, 1938–50), I: 42-56,
6 The Supreme Court in 1968 decided that it did—Jones v. Mayer, 392 U.S. 409.
7 Peter H. Schuck, Diversity in America: Keeping Government at a Safe Distance (Cambridge, MA: Harvard University Press, 2003), 134.
8 Sharp, Elaine B., The Sometime Connection: Public Opinion and Social Policy (Albany: SUNY, 1999), 76, 102 Google Scholar; Le, Loan and Citrin, Jack, “Affirmative Action,” in Public Opinion and Constitutional Controversy, ed. Nathaniel Persily, et al. (Oxford: Oxford University Press, 2008), 164–66.Google Scholar
9 The classic expressions are Roscoe Pound, “Liberty of Contract,” Yale Law Journal 18 (1909): 454, and Hale, Robert L., “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly 38 (1923): 470.CrossRefGoogle Scholar
10 Individuals had no cause of action under the Wagner Act, which recognized only organizations of workers.
11 Landis was certainly referring to “discrimination” against union organizers or members, not racial discrimination by employers or unions, which the Board rather abetted.
12 “The Development of the Administrative Commission,” address at the Swarthmore Club, February 27, 1937, in Walter Gellhorn, Administrative Law: Cases and Comments (Chicago: Foundation Press, 1940), 18.
13 Most employers tried to establish “employee representation plans,” or “company unions,” to avoid outside (mostly American Federation of Labor) unions.
14 There were five cases, at the time generally called “the Labor Board Cases,” led by NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937).
15 Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 35–42.
16 This Act contained a provision (section 7[a]) meant to promote collective bargaining, and President Roosevelt established two labor boards to do so. Though ineffective, these boards established the principles that went into the Wagner Act.
17 The Court would accept legislative delegation to agencies if Congress provided an “intelligible principle” to guide the administrators—J. W. Hampton v. U.S., 276 U.S. 394 (1928), 409.
18 George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge: Cambridge University Press, 2003), 218.
19 49 Stat. 449 (1935), sec. 1.
20 Christopher Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (Cambridge: Cambridge University Press, 1985), sees the Wagner Act as sacrificing workers’ rights to aid the industrial peace required by “corporate liberalism.”
21 The dissenters brought these up, particularly in the case of Friedman v. Harry-Marks, 301 U.S. 76 (1937).
22 Cass R. Sunstein, “Naked Preferences and the Constitution,” Columbia Law Review 84 (1984): 1689.
23 The Secret Diary of Harold L. Ickes: The First Thousand Days, 1933–36 (New York: Simon and Schuster, 1953), 524; Bernstein, Irving, The New Deal Collective Bargaining Policy (Berkeley: University of California Press, 1950), 116.CrossRefGoogle Scholar
24 Section 8 (5).
25 Gross, James A., The Reshaping of the NLRB: National Labor Policy in Transition, 1937–47 (Albany: SUNY, 1981), 18.Google Scholar
26 Section 9 (b-c).
27 Cushman, Robert E., The Independent Regulatory Commissions (New York: Oxford University Press, 1941), 362.Google Scholar
28 The Board itself housed quite a few communists, particularly its Secretary, Nathan Witt (Gross, Reshaping of the NLRB, 142–46). Nine communist-dominated unions would be expelled from the CIO in 1949.
29 See note 12, above.
30 304 U.S. 144 (1938).
31 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980) is the classic statement of the “democratic process” defense of judicial power. Works on “representative bureaucracy” extend it into administrative agencies.
32 Interior Secretary Harold Ickes and NLRB member James Reynolds claimed that Truman favored the Act, but vetoed it to placate the unions, knowing that his veto would be overridden. Martin Halpern, UAW Politics in the Cold War Era (Albany: SUNY, 1988), 204.
33 The combination of legislative, executive, and judicial powers in administrative agencies was the principal constitutional objection to the new bureaucratic state. That problem was addressed in the Administrative Procedure Act of 1946, but the NLRB was singled out for special treatment in Taft-Hartley.
34 This may have been because the Board interpreted the Taft-Hartley Act to suit itself—Sylvester Petro, How the NLRB Repealed Taft-Hartley (Washington: Labor Policy Association, 1958).
35 Sec. 10 (c).
36 They had been empowered earlier—due to their vital place in the economy and clear identity as engaging in interstate commerce—going back to the Erdman Act of 1898, the Adamson Act of 1916, and especially the Railway Labor Act of 1926.
37 Axelrod, Jonathan G. and Kaufman, Howard J., “Mansion House—Bekins—Handy Andy: The NLRB’s Role in Racial Discrimination Cases,” George Washington Law Review 45 (1977): 682.Google Scholar
38 Weiss, Nancy J., The National Urban League, 1910–1940 (New York: Oxford University Press, 1974), 275.Google Scholar
39 Katznelson, Ira, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America (New York: Norton, 2005), 53–79.Google Scholar
40 Belton, Robert, “A Comparative Review of Public and Private Enforcement of Title VII of the Civil Rights Act of 1964,” Vanderbilt Law Review 31 (1978): 912 Google Scholar; Frymer, Paul, “Acting When Elected Officials Won’t: Federal Courts and Civil Rights Enforcement in the United States, 1935–85,” American Political Science Review 97 (2003): 485.CrossRefGoogle Scholar
41 Steele v. Louisville and Nashville RR, 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210 (1944).
42 Steele v. Louisville and Nashville RR, 200-201.
43 NLRB v. Hughes Tool Co., 104 NLRB 318 (1953)—known as the “first Hughes Tool case.” Vincent Martin Bonaventure, “The Duty of Fair Representation Under the Taylor Law: Supreme Court Development, New York State Adoption, and a Call for Independence,” Fordham Urban Law Journal 20 (1992): 8-12. The Wagner and Taft-Hartley Acts permitted judicial review of the Labor Board’s unfair practice decisions, but not of its certification decisions, so blacks who lost a decertification case could not appeal the Board’s decision.
44 Hughes Tool Co., 147 NLRB 1573 (1964)—the “second Hughes Tool case.”
45 Sophia Z. Lee, The Workplace Constitution: From the New Deal to the New Right (New York: Cambridge University Press, 2014), 175. The Board held back its decision for fear that it would be interpreted this way—ibid., 150.
46 The Silent Sell-Out: Government Betrayal of Blacks to the Craft Unions (New York: Third Press, 1974), 26.
47 Boyce, Timothy J., Fair Representation, the NLRB, and the Courts (Philadelphia: Wharton Industrial Research Unit, 1978).Google Scholar
48 3 CFR 957 (1941).
49 Ex. Ord. 10925 (1961).
50 Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy (Oxford: Oxford University Press, 1990), 34–35. The Wagner Act empowered the Labor Board to order employers to take affirmative action to benefit victims of anti-union discrimination. It had nothing to do with racial discrimination.
51 Dobbin, Frank, Inventing Equal Opportunity (Princeton, NJ: Princeton University Press, 2009).CrossRefGoogle Scholar
52 Graham, Civil Rights Era, 47–67.
53 Moreno, Paul D., From Direct Action to Affirmative Action: Fair Employment Law and Policy in America, 1933–72 (Baton Rouge: Louisiana State University Press, 1997), 193–96.Google Scholar
54 Board orders could be challenged in court, but courts almost always upheld them, so they were considered self-enforcing. See Reuel Schiller, “The Age of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law,” Michigan Law Review 106 (2007).
55 Arthur Earl Bonfield, “The Origin and Development of American Fair Employment Legislation,” Iowa Law Review 52 (1967): 1043–92; “An American Legal Dilemma: Proof of Discrimination,” University of Chicago Law Review 14 (1949): 107–25.
56 Collins, William J., “The Labor Market Impact of State-Level Anti-Discrimination Laws, 1940–1960,” Industrial and Labor Relations Review 56 (2003): 244–72.Google Scholar
57 Moreno, From Direct Action, 2.
58 Blumrosen, Black Employment and the Law, 19, 85.
59 Congressional Record 110 (March 19, 1964): 5664. See generally, Kovarsky, Irving, “The Harlequinesque Motorola Decision and Its Implications,” Boston College Industrial and Commercial Law Review 7 (1966): 535–47.Google Scholar
60 The original test was no longer extant. Myart passed a retest administered by the trial examiner.
61 Motorola v. Illinois FEPC, 51 L.C. 323 (1965); Motorola v. Illinois FEPC, 34 Ill. 266 (1966).
62 This was partly because of the (probably erroneous) belief that earlier Supreme Court interpretation had made the Fourteenth Amendment unenforceable, and also because the chairman of the Senate Commerce Committee (Warren Manguson) was more friendly to civil rights than the segregationist chairman of the Senate Judiciary Committee (James O. Eastland).
63 This, of course, would run into Fifth and Fourteenth Amendment objections, such as those that had to be overcome to secure affirmative action.
64 An individual victim of anti-union discrimination had no private right to sue if the Labor Board rejected his claim.
65 Blumrosen, Alfred W., Modern Law: The Law Transmission System and Equal Employment Opportunity (Madison: University of Wisconsin Press, 1993), 42.Google Scholar
66 Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States, 40th Anniversary edition (New York: Norton, 2009); Blumrosen, Black Employment and the Law, ix, 4–6.
67 Terry M. Moe, “Interests, Institutions, and Positive Theory: The Politics of the NLRB,” Studies in American Political Development (1984): 282.
68 Sec. 703(a). The addition of “sex” to the traditional categories of “race, creed, color, and national origin” was a surprise, the work of Virginia Representative Howard W. Smith, a longtime foe of civil rights legislation. It is usually assumed that he offered the amendment as a “poison pill” to help defeat the bill, but he may have been seeking to protect white women, whom he figured would be dismissed to make way for blacks. Graham, Civil Rights Era, 136.
69 Sec. 703(j).
70 Congressional Record, 88th Cong., 2d Sess. (April 9, 1964), 7420; (June 4, 1964): 12723.
71 Sec. 703(h).
72 June 4, 1965, in Public Papers of the Presidents of the United States: Lyndon B. Johnson (Washington, DC: GPO, 1966), II: 635–40.
73 The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training (Washington, DC: Brookings, 1969), 93.
74 Moreno, From Direct Action to Affirmative Action, 2.
75 Richard P. Nathan, Jobs and Civil Rights: The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training (Washington, DC: Brookings, 1969), 109–19; Graham, Civil Rights Era, 287–90. The Plan applied to six and at times seven specific crafts.
76 Contractors Association v. Shultz, 311 F. Supp. 1002 (1970).
77 Contractors Association v. Shultz, 442 F. 2d 159 (1971).
78 Graham, Civil Rights Era, 341–43.
79 The AFL-CIO did not oppose nondiscrimination provisions like Powell’s. The repeal of 14(b) failed even after the Civil Rights Act of 1964 had enacted one. Arguably, Title VII contained a provision (section 703[h]) to protect discriminatory union seniority systems—discussed below.
80 A. J. Thieblot, “The Fall and Future of Unionism in Construction,” Journal of Labor Research 22 (2001): 287; Bureau of Labor Statistics, Economic News Release, January 18, 2019.
81 Fletcher, The Silent Sell-Out.
82 Sovern, Michael, Legal Restraints on Racial Discrimination in Employment (New York: Twentieth Century Fund, 1966), 205.Google Scholar
83 David B. Oppenheimer et al., “Be Careful What You Wish For: Ronald Reagan, Donald Trump, the Assault on Civil Rights, and the Surprising Story of How Title VII Got Its Private Right of Action,” Berkeley Journal of Employment and Labor Law 39 (2018). The labor board predecessors of the NLRB had done the same thing in 1933–35, giving up efforts to settle industrial disputes and promulgating policies that would empower unions, which then were written into the Wagner Act. Gross, Making of the National Labor Relations Board, 77.
84 Blumrosen, Black Employment and the Law, 52. Arthur Fletcher brought Blumrosen to the OFCC when launching the Philadelphia Plan.
85 Belz, Equality Transformed, 44.
86 Silverstein, Mark and Ginsberg, Benjamin, “The Supreme Court and the New Politics of Judicial Power,” Political Science Quarterly 102 (1987): 371–88CrossRefGoogle Scholar; Frymer, “Acting When Elected Officials Won’t,” 484–91.
87 This was presaged in the 1938 Federal Rules of Civil Procedure, in which more restrictive common-law procedures gave way to more flexible equitable ones.
88 David H. Rosenbloom, “The Judicial Response to the Rise of the Administrative State,” American Review of Public Administration 15 (1981): 29–51.
89 These agreements were made under the auspices of the NLRB. After 1964, unions blamed management for the old segregation, and management blamed the unions.
90 Whitfield v. United Steelworkers, 156 F. Supp. 430 (1959).
91 This would allow blacks to take their accrued seniority into white jobs as vacancies arose. It did not permit them to displace incumbent whites—the more radical doctrine known as “freedom now.” See “Title VII, Seniority Discrimination, and the Incumbent Negro,” Harvard Law Review 80 (1967): 1268.
92 Quarles v. Philip Morris Co., 279 F. Supp. 505 (1968), 516.
93 The terms “disparate impact” and “disparate treatment” were coined in a 1976 legal treatise and adopted by the Supreme Court the next year. Michael Evan Gold, “Disparate Impact Is Not Unconstitutional,” Texas Journal on Civil Liberties and Civil Rights 16 (2011): 173.
95 401 U.S. 424 (1971). The Court would later trim its deference to the Commission. Theodore W. Wern, “Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second-Class Agency?” Ohio State Law Journal 60 (1999): Melissa Hart, “Skepticism and Expertise: The Supreme Court and the EEOC,” Fordham Law Review 74 (2006).
96 Gould, William B., Black Workers in White Unions: Job Discrimination in the United States (Ithaca, NY: Cornell University Press, 1977), 92.Google Scholar
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98 C. Boyden Gray, “Disparate Impact: History and Consequences,” Louisiana Law Review 54 (1994): 1491; Michael H. Gottesman, “Twelve Options to Consider Before Opting for Racial Quotas,” Georgetown Law Journal 79 (1991): 1750. Unions continued to resist the present-effects doctrine in seniority cases and were able to get the Supreme Court to dilute it, just as they were able to extricate themselves from the Labor Department’s Philadelphia Plan. Union seniority was “the only part of Title VII [that the Court] was inclined to interpret in accordance with the intent of Congress, and the only political value it was willing to assert against the rule of racial preference”—Belz, Equality Transformed, 212.
99 United Steelworkers v. Weber, 443 U.S. 193 (1979). These quotas were not really “voluntary.” Though not imposed by a court, they were adopted in legally enforceable “consent decrees.”
100 Delton, Jennifer, Racial Integration in Corporate America, 1940–90 (Cambridge: Cambridge University Press, 2009), 278;CrossRefGoogle Scholar Dobbin, Inventing Equal Opportunity.
101 Robert R. Detlefsen, “Affirmative Action and Business Deregulation: On the Reagan Administration’s Failure to Revise Executive Order No. 11246,” in Presidential Leadership and Civil Rights Policy, ed. James W. Riddlesperger, Jr. and Donald W. Jackson (Westport, CT: Greenwood, 1995); Graham, Hugh Davis, “The Civil Rights Act and the American Regulatory State,” in Legacies of the 1964 Civil Rights Act, ed. Grofman, Bernard (Charlottesville: University of Virginia Press, 2000), 59.Google Scholar
102 Moe, “Interests, Institutions, and Positive Theory,” 282; Gray, “Disparate Impact,” 1492; Detlefsen, “Affirmative Action and Business Deregulation,” 68.
103 S. 2014, section 13, Congressional Record 137 (October 22, 1990): 16457.
104 105 Stat. 1071 (1991)
105 Graham, “The Great Society’s Civil Rights Legacy,” 376.
106 Some commentators claimed that Congress, by not repudiating disparate impact in 1972 amendments to the Civil Rights Act, had tacitly provided legislative consent—as if its failure to exercise a “legislative veto” validated bureaucratic policy. Congress also enacted racial set-asides for minorities in the 1977 Public Works Employment Act.
107 Mayer, With the Stroke of a Pen, 213; “Voters Narrowly Reject Affirmative Action in Washington State,” New York Times, November 13, 2019; Alexander Nieves, “California Voters Reject Affirmative Action Measure Despite Summer of Activism,” Politico, November 4, 2020.
108 Blumstein, “Doing Good the Wrong Way,” 934.
109 James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (New York: Cambridge University Press, 1978); cf. Adrian Vermuele, “What Legitimacy Crisis?” CATO Unbound, May 9, 2016.
110 Sharp, The Sometime Connection, 76.
111 Le and Citrin, “Affirmative Action,” 164–66.
112 Conde, James R. and Greve, Michael S., “ Yakus and the Administrative State,” Harvard Journal of Law and Public Policy 42 (2019): 816 Google Scholar; Hirschl, Ran, Toward Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004).Google Scholar
113 Building a New American State (Cambridge: Cambridge University Press, 1982).
114 Blumrosen, Modern Law, 102–107.
115 Graham, Civil Rights Era, 469.
116 Oppenheimer et al., “Be Careful What You Wish For”; Robert C. Lieberman, “Private Power and American Bureaucracy: The EEOC and Civil Rights Enforcement,” American Political Science Association Address, 2006.
117 Gould, “Title VII of the Civil Rights Act at Fifty,” 399; Dobbin, Inventing Equal Opportunity, 227.