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MIAMI UNIVERSITY The Graduate School

Certificate for Approving the Dissertation

We hereby approve the Dissertation

Jewerl Maxwell

Candidate for the Degree:

Doctor of Philosophy

______Director Dr. Ryan Barilleaux

______Reader Dr. Augustus Jones

______Reader Dr. John Rothgeb

______Graduate School Representative Dr. Allan Winkler

Abstract

In his 2001 text With a Stroke of a Pen, Kenneth Mayer contended, “Affirmative action – or the practice of granting preferences in employment, contracting, or education on the basis of race and gender – is largely a creature of executive action” (202). In spite of the substantial role played by America’s chief executives in enactment of such policies, with the exception of Mayer’s brief analysis in his chapter on civil rights, explanations regarding how and why presidents have enacted such policies have eluded presidency scholars.

Thus, the primary objective of this study is to identify and explain the answer to the following questions: 1) To what extent have modern presidents used executive orders to establish federal affirmative action policy in the realm of equal employment opportunity for underrepresented groups in American society, prior to actions taken by other governmental institutions? 2) What factors explain presidential decision-making regarding executive orders pertaining to equal employment opportunity for underrepresented groups?

To accomplish this, I examine the decision-making process regarding Lyndon Johnson’s issuance of Executive Order 11246 in the aftermath of the passage of the Civil Rights Act of 1964; the decision-making process regarding President Nixon’s issuance Executive Order 11478, which in affect brought about the institutionalization of federal affirmative action policy; the decision-making process regarding Ronald Reagan’s decision not to issue an executive order drafted by his attorney general that would have eliminated all federal affirmative action programs; and the decision-making process regarding Bill Clinton’s issuance of Executive Order 13087, which extended federal equal employment opportunity programs to homosexuals.

PRESIDENTIAL AFFIRMATIVE ACTION:

THE ROLE OF PRESIDENTIAL EXECUTIVE ORDERS IN THE ESTABLISHMENT, INSTITUTIONALIZATION, & EXPANSION OF FEDERAL EQUAL EMPLOYMENT OPPORTUNITY POLICIES

A DISSERTATION

Submitted to the Faculty of Miami University in partial fulfillment of the requirements for the degree of Doctor of Philosophy

Department of Political Science

Jewerl Thomas Maxwell Miami University Oxford, Ohio 2008

Dissertation Director: Dr. Ryan J. Barilleaux

Table of Contents

Chapter 1: Introduction 1

Chapter 2: Scholarship 10

Chapter 3: The Presidency and Civil Rights, 1933-1963: The Birth of Equal Employment Opportunity Policy 27

Chapter 4: The Establishment of Federal Affirmative Action, 1964-1968 63

Chapter 5: The Institutionalization of Federal Affirmative Action, 1969-1980 86

Chapter 6: The Sustainability of Federal Affirmative Action, 1981-1992 125

Chapter 7: The Expansion of Federal Affirmative Action, 1993-2000 169

Chapter 8: Conclusion 203

Bibliography 215

To my wife and best friend Julie, who supported me throughout graduate school and continually challenges me to pursue all of my dreams.

iii

Acknowledgements

I owe a special thanks to all who have contributed to my intellectual development in general, and to this project, in particular. First, this dissertation would not have been possible without almighty God, who blessed me with the talents and abilities necessary to complete this project. More importantly, He blessed me with the gift of salvation through His son Jesus Christ. Second, this dissertation would not be possible without my loving family. I am especially indebted to my wife and best friend, Julie, along with my parents, Gary and Sharon Maxwell, who sacrificed so much, so that I could receive a great education and a Christian upbringing. Third, this dissertation is a result of a variety of friends who provided me with support while I attended Miami. I am particularly grateful to the wonderful people at Lindenwald Baptist Church, along with my fellow classmates at Miami. Fourth, this dissertation would not be possible without the superb faculty and staff at Muskingum College and Miami University. Dr. Huber and Dr. King at Muskingum gave me the necessary undergraduate preparation, which allowed me to excel at Miami. Once at Miami, I learned so much from all of my professors. I am especially thankful for the continued leadership Dr. Rothgeb provides for the graduate program, the guidance and support I received from Dr. Barilleaux, the kindness extended to me by Dr. Jones from my very first visit and throughout my entire time at Miami, the intellectual stimulation required by Dr. Russo, the thought-provoking conversations initiated by Dr. Brown, the lessons in linguistics and writing from Dr. Winkler, and the sincerity of Dr. Marshall. Thank you also to Betsy Burger, who not only does so much for the graduate program, but has also become a dear friend of mine. Lastly, this dissertation would not have been possible without the wonderful people at Emory & Henry College, who provided me with a wonderful opportunity to become a part of their family for the 2007-08 academic year, and continued to remind me of the importance of completing this project. I am particularly grateful to Joe Lane, who mentored me and taught me lessons I will use throughout my entire career.

CHAPTER 1 – INTRODUCTION

Affirmative Action has become the federal government’s chief method to advance civil rights and, as journalist Salim Muwakkil put it, a “symbol of America’s long-denied promise of racial equality.”

Dean Kotlowski, Nixon’s Civil Rights (2001: 261)

Forty-three years after President Lyndon Johnson signed Executive Order 11246 on September 24, 1965, the executive order known for formally establishing federal affirmative action programs; the issue of equal opportunity for underrepresented groups continues to play a major role in presidential politics. As Kenneth Mayer recently explained, “although most of the fundamental questions of the civil rights era are settled, those that remain – particularly with respect to the divisive question of affirmative action – ultimately revolve around the appropriate exercise of executive branch, and therefore presidential, authority to pursue social goals” (2001: 184). In fact, in the 2004 presidential election, during the third presidential debate, the moderator asked President George W. Bush and Senator John Kerry, “Do you see a need for affirmative action programs, or have we moved far enough along that we no longer need to use race and gender as a factor?” Affirmative action continues to garner considerable attention in presidential politics because throughout history presidents played the pivotal role in establishing such programs. Indeed, in one of the most comprehensive analyses of the presidential power to issue executive orders, Mayer wrote, “Affirmative action – or the practice of granting preferences in employment, contracting, or education on the basis of race and gender – is largely a creature of executive action” (2001: 202). Mayer further argued, “there are few areas in which executive orders have played a more significant role in effecting dramatic and widespread policies” than in the area of civil rights (2001: 184). Likewise, James MacGregor Burns described the presidency as “the most effective single protector of individual liberty in our governmental system” and claimed that presidential protection of civil rights and individual liberties is no longer tied to individual presidents, but has become institutionalized (1965: 281). Given Mayer’s assertions that affirmative action is “largely a creature of executive action,” and that executive orders have played such a substantial role in civil rights policy, in general, and affirmative action policy in particular, this study will examine how presidents used executive orders to shape federal affirmative action policy pertaining to equal employment

opportunities for underrepresented groups. In other words, this study addresses the extent to which affirmative action policy over the past forty years has been a by-product of executive action, with specific emphasis on employment. While Mayer’s definition of affirmative action included employment, contracting, and education, an analysis of presidential executive orders from 1964 through 2000 yields only one presidential executive order pertaining to government contracting,1 three regarding education,2 and twenty-five concerning employment.3 In addition, four additional orders sought to combat discrimination in federal assistance programs.4 Consequently, it is quite apparent that since 1964, presidential attempts to combat discrimination concentrated largely on federal employment programs, which is the reason this study focuses on federal affirmative action policy and equal employment opportunity.5 In spite of the substantial role played by America’s chief executives in the enactment of such policies, explanations regarding how and why presidents enacted such policies has eluded presidency scholars. In fact, we have yet to see a comprehensive analysis regarding presidential executive orders and the pursuit of equal employment opportunity for underrepresented groups since President Johnson’s signing of Executive Order 11246. Indeed, prior to Mayer’s twelve- page overview of presidential power and affirmative action, only three major works regarding the president’s role in civil rights policy surfaced since President Johnson’s establishment of federal affirmative action programs.6 In 1971, Allan Wolk published his text The Presidency and Black Civil Rights: Eisenhower to Nixon, where he focused primarily on presidential involvement in the implementation of legislative statutes dealing with civil rights, and thus ignored executive orders. Twenty-eight years later, Steven Shull published his text The President and Civil Rights Policy (1989), where he gave only cursory attention to the role that presidential executive orders played over the years in civil rights policy. Instead, his study focused principally on the interaction of

1 See Executive Order 12086, issued on October 5, 1978. 2 See Executive Order 12729, issued on September 24, 1990; Executive Order 12900, issued on February 22, 1994; and Executive Order 13160, issued on June 23, 2000. 3 See Table 1 below on pages 4 and 5. 4 See Executive Order 11764, issued on January 21, 1974; Executive Order 11914, issued on April 28, 1976; Executive Order 12250, issued on November 2, 1980, and Executive Order 13125, issued on June 7, 1999. 5 The focus on employment is further substantiated by Steven Shull’s finding that “more than half the executive orders on civil rights” concerned employment (1989: 95). 6 In his analysis The Presidency and the Politics of Racial Inequality (1999), Russell Riley confirmed my assertion that there have only been three major works regarding presidents and civil rights since 1965. On page 9 of his text, Riley wrote that only “a few works on the presidency and civil rights…span the labors of several administrations” and the only two scholars he cited in this regard were Morgan (1970) and Shull (1989). 2

presidents with other governmental and nongovernmental actors in the legislative process of civil rights policymaking. Thus, the last major publication to assess presidential policymaking via executive orders in the area of civil rights was Ruth Morgan’s The President and Civil Rights in 1970. Beyond Morgan’s analysis, we have seen a wide variety of scholarship regarding presidents and civil rights policy, but not the kind of comprehensive analysis she provided. For instance, some scholars analyzed particular presidents and their relationships with other governmental actors in the policymaking process (Amaker, 1988; Burke, 1985; Riddelsperger and Jackson, 1995; Miroff, 1981), while others evaluated the role of presidential rhetoric in advancing civil rights (Brown, 1995; Riley 1999). Still, none of these works focused particularly on the importance of presidential executive orders in regards to federal affirmative action policy and equal employment opportunity. Ironically, while Morgan’s analysis appears to be the last major publication to focus on the presidential use of executive orders in civil rights policy, it was in this analysis where she argued that the historical use of executive orders by presidents to combat discrimination in the employment policy arena ended with the signing of Executive Order 11246. According to Morgan, when President Johnson hosted the first national conference ever held on civil rights at the White House in July of 1966, the conference did not seek additional executive orders regarding fair employment practices because “Clearly the time had passed when the President needed to act under his independent constitutional authority in this area” (1970: 50). However, following this White House conference entitled “To Fulfill These Rights,” President Johnson did in fact sign an additional executive order regarding equal employment opportunity.7 Furthermore, we know that President Nixon’s signing of Executive Order 11478 on August 8, 1969 played a substantial role in institutionalizing the policy of affirmative action within the federal government. Therefore, we can conclude that developments since Morgan’s 1970 text proved her prediction wrong. Contrary to her assertion, since 1970, every president signed at least one executive order with the intent to initiate, amend and/or execute equal employment practices. Consequently, the goal of this dissertation is to provide a comprehensive analysis of presidential executive orders pertaining to federal affirmative action policy and equal

7 See Executive Order 11375 signed on October 13, 1967. 3 opportunity in employment since President Johnson’s signing of Executive Order 11246 in 1965. While Mayer’s brief synopsis effectively demonstrated how presidential usage of executive orders played a significant role in expanding the scope of civil rights policies and as he described, “ultimately pulled along both the courts and Congress” (2001: 185), I believe a broader examination of executive orders between 1964 and 20008 concerning federal affirmative action policy and equal opportunity in employment will further illustrate the significance of presidential initiative in this policy domain. In observing Table 1, one sees the vast importance of presidential executive orders regarding equal employment opportunities beginning with the Johnson administration and continuing through the Clinton administration.

Table 1: Presidential Executive Orders in Equal Employment, 1964-2000

President Executive Order Date Summary Lyndon Johnson 11141 2-12-1964 Declared policy against age discrimination Lyndon Johnson 11197 2-5-1965 Established the President’s Council on Equal Opportunity Lyndon Johnson 11246 9-24-1965 Established federal affirmative action for the first time Lyndon Johnson 11247 9-24-1965 Coordinated enforcement of Title VII under the Attorney General Lyndon Johnson 11375 10-13-1967 Established protections against gender discrimination Richard Nixon 11478 8-8-1969 Reiterated and expanded Johnson’s affirmative action policies Richard Nixon 11480 9-10-1969 Established the President’s Committee on Employment of the Handicapped Richard Nixon 11590 4-23-1971 Applied affirmative action policies outlined in Executive Order 11478 to the U.S. Postal Service Gerald Ford 11830 1-9-1975 Enlarged the membership of the Interagency Committee on Handicapped Employees Jimmy Carter 12067 6-30-1978 Outlined the Equal Employment Opportunity Commission’s coordination responsibilities Jimmy Carter 12068 6-30-1978 Transferred litigation

8 Because my study largely derives from historical documents, including memoirs of presidents and their staff, my study will conclude with the Clinton Administration, given that very little materials are currently available regarding the decision-making process within the current Bush Administration. 4

responsibilities under Title VII to the Attorney General Jimmy Carter 12086 10-5-1978 Consolidated enforcement of equal employment contract provisions Jimmy Carter 12106 12-28-1978 Transferred certain equal employment opportunity functions as part of reorganization plan Jimmy Carter 12144 6-22-1979 Transferred certain equal pay and age discrimination enforcement functions from the Department of Labor to the Equal Employment Opportunity Commission Ronald Reagan 12450 12-9-1983 Revised the membership of the Interagency Committee on Handicapped Employees Ronald Reagan 12640 5-10-1988 Established the President’s Committee on Employment of People with Disabilities George H.W. Bush 12672 3-21-1989 Revised the membership of the Interagency Committee on Handicapped Employees Bill Clinton 13078 3-13-1998 Established goal of increasing the employment rate of adults with disabilities Bill Clinton 13087 5-28-1998 Established policy that prohibited discrimination based on sexual orientation Bill Clinton 13145 2-8-2000 Prohibited federal employment discrimination based on genetic information Bill Clinton 13152 5-2-2000 Prohibited discrimination based on parental status Bill Clinton 13163 7-26-2000 Established policy to increase the number of disabled individuals employed by the federal government Bill Clinton 13171 10-12-2000 Established policy to increase the number of Hispanics employed by the federal government Bill Clinton 13172 10-25-2000 Amended Executive Order 13078 to include an emphasis on disabled youth Bill Clinton 13187 1-10-2001 Established the President’s Disability Employment Partnership Board

Research Questions & Outline The above table clearly illustrates the important relationship between presidential executive orders and federal equal employment opportunity policies since 1964. This dissertation seeks to provide insights regarding how and why presidents chose to take action via executive orders in these instances. Thus, the primary objective is to identify and explain the answers to the following questions: 1. To what extent have modern presidents used executive orders to establish federal affirmative action policy in the realm of equal employment opportunity for underrepresented groups in American society, prior to actions taken by other governmental institutions?

2. What factors explain presidential decision-making regarding executive orders pertaining to equal employment opportunity for underrepresented groups?

Using these two questions to guide my research, I will examine the political environment at the time presidents issued specific orders, with particular emphasis on the level of congressional support or opposition for the policy, and the reaction of the federal courts to the established policy. Regarding the first question, I am particularly interested in the extent to which presidents promoted equal employment opportunity prior to actions taken by Congress. Given that Congress is the nation’s preeminent legislative body, and thus is typically perceived as the institution with the responsibility of fostering significant policy reforms, I will examine how presidents used their unilateral executive power through issuing executive orders to initiate changes in federal affirmative action policy at times when Congress chose not to act. According to Mayer, “Each successive presidential step…set a precedent establishing the government’s authority to counter long-standing discrimination,” and in every instance, “congressional action followed presidential action – often by several decades, but it did follow, in every case” (2001: 183). Therefore, this study focuses on the extent to which presidential executive orders initiated future policy enactments by Congress. However, this study also examines how the bureaucracy and the judicial branch responded to such presidential action. Concerning the second question, I seek to analyze the “strategic” element involved in the decision-making process regarding executive orders and federal affirmative action policy. Such strategy includes the behind-the-scenes plan of action presidents carried out when

analyzing whether an executive order was an appropriate action. During this decision-making process presidents take into account various political factors, which help them determine when or if there was a specific time when the order should or should not be issued. Adam Warber’s text Executive Orders and the Modern Presidency (2006), discussed in greater detail in Chapter 2, guided my research, as I will examine the rational basis for why presidents chose to act in a given situation, the usefulness of executive orders in equal employment opportunity, the strategic motivations behind such orders, and the potential political costs of issuing such orders. In order to answer the research questions outlined above, I will employ a variety of research techniques. First, I will rely heavily on original source documents, including The Public Papers of the Presidency, The Federal Register, and various memoirs from presidents and their staff members. I will use these original source documents to help me identify why particular presidents used executive orders to promote federal affirmative action in the equal employment policy domain and why they focused on specific policy goals. Second, I will also rely on secondary source materials, including, but not limited to, newspapers, magazines, scholarly books, and scholarly articles, which are valuable sources for finding a variety of different types of information not always available in original source materials. Third, where appropriate, I will employ case studies to illustrate common features, as well as differences, prevalent across various administrations. The case study method is useful in helping to answer the how or why questions, and will be ideal in later chapters when I need to focus on key events pertaining to particular presidents. Such cases studies provide important contextual variables that help explain why particular presidents issued executive orders. In each case I examine the political environment at the time each president calculated the benefits and risks of issuing an executive order, the actions taken by each president to promote affirmative action in employment, the content of the executive order written by administration officials, the strategic decision-making regarding whether or not the president should issue the order, and the legacy each president left pertaining to equal employment opportunity for underrepresented groups. As such, this dissertation seeks to provide explanations for presidential decision- making processes leading up to the issuance of executive orders, with specific emphasis on executive orders pertaining to equal employment opportunity. To that end, the content and sequence of the current study is as follows: The current chapter explains the foundation for the project and outlines the remainder of the study. Upon establishing the foundation for the project, Chapter 2

reviews the literature that informs this study. Two major bodies of literature form the foundation for this dissertation, including previous scholarship on presidential executive orders and previous scholarship on the president’s role in civil rights for African Americans. Although presidents later used executive orders regarding equal employment opportunity to expand the rights for groups other than African Americans, the African American civil rights movement clearly spurred President Johnson’s establishment of federal affirmative action in 1965. Following Chapter 2, Chapter 3 provides a historical context of presidential involvement in civil rights, in general, and employment discrimination in particular. Therefore, Chapter 3 traces the evolutionary development of such presidential involvement in civil rights beginning with President Franklin Roosevelt, who became the first president to issue an executive order pertaining to equal employment rights for African Americans, through the efforts by the Kennedy Administration, which laid the foundation for President Johnson’s affirmative action order. Chapters 4 through 7 consist of four particular cases of presidential decision-making and equal employment opportunity executive orders. Chapter 4 addresses the foundation of affirmative action through President Johnson’s issuance of Executive Order 11246 in the aftermath of the passage of the Civil Rights Act of 1964. Chapter 5 examines President Nixon’s decision-making process regarding Executive Order 11478, which in affect brought about the institutionalization of federal affirmative action policy. In addition, this chapter assesses the extent to which President Ford continued Nixon’s policies and displays President Carter’s continuation of such policies as he tried to reorganize the federal bureaucracy. Chapter 6 analyzes the twelve-year period between the election of President Reagan in 1980 and President Bush’s election loss in 1992. In particular, this chapter presents a detailed analysis of President Reagan’s decision not to issue an executive order to overturn the orders signed by Presidents Johnson and Nixon, despite President Reagan’s vehement opposition to federal affirmative action. Thus, while the first two case studies identify the political factors that led Presidents Johnson and Nixon to issue specific executive orders, the Reagan case examines the political factors that inhibited him from implementing meaningful reform to the existing federal affirmative action regime. This leads to Chapter 7, which illustrates how the Clinton administration on one hand called for a scaling back of federal affirmative action, as President Clinton famously contended that we needed to “mend” affirmatives action, but not “end it,” but

8 on the other hand, how President Clinton was able to advance the opportunities for several groups, including disabled Americans, homosexuals, and Hispanics. In particular, Chapter 7 analyzes the decision-making process behind President Clinton’s issuance of Executive Order 13087, which dealt with eliminating discrimination based on sexual preference. Finally, in the concluding chapter, I use the case studies examined in Chapters 4 through 7 to compare and assess some of the major factors that influence the presidential decision- making process as it relates to executive orders. Thus, Chapter 8 considers all of the evidence presented in the previous chapters and attempts to make specific inferences and conclusions regarding presidential decision-making in regards to executive orders and federal affirmative action concerning equal employment opportunity. At the conclusion of this chapter, I provide a discussion concerning the implications of these findings and how these findings provide the foundation for future research on presidential executive orders in other policy domains, as well as future research on presidential unilateral powers.

CHAPTER 2 – SCHOLARSHIP

Modern presidential power does not strictly involve persuasion as Neustadt insists…Rather, modern presidents often exert power by setting policy on their own and preventing Congress and the Courts – and anyone else, for that matter – from doing much about it.

William G. Howell, Power Without Persuasion (2003: 14).

This dissertation draws upon two major bodies of scholarship. Given that this dissertation emphasizes the role of presidential executive orders in the equal employment opportunity policy realm, previous research regarding presidential executive orders serves as the foundation for the current project. Indeed, the findings of this dissertation build upon preceding scholarship on presidential executive orders and lay the groundwork for future research. The secondary body of scholarship includes previous analyses of presidential involvement in civil rights policymaking for African Americans. While this dissertation includes analyses of presidential use of executive orders that implemented anti-discriminatory programs for a wide-range of groups, including African Americans, women, the disabled, and homosexuals, the foundation of affirmative action came via the African American civil rights movement. Consequently, the second body of literature examined in this chapter focuses on presidential involvement in the attainment of equality for African Americans. Thus, the current chapter provides an extensive literature review of both bodies of research, explaining not only the insights that previous scholars provided to guide my research, but also the various gaps in preceding studies that I will address in this dissertation. Presidential Executive Orders In a recent analysis of presidential executive orders, Philip Cooper defined executive orders as “directives issued by the president to officers of the executive branch, requiring them to take an action, stop a certain type of activity, alter policy, change management practices, or accept a delegation of authority under which they will henceforth be responsible for the implementation of law” (2002: 16). Cooper explained that the Constitution does not refer to such actions, but beginning with George Washington, presidents have used these tools. Despite this long pattern of unilateral action by presidents, as recent as 1986, Cooper found that political science literature in general, and presidency literature in particular, “virtually ignores executive orders” (1986: 234). Eleven years later, George Krause and David Cohen

made a similar assertion, as they indicated, “there is a relative paucity of systematic empirical research that investigates the determinants of executive orders” (1997: 459). However, almost immediately after Krause and Cohen’s reassertion of Cooper’s claim, several scholars released compelling works on presidential executive orders, ranging from extensive quantitative analyses (Shull, 1997 and Mayer, 1999) to other studies that focus on the role that executive orders play in enhancing the institutional strength of the presidency (Mayer, 2001; Cooper, 2002; and Howell, 2003). Still, research on presidential executive orders is relatively minimal. In fact, prior to the development of executive orders as a subject of research in the late 1990s, the only major study regarding presidential executive orders by a social scientist came in the form of Morgan’s The President and Civil Rights (1970).9 In this study, Morgan examined the significant role that executive orders played in advancing presidential preferences in the civil rights domain. In affect, Morgan successfully demonstrated the capacity for presidents to implement presidential policy goals via unilateral actions. While scholars did not immediately follow her lead, Morgan’s study provided the impetus for future research on presidential executive orders. She found that several variables lead to issuance of executive orders by presidents, including “a president’s own values, his awareness of a specific problem and a demand for its solution, his perception of the political ramifications of (his) action, and the ability or willingness of other policymaking institutions to act on their own initiative” (Morgan, 1970: 78). Furthermore, Morgan outlined four typical scenarios that lead presidents to issue executive orders. According to her analysis, presidents most often issue executive orders: 1)“when executive, rather than legislative, action is being demanded,” 2) “when he can carry out the policy administratively and wants to avoid involving it in congressional testimony,” 3) when an important constituency group seeks action in a policy area, and 4) when Congress fails to pass legislation in a significant policy domain (1970: 81). Prior to Morgan’s account, literature regarding executive orders was largely relegated to the field of legal research. In fact, this pattern followed after Morgan’s publication, as it took sixteen years until Cooper’s 1986 article “By Order of the President: Administration by Executive Order and Proclamation.” Such legal analyses focused on developing definitions of

9 According to Morgan (1970), up until 1970, the only major source that dealt with the subject of executive orders was James Hart’s The Ordinance Making Powers of the President of the United States (1925). 11

executive orders, debating the source of such presidential authority, and describing the limitations of such authority. Perhaps the greatest hurdle to studying executive orders was the lack of a specific definition. Two legal scholars once described the situation as such: “the only statute on the subject, the Federal Register Act of 1935, calls for the publication of all executive orders, but fails to define them” (Fleishman and Aufes, 1976: 6). Consequently, definitions of executive orders were left largely to one’s own interpretation. One of the first attempts to define executive orders came from Robert Cash, who described executive orders as “all directives of the president which are directed to, and govern actions of, governmental officials and agencies” (1963-64: 44). Although noticeably vague, later attempts to define executive orders seemed even less fruitful. For example, John Noyes defined an executive order as “a document that the President issues and so designates” (1981: 839). Obviously, such definitions do not do justice to the vast power that presidents exude through executive orders. Nor do definitions by legal scholars accurately depict the nature of executive orders. For instance, Cash indicated, “executive orders generally have only an indirect effect on the individual,” which of course ignores President Roosevelt’s relocation of tens of thousands of Japanese-Americans during World War II or Truman’s desegregation of the Armed Forces on July 26, 1948. Furthermore, as Fleishman and Aufes found, the most widely cited legal definitions of executive orders “preclude any distinction between verbal and written commands, codified and uncodified executive orders” (1976: 7). While such legal scholars failed in their attempts to accurately define executive orders, they did however provide important analyses regarding where presidential authority to issue executive orders comes from. According to such scholars, presidents are guaranteed this right from the Constitution itself, as well as from delegation of authority from Congress. Fleishman and Aufes (1976) articulated that presidents have the right to issue executive orders because the Constitution grants presidents the role as Chief Executive and Commander-in-Chief. In particular, the president’s authority to “take care that the laws be faithfully executed” justifies the “stewardship” conception of the presidency. In addition, presidents receive the power to issue executive orders because of significant powers delegated to the president by Congress throughout the twentieth century, especially in regards to regulating the actions of administrative officials (Fleishman and Aufes, 1976: 15). Moreover, presidents receive the power to issue

executive orders because federal courts have granted inferred power to the president “from the fact of continued congressional inaction” (Fleishman and Aufes, 1976: 14). In addition to the definitional problems associated with legal scholarship on executive orders, the major deficit of such research was the lack of acknowledgment of political factors. Such analyses failed to take into account the relationship between the president and other political actors, as Morgan had examined in her study. Consequently, it was not until Cooper’s article in 1986 that we see another major account of executive orders presented in a way that describes how executive orders relate to other major forces within the American political system.10 In this article, Cooper presented an analysis of executive orders and presidential proclamations and the increasing importance of such actions in regards to administrative law. The most important component of Cooper’s article was his detailed list of the problems that accompany executive orders, which include questions regarding due process in administrative law, as well as the lack of judicial review and legislative oversight. Cooper argued, “executive orders, particularly where they are used to circumvent the legislature and administrative agencies, damage several essential processes and principles of administrative law” (1986: 246). Furthermore, he contended that a political system too reliant on unilateral executive power “underestimates the importance of intergovernmental power sharing (1986: 247). Eleven years later, Cooper once again described the threat that unilateral presidential actions pose to the American political system (1997). In his article “Power Tools for an Effective and Responsible Presidency,” Cooper expanded his research analysis, and thus included not only executive orders and proclamations, but also presidential signing statements and national security directives. Ultimately, Cooper came to the same conclusions he first argued in 1986; that executive orders, and all presidential unilateral actions, present major threats to the separations of power doctrine outlined in the Constitution and severely limits the ability of public administrators. Cooper once again reiterated this argument in greater detail in his 2002 analysis By Order of the President: The Use and Abuse of Executive Direct Action. However, not all scholars viewed executive orders with the suspicion noticeable in Cooper’s accounts. For example, in 1996, Robert Wigton released his article “Recent Experiences with Executive Orders.” In this article, Wigton examined President George H.W.

10 In The Administrative Presidency (1983), Richard Nathan did acknowledge the presidential usage of executive orders to circumvent Congress when the president is unsuccessful in achieving his legislative goals, but executive orders were not a major focus of his study. 13

Bush’s abortion policy and trade policy, along with President Bill Clinton’s 1993 budget battle, abortion policy, and attempt to overturn the ban on homosexuals in the armed forces. Through this analysis, Wigton suggested that executive orders serve a variety of purposes for presidents. Presidents use executive orders as bargaining devices during policy battles with Congress, presidents use executive orders to circumvent congressional procedural requirements, and presidents use executive orders to overcome obstacles presented by foes in Congress. However, unlike Cooper and Ragsdale (see below), Wigton was less convinced that presidents can rely on executive orders to achieve policy goals. He asserted, “The efforts of Bush and Reagan on the abortion issue and Clinton’s experience with gays in the military reveal that executive orders cannot easily be used as substitutes for formal legislation on controversial public issues” (1996: 479). Although Wigton’s findings suggested that the constitutional framework is not as threatened by presidential executive orders as Cooper suggested, Cooper is not the only scholar concerned with the increased controversies surrounding executive orders. In fact, because of the concerns surrounding several executive orders issued during the Reagan presidency, Lyn Ragsdale’s 1996 volume Vital Statistics on the Presidency: Washington to Clinton included an entire chapter on the subject. Her findings suggested that presidents not only use presidential executive orders to restructure the bureaucracy or to implement policy, but they also use executive orders to make policy. Most importantly, her analysis provided future scholars with the first major organization of executive orders, which she classified by president and by policy area. Ragsdale’s quantitative approach towards executive orders was immediately followed by other quantitative analyses. In fact, one year after Ragsdale’s publication, George Krause and David Cohen published their article “Presidential Use of Executive Orders, 1953-1994” (1997), where they sought to explain the overwhelming inconsistency in the number of executive orders presidents issue from year to year. Through their analysis, Krause and Cohen came to four major findings. First, they found that presidents actually issue more executive orders in the same years that they have increased legislative success, which led the authors to conclude that presidents use executive orders to reinforce legislative victories, not to circumvent Congress during policy battles, as suggested by Ragsdale (1997: 470). Second, they found that party composition in Congress does indeed account for some of the variation in the number of executive orders issued.

Interestingly, their findings suggested that presidents issued more executive orders when his party controlled the House, but issued fewer executive orders when their party controlled the Senate (1997: 472). Third, they found that presidential popularity is not significant in determining the likelihood that a president will issue an executive order. Finally, the state of the economy does indeed positively correlate with the probability of executive orders. Consequently, Krause and Cohen found that a variety of variables help determine whether a president will decide to issue an executive order, including legislative conditions, institutional factors, and the state of the economy. In addition, these findings led Krause and Cohen to argue that presidents do not use executive orders as a power tool to avoid Congress, as suggested by Ragsdale, but instead, presidents use executive orders concurrently with Congress to make and implement public policy. They suggested, “The executive order is often a bargaining chip, used to persuade Congress to pass legislation sympathetic to the view from the White House” (1997: 474). Similarly, in one of the chapters of Steven Shull’s Presidential-Congressional Relations: Policy and Time Approaches (1997), Shull, like Krause and Cohen, sought to explain the overwhelming inconsistency in the number of executive orders presidents issue from year to year. In a finding that paralleled Krause and Cohen’s analysis, Shull concluded, “On average, presidents receiving the most support also issue the most executive orders” (1997: 11). However, in a finding that seems contradictory, Shull also noted, “When not supported in Congress, presidents are most likely motivated to use executive orders as alternative policy adoption” (1997: 111). Though these two findings seem incongruous, Shull accounted for the discrepancy. While the second finding suggests that presidents who lack support in Congress will use executive orders more often to implement a different policy, Shull’s research suggested that such presidents use this tactic much less often than presidents who have a great deal of legislative success, and thus use executive orders in accordance with such success. Interestingly, Shull found that such differing tactics also account for the vast variation in the number of executive orders issued by Democratic presidents compared to their Republican counterparts. During the years studied by Shull, Democratic presidents typically received a great deal of support in Congress, and thus issued more executive orders as an implementation tool for legislation passed

15 by Congress. In contrast, Republicans typically received less legislative support, and thus issued many more executive orders that were policy-driven than Democratic presidents. A fourth major quantitative analysis came in the form of Mayer’s “Executive Orders and Presidential Power” (1999). Once again, Mayer found that executive orders are most often used in accordance with executive-legislative agreement on policy matters. Though Mayer’s analysis came two years after the previous two studies, Mayer hypothesized that presidents use executive orders more often under divided government than under unified government. Much to his surprise, the opposite was in fact true, as presidents issued more executive orders when their party held control in Congress. However, one of Mayer’s findings directly questioned one of Krause and Cohen’s findings. In his analysis, Mayer found that presidential popularity does indeed correlate with the likelihood that a president will issue an executive order. He concluded, “Presidents use executive orders as a compensatory strategy to make policy decisions when their public standing declines” (1999: 460). Mayer accounted for the divergence of his study and Krause and Cohen’s study because he used a six-month popularity average, while Krause and Cohen used monthly scores. According to Mayer, the monthly scores did not adequately measure the time lag that occurs in presidential decision-making. Following this study, Mayer played a significant role in shifting the focus of scholarship on executive orders. Because of the findings provided by these quantitative analyses, scholars were able to identify major variables that typically led to presidential issuance of executive orders. As a result, Mayer (2001) and William Howell (2003) shifted their analysis of executive orders toward a more rational choice explanation of executive orders. While their models differed, both authors concluded that Richard Neustadt’s account regarding presidential power (1960), where he described the presidency as a weak institution, was wrong. In contrast, both Mayer and Howell found that unilateral executive action in general, and the ability of presidents to issue executive orders in particular, allow presidents to exert much more power and influence in the political system. Perhaps most importantly, executive orders allow presidents to exude such power without obstruction by Congress. We see the foundation of Mayer’s rational choice approach in his argument that “the politics of the presidency is about getting control of the institutions that create and implement policy” (2001: 24). According to Mayer, the prerogative powers of the presidency allow presidents to act first, and then require other governmental institutions to reverse presidential

16 actions. Mayer’s specific goal in this analysis was to identify the major patterns associated with the development of presidential power specifically associated with executive orders. In particular, Mayer argued that presidents issue executive orders in an attempt to dictate the political environment in which they operate. In his analysis, Mayer outlined how presidents used executive orders to establish what other scholars have described as the “institutional presidency.”11 In addition, Mayer examined the use of executive orders in the foreign affairs and civil rights policy environments. Such analysis led to Mayer’s conclusion that Neustadt’s emphasis on personal skill, personality, and persuasive ability was misguided. Instead, Mayer articulated a position whereby presidents can use executive orders as unilateral policymaking tools, allowing presidents to act alone, regardless of the individual’s political skills and persuasive abilities. Likewise, Howell argued, “modern presidential power does not strictly involve persuasion as Neustadt insists…Rather, modern presidents often exert power by setting policy on their own and preventing Congress and the Courts – and anyone else, for that matter – from doing much about it” (2003: 14). According to Howell’s model, presidents have distinct advantages over other governmental actors, as presidential prerogative powers allow presidents to be “first movers.” Howell concluded that presidents use executive orders to both preempt Congress on a specific policy and to shift policy in an area where Congress remains gridlocked. Howell further noted, “For reasons built into the design of their respective institutions, the president can set all kinds of public policies on his own, confident that Congress will not subsequently overturn him” (2003: 134). Furthermore, Howell found that presidential unilateral power via executive orders receives further support from the federal judiciary because the federal judiciary has upheld challenged executive orders in over eighty percent of cases brought against presidents (2003: 173). In the most recent comprehensive analysis of presidential executive orders, Adam Warber (2006) introduced a new approach to the literature. In Warber’s analysis, he provided the first study to examine the text of all executive orders between 1936 and 2001. The crux of his argument was that while presidents can use executive orders to significantly influence public policy, they must do so in a strategic manner. He explained, “Even though presidents possess an arsenal of unilateral powers, they must exercise them with great care, because their actions are

11 See John P. Burke, The Institutional Presidency (1992). 17

not completely immune from congressional or judicial assaults” (2006: 4-5). In other words, Warber found that when examining presidential unilateral actions, one must realize that presidents are rational actors who examine the political environment in order to determine what the best action, if any, would be for his administration. As such, Warber developed what he termed “the five tenets of unilateral theory” (2006:12). The five tenets are as follows: (1) presidents are rational actors who maximize their unilateral action powers to the fullest in order to enact their agendas, (2) unilateral powers are useful tools for presidents to use in achieving their policy agendas, (3) presidents are strategically motivated in deciding when and how to use unilateral powers, (4) presidents will be more successful in using unilateral powers to achieve results in certain policy domains than in pursuing their policy agendas through traditional legislative strategies, and (5) there are costs associated with the exercise of unilateral powers (Warber, 2005: 13).

These five tenets guided the remainder of Warber’s analysis. Interestingly, in analyzing the content of presidential executive orders between 1936 and 2001, Warber concluded that there has not been a substantial expansion of presidential power via executive orders, which of course challenged the conventional view outlined by Mayer (2001). According to Warber, since 1936, each president recognized that while executive orders allowed them to substantially alter public policy, they also realized that they had to work in an environment that required public approval and congressional approval. Furthermore, the media-driven political environment, along with the expanded bureaucracy, limited presidential dominance in policy matters. Therefore, Warber concluded that presidential scholars must analyze the strategic decision-making regarding executive orders in particular policy areas. While his conclusions may be debatable, I believe the evidence provided by his analysis warrants further examination. As such, I utilize his conclusions to guide my research, as I examine the rational basis for why presidents chose to act in a given situation, the usefulness of executive orders in equal employment opportunity, the strategic motivations behind such orders, the success or failure of such orders, and the political costs of issuing such orders. Through this review, it is quite apparent that research on executive orders has evolved over the past few decades and we continue to learn more about the context in which presidents use executive orders. Legal scholars in the 1960s and 1970s described the source of presidential authority to issue executive orders and the limitations of such authority. However, legal scholars failed in their endeavors to formulate an accurate definition of executive orders and they failed to

take into account important political variables associated with presidential decisions to issue executive orders. Though Morgan did account for such variables in her 1970 study on presidential executive orders and civil rights policy, with the exception of Cooper’s 1986 article, political scientists largely ignored the subject until the late 1990s. In fact, it was not until the Clinton administration that we began to see scholars debate the role of executive orders in the American political system, as well as develop statistical analyses that predicted when presidents are more prone to use executive orders. While these studies reaffirmed the numerous political factors that presidents take into account when determining whether or not to issue an executive order, these studies had two limitations. First, as with many statistical studies, different data led to different conclusions among scholars. Second, such studies failed to address the varying degree of substance and relevance of executive orders. In other words, such studies would consider Franklin Roosevelt’s Executive Order 9066, which forcefully relocated tens of thousands of Japanese-Americans, on the same level as President George W. Bush’s recent Order 13421, which declared that all governmental offices and agencies be closed on January 2, 2007. More recently, scholars such as Mayer (2001) and Howell (2003) shifted their analysis of executive orders toward a more rational choice explanation of executive orders. These studies accurately depicted the political system in which presidents wield a much greater amount of power than described by Neustadt’s influence paradigm, but they once again focused their attention almost entirely on the interactions between the president and Congress, and thus ignored other important political actors, including public opinion, organized interests, and political parties. Finally, Warber (2006) provided an interesting contribution to the literature, as he developed an analysis based on “the five tenets of unilateral theory” and identified some of the major strategic factors involved in the issuance of executive orders. Given that his analysis is so broad, as he examined every executive order within a sixty-five year period, what is noticeably missing in his analysis is the substantive examination that I intend to provide in this dissertation. Presidents and Civil Rights Policy Scholars have long noted the important relationship between presidents and progress, or lack thereof, in civil rights. In fact, such scholarship often addresses the relationship between

particular presidents and the pursuit of civil rights.12 Unfortunately, studies that examine multiple administrations are quite rare. As recent as 1999, Russell Riley described that there are “few works on the presidency and civil rights that do span the labors of several administrations” (1999: 9). In examining previous research on the presidency and civil rights, it is quite apparent that scholars who examine presidents and civil rights policy usually fall under one of two differing approaches. The first group includes the majority of scholars who emphasize the president’s relationship with other governmental actors, including Congress, the bureaucracy, and the courts. Such studies stress the “politics” involved with civil rights and the difficulties that the various branches of government have in forming a consensus on civil rights. Typically, these studies highlight the give-and-take relationship between presidents and Congress, or the president’s role in enforcing compliance via the bureaucracy. The second and more recent approach is one in which scholars draw attention to the president’s ability to influence the public, and therefore focus their research on the role of presidential rhetoric and the role of public opinion in the civil rights policymaking arena. Unlike scholars in the first approach, these scholars tend to analyze several presidential administrations. The remainder of this chapter illustrates scholars in each of these two paradigms. Along with Morgan’s 1970 analysis of executive orders described above, one of the earliest comprehensive accounts of presidential involvement in civil rights was Allan Wolk’s The Presidency and Black Civil Rights: Eisenhower to Nixon (1971). Interestingly, while later scholarship seemed to focus attention on the president’s role in the policymaking process, Wolk’s research described presidential involvement in the policy implementation process. In fact, Wolk began his analysis with his ultimate research question, “What has the federal executive done to implement the civil rights laws?” Consequently, his study dealt primarily with the role of the executive branch in general, and presidents from Eisenhower through Nixon in particular, and how such actors enforced compliance of civil rights laws, statutes, orders, and judicial decrees. Therefore, Wolk’s study is intriguing in that it dealt largely with the aftermath of the policymaking process in the civil rights arena, by addressing how four presidential administrations implemented such policies. The

12 See for instance Norman C. Amaker, Civil Rights and the Reagan Administration (1988); Dean J. Kotlowski, Nixon’s Civil Rights (2001); Robert F. Burk, The Eisenhower Administration and Black Civil Rights (1984); and James C. Harvey, Civil Rights During the Kennedy Administration (1971). 20

argument put forward by Wolk was that the policymaking process should be of little concern if there is not compliance with the newly formed policy. It is rather astounding that following Morgan (1970) and Wolk (1971), presidential scholarship largely ignored the issue of civil rights, except when examining individual presidents and individual case studies. As a result, as previously indicated in Chapter 1, probably the most comprehensive analysis of the presidency and civil rights policy following Morgan (1970) and Wolk (1971) came in the form of Shull’s text, The President and Civil Rights Policy: Leadership and Change (1989). While Shull did include a chapter on “symbolic leadership” of presidents, which of course falls under the category of presidential rhetoric and influence on public opinion, to be addressed in more detail below, the primary focus of his study was the president’s interaction with other governmental and nongovernmental actors in forming civil rights policy. Shull’s major thesis stated that “committed presidents lead, and without that leadership little else happens” (1989: xi). In his analysis, Shull first examined the president’s roles early on in the policymaking process, including the role of agenda setter and the presidential role of formulating policy initiatives. He then studied the president’s interactions with other actors, with specific emphasis on Congress, the courts, and the bureaucracy, and how the president responds to actions these actors take, as well as how these actors respond to presidential leadership in civil rights. Ultimately, Shull found that while presidents are typically not “the driving force behind civil rights policy,” it is power within the presidency that “is essential to change policy” (1989: 180). In addition, besides the obvious governmental actors involved in formulating civil rights policy, including Congress, the courts, and the bureaucracy, Shull concluded that interest groups, public opinion, political parties, and other nongovernmental actors must also be taken into account when examining civil rights policy formation. Beyond Shull’s analysis, literature addressing presidential involvement with other institutions in the civil rights policymaking process largely focused on a single president, as indicated above by Riley (1999). Probably the most comprehensive of these is James Riddlesperger and Donald Jackson’s edited volume Presidential Leadership and Civil Rights Policy (1995). In this text, various scholars examined a wide array of issues, including the role of President Eisenhower in the passage of the Civil Rights Act of 1957, the role of President Johnson in the passage of the Voting Rights Act of 1965, President Reagan’s failure to revise

21 federal affirmative action programs, and presidential decision-making in the desegregation of Little Rock Central High School and the University of Mississippi. However, with the exception of two chapters, which pertain to presidents and other governmental institutions, every chapter addressed only one presidential administration, and typically only one event within one particular administration. Even in the two chapters that used a comparative approach, they limited their comparison to two presidents. Still, given that there is such a little amount of research on the topic of the presidency and civil rights that spans several presidential administrations, Riddlesperger and Jackson deserve accolades for their attempt to model presidential influence in the civil rights policymaking process. Indeed, research on particular presidents and their role in civil rights is ubiquitous on both library shelves and within journals. For example, research in this tradition includes a variety of scholarship on President Eisenhower (Jackson and Riddlesperger, 1993; Stern, 1989b), President Kennedy (Brauer, 1977; Gilbert, 1989, Stern, 1989a), President Reagan (Amaker, 1988), and President George H.W. Bush (Jones, 1992; Shull, 1993). The major limitation of such studies of course is that they do not allow us to garner a greater understanding regarding the presidency and civil rights, but rather illustrate the particular situations and circumstances that confronted individual presidents. However, one of the most important developments within presidential scholarship within the past twenty years is the increased examination of the important relationship the president has with the American public and the role of the president in shaping public opinion. In his classic text The Rhetorical Presidency (1987), Jeffrey Tulis argued that the rise of “the rhetorical presidency” represented a major alteration in the American presidency. Tulis wrote, “The rhetorical presidency signals and constitutes a fundamental transformation of American politics that began at the outset of the twentieth century” (1987: 173). According to Tulis, while Theodore Roosevelt was the first rhetorical president, Woodrow Wilson was in fact is the archetype of the rhetorical presidency. Tulis explained that President Wilson ushered in a new era when he initiated the use of policy speeches, instead of written addresses and letters to Congress. Interestingly, scholarship on presidents and civil rights policy illustrates the importance of “the rhetorical presidency” outlined by Tulis. For example, in a chapter entitled “Presidents, Public Opinion, and Civil Rights: An Agenda-Setting Perspective” (1995), Jeffrey Cohen

22 contended that previous research on the presidency and civil rights focused too much attention on how presidents either ignore civil rights or are reactive when it comes to civil rights. Instead, in his analysis, Cohen sought to “demonstrate that presidents are important actors in the civil rights policy area through their ability to alter the public’s agenda” (1995: 4). While Cohen acknowledged that several variables shape public opinion, in examining the percentage of State of the Union sentences that focus on civil rights, Cohen successfully demonstrated that the greater the emphasis the president gives to civil rights, the more important the civil rights policy domain becomes to the public. Consequently, Cohen concluded that presidents hold “considerable influence over whether or not the public is concerned about” civil rights (1995: 13). However, some scholars have noted that one of the major problems with presidential rhetoric within emotionally charged policy domains like civil rights, is that such rhetoric is often much more symbolic than substantive (Denton, 1982 and Ragsdale, 1984). Indeed, in his comparison between civil rights and other policy areas, Shull (1989) found that presidential rhetoric in the civil rights realm is more symbolic than in other policy areas. In a more recent analysis carried out with Albert Ringelstein, Shull and Ringelstein (1995) studied the level of attention, support, and symbolism in the civil rights arena, beginning with President Eisenhower and ending with President George H.W. Bush. Not surprisingly, their results differed significantly across administrations, finding high levels of symbolism among Nixon, Reagan, and Bush, with low levels of symbolism among Johnson and Carter, while Eisenhower, Kennedy, and Ford had moderate levels of symbolism. Consequently, the previous studies that suggested that we should see high levels of symbolism in the civil rights policy domain were correct in some cases, but incorrect in others, and thus require us to look at individual administrations. Likewise, Ronald Brown (1995) found an extraordinarily high level of symbolic rhetoric by presidents in the civil rights realm between 1892 and 1968, and especially between 1892 and 1946. In his analysis, he found that between the years 1892 and 1946, presidents largely ignored civil rights, except on occasional instances in reaction to public uproars over the lynching of African-Americans. Brown explained, “A number of presidents moved cautiously against southern white sentiment by states that blacks had the same God-given natural rights as whites” (1995: 33-34). Despite such rhetoric, Brown contended that Republican presidents during this

era most likely used symbolic rhetoric to denounce the lynching of African-Americans in the South because African-Americans continued to be a significant voting bloc for the Republican Party and because such rhetoric may convince progressive white voters in the South to leave the Democratic Party. No matter what the reasoning behind the rhetoric, one thing was certain; the rhetoric was not followed by any significant action. Brown explicated, “While Republican presidents spoke for black voting rights and against the use of violence as a tool for maintaining social order, none would issue an executive order to send federal troops to the South to protect black rights” (1995: 34). Consequently, according to Brown, presidential involvement in the civil rights domain prior to President Truman was almost entirely symbolic. In looking further back in our country’s history, Riley (1999) arrived at similar conclusions. Riley’s analysis included the one hundred and thirty-four year period from 1831 through 1965. According to his account, presidents played a considerable role in preserving social and political inequalities within the American political system. Riley contended:

The central finding of this study is that the presidency has routinely served as a nation-maintaining institution on the issue of racial inequality. Indeed, the evidence arrayed here strongly suggests that one of the enduring roles each president is required to execute is that of nation-keeper, a protector of the inherited political and social order and a preserver of domestic tranquility (1999:10).

In fact, through his research, Riley found that presidents from Andrew Jackson through James Buchanan played significant roles in suppressing the abolitionist movement within the United States. Even after the Civil War, Riley illustrated that while Brown (1995) may have been correct in describing symbolic rhetoric among Republican presidents, the situation was in fact worse than Brown articulated. Instead, Riley found that presidents between 1865 and 1932 not only ignored issues pertaining to African-Americans, but such presidents used the office of the presidency “to stifle active movement toward racial equality” (1999: 125). While Riley (1999) began to address some of the changes that occurred in presidential civil rights rhetoric during Franklin Roosevelt’s tenure in office, Garth Pauley further explored this subject in The Modern Presidency and Civil Rights: Rhetoric on Race from Roosevelt to Nixon (2001). In examining four major presidential speeches on civil rights, Pauley sought to illustrate how “presidential rhetoric on racial matters has the potential to educate the American

public, to effect legislative change, and to inspire the African-American community to continue its activism” (2001: 4). To accomplish this task, Pauley examined President Truman’s June 29, 1947 address to the NAACP; President Eisenhower’s national address on September 24, 1957 in the aftermath of the school integration at Little Rock Central High School; President Kennedy’s June 11, 1963 speech, which declared civil rights as a moral issue; and President Johnson’s speech on March, 15, 1965, in support of the Voting Rights Act of 1965. For each speech, he explained the personal and political motives of each president; the contextual factors present at the time of the speech; the evolution of the speech itself, including the planning, writing, and revision of the speech; and the public response to each speech. Ultimately, through this analysis, Pauley intended to describe the evolution of presidential discourse on civil rights and how the persuasive powers of the presidency gives the president the opportunity to provide unmatched leadership in the area of civil rights. In summary, when reviewing the scholarship on the presidency and civil rights, we see scholars have taken two distinctly different approaches. First, there are those scholars who emphasized the interactions between the president and other governmental actors, such as Congress, the courts, and the bureaucracy. While some of these scholars addressed the policymaking side of the equation (Shull, 1989), others addressed the implementation side of the equation (Wolk, 1971). Unfortunately, beyond Morgan (1970), Wolk (1971), and Shull (1989), little research in this paradigm explained developments in civil rights policymaking and implementation across multiple administrations. In contrast, the second approach to studying presidents and civil rights policy, which focused on the rhetorical presidency and civil rights, did in fact include a much broader examinations of presidents and civil rights. Indeed, scholars in this paradigm included multiple presidents in their analysis, unlike scholars who focused on the institutional aspects of the presidency and civil rights. Therefore, with the exception of Morgan (1970), noticeably missing in all of these works is an examination of presidential unilateral powers, which of course is the focus of this dissertation. Conclusion The chapters that follow both build upon the two bodies of literature described in this chapter, and fill in the notable gaps present within the scholarship outlined here. This dissertation provides a thorough analysis of the presidency in regards to civil rights not seen

since Morgan’s 1970 examination of presidents and the use of executive orders in advancing civil rights. In it, I will include the interactions between not only presidents and Congress, but also the interactions between presidents and other significant actors in the American political system, including political parties, organized interests, and the public, which is not currently prevalent among scholars who research presidential executive orders. In addition, this analysis provides a comprehensive analysis of executive orders in a specific substantive area, which again is rare in recent research on presidential executive orders. Furthermore, this dissertation examines seven presidential administrations, and consequently answers the call by Riley (1999) to carry out research on the presidency and civil rights across several administrations. Finally, my analysis details how civil rights policymaking in general, and equal employment opportunity policymaking in particular, is more than about the president’s use of rhetoric to sway public opinion or more than about policymaking via the legislative process, but such policymaking also includes the importance of unilateral powers exercised by presidents outside of the legislative arena.

CHAPTER 3 – The Presidency and Civil Rights, 1933-1963: The Birth of Equal Employment Opportunity Policy

Franklin Roosevelt helped boost blacks’ expectations of the president, which once fulfilled, would lead to even greater expectations.

Garth Pauley, The Modern Presidency & Civil Rights (2001: 30)

Introduction Although President Lyndon Johnson’s Executive Order 11246 on September 24, 1965 officially established the first federal affirmative action program to combat employment discrimination, the story of unilateral executive action pertaining to equal employment opportunity for underrepresented groups began during the presidency of Franklin Roosevelt. In fact, prior to President Johnson’s legendary order, Presidents Roosevelt, Truman, Eisenhower, and Kennedy all sought to remedy discrimination in employment by using executive orders. Therefore, the evolution of the presidency and equal employment initiatives began twenty-four years prior to Johnson’s order. President Roosevelt’s issuance of Executive Order 8802 on June 25, 1941 formally established the unique role of presidential unilateral action and the pursuit of equal employment opportunity for underrepresented groups in the United States. Through this order, President Roosevelt prohibited government defense contractors from engaging in employment discrimination based on race, creed, color, or national origin. In addition, the order established the Committee on Fair Employment Practice (FEPC) to carry out the nondiscrimination policy in all defense contracts, to make recommendations to federal agencies regarding how to ensure equal employment opportunities for all citizens, and to make recommendations to the president regarding how the order could be best administered. Following Executive Order 8802, President Roosevelt later issued a second executive order pertaining to equal employment opportunity. Consequently, President Roosevelt set the precedent for future presidents, who also used executive orders in attempts to guarantee equal employment opportunities to historically discriminated groups. As specified in Chapter 1, between 1964 and 2000, presidents issued twenty-six such orders, which of course is the primary focus of this study. However, prior to President Johnson’s famous order, Presidents Truman, Eisenhower, and Kennedy all followed President Roosevelt’s example, as they pursued the goal of equal employment opportunity for all United States citizens by using the executive order as

27 their primary tool. In fact, even though southern senators successfully filibustered legislation that would have established a permanent FEPC, Presidents Truman, Eisenhower, and Kennedy all used executive orders to establish their own enforcement agencies to implement nondiscriminatory federal policies; especially pertaining to government contracts.13 Therefore, the purpose of this chapter is to analyze the evolution of presidential involvement in the policy realm of equal employment opportunity, with specific attention paid toward unilateral executive action via executive orders. In order to accomplish this task, I will explore the office of the presidency beginning with President Franklin Roosevelt’s inauguration on March 4, 1933, through the assassination of President John Kennedy on November 22, 1963. In affect, this chapter provides the historical context necessary to understand the importance of the unilateral executive action taken by President Lyndon Johnson, which officially established affirmative action, as well as the numerous executive orders issued by Johnson’s successors regarding equal employment opportunities for underrepresented groups.

The Roosevelt Presidency & Civil Rights: A New Deal with Black America

Roosevelt’s Personal Commitment to Civil Rights While Franklin Roosevelt was the first president to issue an executive order with the intent to ban discrimination in employment, historians have long debated his overall record on civil rights. On one side of the debate are the historians who credit President Roosevelt’s New Deal for bettering the lives of millions of African Americans. For example, Harvard Sitkoff maintained that the New Deal “aided blacks to an unprecedented extent” (1978: 331). In contrast, other historians believe that any advancement of African Americans under the New Deal was purely coincidental. For instance, Howard Zinn contended, “most blacks were ignored by the New Deal programs” (1990: 394). Even worse, one recent examination described President Roosevelt’s New Deal as “a federal sanctioning of white privileges and black discrimination in employment, housing, schools, and the franchise” (Rubio, 2001: 94). In examining the historical record, evidence seems to support both sides of the debate. For example, under the Works Progress Administration’s (WPA) various educational and training programs, an estimated 300,000 African Americans learned to read and write

13 See Executive Orders 10308, 10479, 10590, and 10925. 28

(Schlesinger, 1960: 434). Furthermore, one study found that by 1939, the WPA aided at least one million African American families (Badger, 1989: 434). In addition, the WPA mandated equal pay scales for male and female workers, which although does not pertain to racial issues, is important because it was decades ahead of its time, and an important milestone in the advancement of civil rights for women (Anderson, 2004: 14). Even more extraordinary for African Americans was the progress made in the Public Works Administration (PWA). Not only did the PWA build 133 housing projects solely for African Americans, and another 40 projects that housed both African Americans and whites, but it also invested more than $13 million on African American schools and hospitals (Pauley, 2001: 19). Moreover, Harold Ickes, President Roosevelt’s choice to head the PWA, “issued an order prohibiting discrimination on PWA projects and ensured that a nondiscrimination clause was included in every PWA contract” (Pauley, 2001: 19). Additionally, Ickes successfully instituted a plan that ensured African American workers in the PWA received pay rates equal to their white counterparts, and he developed the first known federal program that required racial quotas. Under this program, a certain percentage of PWA workers had to be African American, based on the local percentage of African Americans in the general population (Pauley, 2001: 19). For example, in the city of Atlanta, where African Americans comprised of 24 percent of the population, any contractor receiving federal funds to build public housing had to ensure that at least 12 percent of their skilled laborers were African American. As Terry Anderson aptly described, this program can be considered the “precursor to affirmative action” (2004: 12). According to Robert Weiss, the PWA instituted this plan in at least ninety-five cities (1997: 35). However, in spite of the progress made under the WPA, the PWA, and other New Deal programs, employment discrimination continued to haunt African Americans living throughout the South, where local officials often ignored federal guidelines. Moreover, while the WPA and the PWA helped advance African Americans in society, other New Deal programs not only accepted segregation, but in many instances, openly discriminated against African Americans. For example, under the Fair Labor Standards Act, the majority of African American workers did not receive the same protections regarding child labor, minimum wage, and overtime pay (Rubio, 2001: 98). In addition, the National Recovery Act (NRA) established pay rates for African American workers below the minimum required by law and the Tennessee Valley Authority

(TVA) provided African Americans “with inferior accommodations, excluded them from trade schools…, and barred blacks completely from the authority’s model village in Norris, Tennessee” (Pauley, 2001: 20). Even worse, many southern boards of the Agricultural Adjustment Administration (AAA) seized one hundred percent of the income of African American cotton and tobacco farmers (Sullivan, 1997: 57). Through this evidence, it is quite apparent why historians continue to debate Roosevelt’s record on civil rights for African Americans. The New Deal did in fact bring about substantial social advancement for several hundred thousand African Americans, but it also federally mandated some of the evils of Jim Crow. Nevertheless, while his overall record on civil rights may be debatable, one thing is for sure; the advancement of civil rights for African Americans during Franklin Roosevelt’s tenure in office effectively changed the relationship between African Americans and the American presidency. Garth Pauley argued, “Roosevelt’s occasional public statements, policies, and symbolism on race led many blacks to expect more from the presidency. Roosevelt’s words and actions shaped the contexts in which future presidents would be heard” (2001: 18). This of course paved the way for the advancement of other discriminated groups, including other minorities, women, and the disabled. Roosevelt’s Executive Action in Civil Rights One of the greatest symbols of advancement for African Americans under Roosevelt came by the use of presidential appointment power. Although previous presidential administrations appointed African Americans to various posts, Philip Rubio explained that prior to Franklin Roosevelt’s tenure in office, such African American appointments represented “late- nineteenth-century tokenism” (2001: 107). Similarly, in his analysis of the Roosevelt Administration’s record on civil rights, Ralph Bunche, a notable critic of President Roosevelt, described that the African American appointments within the Roosevelt Administration “represented a radical break with the past because of their novelty and the entirely different character of the appointee” (Kirby, 1980: 107). Indeed, President Roosevelt insisted on appointing African Americans to important governmental posts. By 1940, President Roosevelt appointed over one hundred African Americans to such positions, including the first African American federal judge (Pauley, 2001: 23). In accordance with this appointment process, the Roosevelt Administration created the Federal Council on Negro Affairs, commonly referred to as the Black Cabinet, which, according

to one historian, was the most important action to advance civil rights taken by President Roosevelt because “it signified to black Americans that the Roosevelt administration cared about their lot” (Weiss, 1983: 136). While the overall impact of the group is a matter of debate among historians, the coordination of such a group represented the first time in American history that African Americans held high-level positions of authority within the federal government, and thus had the ability to significantly influence federal policies that concerned African Americans across the United States (Weiss, 1983: 136, 155). The combination of the new relationships established between the Roosevelt Administration and African American leaders and the social advancement of hundreds of thousands of African Americans under Franklin Roosevelt’s New Deal created a mass exodus of African Americans from the Republican Party to the Democratic Party, effectively changing their allegiance from the party of Lincoln to the party of Roosevelt. In her volume Farewell to the Party of Lincoln (1983), historian Nancy Weiss argued that the 1936 presidential election was the first election that the Democratic Party actively sought support from African American voters. Such efforts paid off for the Democrats, as President Roosevelt won between 60 and 250 percent more votes in African American congressional districts across the North in 1936 than in 1932 (Weiss, 1983: 205). This increase in votes occurred in major metropolitan areas like Chicago, Cleveland, Detroit, New York, Pittsburgh, and even in the southern city of Knoxville. In turn, this noticeable change in the electorate led both major parties to begin to court African American votes in ways they had never done so before. For instance, in the 1940 presidential election, for the first time in the twentieth century, the Democratic Party included a category in its platform entitled “Negroes,” which included a pledge to initiate legislation to ban racial discrimination in government services and guarantee African Americans equal employment opportunities in America’s defense industry. The Republican Party’s 1940 platform went even further, as it pledged support for African American voting rights, which the Democrats later called for in their 1944 platform (Brown, 1995: 38). Interestingly, while the Republican Party’s platform went further in regards to supporting civil rights for African Americans, President Roosevelt continued to increase his support among black voters. A Gallup poll conducted in 1940 found an 82 percent approval rating for President Roosevelt among African Americans (Pauley, 2001: 27). Not surprisingly, Terry Anderson reported, “An analysis

of fifteen black wards in nine northern cities showed that FDR captured only four in 1932, but he won nine in 1936 and fourteen in 1940” (2004:19). Perhaps one reason for this increased support for President Roosevelt among African Americans in the 1940 election came because of an action his administration took twenty-one months prior to the election. On February 3, 1939, the Roosevelt Administration took its first major executive action that specifically addressed the plight of African Americans, as Attorney General Frank Murphy established the Civil Liberties Division, later renamed the Civil Rights Section, within the Justice Department’s Criminal Division (Riley, 1999: 154). According to Kenneth O’Reilly, “This new Civil Rights Section legitimized the idea, for the first time in the twentieth century, that the federal government had the right and duty to investigate, mediate, and if necessary prosecute civil rights violations” (1995: 122). Indeed, even though the scope of the Civil Liberties Division was quite limited, the mere creation of it initiated further actions to combat discrimination. As Brian Landsberg described, the Civil Liberties Division “was a sort of time bomb. Inevitably, as it started investigating and prosecuting civil rights violations, the need for more effective and comprehensive machinery would become evident” (1997: 9). However, in spite of President Roosevelt’s willingness to place African Americans in positions of authority, his willingness to meet with and ask advice from African American leaders, and even his administration’s willingness to create a Civil Liberties Unit within the Department of Justice, what irked African American leaders most about Roosevelt, was that he rarely mentioned the problems facing African Americans in his public addresses. Such adversities included lynching, voter discrimination, and employment discrimination. In fact, even when members of Congress crafted legislation to take proactive measures against lynching, the president refused to publicly support the bill. In a meeting with NAACP leader Walter White, President Roosevelt explained, “If I come out for the [Costigan-Wagner] anti-lynching bill now, they [southern members of Congress] will block every bill I ask Congress to pass to keep America from collapsing. I just can’t take that risk” (White, 1948: 170). Such lack of effort by President Roosevelt angered African American leaders, but this did not halt their efforts; instead, it caused them to press the president on other issues as well. For example, on September 27, 1940, just prior to the 1940 presidential election, A. Philip Randolph, leader of the Brotherhood of Sleeping Car Porters, accompanied Walter White of the NAACP and T. Arnold Hill of the National Urban League to meet with President Roosevelt at the White

House. During this meeting, the three African American leaders demanded equal treatment of African Americans in the Armed Forces, increased training for African American servicemen, inclusion of African Americans on local draft boards, and African American advisers in the Department of War and the Department of the Navy (Anderson, 2004: 17). Ultimately, their efforts failed. Major newspapers, including the New York Times and the Washington Post ignored the meeting entirely. In fact, it took the White House Press Secretary two weeks to report the meeting, where he merely mentioned that President Roosevelt met with “Walter White and, I think, two other Negro leaders” (Anderson, 2004: 17-18). In the end, the only notable change came via a War Department memorandum mandating that African Americans should make up ten percent of the Armed Forces, since African Americans comprised of approximately ten percent of the U.S. population (Anderson, 2004: 18). President Roosevelt’s failure to take meaningful action, led to A. Philip Randolph’s decision to pursue a different means to influence the president. On January 15, 1941, Randolph released a startling statement calling on ten thousand African Americans to march on Washington in an effort to display their demand for jobs in the defense industry. Following several months of planning, Randolph announced that the march would take place on July 1, 1941 and published a letter to all African Americans. In it, he wrote: Dear fellow Negro Americans, be not dismayed in these terrible times…In this period of power politics, nothing counts but pressure, more pressure, and still more pressure, through the tactic and strategy of broad, organized, aggressive mass action behind the vital and important issues of the Negro. To this end we propose that ten thousand Negroes MARCH ON WASHINGTON FOR JOBS IN NATIONAL DEFENSE AND EQUAL INTEGRATION IN THE FIGHTING FORCES OF THE UNITED STATES (Garfinkel, 1959: 56).

Perhaps even more intriguing was his call for President Roosevelt to issue an executive order to ban federal discrimination. Indeed, this seemed to be Randolph’s ultimate goal for the march. Randolph argued: Most important and vital to all, Negroes by the mobilization and coordination of their mass power, can cause PRESIDENT FRANKLIN ROOSEVELT TO ISSUE AN EXECUTIVE ORDER ABOLOLISHING DISCRIMINATIONS IN ALL GOVERNMENTAL DEPARTMENTS, ARMY, NAVY, AIR CORPS AND NATIONAL DEFENSE JOBS (Garfinkel, 1959: 57).

While most observers, including President Roosevelt, seemed skeptical about Randolph’s proposal, the president soon seemed worried about the prospect of an African American march on Washington, as publicized estimates increased from ten thousand, to fifty thousand, and 33

eventually to one hundred thousand. In response, President Roosevelt sent his wife Eleanor, New York Mayor Fiorello La Guardia, and Aubrey Williams, the Administrator of the National Youth Administration, to meet with Randolph in hopes of convincing him to cancel the march (Riley, 1999: 150). When this effort failed, President Roosevelt scheduled a personal meeting with Randolph on June 18, 1941, just two weeks prior to the scheduled march date. As the meeting commenced, Randolph wasted little time. The president initially tried to use his charm to ease the tensions, but Randolph quickly pressed the president to take action that would result in increased African American employment in the defense industries. When President Roosevelt responded that he could personally call the heads of defense plants and seek increased employment opportunities for African Americans, Randolph responded, “Mr. President, we want you to issue an executive order making it mandatory that Negroes be permitted to work in these plants” (Anderson, 1986: 257). The president refused, insisting that such matters could not be handled by executive orders, and furthermore demanded that Randolph call off the march for the sake of public safety. Randolph abruptly refused any thought of calling off the march, causing Mayor La Guardia to suggest that the president “seek a new formula” (Anderson, 2004: 22). Following the meeting, President Roosevelt heeded Mayor La Guardia’s suggestion, as he formed a committee assigned with drafting an executive order that would appease Randolph’s demands (Rubio, 2001: 109). As a result, on June 25, one week after his meeting with Randolph and one week prior to Randolph’s planned march, President Roosevelt signed Executive Order 8802, which he titled “Reaffirming Policy Of Full Participation In The Defense Program By All Persons, Regardless Of Race, Creed, Color, Or National Origin, And Directing Certain Action In Furtherance Of Said Policy.” In response, Randolph called off the march on Washington because of Roosevelt’s issuance of Executive Order 8802, or what Randolph personally termed “the Second Emancipation Proclamation” (Rubio, 2001, 111). In the order, President Roosevelt declared that there “shall be no discrimination in the employment of workers in defense industries or government because of race, creed, color, nor national origins,” and required that all governmental agencies and labor unions in defense industries “provide for the full and equitable participation of all workers.” In addition, the order created the Commission on Fair Employment Practice (FEPC) to help enforce the order. According to one scholar, by 1946, the FEPC received over 14,000 complaints against employers

34 and unions. This included complaints from individuals and groups, most notably the NAACP, but interestingly, complaints from Jewish Americans and Mexican Americans comprised of approximately twenty percent of all claims (Weiss, 1997, 38). As previously indicated, Roosevelt’s signing of Executive Order 8802 marked the first time a president issued an executive order that dealt specifically with employment discrimination. While some criticized the order for lacking effectual enforcement mechanisms, historian Manning Marable argued that the order “expanded the political idea that government could not take a passive role in the dismantling of institutional racism” (1996: 4). Indeed, as discussed in more detail later throughout this dissertation, Executive Order 8802 set the precedent for future administrations to take proactive roles in prohibiting employment discrimination, not just for African Americans, but for other historically discriminated groups as well. In fact, Roosevelt himself took further action to combat employment discrimination when he signed Executive Order 9346 on May 27, 1943, which effectively redefined the powers and duties of the FEPC. Roosevelt used this second order to broaden the reach of Executive Order 8802 to combat employment discrimination in an expanded scope of war industries and used the order to authorize the FEPC to “conduct hearings with an expanded staff of 120 in 15 field offices across the nation” (Anderson, 2004: 22). Roosevelt’s Civil Rights Legacy In his description of civil rights during the Roosevelt Administration, Wolk (1971) lamented that the President never recommended any civil rights legislation, nor did Congress take the initiative to pass much needed anti-discriminatory measures. Instead, between March 9, 1933 and April 12, 1945, actions to combat discrimination “were limited to the creation of the Justice Department’s Civil Liberties Section in 1939, and the Committee on Fair Employment Practices in 1941” (Wolk, 1971: 31). Still, the combination of the increased access provided by President Roosevelt to African American leaders and the symbolic actions carried out by President Roosevelt significantly influenced the future of civil rights in the United States of America. As Pauley described, “Franklin Roosevelt helped boost blacks’ expectations of the president, which once fulfilled, would lead to even greater expectations” (2001: 30). He further explained that President Roosevelt’s “peculiar mixture of racial politics, rhetoric, and symbolism could never be repeated by later chief executives, because even as Roosevelt satisfied most African Americans, he raised their expectations of the presidency” (Pauley, 2001: 30).

The combination of the unique relationships established between President Roosevelt and several African American leaders, the increased expectations described in the previous paragraph, and the premature death of President Roosevelt, which in turn placed a former senator from the historically conservative, former slave state of Missouri into the Oval Office, resulted in a very precarious situation for President Truman. However, the historical record seems to indicate that President Truman was up for the challenge.

The Truman Presidency & Civil Rights: Executive Action “To Secure These Rights”

Truman’s Personal Commitment to Civil Rights When Vice President Harry Truman became President Harry Truman on April 12, 1945 after the death of President Roosevelt, the repercussions for civil rights were uncertain. Skepticism regarding Truman’s likelihood to continue Roosevelt’s advancements in civil rights spread among African American leaders at the time (Donovan, 1977: 30-32; Riley, 1999:157). The well-known civil rights activist Roy Wilkins described that African American leaders had no idea what to expect from “an untested haberdasher from Klan country” (1984: 192). Interestingly, while African Americans seemed unsure of Truman, southerners deemed Truman one of their own. According to O’Reilly, one southern senator declared, “Everything is going to be all right. The new president knows how to handle the niggers” (1995: 145). Questions regarding Truman’s record seem justifiable. President Truman was born in rural Missouri twenty years after the Civil War, his grandfather owned slaves, and his uncle fought for the Confederate Army (O’Reilly, 1995: 145). In addition, historical evidence suggests that in the 1920s, Truman considered joining, or perhaps even joined, the Ku Klux Klan (Pauley, 2001: 34). However, as a U.S. Senator, Truman openly opposed lynching and the poll tax, and supported the FEPC (O’Reilly, 1995: 145-146). In fact, during his 1940 senatorial campaign, Truman openly supported voting rights for African Americans. During one campaign appearance, Truman declared, “In giving Negroes the rights that are theirs, we are only acting in accord with ideas of true democracy” (Anderson, 2004: 38). Consequently, as with Roosevelt, historians continue to debate Truman’s personal beliefs concerning civil rights. Historian Alonzo Hamby (1973) depicted President Truman as a compassionate individual that truly cared about the plight of African Americans. In contrast,

Barton Bernstein (1970) found Truman’s efforts in civil rights as politically calculated. More recently David McCullough explained that Truman’s “old biases” and “old habits of speech continued,” as President Truman continued referring to African Americans as “niggers,” but McCullough described Truman’s record pertaining to civil rights as uncertain (1992: 66, 587). Therefore, Donald McCoy and Richard Ruetten’s description that “Truman was a complex of ideas and impulses, principles and prejudices” seems aptly stated (1973: 16). Truman’s Executive Action in Civil Rights Whatever his motivations, whether personal or political, the advancement of civil rights met, and in many ways, exceeded the increased expectations described by Pauley (2001: 30-32). Indeed, Riley described, “One of the most striking contrasts encountered in an examination of the record of Harry Truman vis-à-vis that of his immediate predecessor is the dramatic increase in presidential time and energy devoted to civil rights” (1999: 155). According to Riley (1999), in comparing the two administrations, Truman’s efforts far surpassed Roosevelt’s in congressional relations, presidential rhetoric, and most importantly for the current study, executive orders. Perhaps one reason why President Truman took such a proactive approach to civil rights was because of the skepticism African American leaders had towards him. Upon taking office, Riley described that the new president “recognized that he had to demonstrate openly to black America that he was trustworthy” (1999: 158). Still, during the first eight months of his term, Truman relied almost entirely on rhetoric. Finally, on December 18, 1945, Truman carried out his first unilateral action on behalf of underrepresented groups, as he signed Executive Order 9964, which gave the FEPC additional investigation powers (Morgan, 1970: 40-41). However, given that the FEPC’s termination date was only six months away, on June 30, 1946, this order seemed rather symbolic in nature. The important issue for African American leaders was the creation of a permanent FEPC. Democratic Senator Dennis Chavez of New Mexico introduced legislation to make the FEPC permanent, which Truman readily supported. Despite his public support for the bill, critics condemned Truman for sitting idly by as Senator Theodore Bilbo of Mississippi successfully killed Chavez’s bill with a filibuster (Anderson, 2004: 35-36). While Truman may have failed to adequately take action against Senator Bilbo’s filibuster, Riley described that the second half of 1946 “proved pivotal for Truman in deciding to

pursue a more aggressive, substantive course on behalf of black America” (1999:158). This shift in Truman’s behavior occurred largely because of the escalation of violence against African Americans in 1946, which included high profile cases of brutality against African American servicemen returning home from war. Clearly, on a personal level, such news troubled President Truman. In a letter to his daughter Margaret, he wrote, “My very stomach turned when I learned that Negro soldiers, just back from overseas, were being dumped out of army trucks in Mississippi and beaten” (Truman, 1972: 392). In the aftermath of one such event, Truman lamented that southerners were “living eighty years behind the times” and explained, “I am not asking for social equality, because no such thing exists, but I am asking for equality of opportunity for all human beings and, so long as I stay here, I am going to continue that fight” (Donovan, 1977: 3, 31). Analysis of Truman’s record substantiates Riley’s (1999) claim that Truman’s behavior shifted in the second half of 1946. The first sign of Truman’s aggressive shift toward increased action in civil rights came in the form of an August 1946 public letter to Charles Bolte, the Chairmen of the American Veterans Committee. In the letter, Truman wrote: Discrimination, like a disease, must be attacked wherever it appears. This applies to the opportunity to vote, to hold and retain a job, and to secure adequate shelter and medical care no less than to gain an education compatible with the needs and ability of the individual (Truman, 1947: 423).

Four months later, Truman followed the letter by personally initiating such action against discrimination, as he signed Executive Order 9008 on December 5, 1946, which established the President’s Committee on Civil Rights. In the order, President Truman called on the committee to determine how “Federal, State, and local governments may be strengthened and improved to safeguard the civil rights of the people.” After signing Executive Order 9008 in December 1946, Truman continued his quest against discrimination in his January 6, 1947 State of the Union address, where he spoke boldly against the “numerous attacks upon the constitutional rights of individual citizens as a result of racial and religious bigotry” (Truman, 1948: 9). Consequently, he contended that current laws and statutes did not provide adequate protection for individuals’ civil rights. In his analysis, Pauley (2001) found that Truman’s address left the African American press elated. For example, The Chicago Defender wrote, “Never before in our political annals has a president been so frank,

so clear and so uncompromising in championing the civil rights of the oppressed” (Pauley, 2001: 39). Five months later, on June 29, 1947, Truman reiterated his claims, when he became the first president to speak at an event sponsored by the National Association for the Advancement of Colored People (NAACP). Truman explained to the audience that he believed that the United States had “reached a turning point in the long history of our country’s efforts to guarantee freedom and equality to all our citizens,” and that “each man must be guaranteed equality of opportunity” (Donovan, 1977: 334). He then sided with the NAACP and other prominent African American leaders, as he called for the federal government to take the initiative in guaranteeing individual rights to its citizens in areas where states had failed, because in his eyes, the federal government must be a “vigilant defender of the rights and equalities of all Americans” (Donovan, 1977: 334). NAACP leader Roy Wilkins described, “For the first time, the President was putting himself and the government where they should have been all along: at the head of the parade, not on the sidelines” (1984: 199). Historians consider this a watershed event in the American civil rights movement, as President Truman spoke to more than ten thousand people at the Lincoln Memorial, while tens of thousands more listened via four major national radio networks. In fact, the speech was so important to the civil rights movement that it was rebroadcast in movie theatres across the United States (Pauley, 2001: 32). In his biography of Truman, McCullough lauded this speech as “the strongest statement on civil rights heard in Washington since the time of Lincoln” (1992: 569). A few months later, the President’s Committee on Civil Rights, established by Truman’s Executive Order 9008 in December 1946, issued its final report on October 29, 1947, which it titled To Secure These Rights (Riley, 1999: 160). In this report, the Committee advocated presidential and legislative action in several areas, including voting rights, equal employment opportunity, and desegregation of the armed forces. In addition, the report noted in detail various forms of discrimination in educational institutions, public facilities, and included a section lambasting the federal government’s involvement in the mandatory evacuations of Japanese citizens during World War II (Anderson, 2004: 39). According to William Berman’s account, the Committee’s report “went far beyond anything Truman and his advisers had in mind when they initially commissioned the investigation” (1970: 70).

While Truman and his administration may not have anticipated such a grandiose report, the president used the Committee’s report as the foundation for his ten-point civil rights program that he presented in a special message to Congress on February 2, 1948 (Morgan, 1970: 15). Such proposals included the abolition of state poll taxes, the establishment of federal voting rights acts, increased federal involvement to combat lynching, the desegregation of the armed forces, the creation of a permanent FEPC, the creation of a permanent Commission on Civil Rights, and a joint congressional committee on civil rights (O’Reilly, 1995: 158). In addition to an extensive legislative agenda, Truman personally guaranteed that he would soon issue two executive orders designed to combat federal employment discrimination and to eliminate segregation in the armed forces (Riley, 1999: 162). However, given that 1948 was a presidential election year, and Truman knew he had to appease southerners within his party, the president soon backed off his promised executive orders. In spite of the fact that Truman may have reconsidered his role in advancing civil rights after his February 2 speech, the speech brought the issue of segregation in the armed forces to the forefront of the political agenda for civil rights leaders. After all, in To Secure These Rights, the President’s Committee wrote, “Prejudice in any area is an ugly, undemocratic phenomenon, but in the armed services, where all men run the risk of death, it is especially repugnant” (Anderson, 2004: 39). African American leaders seized upon the Committee’s report and the president’s address to Congress, as they increasingly demanded action to desegregate the armed forces. In March 1948, Grant Reynolds, chairman of the Committee Against Jim Crow in the Military Service and Training, met with President Truman and presented the president with seven specific proposals to carry out the integration of the U.S. armed forces. In addition, Reynolds presented his proposals at congressional committee hearings regarding the selective service. Reynolds threatened that if no actions were taken, the result would be mass civil disobedience. Likewise, longtime civil rights leader A. Philip Randolph testified before a congressional committee, where he stated, “I personally pledge myself to openly counsel, aid and abet youth, both white and Negro…in an organized refusal to register and to be drafted” (Garfinkel, 1959: 161). Furthermore, the NAACP, an important ally in the passage of the Selective Training and Service Act of 1940, for the first time came out against compulsory service in early 1948 (Morgan, 1970: 15-16).

As such, the issue of segregation in the armed forces increasingly haunted President Truman. After all, the issue no longer plagued Truman on the domestic front, but it plagued him on the international stage as well. In 1946 and 1947, the National Negro Council and the NAACP petitioned the United Nations for assistance in combating discrimination in the United States (Morgan, 1970: 15). In his memoirs, President Truman discussed his concerns regarding world opinion of the United States in the early years of the Cold War. He wrote, “We could not endorse a color line at home and still expect to influence the immense masses that make up the Asian and African peoples” (Truman, 1956: 183). According to O’Reilly, Truman successfully articulated, “if the Cold War is defined as a struggle between two rival powers (the United States and the Soviet Union) for the allegiance of the largely nonwhite third world…then America’s racial baggage would prove a devastating handicap” (1995: 154-155). Still, as the Democratic Party’s national convention neared, Truman realized the political necessity of appeasing the southern wing of the Democratic Party. Consequently, when Minneapolis Mayor Hubert Humphrey introduced an extremely liberal civil rights plank for the Party’s platform, President Truman sided with southern Democrats in opposition of Humphrey’s proposals. However, when Truman and the southern Democrats lost their battle against the progressive wing of the Party, southern delegates stormed out of the convention and formed the Dixiecrat Party, under the tutelage of South Carolina Senator Strom Thurmond (Riley, 1999: 162-163). Ironically, the exodus of the southern delegates may have saved Truman’s candidacy. After all, former Vice President Henry Wallace had already organized his own third party candidacy under the Progressive Party label. Therefore, when Senator Thurmond and the Dixiecrats left the Democratic Party, it allowed President Truman to pursue an increasingly liberal agenda, which was important not only because of Wallace’s liberal stance on civil rights, but also because of Governor Thomas Dewey’s (the Republican nominee) relatively strong record on civil rights (Pauley, 2001: 40). As a result, in his acceptance speech on July 15, President Truman took a gamble and dropped what many viewed as a political bombshell. Morgan described: “Toward the end of the speech he caused the first surprise of his campaign by announcing that he was going to call Congress back into session on July 26 and ask it to pass the legislation that Republicans advocated, including civil rights measures” (1970: 19). With this bold move, Truman later wrote

41 that he knew that the Republicans in Congress would fail to follow his leadership, but he was determined to “run out on their platform” (Truman, 1956: 218). His assumptions were correct, as the special session of Congress failed to respond accordingly. Therefore, the vary day he called Congress into session, President Truman took unilateral action, as he signed Executive Orders 9980 and 9981, proving that he would act, even if Congress would not. In the first order, Truman created the Fair Employment Board within the Civil Service Commission to ensure “fair employment throughout the Federal establishment, without discrimination because of race, color, or national origin.” Anderson explained, “Truman’s order meant that all federal agencies must end segregation and open jobs to minority taxpayers across the nation” (2004: 42). In the second order, Truman effectively eliminated the policy of segregation in the armed forces. Considering the Gallup Organization found that over two-thirds of the populace supported continued segregation of the armed forces, Truman’s order was truly a sign of courage (Anderson, 2004: 40). Because of the lack of support for such integration, the immediate political ramifications seemed questionable at best. Furthermore, Randolph initially voiced his opposition to the order, labeling it “a misleading move, obviously made for political purposes and deliberately calculated to obscure the issue of segregation and to confuse the people at home and abroad” (Morgan, 1970: 21). Luckily for Truman, by September, the majority of African American newspapers printed their support for Truman’s order to desegregate the armed forces and withdrew their opposition to the draft (Morgan, 1970: 21). Without a doubt, one of the major reasons for this public support of Truman and his order was because of the president’s continued outreach to the African American community throughout the 1948 campaign. For example, in October 1948, President Truman became the first president to speak in Harlem; a significant event in the eyes of African American leaders and the African American press (O’Reilly, 1995: 161). Ultimately, Truman’s efforts in regards to civil rights throughout 1947 and 1948 paid political dividends in the 1948 election, as African American support for Truman became a crucial factor in determining the election. According to one post-election poll, sixty-nine percent of African American voters in twenty-seven cities across the United States supported Truman (Riley, 1999: 164). As a result, historians credit African American support for Truman as the decisive reason for Truman’s victory in 1948, as African American support for Truman made the

difference in his extremely narrow victories in California, Illinois, and Ohio (O’Reilly, 1995: 161; Anderson, 2004: 43). The victorious Truman rewarded African American support in his 1949 State of the Union and Budget addresses. In these speeches, Truman once again called upon Congress to create a permanent FEPC, federally outlaw lynching, and federally outlaw state poll taxes. In addition, he threatened to issue an additional executive order that would establish a new FEPC if they failed to do so (Morgan, 1970: 42; O’Reilly, 1995: 161). However, such legislative endeavors seemed almost impossible, given the new dynamics of the Washington political environment. Ironically, the fact that the president’s party in Congress was also victorious in the 1948 congressional elections, further complicated Truman’s ability to achieve success in the realm of civil rights. With the Senate dominated by senior southern Democrats opposed to any civil rights reforms, simply getting issues on the agenda became an overwhelmingly difficult task. Riley explained, “The most crucial congressional decisions in relation to civil rights during Truman’s second term came not on specific policy prescriptions, but on organizational questions, establishing the rules of the game for considering legislation” (1999:166). Liberals in the Senate decided that the only way to achieve success in civil rights would be to change Senate rules. The NAACP and the Americans for Democratic Action lobbied for a change from a required two-thirds of a quorum mandatory for cloture to a simple majority requirement. On March 3, President Truman publicly endorsed the simple majority cloture idea. As one scholar described, “Absent such a change, the Senate would continue to be a graveyard for anything the more liberal House passed” (Riley, 1999: 166-167). Indeed, three years later, NAACP leader Roy Wilkins called the vote on changing the cloture rules “the most crucial vote on civil rights in the past ten years” (Berman, 1970: 150). In the end, Senate liberals were unable to convince enough moderates to join them in reforming the cloture rules. In fact, William Berman argued that Truman’s public support for the majority cloture idea might have actually convinced moderate Senators to oppose such change (1970: 148-149). Additional actions by Truman displayed his increasingly extreme position on civil rights, which further angered moderates both within his party and within the Republican Party. For instance, by mid-1949, Georgia Senator Richard Russell, a leader among Southern conservatives, began to fear a permanent split in the Democratic Party over racial issues. Consequently, he

advanced the idea of a legislative package that would include a weaker form of the FEPC, harsher penalties for lynching, and a vote on a constitutional amendment to outlaw poll taxes. Truman however was unwilling to compromise on such issues, especially on the FEPC (Berman, 1970: 168). Barton Bernstein described that a permanent FEPC, with powerful enforcement mechanisms, was nonnegotiable in Truman’s eyes, and was the foundation for his civil rights programs, meaning that the president would not discuss any further civil rights compromises until his FEPC legislation was passed (1970: 293). With Truman unwilling to compromise, and southern Democrats committed to filibuster any substantial reforms, the civil rights agenda stalled in 1949 and 1950. Indeed, because of the stalemate, during a meeting with the National Emergency Civil Rights Mobilization Committee on January 17, 1950, one committee member noted that “since the likelihood of enactment of any consequently civil rights legislation in 1950 seems remote,” Truman should take unilateral executive action to further the advancement of civil rights in America (Morgan, 1970: 42). The president acquiesced and drafted an executive order that would create a new FEPC, and even sent the order to high-ranking officials in Department of Labor for review, but in the end, nothing became of the order (Morgan, 1970: 42). President Truman and his allies in the civil rights movement received a further setback in November 1950, as the midterm elections resulted in an increasingly conservative Congress. While the Democrats held on to control of both houses, many of Truman’s most important congressional supporters fell victim to the changing mood in the electorate (Riley, 1999: 172). Berman noted, “Suddenly it seemed civil rights was no longer the urgent political issue it had been. The postwar liberal tide was now receding, carrying with it the frustrated hopes of millions of American Negroes” (1970: 179). Instead, national security and Cold War issues became the focus for the majority of American citizens and politicians, especially after the outbreak of war in Korea on June 25, 1950. As a result, by 1951, Cold War issues dominated the agenda in the Truman White House. Although Truman previously tried to connect racial justice to America’s position in the world, U.S. involvement in the Korean Conflict shifted Truman’s attention almost entirely to the international arena. O’Reilly described that by 1951, “Cold War issues always occupied center stage at the [Truman] White House, and when it came down to cases, the demands of security always won out over racial justice” (1995: 162). One observer criticized that Truman’s civil

44 rights program had “been hidden so well in Washington that Sherlock Holmes couldn’t find it” (McCoy and Ruetten, 1973: 287). In Truman’s defense, in the nine month period between February and November 1951, he used the authority granted to presidents in the First War Powers Act of 1941 to issue six separate executive orders mandating that various governmental agencies “include nondiscrimination clauses in their procurement contracts” (Morgan, 1970: 42). Ultimately, these six minor steps taken by Truman led to Executive Order 10308, issued on December 3, 1951. This order established the President’s Committee on Contract Compliance, which Truman created for the sole purpose of enforcing the nondiscrimination clauses established by the previous six orders. Historically this order is significant because it became Truman’s last major action pertaining to civil rights. Truman’s Civil Rights Legacy In the end, given the fact that southern Democrats seemed relieved when Harry Truman took office on April 12, 1945 and many civil rights leaders were quite skeptical of the new president, Truman’s overall record on civil rights was quite astonishing. Although he failed to establish a permanent FEPC and he failed to use his leadership to get anti-lynching and anti-poll tax legislation through Congress, with the political situation Truman faced, it is truly amazing the civil rights advancements achieved by President Truman during his tenure of office. Indeed, even though Walter White often criticized President Truman for not taking further actions, upon Truman’s exit from the White House, White opined, “no occupant of the White House since the nation was born has taken so frontal or consistent a stand against racial and religious discrimination as Mr. Truman” (Berman, 1970: 197). Perhaps O’Reilly summed up President Truman’s civil rights record best when he wrote: By desegregating the Army, addressing the NAACP, appointing the committee that compiled To Secure These Rights, and introducing civil rights legislation, Truman did more than Franklin Roosevelt or any other twentieth century president who came before him. More, too, than most who come after (1995: 165).

Consequently, while Pauley (2001) may be correct in his assertion that Franklin Roosevelt’s proactive nature in regards to civil rights significantly increased the expectations of future presidents in the civil rights realm, President Truman became the first president to actively combine presidential rhetoric, presidential leadership in Congress, and presidential unilateral

action to advance civil rights. Therefore, when it comes to leadership in civil rights, President Truman became both the model and measuring stick for future presidents.

The Eisenhower Presidency & Civil Rights: A General Unwilling to Lead

Eisenhower’s Personal Commitment to Civil Rights Unlike President Truman, President Eisenhower tried to avoid issues regarding civil rights. Morgan explained, “A persistent theme in President Eisenhower’s statements on civil rights was a preference for executive rather than legislative action, a preference for state and local rather than national action, and a preference for voluntary rather than compensatory action” (1970: 43). Similarly, Stephen Ambrose described, “The civil-rights movement presented problems he [Eisenhower] did not understand, nor wish to study, much less solve” (1990: 336). President Eisenhower himself once said that he believed “that if we attempt to merely by passing a lot of laws to force someone to like someone else, we are just going to get into trouble” (Mayer, 1987, 34). Accordingly, unlike his two immediate predecessors, Eisenhower did not envision a presidential role in regards to equal employment opportunities for African Americans, and thus, was unwilling to lead in this policy realm. On the contrary, President Eisenhower held that state governments were best suited to solve such problems. According to historian Robert Burk, Eisenhower’s personal position regarding equal employment opportunities for African Americans was that such social dilemmas were “not best handled by punitive or compulsory federal law” (1984: 92). Furthermore, the Republican platform adopted during the 1952 election parroted Eisenhower’s beliefs, as the platform suggested that laws regarding employment discrimination “should not duplicate state efforts to end such practices” and “should not set up another huge bureaucracy” (Congressional Quarterly, Inc., 1976: 74). In fact, during the 1952 campaign, Eisenhower openly opposed the reestablishment of the FEPC because he maintained that state, local, and private authorities could best combat job discrimination. Eisenhower’s stance on civil rights in general, and job discrimination in particular, paid political dividends, as several prominent southern Democratic governors, including James Byrnes of South Carolina and Allan Shrivers of Texas, two leading spokesmen for southern white resistance, broke with their party and endorsed Eisenhower’s candidacy in 1952. In the

46 end, such endorsements no doubt played a crucial role in Eisenhower’s victories in Florida, Tennessee, Virginia, and Texas; only the second time a Republican presidential candidate won those states since Reconstruction. However, Eisenhower’s rhetoric and opposition to a permanent FEPC also resulted in only twenty-five percent of African Americans supporting his candidacy (Pach & Richardson, 1991: 138-139). Eisenhower’s Executive Action in Civil Rights Not surprisingly, once in office, the Eisenhower administration tried to avoid matters regarding civil rights policy. Indeed, one former White House aid illustrated, “Civil rights in the Eisenhower administration was handled like a bad dream, or like something that’s not very nice, and you shield yourself from it as long as you possibly can” (Burk, 1984: 263). Still, in spite of his personal held beliefs, and his attempts to circumvent civil rights issues, when examining the Eisenhower presidency, one finds that the president did in fact leave a definable mark on civil rights in general, and equal employment opportunity practices in particular. In fact, prior to leaving office, not only did President Eisenhower play a significant role in the passage of the Civil Rights Act of 1957, he also signed the Civil Rights Act of 1960 into law, and issued six executive orders regarding fair employment practices. The first such order came very early on in Eisenhower’s presidency, as he signed Executive Order 10479 on August 13, 1953. Perhaps this action should not have come as a surprise given that seven months earlier, during his first State of the Union message, President Eisenhower committed his administration to the pursuit of civil rights for African Americans. Executive Order 10479 created the Government Contracts Committee, a committee comprised of fourteen individuals with the responsibility of combating discrimination in government contracts. This committee replaced the President’s Committee on Government Contract Compliance created by President Truman’s Executive Order 10308. In addition, the order called for the Government Contracts Committee to make recommendations regarding federal contracts to the heads of each contracting agency. Two days later, Eisenhower signed Executive Order 10482, which merely added a fifteenth member to the committee. Critics of Eisenhower denounced Executive Order 10479 as merely a mirage. They argued that while Eisenhower appointed Vice President Nixon as the committee’s chair, there was no direct contact between the Government Contracts Committee and the President. Furthermore, critics argued that the order lacked an effective enforcement mechanism, resulting

in a largely symbolic order. In fact, even members of the Eisenhower administration described that the new committee’s primary function focused on “providing an educational forum on fair employment and projecting official concern for the democratic principles of equal opportunity” (Burk, 1984: 95). Therefore, critics saw the committee as merely an “educational forum,” rather than an effective enforcement mechanism, especially since unlike the previous committee established by Truman, the title of the new committee lacked the modifier, “compliance.” Despite these criticisms, the Government Contracts Committee sent one of its first recommendations directly to the president, which Eisenhower used as a foundation for another executive order. Indeed, less than thirteen months later, President Eisenhower issued Executive Order 10557, which revised and expanded a provision within Executive Order 10479 regarding discrimination in governmental contracting, as the new order determined that discrimination based on race, religion, color, or national origin, included discriminatory practices in demotion, transfer, recruitment, advertising, termination, pay scales, and training. Furthermore, Executive Order 10557 required companies under government contracts to post notices explaining their adherence to non-discriminatory practices. In other words, this order mandated that such companies actively publicize their commitments to prevent employment discrimination. The remainder of Eisenhower’s executive orders in this policy realm were largely symbolic. Executive Order 10590 merely established another presidential committee on governmental employment policies; Executive Order 10640, which created the President’s Committee on Employment of the Physically Handicapped, merely extended previous congressional action found in the Vocational Rehabilitation Act, and Executive Order 10722 simply amended the composition of the President’s Committee on Government Employment Policy established in Order 10590. In spite of the fact that President Eisenhower’s overall commitment to equal employment opportunities for African Americans paled in comparison to his immediate predecessor, we must acknowledge the important role President Eisenhower played in advancing civil rights for African Americans. In fact, President Eisenhower’s initiation of unilateral executive action by way of executive order significantly affected the process of school desegregation in the United States. Indeed, when the U.S. Supreme Court handed down its decision in Brown v. Board of Education of Topeka on May 17, 1954, the Court effectively forced President Eisenhower to address the issue of school desegregation, as the Court’s ruling eventually led to what one

historian described as “Eisenhower’s most important civil rights action” (Harvey, 1971: 5). However, the chain of events that eventually led to Eisenhower’s issuance of Executive Order 10730 is an interesting story. Eighteen months prior to the Court’s decision, in July 1953, the president spoke privately with Governor Byrnes of South Carolina regarding school desegregation, whereby Eisenhower opined, “race relations is one of those things that will be healthy and sound only if it starts locally” (Ferrell, 1981: 246). Thus, when the Court handed down its decision, given his personal predilections, it is not surprising that Eisenhower was weary of the decision. Ultimately, the president feared that in the aftermath of the decision, states and localities throughout the South might decide to close their public school systems, rather than carry out the Court’s order. During a meeting with White House staff members, Eisenhower stated, “It’s all very well to talk about school integration,” but in affect, “you may also be talking about social disintegration…And the fellow who tries to tell me that you can do these things by force is just plain nuts” (Hughes, 1963: 201). Therefore, when the Court reviewed the means of implementing its decision the following year, in Brown II, Justice Department lawyers working on behalf of the Administration asked the Court to allow a maximum level of local authority and a minimum level of federal authority in carrying out school desegregation. Consequently, the Court’s infamous phrase “all deliberate speed,” pleased Eisenhower (Pach & Richardson, 1991: 143). Perhaps the most intriguing aspect of Eisenhower’s reaction to the Court’s ruling was his reluctance to defend the Court’s ruling in response to the open defiance expressed by politicians across the South. In fact, in some ways, Eisenhower seemingly aided and abetted such insolence. For instance, at a news conference on February 29, 1956, when a reporter asked for Eisenhower’s reaction to the fact that four southern state legislatures passed resolutions that asserted that Brown v. Board of Education lacked legal standing in their states, Eisenhower merely stated, “there are adequate legal means of determining all of these factors” (Ambrose, 1990: 406). Moreover, in March 1956, when the University of Alabama expelled its first black student after a federal court ordered her admittance, President Eisenhower refused to get involved in the matter (Pach & Richardson, 1991: 145). Likewise, when 101 southern members of the U.S. Congress signed the “Southern Manifesto,” which called for the overturning of the Brown decision, Eisenhower responded to their repudiation of the Supreme Court by defending their actions. He contended, “the people

49 who have this deep emotional reaction on the other side were not acting over the past three generations in defiance of law. They were acting in compliance with the law as interpreted by the Supreme Court [in the Plessy case]” (Ambrose, 1990: 407). In other words, in Eisenhower’s opinion, given that Brown overturned Plessy, the United States must give southern politicians adequate time to “adjust their thinking” regarding the legality of segregation, because after all, these same politicians had upheld the Court’s previous ruling for over five decades. Throughout 1956 and the first half of 1957, President Eisenhower maintained his commitment to allow state and local officials to deal with school desegregation on their own timetables. His boldest statement came at a news conference on July 17, 1957, where the president articulated a position that haunted him two months later. In a response to a reporter who asked the president if he was aware that precedents suggested that he had the power to use military force to implement the Court’s ruling in Brown, Eisenhower explained, “I can’t imagine any set of circumstances that would ever induce me to send Federal troops…into any area to enforce the orders of a Federal court” (Pach & Robertson, 1991: 150). A mere month and a half after Eisenhower’s press conference, a federal court in Arkansas handed down a ruling that required Little Rock, Arkansas to begin the implementation of a seven-year integration plan during the 1957-58 school year. On September 3, 1957, a few days after the ruling and one day before the first day of school, Arkansas Governor Orval Faubus ordered the Arkansas National Guard to prevent the integration of Little Rock’s Central High School. Governor Faubus’ order resulted in a seventeen-day stalemate, which abruptly ended on September 20, when the federal court issued an injunction, effectively barring Governor Faubus from using the National Guard to block its original order. Faubus complied with the second order, resulting in mob violence as African American students tried to attend classes on September 23. In response to the situation, President Eisenhower carried out one of his most memorable acts of his presidency, as he issued Executive Order 10730. Under Executive Order 10730, signed on September 24, 1957, President Eisenhower federalized the Arkansas National Guard in order to carry out the desegregation order at Little Rock’s Central High School. This order not only federalized the Arkansas National Guard, “but also ordered the Secretary of Defense to use any means necessary to overcome the resistance, including the deployment of U.S. Army forces” (Pauley, 2001: 80).

Ultimately, one thousand Army troops joined ten thousand members of the Arkansas National Guard in order to maintain peace in the city of Little Rock (Pauley, 2001: 80). Although President Eisenhower was initially reluctant to involve himself in the Little Rock affair, the issuance of Executive Order 10730 effectively set an important precedent, as President Kennedy later used similar military authority in desegregation cases dealing with the University of Mississippi and the University of Alabama. Though the Little Rock affair may be more memorable because of the media attention, during the same year, President Eisenhower also signed into law the Civil Rights Act of 1957; the first major civil rights legislation since Reconstruction. Perhaps even more important than his signing of the Civil Rights Act of 1957 was the fact that his administration was responsible for initiating this legislation. The Civil Rights Act of 1957 established the Commission on Civil Rights and the Civil Rights Division within the Justice Department, which was to be under the leadership of an additional Assistant Attorney General, and authorized the national government to take action on behalf of African Americans in order to protect their voting rights. In his 1982 memoir, George Reedy, who served as the staff director of the Senate Democratic Policy Committee at the time the Civil Rights Act of 1957 passed and later served as Lyndon Johnson’s White House Press Secretary, described, “In retrospect, the passage of the Civil Rights Act of 1957 still seems like a miracle…For eighty-two years, it had been impossible to secure enactment of a bill which even asserted the virtue of civil rights – let alone did anything about them” (109). In addition, as previously indicated, President Eisenhower also signed into law the Civil Rights Act of 1960, which once again increased the Attorney General’s powers to protect individuals’ voting rights and empowered the federal courts “to appoint referees to help them determine qualified voting applicants” (Wolk, 1971: 32). Interestingly, in the lead-up to the passage of the Civil Rights Act of 1960, President Eisenhower originally sought a provision to permanently establish a Commission on Equal Employment Opportunity, but “Administration forces in Congress sacrificed this provision…to secure passage” of the rest of the act (Morgan, 1970: 46). Thus, while President Eisenhower personally opposed federal involvement in such matters, civil rights for African Americans did indeed advance during his administration largely because of executive actions taken by the president, as he signed several executive orders regarding employment opportunities for African Americans, he signed an executive order to

implement a desegregation order, and he signed into law the first two major civil rights laws since Reconstruction. Eisenhower’s Civil Rights Legacy In sum, like his two immediate predecessors, President Eisenhower left a seemingly contradictory record on civil rights. While historians Ambrose (1990) and Burk (1984) reported that Eisenhower personally believed that the solution to civil rights issues could not and should not be found at the national level, the president issued six executive orders regarding equal employment opportunity, initiated and signed into law the Civil Rights Act of 1957, signed into law the Civil Rights Act of 1960, and used an executive order to enforce the integration of a southern high school. This begs the question, how can we account for such actions? Looking first at the executive orders President Eisenhower issued, previous scholarship seems to indicate that such actions made perfect sense given Eisenhower’s personal beliefs and the context of the situation Eisenhower faced. Burk (1984) explained that President Eisenhower did not see the need for federal legislation to solve the social ills present in America. Similarly, Chester Pach and Elmo Richardson explained, “He did not intend to use his moral authority as president to take the lead in changing racial attitudes” (1991: 140). Indeed, Riley (1999) argued that “most troublesome” to civil rights activists “was the president’s [Eisenhower’s] notable unwillingness to deal with the nation’s fundamental racial problems through aggressive legislative initiative” (178). Consequently, we can reason that Eisenhower’s decision to use executive orders as a policy tool was consistent with his cautious approach to civil rights. Additionally, in regards to equal employment opportunity, President Eisenhower merely followed the lead of his predecessors. As previously indicated, presidential involvement in this policy realm originated with President Franklin Roosevelt’s issuance of Executive Order 8802, which established the Committee on Fair Employment Practices to ensure that discrimination did not occur in defense contracting. Likewise, when President Truman chose to initiate policies to combat racial discrimination, he did so via unilateral actions, with the signing of Executive Order 9980, which established the Fair Employment Board as part of the Civil Service Commission and the signing of Executive Order 9981, which desegregated the Armed Forces. Consequently, President Eisenhower simply followed the precedents of his two immediate predecessors when it came to civil rights policy. In fact, Riley (1999) argued that such actions by his predecessors actually forced Eisenhower to take actions he might not have otherwise taken. Riley contended,

“Eisenhower could not easily return the government to the status quo ante Truman…To turn away from Truman’s positions was to incur wrath not only from those who actively pressed for civil rights advances, but also of those political passives whose expectations had been raised that more was possible” (1999: 177). Moreover, we can deduce that President Eisenhower used limited executive action regarding equal employment opportunity because of the conflict-ridden environment in Congress that he faced during his tenure. Indeed, when the president turned to his vice president for advice, Vice President Nixon informed him that the stronghold of southern Democrats within congressional committees would not allow such legislation to reach the floors of Congress (Adams, 1961: 336). In addition, Eisenhower himself later acknowledged that he feared that too much pressure to pass civil rights legislation would put at risk his administration’s other legislative proposals (Eisenhower, 1963: 192). To his credit, Eisenhower did initiate a proposal to permanently establish a Commission on Equal Employment Opportunity in the Civil Rights Act of 1960, but the provision failed to pass through the House Judiciary Committee (Morgan, 1970, 35). Thus, in reality, President Eisenhower did in fact face a difficult situation. As O’Reilly recently reported, in 1956, “every congressmen from the old Confederacy’s 11 states and ever Southern senator excepting Lyndon B. Johnson of Texas and Estes Kefauver and Albert Gore of Tennessee pledged to overturn Brown” (1997-1998: 114). Nevertheless, if this reasoning is correct, what explains President Eisenhower’s proposal of the Civil Rights Act of 1957? Three answers seem to account for this action. First, the legislation only sought to curb discrimination of African Americans in voting, and thus ignored more pressing issues, including employment discrimination. Second, Riley (1999) reported that the Eisenhower administration chose to initiate such legislation because of his continual decline in support among African Americans throughout the country and among moderate whites in the North. Finally, Jackson and Riddelsperger explained that critics of the Eisenhower administration argued that President Eisenhower “intended the bill only as a political fodder for the forthcoming election” (1993: 88). In sum, while Eisenhower’s personal beliefs indicated that he saw little-to-no role of presidential leadership in the realm of civil rights, the eight years he served in the White House were eight pivotal years for the American civil rights movement. During his tenure, President Eisenhower signed into law the Civil Rights Acts of 1957 and 1960, signed an executive order to

enforce the integration of Little Rock Central High School, completed the Truman military desegregation program, and most importantly for this study, issued six executive orders regarding equal employment opportunity. While Pauley (2001) described how the actions of President Franklin Roosevelt increased the expectations of African Americans and thus placed President Truman in a precarious situation, it seems that President Truman’s success only raised the bar higher, and effectively forced President Eisenhower to act against his personal predilections. The Kennedy Presidency & Civil Rights: Maximum Executive Action with the Stroke of a Pen

Kennedy’s Personal Commitment to Civil Rights In contrast to President Eisenhower’s cautious approach to civil rights, President Kennedy sought to make a difference almost immediately. Harris Wofford, who served as Kennedy’s special assistant on civil rights, reported that Kennedy’s initial months in office “were full of action for equal rights” (1980:141). In fact, during his first Cabinet meeting, President Kennedy demanded that Cabinet members “take affirmative action to recruit Negroes” (Wofford, 1980: 141). Nevertheless, President Kennedy’s commitment to civil rights is debatable. As Pauley described, “The most common words that friends, former colleagues, and scholars have used to describe the Kennedy persuasion [regarding civil rights] are cool, skeptical, and pragmatic” (2001: 108). In fact, Pauley explained that in his quest to receive the Democratic Party’s nomination for president in 1960, the then Senator Kennedy went on a speaking tour throughout the South in 1957, denouncing President Eisenhower’s use of federal troops at Little Rock Central High School (2001: 105). Through these speeches, Victor Lasky wrote that Senator Kennedy became known as “Dixie’s favorite Yankee” (1963: 201). Furthermore, during the legislative process, which eventually led to the passage of the Civil Rights Act of 1957, Kennedy sided with southern Democrats on several procedural votes (Pauley, 2001: 110). Therefore, while Kennedy changed his rhetoric during the presidential campaign of 1960, where he often referred to civil rights as a “moral issue,” the likelihood that Kennedy would pursue comprehensive civil rights legislation as president was at best, questionable (Pauley, 2001: 113-117). Indeed, while Kennedy may have described civil rights as a moral issue during the campaign, according to Theodore Sorenson, President Kennedy’s Special Council and

advisor, upon taking office, Kennedy largely thought of African Americans in terms of votes (1965: 471). Similarly, in the aftermath of President Kennedy’s death, Harry Golden questioned President Kennedy’s initial understanding of the issues facing African Americans. Golden described, “I do not think that either the late President or the Attorney General was fully aware of the enormity of those wrongs when they took their oaths of office” (1964: 32). Thus, it should be no surprise that at the beginning of President Kennedy’s term, he determined not to seek legislation. Instead, the Kennedy Administration decided that his civil rights strategy would stress “expanded use of executive power,” particularly “in those fields in which federal authority was most complete and undisputed,” and “The president’s personal influence and prestige would be utilized sparingly” (Harvey, 1971: 20). Kennedy’s Executive Action in Civil Rights Like President Roosevelt, President Kennedy’s immediate executive action in regards to civil rights came via the presidential appointment process. Within his first two months of office, historian Carl Brauer described that President Kennedy selected at least forty African Americans to important governmental posts, the most important of which was his successful nomination of Thurgood Marshall to the Second Circuit Court of Appeals in New York (1977: 68-71). Other prominent posts held by African Americans under Kennedy included the Assistant Secretary of Labor, the Assistant Secretary in the Department of Health, Education and Welfare, and one of the members on the Federal Trade Commission, which marked the first time an African American served on a federal regulatory agency. Furthermore, President Kennedy formed the Subcabinet Group on Civil Rights, composed of a high-ranking member in each of the Cabinet departments and many other key executive agencies, which helped the President coordinate his civil rights agenda (Harvey, 1971: 21-23). Such actions resulted in historians, including Brauer (1977), to refer to the Kennedy-Johnson administration as the birth of the “second Reconstruction.” Obviously, Kennedy’s commitment to appointing African Americans to key governmental posts and the descriptions by Wofford (1980) and Brauer (1977) regarding President Kennedy’s personal commitment in advancing civil rights for African Americans in the initial weeks of his administration distinguished Kennedy from Eisenhower. However, Kennedy’s approach to civil rights in many ways actually paralleled that of his predecessor. Indeed, just as President Eisenhower avoided confrontation with Congress over issues pertaining

to civil rights, President Kennedy circumvented the legislative process as well. NAACP activist Roy Wilkins once recalled, “within ten days of his election, came word that he was not going to advocate any new civil rights legislation because he did not want to split the party” (Stern, 1992: 42). Instead, Kennedy sought “minimum civil rights legislation” with “maximum executive action” (Wofford, 1980: 133). Disappointed with Kennedy’s reliance on executive action, Senate Majority Leader Mike Mansfield lamented, “This explains, in part, why no reference was made to civil rights in the 16 priority matters drawn up for congressional action” (Graham, 1990: 28). Even worse, according to James Harvey, such executive action would be limited to “those fields in which federal authority was most complete and undisputed” and would thus focus almost exclusively on voting rights (1971, 20). Not surprisingly, Kennedy’s decision to seek change via executive action, rather than through legislation, dismayed civil rights leaders as well. According to O’Reilly, leading civil rights activists “wanted legislation and considered the administration’s announcement that it would not go that route tantamount…to telling the opposition…that you weren’t going to use the forward pass” (1995: 200-201). Likewise, Dr. Martin Luther King, Jr. recalled: While Negroes were being appointed to some significant jobs and social hospitality was being extended at the White House to Negro leaders, the dreams of the masses remained in tatters. The Negro felt that he recognized the same old bone that had been tossed to him in the past – only now it was being handed to him on a platter, with courtesy (1963: 20).

While Kennedy was no doubt aware of the criticism launched by some of his closest allies, just as his predecessors had done, Kennedy determined the best way to pursue change in civil rights policy was by way of executive orders. Herman Belz (1991) argued that Kennedy chose executive action over legislative action for two reasons. First, the President realized he could not overcome the strength of southern Democrats in Congress. Second, if he followed his predecessors’ emphasis on contract compliance, he could place pressure on businesses, without alienating organized labor, a crucial Democratic constituency (Belz, 1991: 18). Interestingly, as early as March 8, 1961, President Kennedy acknowledged that executive orders would be his primary means of enforcing civil rights. Morgan (1970) reported that at a news conference on March 8, the president explained his position on civil rights. At the news conference, President Kennedy described his belief that there were a “good deal of things we can

now do in administering laws previously passed by the Congress, particularly in the area of voting, and also by using the powers which the Constitution gives to the President through executive orders” (Morgan, 1970: 46-47). Two days prior to this news conference, and only five weeks into his term, President Kennedy issued the first of such orders. On March 6, President Kennedy issued Executive Order 10925, which eliminated President Eisenhower’s Government Contract Committee and President Eisenhower’s Committee on Government Employment Policy. In their place, Executive Order 10925 established the President’s Committee on Equal Employment Opportunity because according to the order, “a single governmental committee should be charged with responsibility” of ensuring equal employment opportunities. Interestingly, like Eisenhower, President Kennedy named his Vice President as the chair of the newly established committee. What set this order apart from previous orders is that this order not only prohibited discrimination by government agencies or by companies granted governmental contracts, but it also required agencies and contracting companies to take initiative in ensuring such discriminatory practices do not occur. In Section 301 of the Order, Kennedy asserted: The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.

It is widely believed that President Kennedy’s usage of the phraseology “affirmative action” in this order was the first time such language was used to refer to equal opportunity requirements for underprivileged groups. In addition, for the first time, President Kennedy included a combination of sanctions and incentives for compliance by government contractors. Morgan explained: The antidiscrimination clause to be included in government contracts was for the first time to be at least partly self-enforcing through regularly required compliance reports. The Committee itself was empowered to investigate the employment policies of any government contractor or subcontractor, or such an inquiry could be initiated by the appropriate contracting agency or through the Secretary of Labor (1970: 47).

Furthermore, the order included what Morgan referred to as “carrot and stick” provisions (1970: 47). Contractors who abided by the order were to be rewarded with certificates of merit, while contractors who failed to abide by the order were threatened with contract termination,

prohibition from receiving future contracts, and faced prosecution by the Justice Department for contract violation and falsification of information. In his analysis of President Kennedy’s Executive Order 10925, Hugh Graham argued that President Kennedy further enhanced the significance of this order because of the president’s public commitment to the new committee. According to Graham, in contrast to Truman and Eisenhower, “Kennedy signed the order at a highly publicized White House ceremony at which he emphasized his administration’s executive initiatives on behalf of civil rights” (1992: 53). In a previous analysis, Graham noted, “presidential decrees of previous administrations had been brief and mostly technical. Indeed, they had been almost apologetic or defensive, often signed into the Federal Register with no accompanying statement at all” (1990: 41). Eleven months later, President Kennedy issued his second executive order regarding equal employment opportunity, as he penned Executive Order 10994 on February 14, 1962. With this order, we once again witness Kennedy following the lead of his predecessor. Like Eisenhower, in this order, Kennedy sought to combat the discrimination against the physically handicapped. In fact, Executive Order 10994 merely maintained the obligations and responsibilities of the President’s Committee on Employment of the Handicapped, created first by President Eisenhower in Executive Order 10640. The next significant action taken by President Kennedy in regards to civil rights came on September 30, 1962, when he issued Proclamation 3497 and Executive Order 11053. The combination of these two actions effectively ordered that members of the U.S. Army and the U.S. Marshals ensure order in Oxford, Mississippi, as James Meredith became the first African American student at the University of Mississippi on October 1, 1962, in the face of opposition from rioting students and Governor Ross Bernett. Interestingly, these actions by Kennedy further paralleled his immediate predecessor, given that it was Eisenhower’s use of federal troops in the integration of Little Rock Central High School that set the precedent for Kennedy’s use of federal law enforcement authorities to integrate the University of Mississippi. Still, while President Kennedy effectively wielded executive authority to maintain the obligations and responsibilities of the President’s Committee on Employment of the Handicapped and to integrate the University of Mississippi, over two years passed between Kennedy’s first and second executive orders that pertained to equal employment opportunities for minorities. In fact, many believed that Kennedy failed to carry out an effective civil rights

strategy during his two years in office. For example, in a letter sent to one of Kennedy’s top White House aides in late 1962, Roger Wilkins, an official in the State Department and nephew of the NAACP leader Roy Wilkins, wrote: It is my judgment that the record the administration has written to date is unimpressive, shows no commitment to firm and steady progress and fails to live up to the excellent statements made by the President during the 1960 campaign (Brauer, 1977: 211).

In Kennedy’s defense, shortly after Wilkins wrote this letter, President Kennedy did take an additional action to combat discrimination against racial minorities, as he signed Executive Order 11063 on November 22, 1962, which established an official national policy against discrimination in federally assisted housing and created the President’s Committee on Equal Opportunity in Housing. Yet for many leaders, such incremental changes by the Kennedy administration were too little, too late. In the aftermath of a meeting between President Kennedy and several prominent African American leaders in December 1962, including Martin Luther King, Jr., Roy Wilkins, James Farmer, and A. Philip Randolph, a journalist for Ebony and Jet magazines, reported that one of the leaders described, “We’ve lost two years because we admired him [President Kennedy] for what should have been done years ago.” In addition, the article reported that an aide to one of the leaders contended, “We’ve got to quit begging the Kennedys for this and that. We’ve got to start demanding our rights” (Brauer, 1977: 212). Similarly, six leading Democratic senators wrote a letter to President Kennedy on January 8, 1963, crediting him for his executive action in civil rights, but criticizing him for his lack of legislative leadership.14 They wrote, “the time has now arrived for similar forthright action in the legislative field,” in areas such as job discrimination, school desegregation, and voting (Brauer, 1977: 212). Much to their dismay, in his State of the Union address on January 14, President Kennedy virtually ignored such issues. Thus, it was not until June of 1963 that President Kennedy once again asserted his authority in combating job discrimination. On June 22, 1963, President Kennedy issued Executive Order 11114, which he titled, “Extending the Authority of the President’s Committee on Equal Employment Opportunity.” Essentially, this order targeted construction firms that dealt with the federal government in regards to constructing or repairing federal highways, federal

14 The six senators included Hubert Humphrey, Philip Hart, Joseph Clark, Harrison Williams, Paul Douglas, and Clair Engle. 59

office buildings, and any other construction projects paid for with federal dollars. The new order required that all construction firms receiving grants, loans, or contracts from the federal government incorporate the provisions forbidding employment discrimination outlined in Section 301 of Executive Order 10925. Perhaps it should not be surprising that Kennedy issued this new order in June of 1963. Indeed, when assessing President Kennedy’s tenure in office, it is clear that a shift occurred in the president’s pursuit of civil rights in June of 1963, just prior to the signing of Executive Order 11114. On June 11, the same day President Kennedy federalized the Alabama National Guard to ensure the enforcement of an integration order at the University of Alabama; the president addressed the country in a nationally televised speech. In this speech, Kennedy argued: Today we are committed to a worldwide struggle to promote and protect the rights of all who wish to be free. And when Americans are sent to Vietnam or West Berlin, we do not ask for whites only. It ought to be possible, therefore, for American students of any color to attend any public institution they select without having to be backed up by troops (Kennedy, 1963).

He further described that one hundred years after Abraham Lincoln freed the slaves, the ancestors of slaves were “not yet freed from the bonds of injustice” (Kennedy, 1963). Consequently, President Kennedy held that the United States of America “faced a moral crisis as a country and as a people” (Kennedy, 1963). Furthermore, in this speech, President Kennedy called on the United States Congress to take action to help ensure civil rights for African Americans. Eight days later, President Kennedy followed this address by speaking to a special joint session of Congress regarding civil rights and employment discrimination. In this speech, Kennedy argued “the time has come for the Congress of the United States to join with the Executive and Judicial branches in making it clear to all that race has no place in American life of law” (Public Papers, 1964: 247). Three days later President Kennedy followed this address by issuing Executive Order 11114. Kennedy’s Civil Rights Legacy While he issued Executive Order 11114 after these historic speeches, it is clear that President Kennedy shifted his focus from achieving civil rights via unilateral executive action to pursuing comprehensive civil rights legislation in Congress. Interestingly, in spite of his commitment to combating employment discrimination, President Kennedy failed to propose

legislation to fight such bigotry. Perhaps this explains why President Kennedy chose to issue Executive Order 11114. It seems he issued this order because he knew that he would not initiate legislation against employment discrimination. Graham explained that President Kennedy refused to push Congress in this area when proposing the Omnibus Civil Rights Act of 1963, “for fear of losing the entire package” (1990: 83). Instead, President Kennedy planned to transform the President’s Committee on Equal Employment Opportunity “into a national commission with a congressionally approved and appropriated budget” (Graham, 1990: 84). As a result, while President Kennedy seemed ready to combat employment discrimination in his June 19, 1963 speech to Congress, in the end he was unwilling to include such provisions in his omnibus legislative proposal. Still, by shifting the burden to the United States Congress, President Kennedy effectively laid the foundation for his successor to go to war on behalf of discriminated minorities. Therefore, Kennedy’s legacy on civil rights seems to fit the pattern of his three immediate predecessors, as his record suggests a continued accretion of executive authority in the battle against discrimination, but a very limited use of presidential power to persuade Congress to take much needed action. Indeed, while President Kennedy substantially increased the access African American leaders had to the chief executive, effectively placed dozens of African Americans in crucial executive and judicial posts, and used executive orders to outlaw various forms of discrimination in employment, federal housing, and higher education, he ultimately failed to carry through on a comprehensive legislative agenda to combat discriminatory activities. Conclusion In summation, the story of presidential involvement in the realm of civil rights beginning with Franklin Roosevelt’s tenure in office and ending with the assassination of President Kennedy, sets the stage for the increased presidential involvement in civil rights in general, and equal employment opportunity in particular, ultimately leading to the establishment of federally mandated affirmative action programs by President Johnson on September 24, 1965. Indeed, Franklin Roosevelt’s issuance of Executive Order 8802 on June 25, 1941 formally established the unique relationships presidential unilateral action and the pursuit of equal employment opportunity for underrepresented groups in the United States. Following Roosevelt’s lead, Presidents Truman, Eisenhower, and Kennedy all sought to combat employment discrimination

61 by issuing executive orders, as all three of Roosevelt’s immediate successors used executive orders to establish their own enforcement agencies to implement nondiscriminatory policies in response to congressional opposition to such agencies. Consequently, it is clear that Presidents Roosevelt, Truman, Eisenhower, and Kennedy carried out several essential preliminary steps to improve the condition of underrepresented groups in the United States, particularly African Americans, especially in regards to employment opportunities. However, given the enormity of the problem of discrimination across the United States, the actions carried out by these four presidents were only incremental and minimal in scope. In fact, in spite of all these presidential actions, as late as 1963, the House Committee on Education and Labor released a report that described employment discrimination based on “race, religion, color, national origin, or ancestry” as a “pervasive practice” (Morgan, 1970: 57). Still, the effective use of presidential unilateral power in regards to equal employment opportunity by Presidents Roosevelt, Truman, Eisenhower, and Kennedy set the precedent for not only future presidential involvement in regards to equal employment opportunity, but such actions ultimately laid the foundation for presidential leadership in such endeavors. To that extent, precedents established by presidents by way of executive orders often institute the basis for further presidential unilateral action in future administrations. In the case of employment discrimination, Franklin Roosevelt’s initial creation of the FEPC and his institution of a federal policy that outlawed employment discrimination in the defense industry created the impetus for President Truman’s creation of the President’s Committee on Civil Rights, his declaration against discrimination in all government employment, and his creation of the President’s Committee on Contract Compliance. In turn, President Truman’s actions led to increased pressures on President Eisenhower, who created the Government Contract Committee and strengthened the nondiscrimination clause mandatory in government contracts. Likewise, President Kennedy followed the paths of his three immediate predecessors, as he used presidential executive orders to establish the President’s Committee on Equal Employment Opportunity. Ultimately, the continued presidential involvement to combat employment discrimination by these four presidents led to President Johnson’s formal establishment of affirmative action and the birth of a new era in presidential leadership in equal employment opportunity.

CHAPTER 4 – The Establishment of Federal Affirmative Action, 1964-1968

The potential impact of the requirements of Executive Order 11246 as a force for equal employment opportunity has been and is now enormous since it has been estimated that nearly one third of the nation’s labor force is employed by government contractors.

United States Commission on Civil Rights, Enforcement of Executive Order 11246 (1969: 2).

Introduction Lyndon Johnson’s ascension to the presidency proved pivotal for the pursuit of equal employment opportunity for underrepresented groups. In stark contrast to his predecessors, President Johnson pursued equal employment opportunity without hesitancy. As a result, within his first twenty-two months in office, President Johnson successfully signed into law the Civil Rights Act of 1964 and issued four executive orders pertaining to equal employment opportunity,15 the most important of which was Executive Order 11246, the order that formally established the first federal affirmative action guidelines. Consequently, while Presidents Franklin Roosevelt, Harry Truman, Dwight Eisenhower, and John Kennedy laid the foundation for presidential involvement in the equal employment realm, President Johnson’s Executive Order 11246 significantly changed the role of the presidency in this policy domain. The purpose of this chapter is to analyze the factors that led to President Johnson’s decision to issue Executive Order 11246. To accomplish this task, I will employ a case study analysis of President Johnson’s decision-making regarding Executive Order 11246, with an emphasis on answering the research questions outlined in Chapter 1. As such, I will examine the political environment at the time President Johnson issued Executive Order 11246, the importance of presidential activism illustrated by the issuance of this order, the content of the order, the strategic calculations involved in the decision-making process leading to the issuance of the order, and the legacy of Executive Order 11246. This case study will begin to illuminate the extent to which presidents over the years promoted equal employment opportunity, as compared to Congress, the institution typically associated with major policy enactments at the national level, and will begin to illustrate the behind-the-scenes strategic calculations presidents consider when issuing such executive orders.

15 See Executive Order 11141, signed on February 12, 1964; Executive Order 11197, issued on February 5, 1965; Executive Order 11246, issued on September 24, 1965; and Executive Order 11247, issued on September 24, 1965. 63

Equal Employment Opportunity & the Political Environment of 1963-1965 The political circumstances by which Lyndon Johnson garnered the reins of the presidency would have been difficult for any individual, but for Johnson, they were incredibly complex. Following the assassination of President Kennedy, not only did Johnson face the monumental task of ensuring an orderly transition in a time of national crisis, but he also faced a political environment that posed significant personal challenges for the new president. While Kennedy brought youthful charm, charisma, idealism, and a sense of “newness” to the White House, Johnson, as a lifelong politician, represented the old guard, was prone to compromise on key issues, and perhaps worst of all, was a southern Democrat. Furthermore, as indicated in the previous chapter, in June 1963, Kennedy had moved civil rights to the top of the national agenda, which meant Johnson had to deal with civil rights issues whether he desired to or not. In his own recollection, President Johnson explained, “Rightly or wrongly, I felt from the very first day in office that I had to carry on for President Kennedy. I considered myself the caretaker of both his people and his policies” (1971: 19). In addition to the above circumstances, given that the assassination of Kennedy occurred in late November 1963, Johnson literally had only a few months to convince party leaders that he should be their nominee for the 1964 election. Historian Mark Stern described, Johnson “could not be a southerner on civil rights and be president of the United States” (1992: 162). Johnson himself acknowledged the difficult circumstances he faced. He later told Doris Kearns, who served as a special assistant to the president in 1968 and as a special consultant to the president from 1969 through 1973, “that if I didn’t get out in front on this issue [civil rights], they [the liberals] would get me. They’d throw my background against me…I had to produce a civil rights bill that was even stronger than the one they’d have gotten if Kennedy had lived. Without this, I’d be dead before I could begin” (Kearns, 1976: 191). In addition to party leaders, the new president faced further obstacles from civil rights leaders, especially African Americans, who questioned Johnson’s leadership ability in the civil rights realm. In his recollection regarding the 1960 Democratic National Convention, when President Kennedy selected Johnson to be his vice presidential candidate, Roy Wilkins, the executive director of the NAACP at the time, recounted an attitude of “dismay” among African American leaders and a belief that “Mr. Kennedy had gone too far” in trying to balance the ticket

(1969: 7). Thus, even before his ascension to the presidency, African American leaders already questioned Johnson’s commitment to significant civil rights reforms. Consequently, when Johnson took over as president in November 1963, civil rights leaders feared the worst. An article in the January 1964 edition of Ebony magazine, entitled “What Negroes Can Expect from President Lyndon Johnson,” warned its readers to not expect much from President Johnson in the advancement of civil rights because the author found Johnson’s record on civil rights to be more compromising than Kennedy’s had been (Bennett, 1964: 81-84). Likewise, Ruby Martin, a staff attorney for the U.S. Civil Rights Commission described, “I was probably as distressed as any black person in America at the time at the thought of a southerner ascending to the presidency…All of the things we were looking forward to under Kennedy seemed to have [been] killed with him in Dallas” (Mann, 1996: 384-85). In a more recent analysis, Jonathan Rosenberg and Zachary Karabell reported, many civil rights leaders “assumed that Johnson, a Texan, would be antagonistic to civil rights and considered his record as majority leader to be decidedly mixed. Yes, he had gotten the 1957 and 1960 bills through the Senate, but he also allowed the southern bloc to reduce those bills to little more than hollow gestures” (2003: 196). In his memoirs, Johnson himself recognized the trepidation of African Americans when he took office. The former president wrote: A few people were openly bitter about my becoming President…Others were apprehensive. This was particularly true within the black community. Just when the blacks had their hopes for equality and justice raised, after centuries of misery and despair, they awoke one morning to discover that their future was in the hands of a President born in the South (1971: 18).

Knowing that such leaders questioned his commitment to civil rights, following the assassination, President Johnson immediately contacted several prominent African American leaders, including Roy Wilkins, A. Philip Randolph, Martin Luther King, Jr., and Whitney Young, the executive director of the National Urban League, and even invited several to the White House (Miller, 1980: 341; Rosenberg & Karabell, 2003: 198-199-217). President Johnson later described, “I spoke with black groups and with individual leaders of the black community and told them that John Kennedy’s dream of equality had not died with him. I assured them that I was going to press for the Civil Rights Bill with every ounce of energy I possessed” (1971: 29). In addition, President Johnson contacted Walter Heller, chairman of the Council of Economic Advisors, who had a good rapport with many liberal leaders, and told him, “Tell your liberal

friends…that I am an old-fashioned FDR liberal and that I want to work with them, and that they have an ally here in the White House” (Mann, 1996: 385). Likewise, the new president remarked to one of his special assistants, “No compromise on civil rights. I’m not going to bend an inch. Those civil righters are going to have to wear sneakers to keep up with me” (Goodwin, 1988: 256-57). However, according to those closest to President Johnson, his pursuit of civil rights was not simply a political calculation, nor was it simply Johnson’s way of carrying on the Kennedy legacy; instead, it was driven by Johnson’s personal views regarding the need for social equality in the United States. For instance, Richard Goodwin, who served as a special assistant to the president from December 1964 through September 1965, reported that a “moral principle” drove Johnson’s actions concerning civil rights (1988: 214). Similarly, Nicholas Katzenbach, Johnson’s Attorney General, recounted that Johnson “was committed to racial equality as a moral, not just a political issue” (2003: 128). Likewise, in his research regarding the Johnson administration, historian Joe Frantz found that the pursuit of equal rights by Johnson “was a personal thing, not a piece of legislation” (1979: 21). Johnson’s personal commitment to civil rights explains Shull’s findings that President Johnson took positions on civil rights legislation three times more frequently than President Nixon, and twenty times more frequently than President Kennedy (1989: 78). Whether his motivation was personal, political, or a combination of factors, Johnson immediately chose civil rights as the defining issue for his administration. In fact, only four days after President Kennedy’s death, Johnson spoke in front of a joint session of Congress and declared: …no memorial oration or eulogy could more eloquently honor President Kennedy’s memory than the earliest possible passage of the civil rights bill for which he fought so long…We have talked for one hundred years or more. It is time now to write the next chapter, and to write it in the books of law. I urge you…to enact a civil rights law so that we can move forward to eliminate from this Nation every trace of discrimination and oppression that is based upon race or color (Langston 2002: 137).

Less than seven weeks later, President Johnson spoke once again in front of a joint session of Congress, as he delivered the annual State of the Union, where he challenged members of Congress, “Let this session of Congress be known as the session which did more for civil rights than the last hundred sessions combined” (Miller, 1980: 357).

Not surprisingly, major victories on civil rights issues played a significant role in defining Johnson’s first two-years in office. The first of such victories came with the passage of the Civil Rights Act of 1964, which President Johnson signed into law on July 2, 1964, twelve and a half months after President Kennedy called for such legislation. However, as the date indicates, while President Johnson continued to invoke the name of President Kennedy and the importance of fulfilling his legacy, the combination of strong opposition among southern Democrats and Republican reluctance to give the new president a major victory in an election year, resulted in an extremely slow legislative process. Consequently, it took over seven months after Kennedy’s death to pass the legislation that had already been on the national agenda since June 1963. In fact, it took until June 10, 1964 to finally pass a mere cloture vote in the Senate, and even after cloture passed, southern Democrats, led by Senator Richard Russell of Georgia, presented an additional 115 amendments to the bill, all of which were defeated by the Senate (Miller, 1980: 370-371). To his credit, Johnson himself played an instrumental role in the bill’s final passage, as he worked closely with Senator Hubert Humphrey, and spent several weeks personally lobbying Senate Minority Leader Everett Dirksen, which eventually helped convince the Minority Leader to finally support a cloture motion in the Senate. In addition, the president arranged for Senator Clair Engle, a senator from California who was suffering from a brain tumor and could no longer speak, to come to the Senate floor to vote in favor of cloture by pointing to his eye, symbolizing an “aye” vote (Califano, 1991: 54). The delay in progress occurred for several reasons. Obviously, extreme controversies arose simply because the bill called into question southern mores regarding race, and thus resulted in obstruction by southern Democrats. In addition, given that 1964 was an election year, Republican leaders were extremely reluctant to grant Johnson a major legislative victory in an election year. Beyond these politically charged obstacles, two additional issues of significance arose during the negotiations. The first issue concerned sex discrimination. In one of the most conniving moves, southern Representatives, led by Virginia Representative Howard Smith, inserted a provision into the bill that outlawed discrimination on the basis of sex (Graham, 1990: 136). The belief among the sponsors was that because liberal Democrats were “divided on the wisdom of banning sex discrimination,” the bill would ultimately fail (Burstein, 1985: 23). However, Representative

Martha Griffiths gave an impassioned speech on the floor of the House, where she claimed that passage of the bill without the inclusion of the word “sex,” would result in a scenario where “you are going to have white men in one bracket, you are going to try and take colored men and colored women and give them equal employment rights, and down at the bottom of the list is going to be white women, with no rights as all” (Graham, 1990: 137). Following her speech and several hours of debate, the motion passed in the House by a vote of 168 to 133, and remained in the final version that eventually passed both houses (Rosenberg & Karabell, 2003: 252). The second significant issue pertained to whether the bill should include a remedy for age-based discrimination. In contrast to the successful vote in favor of including sex discrimination in the final version of the bill, a House amendment to the bill that included age discrimination lost in both the committee and on the floor. Interestingly, through the denial of age discrimination in the civil rights bill, Johnson proved his overall commitment to combat employment discrimination across the board. After the House denied the provision for age discrimination, President Johnson issued Executive Order 11141 on February 12, 1964, which declared that employment discrimination on the basis of age violated existing law, and thus directed all federal employers, including companies that contracted or subcontracted with the federal government, to ensure that age discrimination did not occur in their hiring, promoting, or firing practices. More specifically, the order declared: …it is the policy of the Executive Branch of the Government that (1) contractors and subcontractors engaged in the performance of Federal contracts shall not, in connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, and (2) that contractors and subcontractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement.

Unfortunately, with little or no means of enforcing the order, Graham described Executive Order 11141 as “little more than a statement of sentiment,” and explained that it served largely as “a political gesture to a constituency that was not well organized or aggressively led” (Graham, 1990: 158). Still, this unilateral action by President Johnson indicated that like his predecessors, he was willing to use unilateral presidential action via executive orders to promote equal employment opportunity when Congress failed to do so.

Once the bill finally passed the House, it faced an even tougher uphill battle in the Senate. Because southern Democrats could effectively filibuster the bill, President Johnson viewed Senate Minority Leader Dirksen as the most important individual to ensure passage of the bill. Johnson later explained, “Without his [Senator Dirksen] cooperation, we could not enlist the support of the moderate Republicans, and without Republican support we could not obtain the two-thirds vote necessary for cloture” (1971: 158). However, as previously indicated, it took over six weeks for President Johnson and Senator Humphrey to get Senator Dirksen to finally sign on to the bill. Attorney General Katzenbach explained that Dirksen had to oppose the bill because successful passage would “spike the myth that civil rights can only be enacted in a Republican administration” (Graham, 1990: 143). Furthermore, Dirksen and other leading Republicans feared that Title VII required racial quotas to ensure racial balance in the work force, which Republicans vehemently opposed. Such allegations led to Senator Humphrey’s passionate plea: “Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial ‘quota’ or to achieve a certain racial balance” (Anderson, 2004: 78). Eventually, supporters of the bill and members of the Johnson administration convinced Dirksen that Title VII did not require racial quotas, which resulted in a compromise between liberal Democrats and the Republican leadership, and a successful June 10 cloture vote of 71 to 29. Graham explained the significance of this vote, as it effectively ended “the record-shattering southern filibuster that had consumed…82 working days, 63,000 pages in the Congressional Record, and ten million words” (1990: 151). Interestingly, despite the various controversies surrounding the Civil Rights Act of 1964, including ongoing civil rights demonstrations, the bill eventually sailed through both houses of Congress. In the House, the House version of the bill passed by a vote of 290-130, while in the Senate the Senate version of the bill passed by a vote of 73-27, and finally the Senate version of the bill passed 289-126 in the House. The official name of the act itself illustrates the vast importance of the law. It reads: To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in

federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

As indicated in this extremely long title, the act itself consisted of several major provisions. Title I dealt with voter registration, Title II prohibited discrimination in public accommodations, Title III outlined the Attorney General’s role in ensuring civil rights for all Americans, Title IV concerned the desegregation of public schools, Title V created the Commission on Civil Rights, Title VI outlawed discrimination in federally assisted programs, and finally, Title VII prohibited employment discrimination. The most pertinent sections of the act for the current study of course are Title VI and Title VII. Together, these two sections of the Civil Rights Act of 1964 formally legislated against employment discrimination, which prior to this act, had only been dealt with by presidential executive orders. Title VI successfully gave the president statutory authority to carry out contract compliance, which had been the major theme of the executive orders outlined in Chapter Three of this study. However, most important for those who continued to push for equal employment opportunity was Section 703 (b) of Title VII, which declared: It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

In order to implement and enforce this provision, Congress created the Equal Employment Opportunity Commission. The significance of this act cannot be overstated. Not only did it prohibit employment discrimination based on race, color, religion, sex, or national origin, but it also covered such discrimination within labor unions, employment agencies, and training programs. Furthermore, one scholar noted that the bill “ended an era of congressional impotence on civil rights legislation and inaugurated a new era of firmness that eventually produced the Voting Rights Act of 1965 and the Housing Rights Act of 1968” (Loevy, 1988: 105). While Robert Loevy was correct in his assessment of Congress, the codification of the 1964 act also displayed an extraordinary shift in presidential activity as well. Indeed, Johnson’s support of Title VII of the Civil Rights Act of 1964, which specifically targeted employment discrimination, sharply contrasted the avoidance of support for such legislation by President Eisenhower and President Kennedy. As Morgan described, “For those who had tried to get a fair

employment practices bill through Congress, this marked the culmination of an effort that had spanned more than two decades” (1970: 28). Presidential Activism Illustrated by Johnson In spite of a political environment open to dramatic civil rights reforms, when examining Johnson’s presidency, we find that in regards to employment discrimination, in the president’s eyes, the Civil Rights Act of 1964 itself did not go far enough. Instead, President Johnson issued five executive orders to further combat employment discrimination, one of which he issued during the negotiations leading up to the bill’s passage,16 and four following the bill’s passage. Indeed, even with the successful passage of the Civil Rights Act of 1964, President Johnson realized the necessity of continued unilateral action by the country’s chief executive. Following the resignation of Attorney Robert Kennedy in August 1964, shortly after the passage of the Civil Rights Act, President Johnson appointed Katzenbach to the position of acting-Attorney General.17 One of the first tasks assigned to Katzenbach by the president was to work with Burke Marshall, head of the Justice Department’s Civil Rights Division, “to consider how best to organize governmental efforts to promote equal rights” (Katzenbach, 2003: 129). In addition, shortly after the election of 1964, President Johnson sent Vice-President-elect Humphrey a letter, asking him to “undertake the next weeks to consider how best we should coordinate the functions of the various federal agencies in the area of civil rights” (Graham, 1990: 161). After several months of deliberations by Katzenbach and Marshall, and a month of consultations carried out by Humphrey, in early January 1965, both Katzenbach and Humphrey suggested that the president sign an executive order that would coordinate the government’s efforts on civil rights in a committee led by Vice President Humphrey (Graham, 1990, 161; Katzenbach, 2003: 129). Initially President Johnson opposed the order because he felt that civil rights leaders would resist moving ultimate authority outside of the Justice Department, but the president later acquiesced and agreed to sign the order (Katzenbach, 2003: 129). Thus, on February 5, 1965, President Johnson issued Executive Order 11197, which established the President’s Council on Equal Opportunity.

16 See Executive Order 11141, explained in detail on page 94. 17 Katzenbach officially became the Attorney General in January 1965 after confronting President Johnson on his inability to lead the Justice Department in an “acting” role. 71

As a result, Executive Order 11197 ordered the vice president to chair a new council that had the obligation of analyzing and assisting federal responsibilities regarding civil rights and assisting departments and agencies within the federal government in eliminating discrimination and promoting equal opportunity. In addition, the order maintained that the new council formulate and recommend particular policies and programs regarding how the federal government could carry out the various provisions of the Civil Rights Acts of 1957 and 1964, and report such findings directly to the president. However, this new council did not last long. President Johnson grew increasingly impatient with the progress in civil rights and the ability of Vice President Humphrey to effectively lead in this realm, and thus asked Joseph Califano, special assistant to the president, to work with Attorney General Katzenbach and once again reorganize the executive branch’s civil rights efforts. According to Califano, Johnson remarked, “I want you and Nick to put together a plan and get the civil rights programs out from under the Vice President. He’s got enough other things to do” (1991: 66). Two days later, Califano recalled that he met with Attorney General Katzenbach and White House Counsel Lee White, where they formulated a plan that “stripped the Vice President of all his civil rights responsibilities,…abolished the two commissions that Humphrey chaired, shifted coordinating responsibility to the Attorney General, and directed departments and agencies to handle civil rights for programs within their jurisdiction” (1991: 66). In an effort to limit public criticism and humiliation of Vice President Humphrey, once Johnson endorsed their proposals, he asked Califano to draft a memorandum for Humphrey to sign, making it seem like the recommendations were Humphrey’s ideas, and Johnson told Califano that the Humphrey should publicly announce the new reforms (Califano, 1991: 67-69). The memorandum announced, “the time has come when operating functions can and should be performed by departments and agencies with clearly defined responsibility for the basic program, and that interagency committees and other interagency arrangements would now only diffuse responsibility,” and thus concluded, “the formal structure of the Council is no longer essential” (Morgan, 1970: 49). Ultimately, Califano and Katzenbach’s reorganization plan resulted in the issuance of two new executive orders by the president; Executive Orders 11246 and 11247 on September 24, 1965, which among other things, abolished the President’s Council on Equal Opportunity,

established by Johnson in Executive Order 11197 only eight months earlier, and the President’s Committee on Equal Employment Opportunity, established by President Kennedy’s Executive Order 10925. The Content of Executive Order 11246 Comparatively speaking, Executive Order 11246, aptly titled “Equal Employment Opportunity,” was a considerably long and detailed order, taking up seven full pages in the Federal Registrar. It consisted of four major parts, five sub-parts, and twenty-nine specific sections. Part I of the order dealt entirely with nondiscrimination in government employment. Part I, Section 101 declared: It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency. The policy of equal opportunity applies to every aspect of Federal employment policy and practice.

The above statement boldly defined Johnson’s new policy, and set the foundation for the rest of the order. Indeed, Part I, Section 102 asserted that the heads of each executive department and agency had the responsibility of ensuring that Part I, Section 101 be effectively carried out within their jurisdiction. Likewise, Part I, Sections 103-105 outlined the role of the Civil Service Commission in ensuring equal employment opportunity, as outlined in Part I, Section 101. Part I, Section 103 specifically maintained that the Civil Service Commission “supervise and provide leadership and guidance in the conduct of equal employment opportunity programs” and monitor the specific programs carried out by all departments and agencies. Part I, Section 104 gave the Civil Service Commission the authority to adjudicate disputes between applicants and employees who felt they were discriminated against and Section 105 gave the Civil Service Commission the authority to issue regulations, orders, and instructions to departments or agencies not fully complying with Johnson’s order. Part II of the order dealt exclusively with nondiscrimination among government contractors and subcontractors. Part II, Subpart A, Section 201, granted the Secretary of Labor ultimate authority in administering Parts II and III of the order. Following the issuance of the

73 order, the Department of Labor created the Office of Federal Contract Compliance Programs (OFCC) to assist in this endeavor (Detlefsen, 1995: 63). Part II, Subpart B, outlined the required provisions in all government contracts. Without a doubt, the most significant line included in this subpart came in Section 202, where President Johnson not only reaffirmed that government’s policy of nondiscrimination, but further stated, “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin” (emphasis added). Given that Executive Order 11246 became known as the order that officially established federal affirmative action programs, this specific line laid the foundation for the four decade debate that continues today. Furthermore, the sixth provision of Section 202 warned that a company’s noncompliance with Executive Order 11246 could result in the cancellation of the contract and perhaps termination of all business between the federal government and the contractor. Finally, Section 203 under Part II, Subpart B, described compliance reports that each contractor must submit, while Section 204 addressed certain exemptions from the order, based on the national interest. President Johnson entitled Part II, Subpart C, “Powers and Duties of the Secretary of Labor and the Contracting Agencies.” Thus, Section 205 reaffirmed the responsibility that each departmental and agency head had in bringing his or her department or agency into compliance with the president’s order and their responsibility of providing the Secretary of Labor with any information needed by the secretary in carrying out the order. Sections 206-208, on the other hand, illustrated the specific investigatory powers of the Secretary of Labor, both in regards to ensuring compliance of contractors and federal departments and agencies. Part II, Subparts D and E related quite well to Sections 206-208. Subpart D outlined the specific penalties that could be enacted by the Secretary of Labor when he or she found noncompliance of any provision of the president’s order or any provision of guidelines adopted by the Department of Labor used to carry out the president’s order. In contrast, Subpart E described rewards that the Secretary of Labor should present when “the Secretary is satisfied that the personnel and employment practices of the employer, or that the personnel, training, apprenticeship, membership, grievance and representation, upgrading, and other practices and policies of the labor union or other agency conform to the purposes and provisions of this Order.” Part III of Executive Order 11246 extended the order’s jurisdiction to federally assisted construction contracts. According to Part III, Section 301, all construction projects paid for by

federal dollars must require that the contractor abide by the provisions described in Section 202 of the order. Part III, Section 302 maintained that Section 301 dealt with “any contract for the construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property.” Once again, President Johnson placed the responsibility of each departmental or agency head to ensure compliance of such provisions and granted the Secretary of Labor with investigatory powers. Finally, President Johnson entitled Part IV, “Miscellaneous.” Thus, Part IV basically tied up loose ends. First, it granted the Secretary of Labor formal authorization to delegate his or her authority outlined in the order to subordinates, “except authority to promulgate rules and regulations of a general nature.” In addition, Part IV, Section 403 officially announced that Executive Order 11246 superceded a series of previous executive orders signed by presidents, including Executive Orders 10590 (issued January 19, 1955), 10722 (issued August 5, 1957), 10925 (issued March 6, 1961), 11114 (issued June 22, 1963), and 11162 (issued July 28, 1964). Furthermore, as indicated above, Executive Order 11246 abolished the President’s Committee on Equal Employment Opportunity, established by the aforementioned Executive Order 10925. Amazingly, while presidential executive orders are always limited in scope, due to the fact that they can only enforce activity within the executive branch of the national government, because of the increased role of the Equal Employment Opportunity Commission (EEOC) in enforcing discrimination laws, and Johnson’s ability to include the EEOC in this order, the scope of Executive Order 11246 was quite extensive. One scholar explained, “The reach and coverage of the Order is broad. Apart from governments and educational institutions, one-half of all employees are employed by businesses which file annual statements with the Equal Employment Opportunity Commission” and “Approximately 75 percent of employees described in those reports are employed by federal contractors” (Turner,1990: 87). Thus, the content of Executive Order 11246 significantly influenced employment opportunities for millions of Americans. Presidential Decision-making & Executive Order 11246 While Chapter 8 of this study addresses the research questions in regards to the overall assessment of presidential activism and decision-making pertaining to executive orders and equal employment opportunity, this section begins the examination of such activity by President Johnson in particular. Again, the questions asked at the outset of this study are as follows:

1. To what extent have modern presidents used executive orders to establish federal affirmative action policy in the realm of equal employment opportunity for underrepresented groups in American society, prior to actions taken by other governmental institutions?

2. What factors explain presidential decision-making regarding executive orders pertaining to equal employment opportunity for underrepresented groups?

In examining question one, the importance of presidential activism by President Lyndon Johnson in the realm of civil rights in general, and equal employment opportunity in particular, is quite apparent. Not only did he press for comprehensive civil rights legislation, which included measures to combat employment discrimination, in front of a joint session of Congress four days after the assassination of President Kennedy and again in his 1964 State of the Union Address, but he involved himself in the legislative negotiations leading up to the passage of the Civil Rights Act of 1964. However, as previously indicated, it was Johnson’s belief that the passage of this act was not enough, as even during the legislative debate, he signed Executive Order 11141 on February 12, 1964, in order to prohibit age discrimination in federal employment and contracts, and signed four additional orders after he signed the 1964 legislation. The first executive order issued by President Johnson regarding employment discrimination following the passage of the Civil Rights Act of 1964 was Executive Order 11197, which he signed on February 5, 1965. Again, this order effectively granted Vice President Humphrey a prominent role in eliminating employment discrimination, as it named the vice president the head of the newly formed President’s Council on Equal Employment Opportunity. As argued above, this order displayed President Johnson’s personal commitment to use every power at his disposal to eliminate employment discrimination. While he initially did not agree with Attorney General Katzenbach or Vice President Humphrey on the substance of this order, President Johnson ultimately sought the best way “to organize governmental efforts to promote equal rights” (Katzenbach, 2003: 129). However, not long after he signed Executive Order 11197, President Johnson was dismayed at the continued lack of progress in regards to equal employment opportunity, despite the passage of the Civil Rights Act of 1964 and the establishment of the President’s Council on Equal Employment Opportunity. Consequently, he asked special assistant Joseph Califano and

Attorney General Katzenbach to once again reorganize the executive branch’s civil rights efforts, eventually resulting in Executive Order 11246. Thus, in regards to the first research question, this order once again confirms the unique roles that presidents in general, and President Johnson in particular, played in the development of policies to combat employment discrimination. What we see with President Johnson is an ongoing process of reorganization of the bureaucracy, in an effort to, as Attorney General Katzenbach described, “best organize governmental efforts to promote equal rights” (Katzenbach, 2003: 129). According to Califano’s account, this second restructuring occurred because President Johnson “knew he had the guts, the toughness, and ability to endure the pain that a civil rights revolution would inflict,” but he “wasn’t sure that Humphrey did” (1991: 67). Humphrey’s lack of toughness transitions us to the second research question, which emphasizes the strategic element of presidential executive orders, and the decision-making involved when issuing particular executive orders. The chain of events described above clearly illustrates how strategy is indeed involved in such calculations. While Johnson initially disagreed with the advice that led to Executive Order 11197 and the establishment of the President’s Council on Equal Opportunity, he acquiesced and hoped for the best. In the meantime, when Vice President Humphrey and the newly formed council failed to resolve the enforcement problems Johnson hoped to solve through Executive Order 11197, the president once again returned to his unilateral executive authority to not only dismantle several committees pertaining to equal employment opportunity, but he also used such authority to formally establish what became known as “federal affirmative action policy.” Therefore, the first factor that led to President Johnson’s issuance of Executive Order 11246 was the failure of previous executive orders to adequately resolve the problem of equal employment opportunity enforcement. In other words, had Executive Order 11197 been effective in Johnson’s view, Executive Order 11246 would not have been unnecessary. The second factor regarding why President Johnson chose to issue an executive order, rather than using other political means, is because the major crux of the order itself was to remedy the ineffectiveness of too many federal organs responsible for various equal employment opportunity enactments already established by either Congress or previous presidential executive orders. Indeed, such commissions and councils included the Civil Rights Division in the Justice Department, the U.S. Commission on Civil Rights, the President’s Committee on Equal

Employment Opportunity, the Equal Employment Opportunity Commission, the Community Relations Service in the Commerce Department, and the President’s Council on Equal Opportunity, among others. Consequently, rather than going through the legislative process to abolish or reorganize councils and committees previously established by Congress, President Johnson avoided the slow congressional process and used his unilateral executive authority to restructure the bureaucracy. The third factor that no doubt went into President Johnson’s decision to issue Executive Order 11246 was his commitment to appeasing prominent civil rights leaders. According to Attorney General Katzenbach’s account regarding President Johnson’s initial opposition to Executive Order 11197, which created the President’s Council on Equal Opportunity, “President Johnson did not like the idea at all” because “civil rights leaders had confidence in the department [the Department of Justice] and would view this as a retreat from the administration’s commitment to equal rights” (2003: 129). While this only gives us an illustration of what President Johnson was thinking prior to the signing of Executive Order 11197, it is not a stretch to assume that he was thinking the same thing when he asked Katzenbach and Califano to reorganize the executive branch a second time, given that he asked them to do so only six months after he signed Executive Order 11197. A fourth factor that went into Johnson’s decision to issue Executive Order 11246 was to increase the likelihood of bureaucratic efficiency and responsiveness. According to Califano’s recollection of the meeting between President Johnson and Vice President Humphrey, where the president explained the new changes that were about to take place, the president explained, “with the Vice President handling these programs they’re one step removed from the departments where they need to be to become operational.” Instead, Johnson felt that “these programs will work better in the departments because these people will know they have to report directly to me then” (1991: 67). A fifth factor, which is closely related, concerned the president’s personal commitment to ensuring equal employment opportunity for all Americans. As previously indicated, the president openly questioned Vice President Humphrey’s ability to effectively lead in the civil rights realm. Thus, because President Johnson had made civil rights “a centerpiece of his administration,” according to Califano, the president “decided not to entrust this effort to anyone but himself” (1991: 65).

A sixth factor that no doubt went into President Johnson’s decision to issue Executive Order 11246 was the fact that the president had just signed the Voting Rights Act of 1965 on August 6. Given the fact that every significant battle pertaining to civil rights required the use of a great deal of political capital, even a president like Johnson, who was extremely successfully in getting his legislative programs enacted, has to be aware of the level of political capital required for significant reforms. Finally, during a commencement address given at Howard University on June 4, 1965, approximately two and a half months prior to the signing of Executive Order 11246, President Johnson publicly announced the next step in ensuring equal opportunities for all Americans. In fact, he articulated a new argument, which truly set the foundation for future affirmative action programs, and thus, Executive Order 11246. In this speech, President Johnson declared, “You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all others,’ and justly believe you have been completely fair.” Instead, the president explained, “the next and more profound stage of the battle for civil rights” is “not just freedom but opportunity – not just legal equity but human ability – not just equality as a right and theory but equality as a fact and as a result” (Public Papers of the Presidents, 1966: 636). After staking such a claim, it should be no surprise that two and a half months later President Johnson would sign Executive Order 11246 and formally establish federal affirmative action. As historian Steven F. Lawson wrote, in this speech, President Johnson “pointed the way toward affirmative action to compensate for past abuses” (1987: 116). The first such action, of course, came via Executive Order 11246. Therefore, when looking back on the Johnson presidency, we clearly see that President Johnson was highly instrumental in moving forward on achieving equal employment opportunity for all Americans. Indeed, his activism in this particular matter surpassed all actions taken by his predecessors and laid the foundation for future actions taken by his successors. In fact, Johnson’s activism pertaining to equal employment opportunity led to Bayard Rustin, a prominent civil rights activist and theorist, to once claim, “the Johnson Administration…had done more…than any other group, any other administration” and that President Johnson “was the best we’ve ever had.” (Lawson, 1987: 93). Furthermore, an examination of the Johnson presidency concerning equal employment opportunity, with a specific emphasis on Executive Order 11246, displays the strategic element involved in presidential decision-making to issue

such orders. By examining this order, we see that President Johnson took into account at least seven major factors when he chose to issue Executive Order 11246, including, but not limited to, 1) the failure of previous executive orders signed by himself and previous administrations, 2) the ineffectiveness of past legislative actions, 3) the preferences of prominent civil rights leaders, 4) bureaucratic responsiveness, 5) his personal reputation, 6) the level of political capital necessary for legislative action, and 7) his personal desire to move from equality of opportunity, to equality of results. The Legacy of President Johnson & Executive Order 11246 Ironically, when President Johnson took office on that fateful day in November 1963, many liberal leaders, especially African Americans, feared that progress in civil rights effectively halted with the assassination of President Kennedy, as the presidency passed on to a southern Democrat. Nothing could be further from the truth. Robert Weaver, Johnson’s Secretary for the Department of Housing and Urban Development, who happened to be the first African American to serve in any presidential Cabinet, expressed, “I don’t think we would have ever got the civil rights legislation we did without Johnson. I don’t think Kennedy could have done it. He would have gone for it, but he was a lot more cautious than Johnson” (Miller, 1980: 345). Similarly, Johnson’s Staff Director, Liz Carpenter recounted, “I have always thought that you could describe presidents in almost a word. Kennedy inspired, which Johnson was not capable of doing, and Johnson delivered” (Miller, 1980: 345). Such success under Johnson led to George Reedy, former Johnson Press Secretary, to describe, “In effect, the majority leader’s office had been moved from the third floor of the Capital to the first floor of the White House” (1982: 16). While all of these accounts may be valid in their assessments, they focus their attention entirely on the legislative programs passed under President Johnson, and thus ignore the incredible progress made pertaining to civil rights in general, and equal employment opportunity in particular, through unilateral executive authority via executive orders. The case study of Executive Order 11246 presented in this chapter illustrates the necessity of including analysis of such unilateral executive action. It was through such action that we saw the foundation of federal affirmative action policy. Less than four years after Johnson signed the order, John Hannah, Chairman of the United States Commission on Civil Rights, wrote a letter to Richard Nixon’s newly appointed Secretary of Labor, George Shultz, where he explained the vast importance of Executive Order

11246. Chairman Hannah wrote, “The potential impact of the requirements of Executive Order 11246 as a force for equal employment opportunity has been and is now enormous since it has been estimated that nearly one third of the nation’s labor force is employed by government contractors” (United States Commission on Civil Rights, 1969: 2). In fact, according to one report, “By the late 1960s, federal funds were reaching 225,000 contractors involved in $30 billion in annual construction” (Graham, 1990: 281). In addition, while Executive Order 11246 targeted employment, Leon Panetta, who served as Secretary for the Department of Heath, Education, and Welfare during the Johnson administration, used President Johnson’s order as the basis for requiring colleges and universities that received federal funding to implement their own affirmative action programs (Kotlowski, 2001: 116). Thus, the historical record proves that a mere examination of equal employment opportunity legislation passed during the Johnson administration is inadequate. On the contrary, an examination of Executive Order 11246 demonstrates that the legislative history of equal employment opportunity during the Johnson administration is not enough, as President Johnson himself believed it was necessary to issue five additional executive orders pertaining to equal employment opportunity that went beyond the Civil Rights Act of 1964. Indeed, Executive Order 11246 not only established what became known as “federal affirmative action,” but it also laid the foundation for an additional executive order signed by Johnson himself. As one author explained, Executive Order 11246 “essentially superceded and abolished all previous orders – and became the standing rule for affirmative action for future decades” (Anderson, 2004: 92). In fact, Presidents Nixon, Carter, Reagan, and Clinton issued twenty additional executive orders in the twenty-five year following Johnson’s order. Johnson’s later order came on October 13, 1967, with the signing of Executive Order 11375, which expanded upon Executive Order 11246, as the new order included protections against gender-based discrimination. Graham explained that even though the Civil Rights Act of 1964 included provisions outlawing gender-based discrimination, Executive Order 11246 did not include sex discrimination because members of the administration, including Johnson, “were long accustomed to associating civil rights and discrimination almost exclusively with racial problems, and the parallel problems of sex discrimination seemed rarely to occur to them” (1990: 187). Not surprisingly, Executive Order 11375 came at a time when the feminist movement had gained considerable power.

Furthermore, Johnson’s Executive Order 11246 actually laid the foundation for future legislation. Affirmative action scholar Ronald Turner explained that following Johnson’s decision to establish federal affirmative action programs in Executive Order 11246, his decision to expand such programs in Executive Order 11375 to gender-based discrimination, and President Nixon’s decision to institutionalize affirmative action in Executive Order 11478, Congress followed such presidential leadership by instituting similar programs for handicapped individuals in the Rehabilitation Act of 1973 and for Vietnam veterans in the Vietnam-Era Veterans’ Readjustment Act of 1974 (1990: 87). Finally, perhaps the most important legacy of Executive Order 11246 came through the establishment of the Office of Federal Contract Compliance Programs (OFCC). As indicated above, the Secretary of Labor created the OFCC to help implement Executive Order 11246 since the order mandated that the Department of Labor now held the responsibility of coordinating and implementing federal equal employment opportunity programs. The establishment of the OFCC became extremely important in the historical legacy of Executive Order 11246 for two main reasons. The first reason why the establishment of the OFCC was such an important part of Executive Order 11246’s legacy was the OFCC’s decision to implement government-wide compliance programs for the construction industry. According to one study, by 1967, “African Americans made up just 8 percent of construction trade unionists, and out of a brotherhood of 330,000, the plumbing, sheet metal, electrical, asbestos, and elevator trades had only 1,400 black members” (Kotlowski, 2001: 99). However, the construction industry posed a unique problem to contract compliance because of the role of apprenticeship programs and unions in the hiring process, as well as the fact that employment was intermittent (Graham, 1990: 284). Thus, in order to combat discrimination in the construction industry, the OFCC needed to develop innovative guidelines to ensure equal access for all individuals and groups in American society. In order to accomplish this task, the OFCC developed what became known as “pre-award programs,” where the OFCC began to require, “that the potential recipient’s employment system must first be reviewed and approved for compliance with the executive order [Executive Order 11246]” (Graham, 1990: 284). In other words, the OFCC determined that the best way to combat discrimination in the construction industry was to use its leverage prior to awarding government contracts.

Beginning in January 1966, the OFCC targeted the construction industry in four cities. The chosen cities included St. Louis, San Francisco, Cleveland, and Philadelphia. According to scholar Ole Moen, “The main objective of the OFCC was to break minority groups into high- paying trades which had traditionally denied them entry…Different plans were introduced in the four pilot project cities, but they were all developed with the objective of being used in other metropolitan areas later (Moen, 2001: 30-31). The OFCC’s first two attempts did not fare well. The first effort targeted St. Louis in January 1966, where the national government involved itself in building a visitor center in the Gateway Arch Park. At the time, “the plumbers, pipefitters, electrical, and sheet metal workers locals had more than 5,000 members – but only three were black” (Anderson, 2004: 104). Upon the attempted implementation of the OFCC’s new pre-award program, the Hoel-Steffen construction company hired an African American plumber and two African American helpers who were not members of the AFL-CIO Plumbers Local 35. In response, five locals boycotted the project, which led to a three-year long court battle between the Justice Department and the local unions (Graham, 1990: 286). Although the Justice Department eventually won, the court process successfully derailed the OFCC’s initial attempt at its pre-award program. The second attempt came in San Francisco in December 1966, where the OFCC hoped to implement its new guidelines in the Bay Area Rapid Transit (BART) project. Unfortunately, because the OFCC failed to adequately specify measurement standards, the plan resulted in such a few number of minority hires, that the following year that U.S. Civil Rights Commission held hearings on union discrimination in San Francisco (Graham, 1990: 286; Anderson, 2004: 104). The third endeavor, which occurred almost simultaneously with the San Francisco effort, began in Cleveland in January 1967. According to Moen’s analysis, the resulting Cleveland Plan is vital in the understanding of the evolution of affirmative action policy: …not because it was the most comprehensive or radical, but because one of its provisions – a statement that the specifications were intended to “have the result of assuring there was a minority group representation in all trades on the job in all phases of the work” – soon came to be referred to as “manning tables” and later attacked as “quotas” (2001: 31).

In response to the OFCC’s new guideline regarding “manning tables,” one contractor in the Cleveland area included in his proposal a specific number of minority hires that would be involved in the project. Not surprisingly, the OFCC rewarded the contractor with the job, but

more significantly, the OFCC urged all federal construction in the region to include such “goals.” As a result, between June and November 1967, Cleveland contractors agreed to hire 110 minorities out of the 475 jobs available (Graham, 1990: 286-87; Anderson, 2004: 105). Because of the success of the Cleveland Plan, which ironically occurred largely because of an over zealous individual contractor, the OFCC decided to implement a similar plan in Philadelphia, but this time, the OFCC required each bidder to include detailed manning tables that guaranteed how many minority workers would be hired in each craft (Rubio, 2001: 153). Interestingly, the OFCC refused to mandate a specific number of minority workers, but instead merely sought a “target range,” in an attempt to avoid criticisms that the OFCC had initiated “quotas” (Kotlowski, 2001: 102). However, Comptroller General Elmer Staats, who beginning in 1966 started reasserting the Comptroller’s power to review government contractual disputes, determined that the Cleveland Plan and the Philadelphia Plan both violated federal contracting laws because they incorporated pre-award conditions and such conditions lacked specificity prior to the initial bid (Rubio, 2001: 153; Moen, 2001: 32). In his ruling regarding the Philadelphia Plan, Comptroller Staats explained that under federal contracting guidelines, federal contracts cannot “properly be withheld pursuant to the Plan from the lowest responsive and otherwise responsible bidder on the basis of an unacceptable affirmative action program” (Graham, 1992: 159). As Graham explained, “Lacking any backing from the wounded, lame-duck President Johnson on the eve of a presidential election, the sponsors of the Philadelphia Plan looked defeated” and “In late November, the Labor Department quietly announced that the Philadelphia Plan was rescinded” (1990: 296). Despite these setbacks, the OFCC continued to push forward with its efforts of implementing affirmative action programs in employment. In fact, such continued efforts lead us to the second major reason why the establishment of the OFCC is such an important legacy of Executive Order 11246. After almost three years of trying to implement Johnson’s order, the OFCC realized the necessity of considerably expanding upon the definition of affirmative action outlined in the order. In fact, a close examination of Executive Order 11246 finds that the order only mentions the phrase “affirmative action” one time, which according to one scholar, “was understood to mean that employers should aggressively spread the news that the bad old days of racial discrimination were over, and that now all applications for employment would be treated in the same manner” (Detlefsen, 1995: 63). However, in 1968, the OFCC significantly expanded

upon this definition; as it implemented regulations that mandated that all government contractors, whose contract with the federal government was worth at least $50,000, must publish their written affirmative action programs (Detlefsen, 1995: 63). According to the OFCC’s regulations:

A necessary prerequisite to the development of a satisfactory affirmative action program is the identification and analysis of problem areas inherent in minority employment and an evaluation of opportunities for utilization of minority personnel. The contractor’s program shall provide in detail for specific steps to guarantee equal opportunity keyed to the problems and needs of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity. Each contractor shall include his affirmative action compliance program table of job classifications…The evaluation of utilization of minority personnel shall include…an analysis of minority group representation in all categories (Glazer, 1975: 46-47).

These new regulations set forth by the OFCC and its expanded definition of affirmative action were extremely important because of the words highlighted in the above quotation. As Detlefsen described, by including the term “deficiencies,” the OFCC inferred “that absent discrimination, statistical parity among racial and ethnic groups would be the norm” (1995: 63). Thus, it appears that the OFCC heeded President Johnson’s 1965 call in his Howard commencement address, and determined that “affirmative action” no longer meant “equality of opportunity,” but it meant “equality of results.” Such “equality of results,” according to the OFCC’s new guidelines only seemed possible through the development of “specific goals and timetables.” In fact, this seems to be what the OFCC tried to accomplish through the Philadelphia Plan during the Johnson administration. As Graham noted, “By the end of the Johnson administration the proportional or equal-results model was coming to dominate the enforcement strategies of the EEOC and the OFCC. The legislative history and language of the 1964 law, however, argued against such a novel interpretation” (1990: 321). Interestingly, Johnson’s lame-duck status and departure from office did not result in the death of the Philadelphia Plan. Instead, while the Philadelphia Plan ultimately failed during Johnson’s tenure in office, the Nixon administration welcomed the new regulations mandating goals and timetables, and thus, these new regulations became particularly significant for affirmative action in employment post-1968.

CHAPTER 5 – The Institutionalization of Federal Affirmative Action, 1969-1980

History should say…about Richard Nixon that his domestic programs extended opportunities of America to…Americans who live outside the mainstream of America’s life.

Frank Gannon, White House aide, January 18, 1973 Quoted in Joan Hoff, Nixon Reconsidered (1994: 77)

Introduction In a personal correspondence written shortly after completing his first term in office, President Nixon contended, “When the historical record of the first four years is written, I am confident it will show that this Administration did far more in the fields of civil rights and equal opportunity than its critics were willing to admit” (Kotlowski, 2001: 1). In fairness, when researching the history of equal employment opportunity, while President Johnson established the first federal affirmative action program, one finds that President Nixon not only institutionalized President Johnson’s plan, he also expanded upon it. As Ole Moen described in his recent volume Race, Color, and Partial Blindness: Affirmative Action under the Law, “Ironically, although conceived in the Democratic Administrations of Kennedy and Johnson, affirmative action as a legal and administrative tool was developed and implemented by the Nixon Administration” (2001: 46). Likewise, upon President Nixon’s death in 1994, Fortune magazine opined, “Incredible but true, it was the Nixonites who gave us employment quotas” (Kotlowski, 2001: 97). Even Tom Wicker, whose name was included on the Nixon administration’s master list of Nixon’s political opponents, acknowledged that “the first real success of any president in affirmative action” came during the Nixon administration (1991: 522). Perhaps this record on equal opportunity should not have come as such a surprise, given Nixon’s previous support for various civil rights laws. In fact, when Nixon served in the House of Representatives in the late 1940s, he consistently voted for the elimination of poll taxes. In addition, historian Dean Kotlowski explained that during Nixon’s tenure as Eisenhower’s vice president and later as a public figure, Nixon “supported every major civil rights law passed by Congress” between 1957 and 1968, “outshining future presidents Ronald Reagan and George Bush, who both opposed the Civil Rights Act of 1964” (2001: 24, 73). Not to mention, when Nixon served in the Eisenhower administration, he chaired the Government Contracts Committee, he publicly supported the Supreme Court’s decision in Brown v. Board of Education,

and he enrolled his daughters in integrated public schools (Kotlowski, 2001: 24). Years later, Nixon himself explained that his previous experience with civil rights issues proved his commitment to civil rights. He argued: I was better qualified on civil rights than Kennedy was; he didn’t really care. During my vice presidency, I was lonely in arguing for voting rights. Eisenhower was very conservative about that. But I said that eighty percent of the world is nonwhite, and we had to think of what we did here in terms of its impact abroad” (Crowley, 1998: 142).

Following his victory in the 1968 presidential election, Nixon’s early actions as president confirmed this personal commitment to civil rights, as he met with six prominent African American leaders on January 13, 1969, one week prior to his inauguration (Congressional Quarterly, 1971: 68). More importantly, upon taking office, President Nixon pursued an affirmative action program that targeted construction and trade unions across the United States, he initiated efforts to help minorities in their entrepreneurial pursuits, and he institutionalized Lyndon Johnson’s federal affirmative action plans through the signing of Executive Order 11478. Therefore, the purpose of this chapter is to analyze the factors that led to President Nixon’s decision to issue Executive Order 11478, which institutionalized and expanded President Johnson’s affirmative action program. In following the same approach as the preceding chapter, to accomplish this task, I will employ a case study analysis of President Nixon’s decision to issue Executive Order 11478, with an emphasis on answering the two research questions outlined in Chapter 1. As such, I will examine the political environment at the time President Nixon issued Executive Order 11478, the importance of presidential activism illustrated by the issuance of this order, the content of the order, the strategic calculations involved in the decision-making process leading to the issuance of the order, and the legacy of Executive Order 11478. This case study will expand upon the previous chapter’s analysis and will provide further evidence of how presidents over the years promoted equal employment opportunity and became the institution typically associated with major reforms at the national level. Finally, this chapter will conclude with a brief analysis of the continued institutionalization of federal affirmative action policy in employment between 1974 and 1980, under Presidents Ford and Carter.

Equal Employment Opportunity & the Political Environment in 1968 & 1969 The combination of Johnson’s immense success in the advancement of civil rights, his personal relationship with prominent civil rights leaders, and the controversies surrounding his administration’s attempt to implement the Philadelphia Plan in 1967 and 1968, resulted in an extremely difficult political environment for President Nixon. In fact, in her analysis of the Nixon presidency, Joan Hoff argued, “Any administration following Johnson’s was bound to suffer from the fallout over rising expectations and worsening conditions of the African- American community” (1994: 81). Because of such developments, racial issues permeated the political environment during the 1968 presidential election and frankly throughout Nixon’s first term in office. In fact, the 1968 presidential election included a segregationist third party candidate who received nearly ten million votes nationwide, including forty-six electoral votes. In addition, eleven months after the 1968 election, the U.S. Supreme Court issued a unanimous decision in the case of Alexander v. Holmes County, which ordered southern schools “to terminate dual school systems at once and operate now and hereafter only unitary schools.” Thus, in regards to civil rights, President Nixon faced a highly volatile political climate. In response to this complex environment, during both the primary and the general elections, Nixon did his best to portray himself as the moderate candidate on civil rights issues. In his pursuit of the Republican nomination, Nixon positioned himself between the liberal wing of the Republican Party, led by Nelson Rockefeller, and the conservative wing, led by Ronald Reagan. Likewise, in the general election, he postured himself between the liberal Democratic nominee, Vice President Hubert Humphrey, and the ultra-conservative, segregationist American Independent candidate, Governor George Wallace. However, in both races, Nixon acknowledged the importance of courting southern conservatives. To accomplish this task, he sought specific help from South Carolina Senator Strom Thurmond (Kotlowski, 2001: 18-19). Nixon realized that he had to speak to the concerns of southerners. At the time, Nixon explained to his speechwriter William Safire, “We mustn’t ever give any indication that we don’t care about the South, about their feelings. We’ve got to care. This Southern Strategy stuff – all we’re doing is treating the South with the same respect as the North. But your friends in New York won’t see it that way” (Safire, 1975: 203).

Given the fact that racial issues played such a crucial role in southern politics in the late 1960s, even after winning the presidency, President Nixon acknowledged the importance of appeasing his southern constituents, and thus relied on polarizing rhetoric against a federal role in integrating southern schools. However, such rhetoric alienated African Americans, whom the new president sought to help. This difficult situation led to Attorney General John Mitchell’s explanation to African American leaders that they should “watch what we do, rather than what we say” (Small, 1999: 162). Likewise, Leonard Garment, who served as special counsel to President Nixon during his second term, described the advancement of civil rights under Nixon as “operationally progressive, but obscured by clouds of retrogressive rhetoric” (1997: 220). Accordingly, Kotlowski found that President Nixon “often separated political and policy decisions” and thus “followed the recommendations of conservative advisers on which voting blocs to court but then entrusted policy formulation to his moderate lieutenants” (2001: 21). As such, President Nixon faced civil rights policy dilemmas in a number of areas, including school desegregation, the busing of students to achieve integrated schools, fair housing opportunities for minorities, and most importantly for this study, equal opportunity in employment. Due to the controversies surrounding President Johnson’s Philadelphia Plan in 1967 and 1968, equal employment opportunity continued to be a major issue once Nixon took office. Interestingly, Nixon seemed to welcome the challenge because he perceived that the critical aspect of achieving racial harmony was to offer African Americans the ability to increase their social status through job promotion. According to one historian, Nixon perceived that the legislative actions taken by Congress during the 1960s effectively dismantled the legal barriers to African American social mobility, and now “the major impediment to equal participation of blacks in U.S. society was the absence of jobs, purchasing power, and economic opportunity” (Weiss, 1997: 125). Indeed, in 1967, Nixon himself contended, “Jobs is the gut issue. If you don’t have jobs, you don’t have housing, and you don’t get off welfare” (Ambrose, 1989: 489). In his memoirs, President Nixon further articulated: A good job is as basic and important a civil right as a good education, and many blacks and members of other minorities were being prevented from getting good jobs because of the policies of the major labor unions which excluded them from membership or discriminated against them in hiring and promotion (Nixon, 1978: 437).

In fact, while they went largely unnoticed during the 1968 presidential campaign, Nixon made two speeches where he articulated his goal to help spur “minority capitalism” (Strober & Strober, 1994: 112). Thus, upon taking office, Nixon pursued his quest to rid the country of employment discrimination. To the surprise of many, Nixon agreed with his predecessor that affirmative action was a necessary tool to achieve equal employment opportunity for minorities in general, and African Americans in particular. As one scholar described, when Comptroller General Staats ruled that President Johnson’s Philadelphia Plan violated existing federal laws, “The Comptroller gave the new Republican administration an easy excuse” to abandon or abolish affirmative action, but Nixon did neither (Anderson, 2004: 115). Instead, the Nixon administration embraced and defended Johnson’s divisive Philadelphia Plan. Moreover, six days after his inauguration, the new president seemingly parroted President Johnson’s rhetoric. On January 26, 1969, President Nixon promised to grant “everybody an equal chance at the line and then giving those who haven’t had their chance, who’ve had it denied for a hundred years, that little extra start that they need so that it is in truth an equal chance” (Kotlowski, 2001: 106). Then on March 28, 1969, Nixon sent a memorandum to all department and agency heads where he explained his determination “that the Executive Branch of the Government lead the way as an equal opportunity employer” (Public Papers, 1970: 307). Despite such promises, after only a few months in office, African Americans became increasingly impatient with the new president. Nixon failed to appoint even one African American to the Cabinet and his 1969 State of the Union Address did not include any initiatives on civil rights. In addition, in May 1969, the Civil Rights Commission released the results of a two-year study by Richard Nathan entitled Jobs and Civil Rights. Even though the study’s data predated Nixon’s term in office, upon releasing the study’s findings, the Civil Rights Commission publicly denounced the Nixon administration as “seriously deficient” in its’ efforts to enforce civil rights laws (Graham, 1990: 319). To his credit, the new president had members of his administration working on civil rights initiatives, although he did not make such efforts public at the time. The public perception of the Nixon administration’s seemingly ignorant approach to civil rights problems occurred largely because Nixon intended to concentrate his energy primarily on foreign policy initiatives, while he sought driven individuals within his administration to carry out domestic policy

reforms. For example, in an effort to develop his own affirmative action program, President Nixon appointed George Shultz, the former Dean of the Graduate School of Business at the University of Chicago, as Secretary of Labor. Interestingly, on December 30, 1968, Shultz foreshadowed the administration’s efforts regarding affirmative action, as he explained to the Industrial Relations Research Association that he intended to make race and employment the number one priority in the Labor Department. In other words, he placed race and employment above crucial issues like productivity and inflation (Graham, 1990: 323). Upon appointing Shultz as the new Secretary of Labor, Nixon told Shultz to develop a plan for the OFCC to implement that would “set specific goals of minority manpower utilization” for federal construction projects (Parmet, 1990: 598). After his confirmation as Secretary of Labor, Shultz created a new position termed the Assistant Secretary of Labor for Employment Standards, and named Arthur Fletcher, an African American former professional football player, to the new position (Graham, 1990: 326). In creating this new position, Shultz accomplished two important tasks. First, Fletcher provided Shultz with much needed assistance in carrying out Nixon’s request for a plan regarding federal construction projects. Second, he mandated that the OFCC reported directly to Fletcher, who at the time was the highest-ranking African American in the Nixon administration. In addition, Nixon named John Wilks, an African American former dockworker, as Director of the OFCC (Weiss, 1997: 127-128). These three individuals played a pivotal role in the institutionalization of federal affirmative action programs under Nixon. Shortly after naming Fletcher as Assistant Secretary of Labor for Employment Standards, Shultz consulted with Fletcher, who as one scholar described, “established himself as the preeminent African-American official within the administration (Weiss, 1997: 128). Prior to his appointment, Fletcher obsessively studied federal employment statutes, and therefore understood the intricacies of the law. He explained to Shultz and others within the administration, that they did not have to pass any new legislation, but instead could merely utilize “existing government regulations” (Rubio, 2001: 153). Meanwhile, Senator Dirksen continued his assault on affirmative action, even though the OFCC had stopped the implementation of Johnson’s Philadelphia Plan. On February 4, 1969, Dirksen submitted two articles from Barron’s into the Congressional Record, which outlined why racial quotas violated the Civil Rights Act of 1964. Three days later, Senator Paul Fannin

took an even bolder step, as he initiated legislation that would make Title VII the sole authority on employment discrimination, and thus would overturn President Johnson’s Executive Order 11246 (Graham, 1990: 329). In spite of these developments, Shultz and Fletcher eventually agreed that an initiative similar to President Johnson’s Philadelphia Plan made the most sense, even though Comptroller General Staats had already ruled such plans illegal. Thus, despite Staats’ rulings and Senator Dirksen’s continued objections, Shultz and Fletcher pursued a revised Philadelphia Plan. Secretary Shultz explained to Nixon and others in the administration that the new plan helped solve several problems. He argued, “it would ease urban tensions and rioting, expand the supply of skilled workers and thereby potentially lower the cost of labor to contractors, punish the refractory craft unions in the construction trades, and drive a dandy wedge between organized labor and the civil rights organizations” (Graham, 1991: 167). On June 27, 1969, Fletcher announced the Nixon administration’s decision to reintroduce a revised version of the Philadelphia Plan through a Labor Department administrative order. At the press conference, he argued, “I won the right to go to the hotel, and I won the right to go to school, and I won the right to buy a house, now I need the money” (Anderson, 2004:117). Regarding the plan itself, Fletcher explained, “Visible, measurable goals to correct obvious imbalances are essential,” which included “standards for percentages of minority employees” (Weiss, 1997: 130; Graham, 1990: 326). Consequently, the new plan mandated that all contractors bidding on federal projects that exceeded $500,000, submit, along with their bids, a written affirmative action plan “which includes specific goals of minority manpower utilization” (Weiss, 1997: 129). The redrafted plan defined minorities as anyone falling under the following categories: Negro, Oriental, American Indian, and Spanish-surnamed individuals. Once again, noticeably missing from the list were women (Kotlowski, 2001: 104). In addition, three months later the Department of Labor announced its own “general ranges of minority hiring,” which were designed to help employers establish their own goals and timetables (Weiss, 1997: 129). For instance, the Department of Labor announced that its goals for Philadelphia included an increase from four percent to twenty-six percent between 1969 and 1973 (Nixon, 1978: 437). In a display of political astuteness, Fletcher, Shultz, and other administration officials argued that the plan did not violate the Civil Rights Act of 1964, as the Comptroller General ruled regarding the Johnson Administration’s Philadelphia Plan, because the Nixon

administration’s plan did not set a specific numerical target, instead it set a percentage “range.” In addition, the revised plan included a disclaimer that hiring goals established by companies should not discriminate against other qualified applicants, which of course was another effort to make the plan coincide with the goals of the Civil Rights Act of 1964 (Graham, 1990: 327). Moreover, Shultz himself argued that the plan did not violate the 1964 Civil Rights Act because according to Shultz, a “quota is a system which keeps people out. What we are seeking are objectives to get people in” (Anderson, 2004: 122). On July 16, in an effort to further substantiate the administration’s arguments, Labor Department Solicitor Laurence Silberman released a forty-four page memorandum that described how the revised Philadelphia Plan met Staats’ prior objections. According to Silberman, the new plan solved the problems of the Johnson administration because the new plan allowed contractors to devise their own affirmative action plans and it required that contractors submit their affirmative action plans prior to the bidding process. Additionally, Silberman argued that historical precedent of presidential executive orders regarding equal employment opportunity prior to the passage of the 1964 Civil Rights Act meant that presidents had constitutional power in this policy realm, which trumps statutory power (Graham, 1990: 330-331). This of course was a direct counter-argument against Senator Fannin’s proposed legislation that would systematically eliminate presidential involvement in equal employment opportunity initiatives. Finally, Silberman believed that a July 2 ruling by the Ohio Supreme Court in the case Weiner v. Cuyahoga Community College District justified his arguments. In this case, the court upheld a decision by local authorities to award a contract to the second lowest bidder when the lowest bidder failed to submit its affirmative action plan, as stipulated under the Cleveland Plan (Graham, 1990: 332-333). Opposition to the plan, led by Republican Senate Minority Leader Dirksen, surfaced immediately. Senator Dirksen maintained that the new Philadelphia Plan mandated quotas, which were outlawed in the Civil Rights Act of 1964. As such, Senator Dirksen threatened to use the appropriations process to withhold funding for the plan (Kotlowski, 2001: 105). Furthermore, he pleaded with President Nixon to not pursue the plan, because he feared it would split the Republican Party (Nixon, 1978: 438). Similarly, conservative writer Kevin Phillips argued that the Philadelphia Plan would result in dismantling the “emerging Republican majority,” which included northern blue-collar workers (Parmet, 1990: 599). Additional

opposition came from labor unions, who argued that the Philadelphia Plan violated union rules. G.C. Haggerty, President of the AFL-CIO’s Construction and Building Trades Department announced, “We are 100 percent opposed to a quota system, whether it be called the Philadelphia Plan or whatever” (Parmet, 1990: 599). While these developments increased the tensions in the political environment, developments outside of the political arena made things even worse. Shortly after Silberman released his memorandum, violence erupted in cities across the United States, most notably in Pittsburgh and Chicago. In Pittsburgh, the mayor’s announcement of his intention to implement Fletcher’s ideas led to over 4,000 white construction workers marching to city hall, carrying “Wallace in ’72” signs. During the march, violence erupted, resulting in 50 injured and more than 200 arrests. Similarly, in Chicago, 2,000 white construction workers marched to downtown, which eventually led to hundreds of construction workers fighting with the police (Anderson, 2004: 121). Meanwhile, on August 5, Comptroller General Staats once again ruled that the plan violated Title VII of the Civil Rights Act of 1964, because it upheld discrimination against white workers (Weiss, 1997: 130). In his announcement, Staats quoted Hubert Humphrey’s pledge during the debate regarding the 1964 legislation that “there is nothing in it that will give any power to the Commission or any court to require hiring, firing, or promotion of employees in order to meet a racial ‘quota’ or to achieve a certain racial balance” (Graham, 1990: 331). On the following day, Secretary Shultz held a news conference and argued that Staats’ ruling would essentially eliminate any attempts at federal affirmative action and it would “destroy all reason for the existence of the Executive Order and the OFCC” (Graham, 1990: 333). Senator Dirksen responded immediately by sending Shultz a letter, where he informed Shultz that he intended to use the congressional appropriations process to withdraw funds from the Philadelphia Plan (Graham, 1990: 336). Two days after Shultz’s press conference and one day after Dirksen’s letter, President Nixon signed Executive Order 11478, whereupon he institutionalized and strengthened the federal affirmative action program begun by President Johnson in 1965. In addition, Nixon issued an executive memorandum, where he defended his decision to issue Executive Order 11478 and he argued that the federal government must, “through positive action, make it possible for our citizens to compete on a truly equal basis for employment and to qualify for advancement

94 within the Federal Service” (Public Papers, 1970: 635). Obviously, as discussed in more detail below, Nixon’s decision to issue the order came at a highly contentious time. On September 7, one month after he wrote the letter to Shultz, Senator Dirksen passed away. Upon Dirksen’s death, Senator Sam Ervin and Representative William Cramer led the fight in Congress against Shultz’s revised Philadelphia Plan (Graham, 1991: 167). Two weeks after Senator Dirksen’s death, Attorney General John Mitchell overruled Staats’ decision, because in Mitchell’s eyes, the new Philadelphia Plan only set goals, not quotas (Anderson, 2004: 121). Mitchell argued that while the Civil Rights Act of 1964 did not officially sanction goals and timetables, it did not prohibit such plans either (Weiss, 1997: 131). Two days later, Shultz announced the full implementation of the Philadelphia Plan, and further argued the necessity of similar plans in cities across the United States (Graham, 1990: 335). By late October 1969, the Department of Labor initiated similar plans in New York, Pittsburgh, Seattle, Los Angeles, St. Louis, San Francisco, Boston, Chicago, and Detroit (Nixon, 1978: 438). In response to Mitchell’s ruling, Senator Ervin convened committee hearings on the Philadelphia Plan, in an effort to find whether it was in fact illegal under the 1964 Civil Rights Act, as Senator Dirksen had indicated prior to his death (Kotlowski, 2001: 105). At the outset of the hearings, Senator Ervin concentrated on the doctrine of separation of powers and the usurpation of congressional authority by the executive branch. Because of this emphasis, many believed that Senator Ervin’s real reason for convening the hearings was to pursue Fannin’s bill, which gave sole authority in equal employment opportunity to Congress. Unfortunately for Senator Ervin, few of his colleagues desired to have another major civil rights debate, and thus chose to use congressional rules to defeat the Philadelphia Plan by linking the plan to a series of appropriations bills. This would allow opponents to defeat Nixon’s affirmative action plan, but not have a direct vote on their support or opposition to affirmative action (Anderson, 2004: 122). In a show of solidarity within the administration, President Nixon publicly acknowledged his support for Shultz’s plan. At the time, President Nixon argued, “The Democrats are token- oriented, we’re job oriented” (Safire, 1975: 317). Furthermore, on September 26, 1969, Nixon held a press conference, where he indicated his administration’s commitment to equal employment opportunity, in spite of the violence in Pittsburgh and Chicago and the opposition in Congress. At this press conference, he explained, “We intend to continue through the Department of Labor to attempt to make progress in this field, because in the long run, we cannot

have construction unions which deny the right of all Americans to have those positions” and because of the construction industry’s long history of discrimination (Congressional Quarterly, 1970: 27A). He later recollected, “I felt that the plan Shultz devised, which would require such action by law, was both necessary and right. We would not fix quotas, but would require federal contractors to show ‘affirmative action’ to meet the goals of increasing minority employment” (Nixon, 1978: 437). Opponents in Congress continued their effort to destroy the plan by including it in the appropriations process. Eventually members of Congress decided to include funding for the plan on a rider to help victims of Hurricane Camille. On December 15, Senator Robert Byrd of West Virginia successfully passed the rider in his subcommittee. The rider stipulated that “no part of the funds appropriated or otherwise made available by this or any other act shall be available to finance, either directly or indirectly or through any Federal aid or grant, any contract or agreement which the Comptroller General of the U.S. holds to be in contravention of any Federal statute” (Schuwerk, 1972: 748). In other words, the rider mandated that the Comptroller General had sole authority to determine who received federal funding through aid programs, grants, and/or contracts (Anderson, 2004: 122). On December 18, 1969, just prior to the Christmas recess, the Senate passed Senator Byrd’s rider by a vote of 52 to 37 (Graham, 1990: 340). The Nixon administration responded immediately. The following day, President Nixon announced: The civil rights policy to which this Administration is committed is one of demonstratable deeds – focused where they count. One of the things that counts most is earning power. Nothing is more unfair than that the same Americans who pay taxes should by any pattern of discriminatory practices be deprived of an equal opportunity to work on Federal construction projects (Congressional Quarterly, 1971: 69).

In addition, Secretary of Labor Shultz announced, “the country’s long established commitment to and affirmative action for equal job opportunity has been gravely jeopardized by the United States Senate” (Hood, 1993: 158). Following his announcement, Nixon personally called on Republican leaders in the House to defeat the rider. The administration successfully received support from House Minority Leader Gerald Ford, who announced approving the rider meant, “you vote to perpetuate job discrimination in Federal contracts.” In contrast, Ford argued a “no” vote meant that “individuals will have the protection of the Federal Government in getting jobs” (Anderson,

2004: 123-124). Likewise, President Nixon successfully lobbied support from newly appointed Senate Minority Leader Hugh Scott, in hopes that he could ultimately kill the measure in the Senate (Kotlowski, 2001: 108). Finally, on December 22, President Nixon announced that he intended to keep Congress in session over the Christmas holiday if the House passed the rider. The threat proved successful, as the following day the House rejected the rider by a vote of 208 to 156 and the Senate followed by a vote of 39 to 29. Interestingly, Anderson noted that this was “the first time the U.S. Congress voted on affirmative action” (2004: 124). In addition, Anderson explained that because of Nixon’s victory in the debate over the Philadelphia Plan, “The Philadelphia Plan eclipsed Title VII and became the official policy of the U.S. Government,” as “The Nixon administration defined affirmative action as racial goals and timetables, not quotas” (2004: 124). Presidential Activism Illustrated by Nixon In contrast to the acquiescent political environment at the time Johnson issued Executive Order 11246, the outline of events listed above illustrates the highly contentious political climate during the 1968 presidential election cycle and President Nixon’s first year in office in 1969. While the ongoing war in Vietnam dominated the foreign policy debate between the new Republican president and the Democrat-controlled Congress, it is not an exaggeration to suggest that equal employment opportunity for minorities was one of the major domestic issues in 1968 and 1969. Following the Comptroller General’s 1968 ruling that President Johnson’s Philadelphia Plan violated the Civil Rights Act of 1964, questions regarding how the federal government could and should effectively implement equal employment opportunity for minorities continued to rise to the forefront of the political agenda. Given the historical records of Congress and various presidents up until 1969, it should come as no surprise that it took unilateral executive action by an activist president to institutionalize federal affirmative action programs in the employment realm. As one scholar described recently, “By the time of Nixon’s inauguration, Congress had rolled back its commitment to major civil rights legislation…But it was the President – supported by the courts – who blazed the path for affirmative action during his first two years in office” (Moen, 2001: 46). Although it was not actually part of his affirmative action program, the first major unilateral executive action taken by Nixon in regards to equal employment opportunity, was the creation of a Cabinet committee, led by Secretary of Commerce Stans. President Nixon formed

the new committee during his first month in office in order to create a plan that followed through on his campaign promise of promoting “black capitalism,” which incidentally included African Americans, Hispanics, Asians, and Native Americans. In his memoirs, Secretary Stans explained that he examined all government programs associated with small businesses and found that 116 different programs, within 21 different federal agencies “could be tapped to help minority enterprise by loans, grants, and technical assistance” (1995: 168-169). Because so many federal programs and agencies already existed, Secretary Stans developed an initiative that he submitted to the committee, which the committee promptly approved. With the committee’s approval, Secretary Stans explained to the president that the quickest and easiest way to implement the program was through an executive order, in which Nixon merely responded, “Send it over” (Strober & Strober, 1994: 112; Stans, 1995: 168-169). As such, the work done by Secretary Stans and the newly formed committee led to the issuance of Executive Order 11458 on March 5, 1969. This order created the Office of Minority Business Enterprise within the Department of Commerce, later renamed Minority Business Development Agency in 1979. The order called for the Secretary of Commerce to “Coordinate as consistent with law the plans, programs, and operations of the Federal Government which affect or may contribute to the establishment, preservation and strengthening of minority business enterprise.” Secretary Stans later argued, “It was the first time the federal government had ever put into effect an organized program to help minorities get a start – what Nixon called an equal place at the starting line” (Strober & Strober, 1994: 112-113). Interestingly, this became one of Nixon’s greatest personal achievements. In his memoirs, he later bragged that when he took office in 1969, minority businesses only received $8 million per year in government contracts, but by 1972, they received $242 million. Furthermore, “Of the 100 largest black-owned businesses in 1975, more than two-thirds had been formed since 1968” (Nixon, 1978: 438-439). Because of the initial success of Executive Order 11458, Nixon later signed an additional order on October 13, 1971, which gave the OMBE and the Secretary of Commerce increased powers and responsibilities to help minority enterprises (Stans, 1995: 172). Under the second order, Executive Order 11625, Nixon formally defined “minority business enterprise” as “a business enterprise that is owned or controlled by one or more socially or economically disadvantaged persons,” including, “but are not limited to, Negroes, Puerto Ricans, Spanish-speaking Americans, American Indians, Eskimos, and Aleuts.”

Besides his creation of the OMBE, President Nixon further showed his support for equal employment opportunity, as he pressed Congress for significant budget and personnel increases for the EEOC. As a result of this presidential activism, the EEOC went from a staff of 360 in 1968, to a staff of 1,640 in 1972. Likewise, the budget increased from $13 million in 1968, to almost $30 million in 1972 (Weiss, 1997: 144). Consequently, evidence indicates that upon taking office in 1969, President Nixon took an activist role in expanding the rights of minorities in employment opportunity, despite the political environment he faced. In regards to the current study, the most important action taken by President Nixon during his first year in office came via the issuance of Executive Order 11478 on August 8, 1969. Under Executive Order 11478, Nixon argued that it is the president’s responsibility to ensure equal employment opportunity to specific groups, that his order maintained and strengthened actions taken by previous presidents, and that the best way to combat employment discrimination is through effective affirmative action programs within each executive department and agency. Three months later President Nixon established the Office of Federal Equal Employment Opportunity (OFEEO) within the Civil Service Commission, in an effort to ensure that Executive Order 11478 was properly implemented (Weiss, 1997: 146). In addition, Nixon further committed himself to ensuring equal opportunity to underrepresented groups not included in Executive Order 11478, as he signed Executive Order 11480 on September 9, which created the President’s Committee on the Employment of the Handicapped. According to the order, the president created the new committee in order to “facilitate the development of maximum employment opportunities for the physically handicapped, mentally retarded, and mentally restored.” Thus, by issuing Executive Order 11478, President Nixon began the institutionalization process of federal affirmative action policy. Indeed, as one scholar recently argued, “Johnson’s administration had tested but not institutionalized government-inspired affirmative action” (Kotlowski, 2001: 102). Consequently, it was not until President Nixon’s issuance of Executive Order 11478 that federal affirmative action programs became institutionalized. The Content of Executive Order 11478 The previous chapter noted that President Johnson’s Executive Order 11246 was a considerably long and detailed order, thus, it should come as no surprise that President Nixon’s Executive Order 11478 was much shorter in length, taking up a mere two pages in the Federal

Registrar, unlike the seven pages needed for Johnson’s order. However, while the length may be shorter, as previously indicated, President Nixon envisioned that Executive Order 11478 would serve several purposes. He began the order with a preamble, where he argued, “It has long been the policy of the United States Government to provide equal opportunity in Federal employment on the basis of merit and fitness and without discrimination because of race, color, religion, sex, or national origin.” In addition, he recognized the importance of presidential activity in this realm, as he wrote, “All recent presidents have supported this policy, and have directed department and agency heads to adopt measures to make it a reality.” However, Nixon concluded the preamble of the order with the argument that “Additional steps…are called for in order to strengthen and assure fully equal employment opportunity in the Federal Government.” Upon examining the remainder of the order, it becomes quite clear that in order to accomplish this necessary strengthening, Nixon endorsed effective implementation of “affirmative action.” Indeed, in Section 1 of the order, he reiterated his claim that it is the federal government’s policy to provide equal employment opportunity to “all persons.” However, the most important part of this section was his description that such equal opportunity was contingent upon “a continuing affirmative action program in each department and agency” (emphasis added). This of course contrasts Johnson’s Executive Order 11246, which merely mentions the term “affirmative action,” as Johnson’s order simply required that contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” The difference between these two orders provides us with an illustration of how the terminology associated affirmative action evolved, and displays why Nixon’s order became known for institutionalizing federal affirmative action programs. As Hoff explained, “While Presidents Kennedy and Johnson had employed the term ‘affirmative action,’ it ‘did not have much bite’ until the Nixon administration…In other words, not until the Nixon administration did ‘affirmative action’ begin to become coterminous with ‘civil rights’” (1994: 90). Finally, Nixon concluded Section 1 with the argument that such affirmative action programs “must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the federal government.”

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Section 2 significantly expanded upon Section 1, as Nixon mandated that the head of each department and agency “establish and maintain an affirmative action program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction.” Furthermore, Section 2 directed department and agency heads to ensure that adequate resources supported their affirmative action programs, and demanded that such affirmative action programs moved beyond merely the recruitment and hiring aspects of the department or agency, but also included job training within their jurisdiction. Such training, Nixon ordered, included the adequate instruction for managers within departments and agencies on how to effectively implement affirmative action. In addition, Section 2 insisted that the heads of departments and agencies create an evaluation process that periodically reviewed the effectiveness of the affirmative action program in place. However, perhaps the most intriguing part of the entire order came near the end of Section 2. In a display of his argument for the need to expand affirmative action, Nixon ordered that department and agency heads “assure participation at the local level with other employers, schools, and public or private groups in cooperative efforts to improve community conditions which affect employability.” In other words, Executive Order 11478 acknowledged that the federal government could no longer simply enforce equal employment opportunity through effective affirmative action programs, but the federal government also needed to ensure that public and private entities within communities do their part in preparing underrepresented groups for future employment. While the order does not make specific mention of this, it seems that through this provision, Nixon provided his endorsement of Johnson’s call for “equality of results,” rather than merely “equality of opportunity,” as affirmative action programs ensure equal opportunity, but it takes what Nixon terms “community conditions which affect employability” to ensure equality of results. Sections 3 through 5 of the order dealt specifically with the Civil Service Commission’s responsibility in ensuring the implementation of federal affirmative action programs. Section 3 for instance insisted that the Civil Service Commission must also provide a periodic program review separate from the reviews carried out by the departments and agencies mandated in Section 2. The Civil Service Commission, according to Section 3, must then report their findings directly to the President. Section 4, on the other hand, reiterated the Civil Service Commission’s

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responsibility of adjudicating complaints of aggrieved applicants or employees. Finally, Section 5 granted the Civil Service Commission a substantial amount of authority, as it stated: The Civil Service Commission shall issue such regulations, orders, and instructions, as it deems necessary and appropriate to carry out this Order and assure that the executive branch of the Government leads the way as an equal opportunity employer, and the head of each executive department and agency shall comply with the regulations, orders, and instructions issued by the Commission under this Order.

Finally, the order concluded with Sections 6 and 7, which served primarily as housekeeping provisions of the order. Section 6 outlined that the order applied to the military, to all executive agencies except the General Accounting Office, to non-elected federal employees within the legislative and judicial branches, and to government employees in the District of Columbia. Section 7 merely confirmed that Executive Order 11478 superseded President Johnson’s Executive Orders 11246 and 11375. Presidential Decision-making & Executive Order 11478 Once again, in examining the case study of Nixon’s decision to issue Executive Order 11478 in the context of the research questions outlined in Chapter One, it is quite apparent that President Nixon was both active and strategic in his use of an executive order to establish equal opportunity employment policy for underrepresented groups and it is evident that several factors led to President Nixon’s decision to issue Executive Order 11478. Again, the first question in Chapter One dealt with the extent to which modern presidents have been active in using executive orders for equal employment policy prior to actions taken by other governmental institutions. President Nixon’s decision to issue Executive Order 11478 clearly illustrated presidential activism in this realm. As indicated above, in his recent scholarly work on the evolution of affirmative action, Moen described, “By the time of Nixon’s inauguration, Congress had rolled back its commitment to major civil rights legislation…But it was the President – supported by the courts – who blazed the path for affirmative action during his first two years in office” (Moen, 2001: 46). Consequently, had it not been for Nixon’s activism in regards to affirmative action, the future of federal affirmative action might have been questionable by the early 1970s. After all, while the Comptroller General’s 1968 ruling regarding the Philadelphia Plan dealt primarily with the issue of the federal government’s ability to enforce affirmative action programs on private employers working for the federal government, this development demonstrated the backlash building against such policies. Furthermore, we see

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that when the Nixon administration chose to implement their revised Philadelphia Plan, Congress tried to dismantle the program by withholding funds, the Comptroller General once again ruled against the program, and thousands of construction workers led violent demonstrations in Pittsburgh and Chicago. Such evidence suggests that by 1969, affirmative action was under heavy assault by individuals inside and outside of government. In spite of such developments, President Nixon, through Executive Order 11478, not only institutionalized President Johnson’s federal affirmative action programs outlined in Executive Orders 11246 and 11375, but he expanded and strengthened such programs. As Kotlowski indicated in his examination of Nixon’s civil rights record, “even if Nixon often shunned his offspring, he still must be acknowledged as the sire of affirmative action” (2001: 124). Thus, Nixon’s display of presidential activism via Executive Order 11478 cannot be overstated. In fact, as indicated in more detail below, the presidential activism and leadership displayed by President Nixon eventually led to the further advancement of equal employment opportunity policies in the bureaucracy, the federal courts, and Congress. The contentious political environment Nixon faced begins to explain the strategic element involved in Nixon’s decision to issue Executive Order 11478 and the various factors involved in his decision-making process. Because of the political climate at the time, and the lack of support within Congress, it became abundantly clear to Nixon and those around him that legislation was not the answer. In fact, during the 1968 campaign, Nixon contended, “I do not see any significant area where additional legislation could be passed that would be helpful in opening doors that are legally closed…after this decade of opening doors, we need a decade of preparing people to walk through these doors” (Congressional Quarterly, 1971: 68). Therefore, the most effective way to implement equal employment opportunity reforms was through unilateral executive action. Indeed, as one scholar noted, Nixon lacked patience in this policy realm, and instead favored speed and efficiency (Wicker, 1991: 523). Yet the question remains, why did Nixon pursue such policies in the first place? After all, African Americans overwhelmingly supported Vice President Humphrey in the 1968 election, and Nixon’s primary electoral concern was with solidifying his southern base. Consequently, it does not seem to indicate that political factors dominated Nixon’s decision to pursue such policies. As one scholar described, Nixon’s support for affirmative action “placed economics and civil rights ahead of political expediency” (Kotlowski, 2001: 107). So why did

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Nixon plow ahead with his pursuit of affirmative action in both federal employment and government contracting? The evidence overwhelmingly suggests that personal beliefs and values steered Nixon’s decision-making process. In fact, Nixon realized that his decision to pursue equal employment opportunity policies would not help him politically. As indicated above, as early as the 1968 presidential campaign, Nixon envisioned implementing such programs. According to Maurice Stans, a campaign aide during the 1968 campaign and later Nixon’s first Secretary of Commerce, Nixon explained to Stans, “I don’t think this is a good political move; it won’t get us any votes. But we’ll do it, because it’s the right thing to do” (Strober & Strober, 1994: 112). H.R. Haldeman’s recollection of Nixon’s decision-making process provides us with an important insight into why Nixon believed equal employment was “the right thing to do.” Haldeman, who served as Nixon’s first Chief of Staff, affirmed that Nixon’s personal beliefs did indeed play a pivotal role in his decision to pursue federal affirmative action. He recounted, “Coming out of his Quaker background, his view was that all people are equal – different, maybe, but equal” (Strober & Strober, 1994: 113). Furthermore, as previously indicated, Nixon’s personal belief regarding the advancement of civil rights for minorities was grounded in his philosophy that the best way to create equality was by essentially creating a middle-class within minority communities. Nixon maintained that it was the obligation of the federal government to initiate what he termed “black capitalism” or “minority capitalism,” which of course led to the issuance of Executive Order 11458 and the creation of the Office of Minority Business Enterprise within the Department of Commerce. In his biography of Nixon, Herbert Parmet explained, “Nixon had always favored jobs as the best route to racial equality. Therefore, nothing was more natural to him than assisting blacks become capitalists and get a piece of the action for themselves” (1990: 598). This same belief system led to his support for affirmative action programs as well, as Nixon recognized the responsibility of the federal government to ensure that minorities had equal opportunity in employment, in both the public and private sector. After all, as indicated above, President Nixon’s Executive Order 11478 called on department and agency heads “to assure participation at the local level with other employers, schools, and public or private groups in cooperative efforts to improve community conditions which affect employability.”

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Still, while personal beliefs and values seem to be the overarching force behind Nixon’s decisions pertaining to affirmative action, and while Nixon himself acknowledged that pursuit of such policies would not help him politically, evidence suggests that political factors played at least a minor role in his decision-making. For example, individuals within the Nixon Administration acknowledged that Nixon hoped his pursuit of affirmative action would result in a split between organized labor and prominent African American organizations, including the NAACP, which of course would result in political repercussions detrimental to the Democratic Party (Crowley, 1998: 11). John Erlichman, Assistant to the President for Domestic Affairs, confirmed this belief in his memoirs. Regarding Nixon’s pursuit of affirmative action, Erlichman wrote, as Nixon had hoped, “Before long, the AFL-CIO and the NAACP were locked in combat over one of the passionate issues of the day and the Nixon Administration was located in the sweet and reasonable middle” (1982: 228-229). Even if the strategy of pulling apart the Democratic coalition of organized labor and civil rights organizations was wishful thinking, the pursuit of affirmative action still had its political virtues. As one scholar described, Nixon’s support of such policies resulted in Nixon’s ability “to do something positive for minorities and pull his party together against a common adversary: organized labor” (Kotlowski, 2001: 107). Furthermore, another scholar argued that Nixon pursued liberal domestic policies because the 1968 election was so close, which led Nixon to the realization that he needed to reach out to liberals in domestic policy, while he focused primarily on foreign policy (Anderson, 2004: 119). In fact, there was a belief within the administration that a balance between moderate-to-liberal domestic policies, with Nixon’s own foreign policy, could result in the formation of a new coalition for the 1972 election (Graham, 1990: 317). Finally, the last set of factors that helped guide Nixon’s decision to pursue affirmative action came from influential individuals and groups outside of the administration, most notably, prominent individuals and groups in the civil rights movement. Kotlowski described that civil rights organizations “roused the administration to adopt a more active fair employment stance.” Indeed, as early as February 7, 1969, Roy Wilkins of the NAACP met with President Nixon and expressed to the president a “sense of urgency” regarding racial matters, especially pertaining to employment discrimination in federal contracting (2001: 104). In sum, a thorough examination of the Nixon presidency indicates that presidential activism by President Nixon was responsible for the institutionalization of federal affirmative

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action programs. In fact, it was through his unilateral executive action that federal affirmative action programs expanded significantly at a time when Congress and large segments of the U.S. population began to question the legality and necessity of such programs. Given the contentious political environment that he faced, it is increasingly important to study the various factors that led to Nixon’s decision to defy an openly combative Congress. By examining his decision to issue Executive Order 11478, we see that President Nixon took into account several major factors, including, but not limited to: 1) his personal beliefs regarding equality, 2) his personal beliefs regarding the importance of creating a middle-class among minority groups, 3) the possibility of driving a wedge between two influential groups within the Democratic Party, 4) the possibility of uniting his own party against organized labor, 5) the possibility of building a new electoral coalition for the 1972 election, and 6) pressure from outside individuals and groups within the civil rights movement. The Legacy of President Nixon & Executive Order 11478 Without a doubt, the development of federal affirmative action in employment is a unique story. Many in the civil rights movement feared the implications of Lyndon Johnson taking office upon President Kennedy’s death, but under Johnson’s presidency, they received a more comprehensive civil rights bill than they probably would have received under Kennedy, and President Johnson formally established the first federal affirmative action program. Likewise, many in the civil rights movement feared the worst when Richard Nixon defeated Vice President Humphrey in the 1968 presidential election, yet in the end, President Nixon institutionalized federal affirmative action programs in both public and private employment. In fact, upon looking back on the Nixon presidency, the notable civil rights leader James Farmer recounted that President Nixon was “the strongest president on affirmative action – up to that point, both in government service, where government funds were used, and in the private sector, for instance in the Philadelphia Plan” (Strober & Strober, 1994: 114). Such leadership in regards to equal employment opportunity led one historian to describe, “…there is no denying…that Nixon’s advances in civil and political rights for women and minorities far outweighed those of his predecessors” (Hoff, 1994: 113). Such praise for Nixon no doubt is a result of the fact that Executive Order 11478 was only the beginning of the institutionalization process for federal affirmative action programs in employment. In fact, while the wheels were already in motion for the revised Philadelphia Plan,

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as Fletcher announced the new plan on June 27, 1969, Shultz did not announce its full implementation until late September. Therefore, the argument can be made that the first true victory for equal employment opportunity under the Nixon administration was in fact his signing of Executive Order 11478 on August 8, 1969. However, whether one considers Executive Order 11478 or the revised Philadelphia Plan as the first important implementation of federal affirmative action under Nixon, does not matter. What matters is that the combination of these approaches, one that targeted federal employment, but also acknowledged the importance of working with local groups and officials to enhance “employability” among minorities (Executive Order 11478), and the other that focused primarily on private contractors working with the federal government on construction projects (the revised Philadelphia Plan), cemented affirmative action within the federal government as the primary tool for ensuring equal employment opportunity for underrepresented groups. As Kotlowski recently described, “Affirmative action, solidified under Nixon, has produced a web of interlocking interests that make its repeal unlikely, perhaps even impossible, for the foreseeable future” (2001: 262). As discussed in detail in Chapter 6, upon taking office in 1980, the Reagan administration soon found out how difficult it would be to dismantle federal affirmative action programs. The institutionalization of federal affirmative action then is the legacy established by President Nixon through Executive Order 11478 and the revised Philadelphia Plan. In fact, in the aftermath of his issuance of Executive Order 11478 and his protracted battle with Congress over the revised Philadelphia Plan, President Nixon once again reaffirmed his commitment to equal employment opportunity in his 1970 State of the Union address, where he called for expanded opportunities for all Americans in both employment opportunities and voting rights (Congressional Quarterly, 1971: 70). However, it should be noted that shortly after his 1970 State of the Union address, Nixon’s commitment to equal employment opportunity eroded. This occurred for two reasons. First, developments in the Vietnam War caused Nixon to concentrate his time and effort almost entirely on foreign policy and the growing domestic impatience and protest of the war. In the spring of 1970, Nixon ordered the invasion of Cambodia, which escalated the war and triggered more protests. One such protest occurred at Kent Stat University in Ohio, where national guardsmen fired on a group of protesters, wounding nine and killing four. Given the

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deteriorating circumstances in Vietnam and the domestic turmoil on the home front, it is no wonder Nixon began to ignore the issue of equal employment opportunity in 1970. The second reason why Nixon’s support for affirmative action policies eroded occurred because of political calculations. Following the invasion of Cambodia and the increased protests at home, the Nixon administration noticed that one demographic group consistently supported his Vietnam policy; white Americans in union households, the same group most opposed to affirmative action. In fact, in the aftermath of the invasion of Cambodia, George Meany, the president of the AFL-CIO, publicly supported the invasion, and on May 20, 1970, over 100,000 construction workers marched in New York City in an effort to show their support for the war (Anderson, 2004: 138). Because of this development, Nixon knew that in the lead-up to the 1972 presidential election, it was in his best interest to withhold his support for equal employment opportunity. After all, following the 1968 election, where Governor Wallace received substantial support from union members in the north, Nixon hoped to bring such individuals into his electoral coalition. In fact, this was the precise strategy outlined by Kevin Phillips in The Emerging Republican Majority and Richard Scammon and Ben Wattenberg in The Real Majority (Weiss, 1997: 154). Thus, Nixon realized that if he continued to push for more equal employment programs, he would risk alienating a crucial constituent group. With their support for his Vietnam policy, Nixon decided to make direct appeals to such workers. In July 1971, President Nixon told Chief of Staff Haldeman, that for union voters, jobs remained the main issue, but racial issues also appealed to such voters (Haldeman, 1994: 326). Consequently, during the 1972 campaign, Nixon berated the Democratic Party as the “quota party” and used a 1972 Labor Day speech to denounce “the rise of a fixed quota system” and “master planners who want more power in a central government,” even though his administration was responsible for the “quota system” and it was his own political appointees that were in affect, the “master planners” (Anderson, 2004: 138; Weiss, 1997: 154). Such rhetoric led to a description in The Wall Street Journal that “The Nixon administration appears to be moving toward a softening of its (affirmative action) regulations” (1972: 60). However, while Nixon’s public support for such policies waned in the second half of his first term, it should be noted that on April 23, 1971, he signed Executive Order 11590, which made Executive Order 11478 applicable to the U.S. Postal Service, and thus expanded federal

108 affirmative action policies. Not to mention, after the 1972 campaign, Nixon reaffirmed his personal commitment to equal employment opportunity, as he told Chief of Staff Haldeman to make sure two out of every five new political appointments go to minorities (Kotlowski, 2001: 114). Still, even while Nixon’s support for equal employment policies dissipated throughout 1971 and 1972, the importance of his decision to implement Executive Order 11478 and his actions prior to 1971 led to significant decisions and actions by other federal officials, and thus resulted in a continued expansion of federal affirmative action policy, even at a time when the president campaigned against such change. In fact, the presidential leadership displayed by Nixon regarding equal employment opportunity, the presidential activism that he displayed, and the institutionalization of federal affirmative action in employment that resulted from such presidential activism, led to a domino affect in the other major institutions in government. In other words, the presidential activism displayed by Nixon spurred activity by the other institutions in government, including the federal bureaucracy, the courts, and eventually Congress itself. Not surprisingly, given its inherent connection to the president, the first institution to follow the president’s lead was the federal bureaucracy. In February 1970, under the leadership of Secretary Shultz, the Department of Labor issued what became known as Order No. 4, which in affect extended all of the provisions in the Philadelphia Plan to all federal contractors working on projects that exceeded $50,000 (Moen, 2001: 33). Furthermore, the new order required contracting companies to file their affirmative action plans with the Department of Labor within 120 days of signing the contract and explain any areas where the contractor currently had “fewer minorities…than would reasonably be expected by their availability” (Graham, 1990: 341). Moreover, the order required the contractor to implement specific goals and timetables in any area that the company identified as deficient in the number of minorities present, with such goals determined by the percentage of minorities in the local workforce. One scholar explained, “Order No. 4 was of profound significance. It directly linked the ratio of minorities in a locale with those working on contractual employment, which subsequently established proportional hiring as a way to prove compliance with affirmative action” (Anderson, 2004: 125). In addition, Shultz announced that the Department of Labor selected nineteen cities, whereby local officials had to implement adequate local affirmative action plans. Failure to do

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so would result in federally mandated plans (Graham, 1990: 341). Finally, in December 1971, the Department of Labor revised Order No. 4, and for the first time included women among “affected classes” (Graham, 1991: 167; Moen, 2001: 33). Shultz’s successor, James Hodgson, continued Shultz’s efforts, but specifically encouraged local implementation of affirmative action plans, as Shultz had begun when he targeted the nineteen cities. Such localization became known as “hometown plans,” which of course fit under the president’s “New Federalism.” Within the first year of such “hometown plans,” fifty-six cities across the United States implemented their own affirmative action initiatives (Kotlowski, 2001: 110). Silberman, the lawyer for the Department of Labor who had previously led the defense of the revised Philadelphia Plan in July 1969, later explained, “with [the Philadelphia Plan] battle won, we went on to spread construction plans throughout the country like Johnny Appleseed…We no longer even purported to base these orders…on the findings of discrimination” (Graham, 1990: 438). Besides the federal bureaucracy, 1970 also marked the genesis of substantial federal court involvement in affirmative action and employment issues. Not surprisingly, the first battle ensued over the Nixon administration’s revised Philadelphia Plan. Upon Congress’ failure to dismantle the Philadelphia Plan, contractors and unions sought relief in the courts. However, in early 1970, a U.S. District Court in Pennsylvania ruled in favor of the Labor Department’s implementation of the Philadelphia Plan in the case of Contractors Association of Eastern Pennsylvania v. Secretary of Labor (Moen, 2001: 51; Weiss, 1997: 133). The judge in the case described the necessity of affirmative action because past discrimination “has fostered and perpetuated a system that has effectively maintained a segregated class” (Graham, 1990: 341). A few months later, on June 9, the U.S. Supreme Court rejected a motion to review the case of Weiner v. Cuyahoga Community College, in affect upholding the Ohio court ruling that the lowest bidder on a project could be rejected if they did not submit an affirmative action program with their bid (Graham, 1990: 341). The following year, the contractors and unions involved in Contractors Association of Eastern Pennsylvania v. Secretary of Labor appealed the District Court’s decision, but the Third Circuit’s Court of Appeals agreed with the District Court’s ruling that affirmative action programs were necessary “due to the exclusionary practices of the unions representing the six trades” (Moen, 2001: 51; Wicker, 1991: 523). Finally, in October 1971, the U.S. Supreme Court

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denied certiorari, and thus affirmed the lower courts’ decisions (Moen, 2001: 267). Thus, the Nixon administration “achieved court approval of goals in hiring practices…and clearly transformed the power and responsibility for civil rights to a court-enforced approach based on recommendations of permanent government affirmative agencies within the executive branch” (Hoff, 1994: 113). In the same year, in the case of Griggs v. Duke Power Co., the U.S. Supreme Court ruled in favor of a group of African American workers denied promotions at Duke Power Company, due to their lack of high school diplomas and/or their failure to pass a company mandated aptitude test. Focusing its attention on Title VII of the Civil Rights Act of 1964, the Court ruled that “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices,” because in the Court’s view, through the 1964 Act, “Congress directed the thrust of the Act to the consequences of employment practices.” In other words, through this decision, the U.S. Supreme Court endorsed the beliefs expressed by both President Johnson and President Nixon regarding the importance of “equality of results.” This decision became extremely important over the next decade because it eliminated the intent aspect of employment discrimination. In other words, whether they intended to or not, the burden of proof now shifted to the employer to prove their hiring practices did not discriminate against minorities and women. With these developments, Weiss explained, “The period 1969-72 marked a crucial transitional phase in the equal employment campaign. During this period, the federal bureaucracy and the courts expanded affirmative action beyond what could have been anticipated in 1964” (1997: 158). Finally, in 1972, the U.S. Congress followed President Nixon’s leadership in regards to equal employment opportunity, as Congress passed the Equal Employment Opportunity Act of 1972. Under this act, Congress expanded the purview of Title VII found in the Civil Rights Act of 1964. In the 1964 act, Title VII pertained only to employers with twenty-five or more workers, while the new act covered employers with fifteen or more workers (Moen, 2001: 48). In addition, the 1972 law gave prosecutorial powers to the EEOC. Moreover, as indicated in the previous chapter, Congress used Johnson’s and Nixon’s affirmative action orders as guides to formulate and pass affirmative action programs for handicapped individuals, under the

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Rehabilitation Act of 1973 and Vietnam War veterans, under the Vietnam-Era Veterans’ Reajustment Act of 1974 (Turner, 1990: 87). Furthermore, along with these legislative acts, Congress agreed to budget increases for the EEOC initiated by President Nixon, which resulted in the EEOC’s budget increasing from $13.2 million in 1969 to $29.5 million in 1972, while its’ staff increased from 359 in 1969 to 1,640 in 1972. In fact, Hoff found that Nixon’s “1973 budget for civil rights enforcement represented an eightfold increase over Johnson’s for fiscal 1969” (1994: 93). With an enhanced budget, an enlarged personnel, and new prosecutorial powers, the EEOC targeted some of the country’s largest employers. Without a doubt, the best example of this was AT&T, the world’s largest private employer, which at the time employed over 800,000 workers and because of retirement and attrition, hired nearly 200,000 workers each year (Rubio, 2001, 156; Anderson, 2004: 136). In 1972, the EEOC charged AT&T with “pervasive, systemwide, and blatantly unlawful discrimination in employment against women, blacks, Spanish-surnamed Americans, and other minorities” (Anderson, 2004: 136). Although the company first tried to fight the EEOC’s claims, the assertions made by the EEOC led to a 1973 settlement, which included $23 million of modifications that immediately implemented goals and timetables for both minorities and women, and an additional $17.5 million in back pay for minority and female workers (Rubio, 2001: 156). Following the success of the AT&T case, the EEOC filed ninety lawsuits in 1973 against some of the country’s largest corporations and unions, including Sears, General Electric, General Motors, Ford Motor Company, and the United Auto Workers (Anderson, 2004: 140). Likewise, one year later, allegations against leading steel companies resulted in the steel industry’s agreement to implement its own goals and timetables, as well as to pay $30 million in back pay to 4,000 minority and female workers (Rubio, 2001: 156). These developments in the federal bureaucracy, the federal courts, and the U.S. Congress display the importance of President Nixon’s leadership in equal employment policy, and the legacy of Executive Order 11478. Executive Order 11478 institutionalized federal affirmative action and formally established hiring quotas, despite Nixon’s claim that he abhorred such quotas. In fact, while Nixon himself tried to delineate between the goals and timetables established by his administration and fixed quotas, as early as 1977, Silberbman, who served under Nixon as the Labor Department’s Solicitor, acknowledged, “I now realize that the

112 distinction we saw between goals and timetables on one hand and unconstitutional quotas on the other, was not valid. Our use of numerical standards in pursuit of equal opportunity has led ineluctably to the very quotas…that we initially wished to avoid” (Roberts and Stratton, 1995: 128). Consequently, through Nixon’s actions, and the actions by other governmental institutions in the aftermath of Nixon’s Executive Order 11478, Nixon effectively guaranteed the federal government’s role in ensuring equal opportunity, and to some extent equality of results, for minorities and women. Howard Phillips, who served as the Director of the Office of Economic Opportunity under Nixon, and later resigned because he felt President Nixon failed to bring about adequate conservative reform, explained to the Strober’s in their oral history that “It was his [Nixon] administration that institutionalized the quota system” (Strober & Strober, 1994: 109). Similarly, Moen described, “…the Executive Branch was an active agent in launching and implementing the principles of affirmative action, and ironically enough, President Nixon himself was very instrumental in putting affirmative action on a firm track (Moen, 2001: 25). Likewise, Kotlowski argued, “By embracing and defending numerical goals, President Nixon and his advisers made permanent the practice of affirmative action” (2001: 102). Furthermore, Executive Order 11478 was a major victory for proponents of affirmative action because it set the basis for the future of federal equal employment policy and gave supporters a foundation for their arguments. As J. Larry Hood explained, the reason “affirmative action became so much a part of the civil rights movement of the seventies was due to President Nixon’s decision in early 1969 to continue enforcement of Johnson’s executive order” (1993: 145). Consequently, the importance of Executive Order 11478 in the evolution of affirmative action is immeasurable, because in issuing the order, Nixon not only brought equal employment opportunity to a new level, but he effectively institutionalized it within the federal government, at a time when such policies lacked support from the majority of the public. The Continued Institutionalization of Federal Affirmative Action: The Ford & Carter Years, 1974-1980

Unlike the equal employment opportunity progress made via executive action between 1965 and 1973, the years 1974 through 1980 saw little advancement in federal affirmative action policy. Following the immense success of the EEOC’s prosecutions in 1973 in the aftermath of the passage of the Equal Employment Opportunity Act of 1972, the push for affirmative action at

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the national level stalled. Thus, the period between 1974 and 1980 marked a phase of further institutionalization of federal affirmative action, rather than an advancement of such programs. This occurred for two reasons. First, the advancements made by President Nixon, the bureaucracy, the courts, and Congress between 1969 and 1973 resulted in a decrease in the salience of equal employment opportunity as a political issue. Second, Presidents Ford and Carter faced increasingly complex political issues in both the domestic and international arenas. Gerald Ford & Federal Affirmative Action Policy Upon taking office in August 1974, given the complex situation President Ford faced, it should not be surprising that he did not make equal employment a crucial issue on his administration’s agenda. Historian Yanek Mieczkowski (2005) described that the Ford presidency faced five major challenges, none of which included equal employment opportunity as a component. Instead, Mieczkowski (2005) found that the major challenges Ford faced included restoring leadership in the White House, an economic recession, an energy crisis, the creation of a post-Vietnam foreign policy, and a belief among conservatives in his own party that Ford was not the best individual to lead their party in the future. Similarly, in his discussion of the Ford presidency, James Reichley (1981) described that Ford focused his attention on an effective veto strategy, a post-Vietnam War foreign policy, energy policy, and combating inflation and recession. In his autobiography, President Ford confirmed such research, as he devoted his attention primarily to the same topics dealt with by Mieczkowski (2005) and Reichley (1981), and allotted virtually no consideration of any civil rights issue. As a result of his preoccupation with other pressing issues, and the decline in the salience of the issue, during his tenure in office, President Ford failed to initiate any legislation pertaining to equal employment opportunity, and only issued one executive order concerning equal employment opportunity. However, this order, Executive Order 11830, signed on January 9, 1975, did not deal with race or gender, but instead merely enlarged the membership of the Interagency Committee on Handicapped Employees, first established in the Rehabilitation Act of 1973. Section 501 of the Act mandated that all departments and agencies within the executive branch create “an affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities.” Therefore, Ford’s order did not advance affirmative action in any way, but simply added members to a committee that had a responsibility in overseeing an affirmative action program for disabled Americans.

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Still, President Ford’s lack of unilateral action in this policy realm was probably not as disconcerting to proponents of affirmative action as the lack of enforcement during the Ford administration. In the brief time Ford occupied the White House, the EEOC found itself backlogged with 124,000 cases, the OFCC did not have a director for six months, and a report found that the federal government’s 1,800 compliance officers were employed by 18 different agencies (Anderson, 2004: 145). Such debacles led to a 1976 GAO study that concluded, “the direct results of the commission’s individual charge and systemic discrimination activities have been minimal” (Weiss, 1997: 188). It was also during the Ford administration that the Department of Health, Education and Welfare released its regulations regarding the need for colleges and universities to hire minorities and women. While the report itself called for some practical ways to implement diversity programs in institutions of higher learning, it became an embarrassment to the administration because of its overemphasis on statistics. For example, the report called on the University of California at Berkley to hire 100 new minority and women faculty over the next thirty years, including “1.38 blacks in the social welfare department, 0.19 women in the engineering department, 0.05 American Indians in the dramatics department, and 1.40 Orientals in the architecture department” (Anderson, 2004: 145). After the public humiliation of such a ridiculous report, the Department of Health, Education and Welfare backed off its regulations, allowing several colleges and universities to receive federal funding without instituting any affirmative action programs, which led to a claim by a Harvard personnel official that “there is clearly a retreat in Washington from affirmative action” (Anderson, 2004: 145). In spite of these troublesome developments, Weiss maintained that for several reasons, including the increased number of African Americans and women elected to Congress, the continued support for affirmative action policies within the federal courts, and the successful lobbying efforts of the NAACP and NOW, “the mid-1970s did not witness a major retreat in the area of affirmative action” (1997: 173-174). For instance, in 1974, the Department of Labor’s Apprenticeship Outreach Program, used along with hometown plans to integrate building trades, announced that it would include women in the program (Weiss, 1997: 193). In addition, in October 1975, the OFCC, renamed the Office of Federal Contract Compliance Programs (OFCCP), expanded its definition of “minorities,” as it added individuals with disabilities and veterans of the Vietnam War (Weiss, 1997: 188). Furthermore, during the Ford administration,

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the OFCCP and several other federal agencies implemented a new statistical formula called the Opportunity Index (OPI) to measure levels of employment discrimination. According to the OPI, companies had to reexamine their hiring and testing devices, and ensure that such procedures guaranteed that the success rate of minorities and women reached at least 80 percent of white males. In other words, Weiss explained, “a company that accepted 50 percent of white male applicants should accept at least 40 percent of female and minority applicants. Failure to do so constituted prima facie evidence of ‘adverse impact’” (1997: 189). Finally, actions by the federal courts maintained the relevance of federal affirmative action programs during the Ford administration. The most notable example came in the 1974 case of Rios v. Enterprise Association Steamfitters Local 638, where the District Court found the steamfitters local guilty of continued discrimination against minority applicants and workers. Because of the continued discrimination, the District Court mandated that the steamfitters local have a nonwhite membership of 30 percent within four years. The steamfitters local appealed the District Court’s decision, claiming that the mandated quota violated Title VII of the Civil Rights Act of 1964, but the Court of Appeals affirmed the District Court’s ruling (Weiss, 1997: 195). What is noticeably missing from this narrative is meaningful action taken by President Ford from 1974 through 1976. Indeed, unlike the history of his predecessors dating as far back as Franklin Roosevelt, President Ford failed to issue one executive order regarding equal employment opportunity for minority Americans. Instead, his only order pertained to the membership of an agency that oversaw affirmative action for disabled Americans. Consequently, during his term in office, the pattern of presidential leadership in this issue subsided, while the federal courts, and to a lesser extent, the federal bureaucracy, led the way in federal affirmative action policy. Jimmy Carter & Federal Affirmative Action Policy Because of the lack of effort by President Ford during his stint in office, proponents of equal employment policy hoped that Jimmy Carter would lead them down a new path of reforms. Considering Carter’s record, there was some reason to believe they would get what they hoped to achieve. After all, during the 1976 campaign, Carter released a memoir entitled Why Not the Best?, where he explained his childhood experiences of interacting with African Americans in rural Georgia at a time when southern whites rejected such contact. Such interaction occurred

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because Carter’s family lived in a small community of only twenty-five families, only two of which, including Carter’s, were white. Thus, Carter claimed, “All my playmates were black” (O’Reilly, 1995: 336-338). Following the release of this book, Carter regularly campaigned in African American churches and successfully received the prominent endorsements from Martin Luther King, Sr. and Coretta Scott King (O’Reilly, 1995: 336-337). Civil rights activist Andrew Young explained that African Americans had a great deal of confidence in the new president because “John Kennedy read about racism and poverty in a sociology class at Harvard,” while “Jimmy Carter lived it” (O’Reilly, 1995: 337). Still, during the campaign, many African Americans questioned Carter’s commitment to civil rights. This occurred for several reasons. First, while Carter tried to use his childhood experiences to his favor, many African Americans wondered whether a candidate from the Deep South would truly stand firm on civil rights issues (Amaker, 1994: 737). Second, during the campaign, civil rights never became one of Carter’s most important issues (Graham, 1998: 204). Third, throughout the campaign, the times Carter did talk about civil rights, he sent mixed messages regarding his stance on issues regarding race, especially in regards to busing. Fourth, at one point in the campaign, Carter made a gaffe that many felt would doom his candidacy. In response to a question regarding the use of busing to integrate schools, Carter described the “ethnic purity” found in white schools and neighborhoods (O’Reilly, 1995: 339). Fortunately, for Carter, African Americans accepted his apology for his racially divisive comment, and overwhelmingly supported him over the incumbent president, as ninety-four percent of African American voters chose Carter over Ford. Vernon Jordan, who at the time served as the President of the National Urban League, declared, “Black people have a claim on Jimmy Carter – a strong one” (Anderson, 2004: 146). In fact, Carter actually trailed Ford among white voters, inferring that African American voters were indeed responsible for Carter’s victory (Weiss, 1997: 207). Not surprisingly, Carter publicly rewarded their support in his inauguration address, as he declared “the time for racial discrimination is over” (Amaker, 1998: 738). However, like the Ford years, other issues dominated the national agenda when Carter took office. Such issues included trust in government officials in the aftermath of Watergate, the economic recession, energy policy, the ballooning federal deficit, and regulatory reform. Consequently, upon taking office, President Carter did not press for meaningful civil rights

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reforms. Instead, as he did in the campaign, Carter once again sent mixed messages to the constituent group most responsible for his victory. Graham explained, “As president, he [Carter] set a vigorous example of affirmative action in appointments, naming more minorities and women to executive and judicial posts than did any of his predecessors. Yet civil rights issues ranked relatively low on Carter’s agenda” (1998: 202). According to one scholar, this occurred because Carter expected guaranteed support from African Americans because he believed they would naturally compare him to President Nixon (O’Reilly, 1995: 343). Thus, initially, the most important positive signal came through Carter’s appointments, which included the appointment of Drew Days III as the first African American to head the Justice Department’s Civil Rights Division and the appointment of Eleanor Norton as the first African American woman to chair the EEOC (Amaker, 1998: 739). Even so, while Carter appeased civil rights leaders through his appointments, which included judicial appointments comprised of approximately fourteen percent African American, seven percent Hispanic, and seven percent women, he failed to press for significant civil rights measures and he lacked the leadership they sought in other areas (Amaker, 1998: 739). Even his appointments drew criticism from African American leaders. For example, Roger Wilkins of Black Enterprise magazine criticized Carter for not appointing several qualified African Americans to Cabinet posts. Wilkins lamented that the new president “ignored the largest pool of seasoned black government talent the country had ever developed…people who cut their teeth on government during the Kennedy-Johnson years,” and condemned Carter’s administration for limiting African American access to the White House (O’Reilly, 1995: 341-342). Almost one year into his term, Carter had not attempted to change the status quo regarding equal employment policy. However, this soon changed, as he sought to implement “a comprehensive series of measures to consolidate and to streamline the enforcement of equal employment laws” (O’Reilly, 1995: 342). Consequently, in spite of his seemingly mild record of support for civil rights, in a notable contrast to Ford, Carter issued five executive orders pertaining to equal employment opportunity during his four-year term. Still, minority groups would justifiably question the extent to which his orders sought to help them, given that two of the orders targeted discrimination against the physically handicapped and discrimination based on age.

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Furthermore, Carter’s orders dealt exclusively with readjusting and reorganizing the federal bureaucracy, which meant they lacked the level of reform minority leaders hoped for. In his article “Civil Rights Policy in the Carter Presidency,” Graham argued, “government reorganization, a Carter initiative, remains his most distinctive contribution to civil rights policy making” (1998: 204). Carter contended that a restructuring of federal enforcement of equal opportunity laws was essential in order to effectively implement regulations already mandated by legislation, executive orders, and bureaucratic orders (Amaker, 1998: 740). He argued, “In civil rights enforcement, as elsewhere, effectiveness was undercut by the uncoordinated sprawl of federal agencies with overlapping jurisdictions and conflicting roles” (Graham, 1998: 205). Such beliefs led to Carter’s initiation of his Reorganization Plan No. 1 of 1978, as well as a series of five executive orders that he issued within a twelve-month period, all concerning the reorganization of the bureaucracy and the enforcement of existing equal employment policies. On February 23, 1978, President Carter formally submitted to Congress his Reorganization Plan No. 1 of 1978. In his message to Congress, Carter explained: This Plan makes the Equal Employment Opportunity Commission the principal Federal agency in fair employment enforcement. Together with actions I shall take by Executive Order, it consolidates Federal equal employment opportunity activities and lays, for the first time, the foundation of a unified, coherent Federal structure to combat job discrimination in all its forms (EEOC, 2000).

Through this plan, Carter stripped the Civil Service Commission of almost all of its responsibilities regarding equal employment policies and significantly increased the role of the EEOC. As promised in his report to Congress, President Carter reinforced his reorganization effort by issuing two executive orders on June 30, 1978, as President Carter signed Executive Orders 12067 and 12068. Executive Order 12067 accomplished several tasks. First, Carter terminated the Equal Employment Opportunity Coordinating Council and transferred all of its functions to the EEOC. Second, he ordered the EEOC to develop uniform standards, guidelines, and policies regarding all statutes and orders pertaining to employment discrimination, as well as uniform standards and procedures for investigations regarding employment discrimination. Third, he declared it the EEOC’s responsibility to ensure that all federal departments and agencies are adequately enforcing statutes and orders concerning employment discrimination. Fourth, the order mandated that the EEOC develop uniform record keeping and that it implement

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a system that allows for the sharing of compliance reports among all federal enforcement agencies responsible for implementing equal employment policies. Fifth, the order required that the EEOC develop uniform training programs for all federal departments and agencies and create new ways for such departments and agencies to take part in cooperative activities. Sixth, Carter called on the EEOC to assist the Civil Service Commission in establishing uniform job qualifications for federal job classifications. Seventh, the order allowed the EEOC to make recommendations to the OMB regarding the staff size and resource needed within federal departments and agencies to carry out equal employment policies. Finally, the order outlined a dispute settlement provision for when problems arose between the EEOC and federal departments or agencies. The second order issued on June 30, 1978 was much less limited in scope. Executive Order 12068 merely transferred enforcement functions found in Section 707 of Title VII of the Civil Rights Act of 1964 to the U.S. Attorney General. Consequently, through these two orders, we find that President Carter began his attempt to resolve the ineffective enforcement concerns regarding equal employment policies that arose during the Ford administration. Carter continued his efforts to restructure equal employment compliance with the signing of Executive Order 12086 on October 8, 1978. This order significantly increased the Secretary of Labor’s responsibilities regarding federal affirmative action, as it stripped the responsibilities of other departmental heads received under Johnson’s Executive Order 11246, and consolidated all powers within the Department of Labor. Given that the OFCCP carried out the Labor Department’s responsibilities in this field, Executive Order 12086 radically increased the importance of the OFCCP, as it codified all contract compliance within the OFCCP. Just over two and a half months later President Carter issued his fourth order pertaining to equal employment opportunity, as he signed Executive Order 12016 on December 28, 1978. This time he focused the order almost entirely on transferring several functions of federal equal employment policies to specific individuals, departments, or agencies, with explicit emphasis on the implementation of laws regarding discrimination based on physical handicaps. The first provision of the order transferred several functions from the Civil Service Commission to the EEOC. The second major provision amended President Nixon’s Executive Order 11478, replacing the phrase “national origin” to “national origin, handicap, or age.” In other words, President Carter used this order to reinforce legislation passed by Congress regarding

120 discrimination against individuals because of physical handicaps or their age. The third major provision in the order amended President Nixon’s Executive Order 11480, which created the President’s Committee on Employment of the Handicapped. Carter’s order removed the Chairman of the U.S. Civil Service Commission from the committee and added two seats to the committee for the Director of the Office of Personnel Management and the Chairman of the EEOC. Following Executive Order 12106, Carter issued his last equal employment opportunity order, but this time he shifted his attention to age discrimination. This occurred with the signing of Executive Order 12144 on June 22, 1979. This order simply transferred a series of functions concerning equal pay and age discrimination from the Department of Labor to the EEOC. In examining these orders, it is clear that while the Carter years lacked substantial advancement in equal employment opportunity similar to President Johnson’s Executive Order 11246 and President Nixon’s Executive Order 11478, the activism of Carter displayed through these orders remains important because the orders did effectively implement effectual enforcement of federal affirmative action programs. Indeed, as a result of these various orders, and his Reorganization Plan No. 1 of 1978, the OFCCP and the EEOC significantly expanded between 1978 and 1980. According to a study conducted by the U.S. Commission on Civil Rights, the OFCCP ballooned from 68 full-time employees in 1978, to 1,304 in 1980. Similarly, the EEOC’s staff skyrocketed from 267 employees in 1978, to 3,433 in 1980 and its budget increased from $74.2 million in 1978, to $124 in 1980 (U.S. Commission on Civil Rights, 1982: 14-15, 53-54). Such progress was a crucial component of the continued institutionalization of federal affirmative action. Besides Carter’s reorganization efforts, two additional significant developments regarding affirmative action occurred between 1977 and 1980. The first major event took place in Congress, as Congress passed the Public Works Act of 1977. In fact, Graham argued, “More important, in the long run, than Carter’s reorganization of civil rights enforcement agencies was the enactment in May 1977 of the Public Works Employment Act” (1998: 206). The most significant civil rights component of this act came by way of a provision that guaranteed minority-owned businesses at least ten percent of all federal grants for public works projects. According to the act, minority-owned businesses included any organization owned or controlled

121 by at least fifty percent of the following groups: “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts” (Anderson, 2004: 147). The second major development regarding affirmative action during the Carter years came through the federal court system, as several cases regarding the legality of affirmative action arose. Without a doubt, the most publicized of these cases was the case Regents of the University of California v. Bakke, 438 U.S. 265 (1978), where the U.S. Supreme Court held that colleges and universities could use race as a factor in their admissions process, but could not use strict quotas. However, the Bakke case dealt solely with higher education, not employment. Consequently, a more important case for the current study came one year after the Bakke decision, when the U.S. Supreme Court decided United Steelworkers of America v. Weber, 443 U.S. 193 (1979). In this case, the United Steelworkers of America and the Kaiser Aluminum and Chemical Corporation implemented affirmative action-based training programs, with an effort to increase the number of African American employees working as skilled craft workers. To accomplish their goals, the companies reserved half of the positions in the training program for African Americans. Brian Weber, a white employee who was rejected for the training program, claimed that such plans were in fact “reverse discrimination,” and thus violated Title VII of the Civil Rights Act of 1964. While both the District Court and the Court of Appeals sided with Weber, the U.S. Supreme Court overruled the lower courts’ decisions. The Supreme Court argued that Title VII “did not intend to prohibit the private sector from taking effective steps” that would help alleviate past discrimination. Furthermore, the High Court contended that any interpretation of Title VII “that forbids all race-conscious affirmative action would bring about an end completely at variance with the purpose of the statute and must be rejected.” One year later, the U.S. Supreme Court once again reaffirmed its support for race- conscious affirmative action programs in the case of Fullilove v. Klutznick 448 U.S. 448 (1980). Perhaps most importantly, this time the High Court confirmed its endorsement of government- mandated affirmative action. In this case, H. Earl Fullilove and other contractors filed suit against the Department of Commerce because of the plan implemented by the Public Works Employment Act of 1977, which set-aside ten percent of all federal public works projects for minority-owned businesses. According to the contractors in the case, the act violated the Equal Protections Clause of the Fourteenth Amendment. The Court rejected this claim and upheld the

122 statute, thus finding that the act was a legitimate use of congressional power and that Congress could use their spending power to implement affirmative action programs that remedied past discrimination. In his concurring opinion, Justice Thurgood Marshall wrote, “By upholding this race-conscious remedy, the Court accords Congress the authority necessary to undertake the task of moving our society toward a state of meaningful equality of opportunity.” In sum, while President Carter did issue five executive orders pertaining to equal employment opportunity, none of his orders substantially advanced federal affirmative action policy. Moen described that by the Carter years, “…the great impetus for reform was gone” and “In the end it was up to the Judicial Branch to maintain the momentum of reform, a Supreme Court whose liberal coalition was on its last legs and whose liberal mandate was slipping” (2001: 53). Still, Carter effectively used his presidential unilateral power to reorganize efforts to enforce such programs, and thus reaffirmed the importance of presidential activism in this policy realm after the lack of action taken by the Ford administration. Federal Affirmative Action Policy after 15 Years Even though President Ford and President Carter chose not to follow their predecessors with further advancement of federal affirmative action policy, by 1980, such programs were firmly rooted in the government of the United States. As Anderson noted, following the presidential activism displayed by Presidents Johnson and Nixon, “Between 1969 and 1980 all three branches of government lined up and supported the policy,” although “With the exception of set-asides, Congress avoided a direct vote on affirmative action” (2004: 157). Not surprisingly, after fifteen years of the institutionalization process of federal affirmative action policy in employment, and the decisions of the judicial and legislative branches to follow presidential leadership within this policy realm, the nation witnessed substantial effects of such programs. For instance, Anderson reported, “Between 1970 and 1980 the percentages of black union workers and apprentices had doubled” and “African American officials and managers, professionals, and skilled workers increased 70 percent” (2004: 159). Likewise, according to Kotlowski, “From 1972 to 1979, the proportion of office managers who were female jumped from 42 to 63 percent” (2001: 121). Even when such programs came under attack during the Reagan administration, an OFCCP study in 1985 found that minority employment increased 20.1% between 1974 and 1980 in companies with affirmative action

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programs in place, while minority employment only increase 12.3% in employers without such programs (Laham, 1998: 42). In conclusion, by 1980, federal affirmative action programs grounded in President Johnson’s Executive Order 11246, institutionalized and expanded by President Johnson’s 11375 and President Nixon’s Executive Orders 11478 and 11480, and effectively implemented by President Carter’s five executive orders, substantially changed the opportunities for women and minorities across the United States. As displayed in Chapter Six, even the hostility of a popular administration, and a growing public disdain for such programs, could not reverse the progress made between 1965 and 1980.

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CHAPTER 6 – The Sustainability of Federal Affirmative Action, 1981-1992

The heart of the Reagan Administration civil rights policy was its rejection of affirmative action.

William E. Pemberton, Exit with Honor (1997: 139)

Introduction The election of President Ronald Reagan on November 4, 1980 posed a formidable challenge to the future of federal affirmative action programs. As Weiss noted, “The election of Ronald Reagan brought into power an administration that was less sympathetic to the concerns of African Americans than any of its recent predecessors” (1997: 221). Reagan believed that affirmative action programs resulted in what he and others termed “reverse discrimination,” because he felt that affirmative action inherently discriminated against qualified individuals not protected by affirmative action programs (i.e., white males). As early as 1976, Reagan argued: Government orders what is in effect a quota system – but they don’t call it a quota system. It is an ‘affirmative action’ program – with ‘goals and timetables’ for hiring particular groups. If you happen to belong to an ethnic group not recognized by the federal government as entitled to special treatment, you are a victim of reverse discrimination. I’d like an opportunity to put an end to this federal distortion of the principle of equal rights (Reagan, 1983: 169).

According to Reagan, the Bakke case epitomized the ills of affirmative action and the reverse discrimination that occurs because of such programs (Dugger, 1983: 203). Consequently, throughout the 1980 presidential campaign, Reagan denounced any policy that took race or gender into account when hiring or promoting individuals, and upon taking office, the new president sought to reform such federal policies. In fact, in his first presidential news conference held on January 29, 1981, President Reagan contended, “some affirmative action programs [are] becoming [racial and gender] quota systems. And I’m old enough to remember when quotas existed in the United States for the purpose of discrimination, and I don’t want to see that happen again” (Public Papers, 1982: 58). As a result, early in his presidency, President Reagan and members of his administration determined the need to either amend or abolish the executive orders signed by Presidents Johnson and Nixon, most notably Executive Orders 11246 and 11478. As one 1985 constitutional law textbook described, this brought the Reagan administration’s stance on civil

125 rights “at significant odds with the civil rights positions of five previous administrations” (Detlefsen, 1991: 12). However, the Reagan presidency presents an intriguing case study of federal affirmative action programs intended to ensure equal employment opportunity for all Americans. Although Reagan and many of his top administration officials pledged to eliminate all race and gender preferences, and knew the president could accomplish this task by merely signing a new executive order overturning previous presidential executive orders, in his eight years as president, Ronald Reagan failed to substantially change federal policy regarding equal employment opportunity. In fact, during his first four years in office, Reagan chose not to take any serious action against such programs. Therefore, the purpose of this chapter is to examine the factors that inhibited President Reagan’s ability to reform federal affirmative action policy in employment. As such, while the Johnson case study illustrated the establishment of federal affirmative action programs, and the Nixon case study, along with the brief synopses of the Ford and Carter administrations, displayed the institutionalization of federal affirmative action programs, this chapter demonstrates the sustainability of federal affirmative action programs under two hostile administrations. In following the same approach as the preceding chapters, to accomplish this task, I will employ a case study analysis of President Reagan’s decision not to issue an executive order drafted by his Attorney General. In this case study, I will examine the political environment during Reagan’s first term in office, the instances of presidential activism during his first term in office, the political environment during his second term in office, the content of the proposed order, the strategic calculations involved in the decision-making process that resulted in Reagan’s decision not to issue an order to overturn previous executive orders, and finally the legacy of federal affirmative action following the Reagan administration. To conclude the chapter, I will also provide a brief analysis of the continued sustainability of federal affirmative action policy under President George H.W. Bush, exploring any noticeable continuity and/or change between his administration and the Reagan administration. While the first two case studies examined thus far outlined the major factors that led to the issuance of executive orders in this policy realm, the current case study explores the factors that ultimately led to President Reagan’s decision not to issue an executive order to overturn the orders signed by Presidents Johnson and Nixon. Moreover, the Reagan case further substantiates

126 the claim that President Nixon’s decision to continue and expand upon President Johnson’s orders led to an institutionalization of federal affirmative action in employment, and thus reduced the likelihood of major reform in this policy domain. Equal Employment Opportunity & the Political Environment of 1980-1984 Because of Reagan’s disdain for federal equal employment opportunity policies, affirmative action became a major issue during the 1980 presidential election. In fact, historian Robert Dallek attributed Reagan’s success among blue-collar workers and ethnic Americans in the 1980 election to their resentment toward Great Society programs and “government intrusion in their lives through high taxes and affirmative action for minorities” (1999: 56-57). In this election, President Carter only received 41% of the national vote, yet he won 93 percent of the African American vote, and defeated Reagan among women, most likely because of Reagan’s opposition to the Equal Rights Amendment and his repudiation of affirmative action (Anderson, 2004: 163; Dugger, 1983, 220). Anderson described, “for the first time the electorate witnessed a ‘gender gap’ where a sizeable percentage of white men voted different from women in the same social and economic status” (Anderson, 2004: 163-164). Such evidence indicates a deeply divided electorate. Further confirmation of such polarization appears in the 1980 party platforms and their stances on affirmative action. The Democratic Party’s 1980 platform contended, “An effective affirmative action program is an essential component of our commitment to expanding civil rights” (Democratic Party, 1980). In contrast, the Republican Party’s 1980 platform argued, “equal opportunity should not be jeopardized by bureaucratic regulation and decisions which rely on quotas, ratios, and numerical requirements to exclude some individuals in favor of others, thereby rendering such regulations and decisions inherently discriminatory” (Republican Party, 1980). Thus, the election of Ronald Reagan as president led to the Washington Post’s assertion that “opponents of affirmative action may have finally won, not in court, but at the ballot box” (Anderson, 2004: 166). Given the lack of support Reagan received among African Americans and women, perhaps it should not come as a surprise that the new president chose not to include many individuals from either group in the highest positions in his administration. Upon taking office, Reagan named only one African American to his Cabinet, no other African Americans to the top 100 positions in his administration, and only 19 African Americans in the top 400 administration positions (Anderson, 2004: 162). For women, the results proved even worse, as Reagan did not

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appoint one woman to his Cabinet. Instead, when he appointed Jean Kirkpatrick as Ambassador to the United Nations, Reagan gave her Cabinet status, but as presidential scholar Shirley Anne Warshaw argued, Kirkpatrick’s Cabinet status designation was questionable, given the UN Ambassador reports to the Secretary of State. Thus, Warshaw concluded, “They gave her that status in large part because she was a woman, and they wanted to have a ‘woman’ in the Cabinet” (1997: 88). Reagan’s weak record on appointing minorities and women even drew criticism from the U.S. Civil Rights Commission. After his first two years in office, the Commission released a report regarding the administration’s federal appointments. According to the Commission’s report, while President Carter’s appointments consisted of 12% African American, 12% women, and 4% Latino, President Reagan’s consisted of 4% African American, 8% women, and 3.8% Latino (Dallek, 1999:82). On the other hand, on July 7, 1981, with his nomination of Sandra Day O’Connor to fill Justice Potter Stewart’s seat on the U.S. Supreme Court, President Reagan fulfilled a campaign promise to nominate the first woman to the High Court. Interestingly, according to Reagan biographer Lou Cannon, this pledge came at a time when the Reagan campaign dropped in the polls, and thus Reagan and his staffers strategically used the issue to receive increased press attention (1982: 290). In a later analysis, Cannon further described that upon Justice Potter Stewart’s decision to retire, Reagan demanded a list of qualified women to interview, despite pressure from conservative intellectuals who wanted Reagan to nominate either Robert Bork or Antonin Scalia (1991: 804). Dallek expressed that Reagan’s decision to fulfill his campaign promise became Reagan’s “greatest symbolic triumph of his first year” (1999: 83). Democratic Congressman Morris Udall remarked, “The appointment of O’Connor is a master stroke. It shows a flexibility, a bigness that the Ronald Reagan stereotype doesn’t recognize. It shows a political savvy on the part of the president that I assumed was not there” (Dallek, 1999: 83). Later, in the aftermath of the 1982 midterm elections, where women once again overwhelming chose Democratic candidates over Republican candidates, Reagan appointed Margaret Heckler as his new Secretary of Health and Human Services, and Elizabeth Dole as his new Secretary of Transportation. Historian Michael Schaller described that Reagan’s decision to appoint Heckler and Dole to his Cabinet in the aftermath of the 1982 midterm elections,

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“complemented his 1981 naming of the first women justice to the U.S. Supreme Court” (Schaller, 2007: 51, 162). Even though President Reagan’s lack of diversity drew criticism from proponents of equal opportunity, they soon found out that the biggest problem was not who Reagan kept out of his administration, it was the individuals he chose to fill important roles within his administration. In fact, Schaller argued that most important anti-affirmative action achievement during the Reagan years came through his appointment process (2007: 133). The first sign that the Reagan administration might significantly alter existing federal affirmative action policy came when Reagan appointed Ray Donovan as Secretary of Labor, which oversees the OFCCP. By the early 1980s, Executive Order 11246 gave the OFCCP legal authority over more than 325,000 employers contracted with the federal government, so whoever oversaw the enforcement of affirmative action regulations had a major impact on the access that minorities and women had in the American economy (Belz, 1991: 191). Shortly after his successful appointment, Secretary Donovan announced in August 1981 a proposal that would exempt any company with less than 250 workers, or contractors working on federal projects worth less than $1 million, from federal affirmative action guidelines. Previously, the standard exempted companies with only less than 50 workers, or contractors working on projects worth less than only $50,000. According to one study, Secretary Donovan’s proposal would exempt 75% of the 30 million employees doing contract work for the federal government (Anderson, 2004: 172). As expected, Secretary Donovan’s proposals sparked widespread resistance within Congress, the Justice Department, and the OMB, not to mention the vehement opposition from civil rights lobbyists (Belz, 1991: 193). A group of thirty-seven interest groups, led by the NAACP, NOW, and the AFL-CIO, quickly responded, as they wrote a letter to President Reagan, where they announced that they were “unified in their opposition to changes which would sound the death knell for the federal contract compliance program” (Anderson, 2004: 172). Robert Drinan, President of the Americans for Democratic Action, announced, “For the first time in fifty years, we have a President who is opposed to the enforcement of civil rights” (Dugger, 1983: 216). Eventually, the organized opposition to Donovan’s plan proved too strong, forcing Donovan to abandon his idea (Belz, 1991: 194).

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While proponents of affirmative action won this battle, the war over the future of federal affirmative action policy was only beginning. In addition to Reagan’s appointment of Donovan as Secretary of Labor, Reagan appointed William French Smith, a notable critic of affirmative action, to the post of Attorney General, and even more importantly, Reagan appointed William Bradford Reynolds as Assistant Attorney General for Civil Rights. According to political scientist Robert Detlefsen, “As Assistant Attorney General for Civil Rights in the Department of Justice, Reynolds was better situated than any member of the administration other than the Reagan himself to affect the scope and direction of civil rights policy” (1995: 61). Not surprisingly, another scholar found that Reynolds “quickly emerged as the president’s point man in the divisive politics of racial backlash” (O’Reilly, 1995: 362). Reynolds, a leading critic of affirmative action, described equal opportunity programs as “demeaning,” because they reward individuals based on their race, rather than their work ethic, knowledge, and prior experience (Anderson, 2004: 184). Because of this deeply held personal belief, Reynolds sought to instill “the right of every person to pursue his or her goals in an environment of racial and sexual neutrality,” by eliminating “the use of quotas or any other numerical or statistical formulas” (Dugger, 1983: 203). In his new position, Reynolds intended to overhaul the Civil Rights Division’s mission and initiate what he termed “a variety of innovative steps to bring the Nation’s civil rights policies into line with the better angels of its nature” (O’Reilly, 1995: 363). As early as September 23, 1981, Reynolds illustrated the new administration’s opposition to existing federal affirmative action policies when he submitted a statement of administration policy to the Subcommittee on Economic Opportunities of the House Education and Labor Committee. In his report, Reynolds announced that the Justice Department would not carry out enforcement of federal affirmative action in the patterns followed by previous administrations. He explained: We no longer will insist upon or in any respect support the use of quotas or any other numerical or statistical formula designed to provide nonvictims of discrimination preferential treatment based on race, sex, national origin, or religion (Laham, 1998: 22).

Reynolds further reasoned that such preferences are “divisive techniques which go well beyond the remedy that is necessary to redress in full measure those injured by a particular employer’s discriminatory practices” and are “at war with the American ideal of equal opportunity for each person to achieve whatever his or her industry and talents warrant” (Laham, 1998: 22; Belz,

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1991: 185). Furthermore, Reynolds announced that the Reagan administration believed that the U.S. Supreme Court wrongly decided the Weber case in 1979, and that he intended to find a test case that would effectively eliminate all racial and gender preferences, including voluntary plans (Mayer, 2001: 207). Democrats in Congress seemed dumbfounded by Reynolds’ arguments. Representative Harold Washington responded to Reynolds, “Your concept of non-victims escapes me. There is no such thing…If you say the redress of the relief should be individually focused, you are getting away from the entire problem.” Likewise, Representative William Clay asked, “Why should the remedy have to be individual if discrimination is against a group?” (Belz, 1991: 203). Ira Glasser, Executive Director of the ACLU, later compared Reynolds to segregationists like George Wallace, who stood in the schoolhouse door to prevent desegregation orders. Glasser argued, just like segregationists, Reynolds “stands at the workplace gate, defending discrimination in employment” (Detlefsen, 1991: 10). Unlike Donovan’s failed attempt to reform OFCCP standards, Reynolds successfully implemented alterations to existing enforcement within the Justice Department. Under his direction, the Justice Department not only discontinued its efforts to enforce previously established goals and timetables, but it also halted class action lawsuits, making it much more difficult for low paid minorities and women to afford discrimination lawsuits (Dugger, 1983: 229). Weiss explained, “In contrast to the Carter administration, the Reagan White House generally rejected the broad definitions of systemic discrimination that underlay so many affirmative action programs.” Instead, “administration officials were more likely to interpret discrimination in terms of acts against individuals, with remedies being restricted to individuals who could demonstrate they had been victimized by such acts” (1997: 222). Proponents of affirmative action, especially those who served in prior administrations, lamented Reynolds’ reforms. Former Attorney General Nicholas Katzenbach charged, “Under Mr. Reynolds, the Civil Rights Division has changed sides. Rights for Americans seems to him to mean rights for white males” (Williams, 1988: 10). Similarly, Eleanor Holmes Norton, the former chair of the EEOC, testified in Congress and articulated her unease regarding the new administration’s policies. During her testimony, she denounced the Reagan administration for its lack of commitment to equal employment opportunity, and opined that the new administration had declared war on civil rights enforcement (Belz, 1991: 202). Likewise, Drew Days III, who

131 previously held Reynolds’ position during the Carter administration, argued that prior to Reagan, since the late 1950s, the momentum of the civil rights movement consistently moved forward, but the Reagan administration “has shown an inclination to move in precisely the opposite direction from former administrations” (Days, 1984: 346). Days concluded, “The spirit of voluntary compliance with civil rights laws engendered by so many years of ‘carrot and stick’ federal enforcement is integrally threatened by an administration which upholds the civil rights laws only grudgingly” (1984: 347). In addition, the Reagan administration received criticism from within the federal government itself. For instance, the U.S. Civil Rights Commission once again voiced its concern with the new administration’s attitude regarding affirmative action. The Commission maintained that the major reason why the African American and Hispanic communities continued to endure higher levels of unemployment was due to existing discrimination in the marketplace. One commissioner noted, “The administration, in backing down from a commitment to affirmative action, backs down from the crucial antidiscrimination order [Executive Order 11246]” (Dugger, 1983: 209). In fact, such lack of commitment to affirmative action led Joel Selig, an attorney in the Justice Department, to resign from his post. Shortly after his resignation, Selig wrote a report claiming Reynolds’ actions were unconstitutional (Belz, 1991: 203-204). However, without Reagan signing an executive order prohibiting goals, timetables, and quotas, Reynolds’ actions could only have a minimal impact on the overall status of the federal affirmative action program. After all, many of the companies that dealt with the federal government had their affirmative action programs instituted for almost a decade, if not longer, and thus had no incentive to not comply with existing executive orders, even with the lax enforcement under Reynolds. In other words, if companies chose to dismantle their existing affirmative action programs, they would need to fire or transfer their employees working in their equal opportunity departments. In fact, journalist David Seligman of Fortune carried out a 1982 analysis of the Reagan administration’s actions regarding affirmative action and found not much had occurred, except continued rhetoric against such programs. Thus, after interviewing several high level administration officials, Seligman concluded, “affirmative action is here to stay…The system will clearly survive the Reaganites, which presumably means that it can survive anything” because of the continued support for affirmative action within the Washington establishment (Anderson, 2004: 175).

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Still, conservative ideologues within the administration hoped they could overcome Reagan’s reluctance to sign an executive order overturning prior orders, and ultimately halt all existing federal affirmative action programs. Their next attempt to accomplish this task came through the federal court system. Early in 1983, the Justice Department sided with complainants in two cases pertaining to affirmative action plans administered by the police and fire departments in Boston and the police department in New Orleans (Dugger, 1983: 209-210). In the Boston case, a prior court order mandated that the city adopt a hiring plan that targeted African American and Hispanic police officers and firefighters, until the percentage of African Americans and Hispanics in each department equaled the percentage of each group in the city’s population (Dugger, 1983: 209). Eventually, because of budget reasons, the city had to lay off a significant number of police and firefighters, which led to a federal court order that the layoffs not affect minority percentages within the departments. With assistance from Reagan’s Justice Department, a group of laid-off white officers and firefighters appealed to the U.S. Supreme Court. U.S. Solicitor General Rex Lee complained, “White firefighters and police officers – some with more than ten years of service – were furloughed while black and Hispanic employees with as little as two years’ seniority remained” (Dugger, 1983: 210). Just prior to hearing the case, the city rehired the white officers and firefighters, and thus the Court declared the case moot (Dugger, 1983: 556). In the New Orleans case, the city’s affirmative action plan called for a 50-50 ratio of promotions for African American and white police officers until the number of African American officers reached a percentage similar to the African American population within the city. Interestingly, the complainants in the case included almost three-fourths of the city’s officers, including associations representing Hispanic and female officers. When a federal district court approved the plan, the Justice Department stepped in and sought a rehearing by the full appellate court (Detlefsen, 1991: 67). Assistant Attorney General Reynolds complained that the plan “required innocent non-black police officers to surrender their legitimate promotion expectations to black officers who had no ‘rightful place’ claim to promotion priority” (Anderson, 2004: 178). With the Justice Department’s decision to file a case in federal court on behalf of the complainants in the case, the Washington Post described, “The action was the strongest the Reagan administration has taken against an affirmative action program. It marked the first time that the federal government has formally challenged a court-approved employment

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quota aimed at relieving job discrimination” (Anderson, 2004: 178). However, in the end, the Court of Appeals for the Fifth Circuit approved of the lower court’s decision, resulting in another setback for opponents of affirmative action (Detlfesen, 1991: 68-69). One year later, the Justice Department filed an amicus curiae brief in the case of Firefighters Local Union No. 1784 v. Stotts, which was a case very similar to the Boston case, but this time successfully landed on the Supreme Court’s docket. The city’s 1980 population consisted of forty percent African Americans, but African Americans comprised only ten percent of fire fighters in the city. Thus, the city’s affirmative action plan, established in 1980, required that African Americans receive fifty percent of all job vacancies and twenty percent of all promotions, until the proportion of African Americans within the fire department paralleled their local population percentage. When the city faced a budget crunch, it followed the typical “last- hired, first fired” approach, leading to the dismissal of twenty-five whites and fifteen African Americans. However, this resulted in a decrease in the proportion of African Americans in the department (Detlefsen, 1991: 75). As a result, an African American fire fighter successfully convinced a federal judge that the layoffs should not impact the diversity plan, which meant the cuts could not be based on seniority, but instead on race, and the city ordered the department to reinstate the fired African Americans and fire additional white fire fighters (Anderson, 2004: 180; Detelfesen, 1991: 75). Consequently, in this case, three white firefighters in Memphis challenged an affirmative action program that protected the jobs of African American firefighters with less years of service than white firefighters (Weiss, 1997: 223). The Court of Appeals for the Sixth Circuit sided with the city, which prompted the Justice Department to get involved. The decision by the U.S. Supreme Court to hear the case led to what seemed like the first major victory for Reynolds and his fellow affirmative action opponents in the Reagan Justice Department. In this case, the High Court sided with the white firefighters and the Justice Department officials, as the majority on the Court concluded, “Title VII protects bona fide seniority systems” and that “Mere membership in the disadvantaged class is insufficient” to provide eligibility for “retroactive seniority.” Instead, the Court maintained that “retroactive seniority” only applied to those individuals who personally experienced discrimination. In Justice Byron White’s words, “Each individual must prove the discriminatory practice had an impact on him.” Because of Justice White’s comment, Reynolds and others within the Reagan administration believed this gave them the opportunity to further challenge affirmative action

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plans across the United States. Two years later, Reynolds and his cohorts found out that they interpreted the Court’s opinion too broadly, and instead, the Stotts case was merely a victory for seniority, not for opponents of affirmative action. Following the Court’s decision, the remainder of 1984 focused on getting President Reagan reelected to a second term. Therefore, while they found solace in the Stotts decision, opponents of affirmative action soon realized that their goal of dismantling federal affirmative action programs was over, at least during Reagan’s first term in office. In fact, by the end of his first term, despite President Reagan’s rhetorical commitment to end federal affirmative action policies that required the use of goals and timetables, and Reynolds’ attempt to alter enforcement of existing policies, the record indicated little progress had been made. In a statement issued to the Subcommittee on Employment Opportunities of the House Education and Labor Committee on September 18, 1985 by Susan Meisinger, Reagan’s Deputy Undersecretary for Employment Standards, she reported that OFCCP compliance reviews actually increased from 2,632 in 1980 to 5,025 in 1984. Moreover, 63% of employers reviewed in 1984 were found guilty of not properly complying with federal affirmative action policies, and first-time compliance reviews rose from 460 in 1981 to 3,205 in 1984 (Laham, 1998: 54-55). Opponents of affirmative action knew that the only way to dismantle federal affirmative action policy was through a presidential executive order. Presidential Activism Illustrated by Reagan, 1981-1984 Unfortunately for opponents of affirmative action, during his first term, President Reagan only signed one executive order pertaining to equal employment opportunity, as he signed Executive Order 12450 on December 9, 1983. By signing this order, President Reagan followed in President Ford’s footsteps, as he used the authority granted to him in the Rehabilitation Act of 1973 to revise the membership of the Interagency Committee on Handicapped Employees. Thus, like Ford, while President Reagan technically signed an order regarding equal employment opportunity, he in no way changed existing policy, but instead, simply changed the composition of a committee that oversees affirmative action for disabled Americans. The insignificance of this order is further illustrated by the fact that in exploring Reagan’s memoir (1990), Meese’s memoir (1992), and William Pemberton’s memoir (1997), one finds no mentions of this order or the committee itself, unlike the extensive attention given to the debate over whether or not to reform Executive Order 11246.

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On the other hand, while the order revising the composition of the Interagency Committee on Handicapped Employees was symbolic, President Reagan, on three different occasions during his first term, asserted his executive authority in a way that seemed to contradict his administration’s typical stance on civil rights and was no doubt reprehensible for conservative ideologues within his administration. First, on December 17, 1982, President Reagan announced his decision to institute a program within the Commerce Department’s Minority Development Business Agency, which would result in the establishment of 60,000 new minority-owned businesses over the next ten years. To assist in this effort, he mandated that all federal agencies increase their use of minority-owned businesses by at least 10% from 1982 to 1983 (Laham, 1998: 104). Second, in January 1983, President Reagan signed the Surface Transportation Assistance Act into law, which mandated that at least 10% of funds under the law had to go to “socially and economically disadvantaged individuals,” which the Secretary of Transportation defined as African Americans, Hispanics, Native Americans, and Asian-Pacific Americans (Belz, 1991: 195). Finally, on July 14, 1983, President Reagan signed Executive Order 12342, which directed all federal agencies with grant-making authority to submit an annual minority business development plan to the Cabinet Council on Commerce and Trade (Laham, 1998: 104). The order sought to ensure “a reasonable minority business participation” in federal contracts, with the ultimate goal of $15 billion of goods and services contracted to minority-owned businesses over the following three years, and represented “the most sweeping expansion in the minority set-aside program ever undertaken by any president” (Belz, 1991: 195- 196; Laham, 1998: 105). Even though set-aside programs are considerably different than affirmative action programs, such actions by President Reagan seemingly contradicted his administration’s strident support for what they termed “colorblind law” and their ardent opposition to racial preferences and quotas. As a result, these presidential actions, along with the developments outlined above, left opponents of affirmative action to realize that their expectation of dismantling federal affirmative action programs during Reagan’s first term was over. They now could only hope that Reagan would win a second term and that their allies would receive increased influence over the president when he no longer had to worry about reelection. Just prior to the election, even Reynolds acknowledged the slow progress of reforming federal affirmative action policy. In an interview conducted in the summer of 1984, Reynolds described:

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I think we should bring the behavior of the government on all levels into line with the idea of according equal opportunity for all individuals without regard to race, color, or ethnic background. In my view this means that we should remove whatever kinds of race- or gender-conscious remedies and techniques that exist in the regulatory framework…We’ve got a ways to go before we get there (Chavez and Green, 1984: 34).

Still, Reagan’s disappointing first term in no way discouraged Reynolds and his allies. Instead, the victory for President Reagan in 1984 only seemed to embolden the foes of affirmative action. Equal Employment Opportunity & the Political Environment of 1985-1986 In the aftermath of Reagan’s landslide reelection in November 1984, the push for reforms in federal affirmative action policy received momentum. In fact, in the same month of Reagan’s reelection, Clarence Thomas, who headed the EEOC at the time, announced that the EEOC would only pursue individual-based claims of discrimination, rather than broad, systemic claims (Weiss, 1997: 224). In addition to the implementation of this individual-based approach, Thomas testified before Congress that the federal government’s goal should be to eliminate all federal programs that used goals and timetables in hiring and promotions. He argued, “As long as minorities and women are treated as numbers, and not as individuals with unique combinations of education, experience, and training to offer employers, they will not be able to reach their full potential in the professional world, and will not share fully in our national economy” (Belz, 1991: 190). Even more important than the EEOC’s enforcement changes was the announcement by President Reagan that he intended to appoint Edwin Meese III, counselor to the president during Reagan’s first term, to the position of Attorney General. In fact, because of Meese’s personal commitment to combat affirmative action, this was probably the most important development in the battle over federal affirmative action early in Reagan’s second term. Upon his successful Senate confirmation, Meese quickly claimed the mantle of the Reagan administration’s most prominent critic of federal affirmative action programs. In addition, Reagan attempted to promote Reynolds from Assistant Attorney General to Associate Attorney General, making him the third-highest member within the Justice Department, but a coalition of liberals and moderates in the Senate successfully blocked his nomination (Pear, 1985d, A20). In his memoirs, Meese illustrated his steadfast commitment to overhauling existing federal affirmative action policy. He described that civil rights organizations “contended that we should take cognizance of someone’s skin color, or other minority attribute, in order to make the

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basis for special treatment” (Meese, 1992: 314). However, Meese believed that such “special treatment” led to “a pervasive system of numerical quotas for hiring, promotion, [and] admissions…all explicitly based on racial, ethnic, gender, or similar conditions,” which according to Meese, “went directly against two basic principles of a free society: that people are treated equally under the law, irrespective of who they are; and that advancement should be based upon merit, rather than racial, ethnic, or other distinctions” (1992: 314). Consequently, when appointed to his new position, Meese wasted no time using his increased authority to combat such programs. In fact, within six months, Meese drafted an executive order for President Reagan to sign that would effectively abolish Executive Order 11246 and all subsequent executive orders that added to Johnson’s famous order. Furthermore, whether it was his close relationship with Meese, his own personal commitment to abolishing such programs, his acknowledgement that he no longer had to seek reelection, or some other reason, President Reagan himself seemed poised to finally act against existing federal affirmative action policy. On June 15, 1985, in a public radio address, Reagan argued: There are some today who, in the name of equality, would have us practice discrimination. They have turned our civil rights laws on their head, claiming they mean exactly the opposite of what they say. These people tell us that the government should enforce discrimination in favor of some groups through hiring quotas, under which people get or lose particular jobs or promotions solely because of their race or sex…In 1980 and 1984 I ran for President and told you I was opposed to quotas. In response to your mandate, our administration has worked to return civil rights laws to their original meaning – to prevent discrimination against any and all Americans (Public Papers, 1986: 773).

The combination of having an ideologue like Meese holding the position of Attorney General, and the president declaring that he received an electoral mandate to reform federal affirmative action policy, led many observers to acknowledge that the end of affirmative action may be near. In his analysis, The End of Affirmative Action, Darien McWhirter wrote, “Everyone thought that Reagan’s second term would bring about the end of affirmative action or at least the end of Executive Order 11246. In August 1985 there were ‘strong rumors’ in Washington, D.C. that Reagan would at least amend Executive Order 11246” (1996: 43). In reality, these “strong rumors” were true. As indicated above, in early August 1985, Attorney General Meese drafted an executive order for President Reagan to sign that would

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effectively abolish Executive Order 11246 and all subsequent executive orders that added to Johnson’s famous order. As Laham explained, Meese’s proposed order “made a clear distinction between affirmative action programs designed to provide qualified minorities and white women the opportunity to be considered for hiring and promotion and affirmative action programs which granted members of underrepresented groups preferential treatment” (1998: 23). In other words, Meese’s proposal did not in effect eliminate all affirmative action programs, but instead sought to reinstate the notion of “equality in opportunity,” rather than “equality in results.” Meese’s idea received an instant endorsement from EEOC Chairman Clarence Thomas and from Morris Abram, the former President of the American Jewish Committee, who by August 1985, served as Reagan’s Vice Chairman of the Commission on Civil Rights (Laham, 1998: 110; Weiss, 1997: 224). In addition, Meese received support within the administration from Secretary of Education Bill Bennett, Secretary of Interior Donald Hodel, and Secretary of Energy John Herrington (Belz, 1991: 195). However, as expected, Meese’s proposal drew immediate criticism from prominent civil rights leaders. For example, Ira Glasser, Executive Director of the ACLU, quickly responded to Meese’s proposal, as she sent a letter to President Reagan on August 20, 1985. In the letter, Glasser argued that if President Reagan issued Meese’s proposed order, he would effectively dismantle two decades of precedents set by his predecessors and that eliminating such policies would result in systematic discrimination against underrepresented groups. She argued: The experience of past Presidents spanning over twenty years demonstrates that mere prohibitions against discrimination are inadequate to eliminate actual discriminatory exclusion of women and minorities. A return now to what is in effect a mere prohibition against discrimination without the means to measure compliance would fly in the face of the efforts of past Presidents to carry out their constitutional mandate to eliminate the tragic and continuing legacy of discrimination (Laham, 1998: 40).

On the same day Glasser sent Reagan her letter, Walter Fauntroy, President of the National Black Leadership Roundtable (NBLR), also sent the president a letter. In his letter, Fauntroy made two arguments. First, he described the continued inequalities between minority labor forces and white labor forces, which according to Fauntroy, increased during the economic downturn of the early 1980s. Second, he outlined the importance of President Johnson’s Executive Order 11246. Fauntroy contended, “The order and its implementing regulations have

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played an important role in helping reshape the work force of government contractors so that they more fairly represent the make-up of qualified workers available in relevant labor forces.” He then concluded his letter with the argument that “The goal of the executive order – to provide ‘full equality of employment opportunity’ – has not been realized…and therefore, the order must not be rescinded” (Laham, 1998: 43-44). Besides the opposition among civil rights leaders, Meese’s proposal drew criticism from others within the Reagan administration. One of the leading critics of Attorney General Meese’s proposed order was Secretary of Labor William Brock. In fact, in an effort to ease the fears of African Americans, two months prior to Meese’s proposal, Secretary Brock spoke in front of the NAACP and promised, “the country would have some form of affirmative action for the foreseeable future,” and was thus astounded by Meese’s idea (Pear, 1985b: B4). To Brock, the proposed order was “politically crazy” (Belz, 1991: 194). As a result, Secretary Brock found himself at odds with the Attorney General, and deemed it his responsibility to ensure that the administration maintain existing federal affirmative action programs. Consequently, Detlefsen described: From mid-1985 until mid-1986, Brock led a faction within the administration that opposed the Meese-Reynolds proposal to eliminate numerical goals and timetables from the OFCCP guidelines implementing Executive Order 11246 (1991:137).

Not surprisingly, one of Brock’s crucial allies within the administration was Secretary of State George Shultz, who of course previously drafted President Nixon’s Philadelphia Plan (Weiss, 1997: 224). In addition to Secretary Shultz, Brock garnered support from Secretary of Transportation Elizabeth Dole and Secretary of the Treasury James Baker (Belz, 1991: 195). In the meantime, Linda Chavez, who served as Staff Director of the U.S. Commission on Civil Rights from 1983 through 1985, wrote a scathing memo to White House Chief of Staff Donald Regan, where she lambasted the EEOC and the OFCCP for contradicting administration policy by implementing racial and gender quotas in employment. In particular, she wrote: Despite the President’s clear and firm stand on these issues, consistency on affirmative action has not been a hallmark of this administration. Thus both the Equal Employment Opportunity Commission (EEOC) and the OFCCP have required affirmative action plans in private and public sector employment that rely on racial and gender goals and timetables (Laham, 1998: 35-36).

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Shortly after Chavez’s memo, Attorney General Meese responded to his critics in a speech he gave on September 17, 1985 to students at Dickinson College in Carlisle, Pennsylvania (Shenon, 1985: A16). In his speech, Meese contended, “the idea that you can use discrimination in the form of racially preferential quotas, goals, and set-asides to remedy the lingering social effects of past discrimination makes no sense in principle; in practice, it is nothing short of a legal, moral, and constitutional tragedy” (Shenon, 1985: A16). In other words, Meese framed the debate in a way that suggested that affirmative action violated the U.S. Constitution. He argued that the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments in the aftermath of the Civil War, resulted in a “color-blind” Constitution, which according to Meese meant, those advocating for affirmative action were in effect advocating for “a new version of the separate-but-equal doctrine” (Herron and Wright, 1985: E4). However, the most infuriating metaphor for civil rights leaders was Meese’s contention, “You should not forget that an earlier generation of Americans heard from some that slavery was good, not only for the slave, but for society” (Herron and Wright, 1985: E4). With such provocative oratory, the speech drew immediate criticism, especially from civil rights leaders. For example, Reverend Jesse Jackson denounced Meese for his “inflammatory rhetoric” and Ralph Neas, executive director for the Leadership Conference on Civil Rights, claimed Meese ignored “history, the facts, and the law” (Shenon, 1985: A16). On the same day Meese gave his speech, a bipartisan group in Congress voiced their concerns over the possibility of reforming federal affirmative action programs by sending a letter directly to the president. Signatories of the letter included 22 Senators and 107 Representatives. In the letter, this bipartisan coalition, led by Democratic Representative Augustus Hawkins, who chaired the House’s Education and Labor Committee, and Republican Representative James Jeffords, who served as the ranking Republican on the committee, argued that the current policy of goals and timetables should not be changed, and maintained that such goals and timetables are not quotas, contrary to the accusations made by administration officials. Furthermore, they argued that discrimination against minorities and women continued to exist, although such discrimination is more subtle than in the past. Consequently, they concluded, “Without the use of numbers as an indicator [in measuring a firm’s progress in meeting its minority and white female hiring goals], our job of eliminating discrimination in the workplace will be vastly more difficult, if not impossible” (Laham, 1998: 55-56).

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In response to the debate within the administration itself over Meese’s proposal, and the growing sensitivity of the issue in Washington, the White House Domestic Policy Council created a working group intended to review federal affirmative action policy under Reagan and the content of Attorney General Meese’s drafted order. In fact, by mid-September, members of the group drafted another potential executive order, which sought to achieve a balance between Meese’s proposal and Brock’s concerns (Noble, 1985: A31). One month later, in October 1985, the working group presented its own draft of an executive order for the president to sign; with language it felt would appease both Attorney General Meese and Secretary Brock. The working group’s proposal required federal contractors to implement affirmative action programs, but did not mandate goals and timetables. However, the new draft allowed for implementation of goals and timetables on a voluntary basis, “so long as they are not used and do not operate to discriminate or grant a preference to any person on the account of race, color, sex, religion, or national origin” (Laham, 1998: 27). Despite the notable differences between Meese’s proposed fundamental reforms and the working group’s minimal alteration to existing policy, at a news conference on October 16, 1985, Attorney General Meese endorsed the working group’s proposal, and acknowledged that voluntary goals and timetables were constitutionally permissible (Laham, 1998: 28). Six days later, the White House Domestic Policy Council met with the intent of adopting its recommendation regarding how President Reagan should handle federal affirmative action policy. During the meeting, the Council debated three possibilities. First, the president could sign the working group’s drafted order, which eliminated mandatory goals and timetables, but allowed voluntary goals and timetables. Second, the president could sign an executive order that specifically outlawed racial and gender quotas, but made no mention of goals and timetables. Third, the president could take no action at all regarding the existing executive order regime, and merely require the Labor Department to revise its regulations (Pear, 1985a: B5). According to participants, the debate, which included over thirty administration officials, was “vigorous,” “intense,” and “impassioned” (Pear, 1985a: B5). Supporters of reform included Attorney General Meese, Assistant Attorney General Reynolds, chairman of the U.S. Commission on Civil Rights Clarence Pendleton, Jr., and White House Communications Director Patrick Buchanan. Supporters of the status quo included Labor Secretary Brock, HUD Secretary Samuel Pierce, Jr., Transportation Secretary Dole, and HHS Secretary Heckler (Pear,

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1985a: B5). Due to the continued debate among administration officials, the Council failed to reach a consensus on any single option, and thus sent all three options to the president (Pear, 1985a: A1, B5). One week after the meeting, White House officials announced it would be several weeks before President Reagan made a decision pertaining to the matter because he wanted “to prevent the politically sensitive issue from interfering with preparation and activities” for the upcoming Geneva summit between President Reagan and Soviet leader Mikhail Gorbachev, scheduled for the following month (Boyd, 1985: A20). Unfortunately, for opponents of affirmative action, President Reagan never saw the Council’s report (Laham, 1998: 30). President Reagan’s failure to act resulted in growing impatience among critics of affirmative action, especially those who served within the administration. For instance, Pendleton, Reagan’s chairman of the U.S. Commission on Civil Rights, wrote a letter directly to President Reagan. In the letter, Pendleton argued, “It is time for you to put the lingering debate about goals and timetables behind us…Goals and timetables mean quotas or they mean nothing…You can end [goals and timetables] and any other kind of government-sanctioned discrimination with a stroke of your pen. I urge you to do so immediately” (Laham, 1998: 36). Interestingly, while Reagan never saw the Council’s report, word spread in Washington that the administration was closer than ever in possibly reforming existing federal affirmative action programs. In response, civil rights groups began lobbying members of the administration and their allies in Congress. In fact, one day prior to the meeting of the White House Domestic Policy Council, leading members of the National Black Leadership Forum (NLBF) sent President Reagan a telegram, with an appeal that he not reform existing federal affirmative action policy (Laham, 1998: 44). Meanwhile, members of Congress who supported affirmative action began examining how they should react to any actions taken by the president. One of the most probable congressional responses to any reforms by the Reagan administration was the codification of President Johnson’s Executive Order 11246 into federal law. As early as November 19, 1985, Republican Senator Mack Mattingly, a notable critic of affirmative action, wrote a letter to President Reagan, warning him, “If this major revision [in Executive Order 11246] is signed, legislation will be immediately introduced to put into law what has previously been in Executive Order 11246.” Senator Mattingly further explained, “Legislation in this area would of necessity

143 be inflexible, and it is quite likely that the legislation would go further than the current system. It is conceivable that it would go beyond goals and timetables to include rigid quotas, a system which I, like you, oppose” (Laham, 1998: 61). Apparently, Senator Mattingly’s concerns were well founded. On January 15, 1986, Ralph Neas, Executive Director of the Leadership Conference on Civil Rights released a memorandum to members of the press, which he aptly titled, “The Executive Order Has Absolutely Nothing to Do with Quotas!” (Laham, 1998: 37). In this memo, Neas explained, “Republican and Democratic Senators and Representatives have already drafted legislation to codify the existing executive order, if it becomes necessary” (Laham, 1998: 62). Approximately three weeks later, on February 6, Republican Representative Hamilton Fish, Jr. sent Secretary of Labor Brock a letter, confirming Neas’ claim. In the letter, he wrote, “If the executive order is weakened, please know that I and many other congressional Republicans will lead the charge to codify the present law on goals and timetables…we will have no choice” (Laham, 1998: 63). At a news conference five days later, President Reagan once again reiterated his commitment to reforming the federal affirmative action regime. He argued, “We must have a colorblind society. Things must be done for people [regardless] of any differences between us in race, ethnic origin, or religion…We want what I think Martin Luther King asked for: We want a colorblind society.” He went on to add, “What the White House is studying is how we can eliminate this possibility of a quota system. I’m trying to prevent discrimination by eliminating quotas (Public Papers, 1987: 207). The following day, February 12, Neas sent a letter to White House Cabinet Secretary Alfred Kingdon. In the letter, Neas pleaded, “Everyone in the civil rights community sincerely hopes that the President will not change the executive order and that we can work together to enforce the law properly” (Laham, 1998: 34). Furthermore, he once again brought up the prospect of possible legislation to overturn any reforms made by the Reagan administration. He explained that a bipartisan coalition had already drafted legislation that “would codify the present regulatory provisions regarding the adoption of goals and timetables” (Laham, 1998: 62). Almost one month later, on March 10, Mark Disler, Deputy Assistant Attorney General for Civil Rights, sent White House Communications Director Patrick Buchanan a draft statement for the president to release, announcing his decision to reform Executive Order 11246, as well as a series of documents, including a draft letter the president would send to Congress to announce

144 his decision and talking points for members of the administration to use when speaking with the press. In response, the administration commenced plans for President Reagan to give a major speech on civil rights, whereby he would formally announce his decision to issue a new executive order, with the intent of reforming existing federal affirmative action policy (Laham, 1998: 77). Furthermore, the administration drafted a letter to be sent to Senate Majority Leader Dole and House Minority Leader Michel, appealing for their support of Reagan’s revisions (Laham, 1998: 87). However, as explored in more detail below, just when administration officials finalized plans to announce the revisions, Reagan abandoned the plan. The Content of Meese’s Proposed Executive Order Although President Reagan never signed Meese’s proposed order, and thus it never went into affect, the White House released a draft of the order to the media in mid-August 1985, allowing us to examine the extent to which Meese sought to reform the existing federal affirmative action paradigm. In fact, as early as August 15, 1985, the New York Times included a front-page story on Meese’s proposed order. In the story, columnist Robert Pear reported, “The White House staff has drafted an order repealing requirements that Federal contractors set numerical goals to remedy possible job discrimination” (1985c: A1). Pear further added, “White House officials contend that the existing rules have not significantly helped blacks in low-wage jobs, have encouraged employers to discriminate against white men and have imposed costly compliance burdens upon employers” (1985c: A1). Thus, as indicated above, the proposed order began with language that would effectively eliminate all goals and timetables in federal contracting. The order stated: Nothing in this executive order shall be interpreted to require or to provide a legal basis for a government contractor or subcontractor to utilize any numerical quota, goal, or ratio, or otherwise to discriminate against, or grant preference to, any individual or group on the basis of race, color, religion, sex, or national origin with respect to any aspect of employment, including but not limited to recruitment, hiring, promotion, upgrading, demotion, transfer, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Nor shall any Government contractor or subcontractor be determined to have violated this order due to failure to adopt or attain any statistical measures (Pear, 1985c: A20).

In addition, Meese’s draft further added, “The Secretary of Labor shall immediately revoke all regulations and guidelines promulgated pursuant to Executive Order 11246,” dealing with numerical goals, quotas and/or preferences for women and minorities. Further, the order

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mandated that the Secretary of Labor issue new rules within thirty days of the signing of the new order, which ensured that contractors and subcontractors “demonstrated nondiscriminatory treatment…irrespective of the number of minorities and women recruited, trained, hired or promoted by the contractor (Pear, 1985c: A20).” Interestingly, the proposed order did not call for the elimination of affirmative action per se. Instead, it seemed to call for a reinstitution of the notion of equality of opportunity, rather than equality of results, as advocated by Presidents Johnson and Nixon. In fact, the proposed order called for the continued use of affirmative action, as it declared, “Each government contractor or subcontractor shall engage in affirmative recruitment and employment-related training programs designed to ensure that minorities and women receive full consideration for hiring and promotion” (Laham, 1998: 23). However, critics questioned the usefulness of affirmative action if there was no way to measure success. One editorial explained that Meese’s “proposals are empty,” because while he accepts the notion that the federal government must ensure employment discrimination does not occur, he does not want the government to “keep score” (New York Times, 1985: A18). Indeed, one New York Times reporter explained the proposed order “would prevent the Labor Department from requiring any companies to set numerical goals. It would also forbid the use of statistical evidence to measure compliance with laws against discrimination” (Pear, 1985c: A20). Presidential Decision-making & Meese’s Proposed Executive Order As the above narrative concerning the political environment in 1985 and 1986 displayed, once Attorney General Meese drafted his proposal, numerous actors became involved in the decision-making process regarding whether or not President Reagan should issue the new executive order, which sought to reform existing federal affirmative action and equal employment opportunity. Reagan received numerous letters from prominent members of Congress, members of his administration, and leaders of various interest groups. This section examines how President Reagan took into account the views articulated by groups on both sides of the issue, and ultimately concludes with reasons why he chose not to sign Meese’s proposal. As indicated above, many attributed Reagan’s electoral success to his ability to attract blue-collar workers and ethnic Americans in Northern cities into his electoral coalition. As Dallek described, many of these individuals voted for Reagan simply because of his stance against affirmative action (1999:56-57). Indeed, Reagan himself acknowledged the importance

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of this issue. Even though he campaigned on the principles of smaller government at home and restoring America’s preeminence on the world stage, he recognized that he drew many voters to him because of his opposition to affirmative action. Again, in a June 1985 press conference, he argued, “In 1980 and 1984 I ran for President and told you I was opposed to quotas. In response to your mandate, our administration has worked to return civil rights laws to their original meaning – to prevent discrimination against any and all Americans” (Public Papers, 1986: 773). Consequently, Reagan believed the issue was of such significance to his constituents, that he framed affirmative action as one of the issues that the electorate demanded significant change. Three groups dominated among the proponents for affirmative action reform. First, not surprisingly, the construction industry provided vital support for the administration’s efforts to reform federal affirmative action policy. Given that this had been the group originally targeted by President Johnson’s order and President Nixon’s Philadelphia Plan, it should come as no surprise that individuals within this group disdained federal affirmative action policies. In a letter to President Reagan sent on August 16, 1985, only a few days after Meese submitted his proposal, Vernie Lindstrom, Jr., President of the Associated General Contractors of America (AGCA), voiced his group’s support for Meese’s plan. Lindstrom wrote, “the construction industry enthusiastically supports proposed revisions to the 1965 Executive Order 11246” (Laham, 1998: 100). Similarly, Gene Marchbanks, President of the American Subcontractors Association (ASA), an interest group that represented over 6,000 construction subcontractors, wrote President Reagan on October 30, 1985, asking him to sign a new executive order to abolish existing federal affirmative action programs (Laham, 1998: 101). The second constituent group that openly supported Meese’s reforms was small businesses. Most of the country’s 500,000 small businesses vehemently opposed affirmative action because they lacked the technical and financial resources to adequately institute such programs (Belz, 1991: 200). In other words, small businesses could not afford the adequate personnel needed to ensure that they complied with federal standards. Thus, many owners of small businesses feared that they could become susceptible to lawsuits, even if they had no intent of discriminating against minorities or women. The third major group lobbying on behalf of affirmative action reform included conservative organizations representing thousands of businesses across the United States. In fact, this was one of the first groups to effectively organize their lobbying efforts. With the

147 possibility that the Reagan administration might finally reform federal affirmative action policy, a group of eighteen conservative interest groups formed what they called the Ad Hoc Coalition Against Quotas in the fall of 1985. The coalition included the United States Business and Industrial Council, the U.S. Chamber of Commerce, the Associated General Contractors of America, the American Subcontractors’ Association, the National Association of Plumbing- Heating-Cooling Contractors, the National Jewish Coalition, and the Committee on Academic Nondiscrimination and Integrity, among others (Laham, 1998: 117-118). With such prominent groups involved in the coalition, this group held considerable clout not only in the administration, but among members of Congress as well. Furthermore, in addition to working together as a group, many of these large umbrella organizations individually sought to influence Reagan’s decision. In fact, in November 1985 alone, the White House received correspondence from the chairman of the Executive Council of the United States Business and Industrial Council, the chairman of the Policy Task Force of the Business Roundtable, and the President of the U.S. Chamber of Commerce. In the letters, all three individuals articulated their opposition to the existing executive order regime pertaining to equal employment opportunity and the unintended consequences of instituting goals and quotas (Laham, 1998: 96). Interestingly, while these prominent business organizations supported reforming federal affirmative action policy, many of America’s largest businesses wanted to maintain the status quo. A 1985 New York Times article suggested, “Many business executives have said the ‘contract compliance’ rules need to be simplified, but they do not attack affirmative action or the use of numerical goals” (Pear, 1985b: B4). Likewise, Belz described, many large businesses supported affirmative action simply because they “had learned to live with quotas” (1991: 182). Indeed, in his 1982 article, “Affirmative Action is here to Stay,” Daniel Seligman noted that by the early 1980s, most large businesses were tolerant of affirmative action, with their only criticism that there should be increased employer autonomy and less government regulation. Furthermore, while previously ignored by large businesses, by the mid-1980s, the importance of diversity became a major goal of most of America’s largest corporations. For example, one General Motors executive explained, “I hate to think where this corporation would be today without these [affirmative action] programs. G.M. should be a reflection of the larger community and society around us” (Belz, 1991: 198). As a result, by the mid-1980s, it became

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part of the job expectations for many human resource employees. One executive stated, “Affirmative action is something that a manager is expected to do as part of his job. If you can’t show improvement [in EEO results], then your chances for advancement are decreased” (Belz, 1991: 198). Thus, in contrast to the Business Roundtable, the U.S. Chamber of Commerce, and the USBIC, the National Association of Manufacturers (NAM), which at the time represented approximately 13,500 companies, supported sustained federal affirmative action programs under Executive Order 11246 because, according to their president, “Since it was signed into law, dramatic progress has been achieved in incorporating talented minorities and women into our workplace” (Laham, 1998: 98). With the acknowledged benefits of diversity, many large corporations feared that an end to affirmative action would result in a massive reduction in their personnel departments, which oftentimes included a large percentage of minorities and women. As one article explained at the time, “Most large corporations have an entrenched affirmative action bureaucracy in the personnel department,” with many of these positions held by minorities and women active in civil rights organizations (Fisher, 1985: 28). Detlefsen described: If the executive order draft were enacted, large companies with entrenched affirmative action bureaucracies would be faced with a Hobson’s choice: They could either retain their affirmative action programs and risk exposure to lawsuits brought by disgruntled white males, or they could eliminate that risk by dropping their affirmative action programs, thereby incurring the wrath of the displaced affirmative action professionals, their clients within the company, and possibly the organized civil rights community in the form of demonstrations and boycotts (1991: 155).

In other words, not only would the elimination of affirmative action result in a less diverse workplace, but it could lead to reverse discrimination lawsuits on the one hand and grievances by minorities and women who lost their jobs on the other hand. Others in the business community planned to continue with their own voluntary programs no matter what the Reagan administration did. In fact, affirmative action had become so institutionalized by the mid-1980s that a survey of Fortune 500 companies in 1985 resulted in 88% of the 197 respondents acknowledging that they would maintain goals and timetables even if the federal government chose to abolish its standards (Belz, 1991: 198). In a similar survey conducted by Fortune in 1985, 116 out of 127 respondents reported that they used affirmative action for “corporate objectives unrelated to government regulations” (Fisher, 1985: 27). Merck’s CEO announced, “We will continue goals and timetables no matter what the

149 government does” because “They are part of our culture and corporate procedures” (Anderson, 2004: 187). Likewise, John M. Stafford, President and CEO of Pillsbury, explained, “It has become clear to us that an aggressive affirmative action program makes a lot of sense. So if the executive order is issued, it wouldn’t affect us” (Fisher, 1985: 28). Finally, some businesses feared that the elimination of Executive Order 11246 would result in each state developing their own affirmative action program, and thus increasing the complexity of compliance. For instance, the Director of Equal Opportunity at Monsanto explained that his company opposed Meese’s proposal because it would lead to “a situation where 50 states pass 50 different laws and we’d be subject to compliance reviews in 50 different areas” (Anderson, 2004: 187). As a result, in his decision-making process, President Reagan had to acknowledge that the issue of affirmative action reform divided the business community. While small businesses generally favored reform, large corporations for the most part opposed reform. This division posed a significant obstacle for proponents of reform because many executives in large corporations had substantial access and influence within the Republican Party. What proved to be an even bigger obstacle however, was the strength of the civil rights community and its ability to influence members of Congress. In his memoirs, Meese argued that a “provoked bitter controversy between the Reagan government and the ‘civil rights’ establishment” was the cause for Reagan’s failed effort to reform federal affirmative action policy (1992: 314). Likewise, Detlefsen described, “The ability of the civil rights lobby to work its will in Congress cannot be overestimated,” especially since during Reagan’s second term, it successfully defeated Reagan’s effort to promote William Bradford Reynolds to Associate Attorney General and Reagan’s attempt to appoint Robert Bork to the Supreme Court (1991: 137). Indeed, in his recollection, Assistant Attorney General Reynolds attributed Reagan’s failure to reform federal affirmative action policy on moderates within the Republican Party, and the extent to which civil rights organizations could persuade such middle-of-the-road Republicans (1996: 133). Terry Eastland (1996), who served as Attorney General Meese’s spokesman, echoed Reynolds’ claim, as he found the coalition of moderate Republicans and moderate and liberal Democrats too powerful for the Reagan administration to overcome. Similarly, Linda Faye Williams described, “Had Reagan…tried to do away with affirmative action in the late 1980s,

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Democrats, who then controlled both houses of Congress, may well have coalesced with moderate Republicans to pass legislation endorsing at least the broad principle of affirmative action” (1996: 254). Of particular concern to President Reagan was the level of bipartisan support for affirmative action and the fact that many prominent leaders in the Republican Party voiced their support for the status quo. Indeed, support for federal affirmative action not only comprised of 23 Republican Senators, but it included the two most important Republican leaders in Congress, as Senate Majority Leader Robert Dole and House Minority Leader Bob Michel both publicly acknowledged their opposition to any reforms (Laham, 1998:68). In fact, by June 1986, 69 Senators, including 46 Democrats and 23 Republicans, and 182 Representatives, including 165 Democrats and 17 Republicans, publicly announced their support for the continuation of existing federal affirmative action policies, and thus opposed any reforms by the Reagan administration. With growing opposition within both chambers, the likelihood that Congress would codify President Johnson’s Executive Order 11246 into federal law significantly increased. In addition, by 1986, seven Cabinet members openly opposed any reforms (Laham, 1998: 63, 68-69). Consequently, President Reagan faced an extremely difficult situation. Although he and his close friend and advisor Attorney General Meese both personally favored eliminating goals and timetables, he had to take into account several political factors in his decision-making process regarding whether or not he should issue Meese’s proposed order. While he had a couple hundred thousand small businesses, the overwhelming majority of the construction industry, many large conservative interest groups, and the conservative base in the Republican Party supporting the reform, he also had to take into account the tens of thousands of large corporations and the Republicans within Congress opposed to the reforms. These factors weighed heavily on the president’s decision. After all, many large businesses announced that even if President Reagan issued his own order, they intended to continue with their existing affirmative action programs. Moreover, it became increasingly likely that a bipartisan coalition within Congress could pass legislation that would make President Reagan’s order largely symbolic. As such, with businesses intent on continuing their existing affirmative action programs and Congress threatening to pass legislation opposed to Meese’s order, the president realized that he would have to expend a great deal of political capital for an executive order that may

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essentially be a symbolic victory for opponents of affirmative action. Even Meese acknowledged that the political risk was no longer worth it. After conducting an interview with Meese, Eastland described: Meese ultimately concluded that it was unwise to push the president to act, for he feared that the Democratic Congress might pass a new statute reinstating the regulatory scheme altered by a new executive order or new regulations, and then Reagan would be drawn into a legislative fight of uncertain outcome that could weaken him and the Republican Party as well (1996: 100).

Similarly, Reynolds acknowledged that the administration was “expending a lot of political capital” on combating affirmative action, and that “it was getting in the way of other things that are more important” (Anderson, 2004: 189). Meese’s recognition that the signing of the order could weaken the Republican Party was no doubt a major factor in Reagan’s decision-making process. After all, Reagan is known for his deep commitment to the party and his efforts to build the Republican Party. By issuing the order, Reagan would drive a deep wedge between the conservative and moderate flanks of the party. After all, twenty-three Republican Senators and seven members of his Cabinet had already endorsed Executive Order 11246, which meant “any effort by the president to reform the program would have exacerbated the deep ideological split within the Republican Party” (Laham, 1998: 69). As Meese explained, Reagan would not allow a single issue to divide his party. Ultimately, President Reagan concluded that any reforms to such a divisive issue needed the support from a substantial majority within his party, which by 1986, did not exist. Therefore, President Reagan realized that too many political factors obscured his ability to reinvent federal affirmative action policy. While he had the support of several key constituent groups, the risks of issuing the order (i.e., dividing the Republican Party, facing the possibility that Congress would pass legislation to override his order, and large corporations ignoring his order), far outweighed the political benefits. Faced with a seemingly insurmountable task, President Reagan realized that he had no politically viable option available to him to significantly reform federal affirmative action, and he thus abandoned his effort. The Legacy of Federal Affirmative Action Following the Reagan Years During his second term in office, like his first, President Reagan only issued one executive order pertaining to equal employment opportunity. In remarkable similarity to the

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order issued during his first term, Reagan once again chose to use the authority granted to him in the Rehabilitation Act of 1973, as he signed Executive Order 12640 on May 10, 1988, which established the President's Committee on Employment of People With Disabilities. Reagan obviously used President Nixon’s Executive Order 11480, which established the President’s Committee on Employment of the Handicapped, as the foundation to this order. According to the Executive Order 12640, the primary function of this new committee was to “provide advice and information as to the development of maximum employment opportunities for people who are physically disabled, mentally retarded, and mentally ill.” Noticeably missing from this function was the phrase “affirmative action,” which as described in the previous chapter, is used in the Rehabilitation Act itself. Given that the only two orders regarding equal employment opportunity during the Reagan administration were largely symbolic orders regarding equal employment opportunity for disabled Americans, the defining mark of Reagan’s legacy regarding federal affirmative action policy was his eventual decision not to issue an executive order that would overturn the orders issued by Presidents Johnson and Nixon. Ultimately, this decision not to act actually further institutionalized the federal affirmative action regime. As Belz argued, equal employment opportunity under Reagan “was characterized more by continuity than change,” and because of his inability to reform federal affirmative action, the Reagan administration “strengthened affirmative action more than it restricted it” (1991: 196). While some may question that Reagan “strengthened affirmative action,” Laham agreed. He wrote, “By failing to take advantage of the unilateral power he had as president to reform affirmative action, Reagan has made it difficult for any of his successors to change the program” and “set an unintended precedent of making the program a politically untouchable sacred cow” (Laham, 1998: 131). In other words, Reagan’s inaction maintained the status quo, and thus further institutionalized existing federal affirmative action policy. Interestingly, at the same time Reagan abandoned his efforts to reform federal affirmative action policy, the U.S. Supreme Court began its own two-year debate on the future of affirmative action, as it decided five cases pertaining to affirmative action during 1986 and 1987. On May 19, 1986, in Wygant v. Jackson Board of Education (1986), the U.S. Supreme Court handed down a plurality opinion. In this case, the U.S. Supreme Court ruled against the Board of Education’s affirmative action plan. According to the Board’s plan, because the percentage of

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minority student enrollment exceeded the percentage of minority teachers, when laying off teachers, the Board decided that three white teachers must be laid off for every one African American laid off. The Court found the plan problematic for two reasons. First, an affirmative action plan in a school district cannot be based on student population, it must be based on evidence that the particular employer previously discriminated against the protected class and should be based on the percentage of qualified minorities in the local population. Second, affirmative action must be used in hiring, not firing. Given that the school district already hired the African American teachers indicated that the district did not discriminate. Further, the plan proved exceedingly injurious to white employees, who have protection against such actions under the Fourteenth Amendment. Less than two months later, on July 2, the Court handed down two additional decisions regarding affirmative action. In the first case, Local 28 Sheet Metal Workers International Association v. EEOC (1986), for the first time, the Court upheld a judicially mandated quota in a private discrimination dispute. After years of continued discrimination, a federal court ordered in 1975 that a sheet metal union in the state of New York must adopt a 29 percent minority membership goal. Once the union failed to meet the goal, the lower court found the union in contempt and ordered the union to pay a $150,000 fine, which would be used to set-up a program aimed at increasing minority membership in the union. The union and the Reagan Justice Department failed in their effort to convince the U.S. Supreme Court that “the membership goal and fund exceeded the scope of available remedies under Title VII” (Belz, 1991: 215). Instead, the Supreme Court justified judicially mandated quotas, even in private cases, when an employer or union “has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.” Similarly, in Local 93 of the International Association of Firefighters v. City of Cleveland (1986), the Court upheld the city of Cleveland’s affirmative action plan that reserved a specific number of firefighter positions for African Americans and Hispanics. This case had extra significance, because the Court effectively illustrated that the ruling in Firefighters Local Union No. 1784 v. Stotts (1984) dealt exclusively with seniority, contrary to the Justice Department’s reading of the previous case. Writing for the Court, Justice Brennan explained that Title VII allows “employers and unions voluntarily to make use of reasonable race-conscious affirmative action” and “Title VII does not preclude entry of a consent decree…that may benefit individuals

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who were not the actual victims of the defendant's discriminatory practices.” In other words, as Weiss noted, in both the sheet metal case and the Cleveland case, “the Court asserted that, depending on the circumstances of the specific case, individuals need not necessarily provide evidence of personal victimization to be eligible for relief” (1997: 225). Thus, by the late summer of 1986, the Supreme Court provided an important endorsement of affirmative action. As Belz explained, “Wygant lacked relevance because the affirmative action plan it struck down was atypical” (1991: 219). In contrast, in the two cases handed down on July 2, the Court firmly defended affirmative action in employment, and directly opposed the Reagan administration’s attempt to dismantle affirmative action. Furthermore, in these cases, the Court supported the notion of equality of results, articulated by Presidents Johnson and Nixon fifteen to twenty years earlier. As a result, the two July 2 decisions proved crippling to opponents of affirmative action. Within a four-month period, not only did a president who vehemently opposed affirmative action abandon his attempt to reform federal affirmative action, but the U.S. Supreme Court rejected the Justice Department’s fundamental arguments against such programs, and accepted the concept of equality of results, rather than merely equality of opportunity. Weiss noted, “These two decisions severely curtailed the administration’s anti-affirmative action initiatives. In August 1986, Reynolds announced that the Justice Department was abandoning its efforts to eliminate numerical formulas from state and local affirmative action plans” (1997: 225). With the Justice Department’s retreat, opponents of affirmative action lost any lingering hope of possible reform. In the following year, the U.S. Supreme Court handed down two additional rulings that further endorsed affirmative action as a remedy to employment discrimination. In the first case, U.S. v. Paradise (1987), decided on February 25, the Court in a plurality opinion upheld a promotion plan implemented by the Alabama Department of Public Safety. In 1983, a district court ordered that half of the promotions in the Alabama state police go to African American officers, until 25% of all corporals on the force were African American. According to the ruling, the promotion plan did not result in an “absolute bar” to white advancement, was narrow enough in scope because it specified particular ranks in the department, and was “required in light of the Department’s long and shameful record of delay and resistance” to past judicially-mandated antidiscrimination plans.

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Exactly one month later, on March 25, the U.S. Supreme Court handed down its decision in Johnson v. Transportation Agency of Santa Clara County (1987). In this case, a public transportation agency in Santa Clara County, California adopted an affirmative action plan in 1978, which allowed the Agency to include race and gender as factors in their hiring and promotion processes. In this particular case, because the agency did not have a single female road dispatcher, the Agency decided to give Diane Joyce a promotion to the position of road dispatcher, despite the fact that they deemed Paul Johnson, a white male, more qualified for the position. However, there was no indication of past discrimination in the case, which the Court seemed to indicate was necessary in Wygant v. Jackson Board of Education (1986). Thus, this case sought to answer the following question; can a public employer voluntarily grant an underrepresented group an edge in hiring or promotions, not because of past discrimination, but simply because of under-representation of the group in question? The Court answered this question in the affirmative. In spite of the fact that no evidence of past discrimination existed, the Court ruled in favor of the Agency’s plan. In particular, Justice Brennan wrote, “The Agency appropriately took into account Joyce's sex as one factor in determining that she should be promoted. The Agency's Plan represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency's workforce, and is fully consistent with Title VII.” In addition, this marked the first time the U.S. Supreme Court ruled in favor of granting women preferences over men. Consequently, in this case, the Supreme Court ruled that employers could use voluntary affirmative action programs, including statistical measures, as a means of ensuring minorities and white women received equal representation within their companies, even if the underrepresentation had no connection to past discrimination. In other words, the Supreme Court’s decision in this case seemed to suggest that if President Reagan had signed Meese’s proposed order, federal court decisions would have conflicted with Reagan’s policy, and ultimately Reagan’s policy could have been overturned by the courts. Following the Supreme Court’s 1987 rulings, Business Week declared, “The great affirmative action debate of the 1980s is over” (Anderson, 2004: 196). Indeed, in spite of Reagan’s personal commitment to eliminate federal affirmative action and the steadfast efforts of individuals like Reynolds and Meese within the bureaucracy to reform existing federal

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affirmative action programs, by the time Reagan left office in January 1989, the federal equal opportunity apparatus had not changed much since the day he entered office in January 1981. Perhaps most importantly for this study is the fact that Reagan’s decision not to issue an executive order that would reform existing federal affirmative action policies concerning employment, in affect, further substantiates the importance of the orders issued by Presidents Johnson and Nixon. As Detlefsen concluded: “…intuition notwithstanding, preexisting executive orders are not always so easy to change. Ronald Reagan was a popular president whose view of civil rights was most definitely in conflict with an executive order program inherited from previous administrations. Yet despite having the legal and constitutional wherewithal to bring the order into line with his own administration’s views on civil rights issues, [he] apparently felt obligated to maintain the status quo” (1995: p. 61)

Therefore, besides the lessons learned regarding the specific research questions asked in this project, the current case study provides us with two additional lessons. First, it further illustrates the importance of the orders signed by Presidents Johnson and Nixon, because over an eight-year period, President Reagan, a staunch opponent of affirmative action, failed to reform their orders, and thus maintained the status quo. In other words, the Reagan case study exemplifies the importance of Johnson’s establishment of federal affirmative action in employment and Nixon’s institutionalization and expansion of federal affirmative action in employment. Second, this case study effectively demonstrates Mayer’s (2001) assertion that presidential executive orders initiate future action by Congress and the courts, even if actions by these institutions do not occur until much later. In this case, the U.S. Supreme Court in the 1980s upheld federal affirmative action based primarily on the arguments of Presidents Johnson and Nixon, and their commitment to equality of results, rather than simply equality of opportunity. As Weiss noted, “By the end of Reagan’s second term, goals and timetables remained widespread in both government and private opportunity plans, and the Supreme Court had upheld the validity of race-conscious, class-based remedies” (1997: 225). Such remedies, as noted above, included the acceptability of affirmative action to rectify under-representation of a specific group, even if there was no evidence of past discrimination. Thus, upon leaving office, as Laham concluded, “the reality is that the president essentially adhered to the status quo in his administration’s enforcement of antidiscrimination

157 laws…As a result, Reagan left no lasting legacy on civil rights” (1998: 90). Instead, the Reagan years illustrated the sustainability of federal affirmative action policy and provided further evidence of the importance of the orders signed by Presidents Johnson and Nixon. The Sustainability of Federal Affirmative Action & the Bush Years, 1989-1992 As previously indicated, following the Supreme Court’s 1987 rulings, Business Week declared, “The great affirmative action debate of the 1980s is over” (Anderson, 2004: 196). This statement could not be further from the truth. In 1989 alone, the U.S. Supreme Court handed down an additional six cases regarding affirmative action, including the well-known cases Wards Cove Packing Co. v. Antonio (1989) and City of Richmond v. J.A. Croson (1989). In Wards Cove Packing Co. v. Antonio (1989) the Court shifted the burden back on employees trying to prove discrimination, and thus made it more difficult to prove employment discrimination occurred. In particular, the Court ruled that statistical evidence that whites held higher-level jobs, while non-whites held lower-level jobs did not prove discrimination on behalf of the employer. Then, in City of Richmond v. J.A. Croson (1989), the Court invalidated a minority- set-aside program for municipal construction contracts designed by the city of Richmond, Virginia, “modeled after the federal program upheld by the Court” in Fullilove v. Klutznick (1980) (Spann, 2000: 45). As Georgetown Law Professor Girardeau Spann noted, the majority ruled the plan “was unconstitutional because the city had not made adequate findings of past discrimination,” thus, “the set-aside seemed designed simply to promote racial balance in a way that impermissibly treated contractors as members of racial groups rather than individuals” (Spann, 2000: 45). Opponents of affirmative action clearly achieved victory in these cases. As Anderson reported: During the 1989 session the Court essentially reversed Griggs. From now on it would be easier for a white male to sue for reverse discrimination and more difficult for a woman or minority to win a case. Using statistics to prove under-representation was suspect, and the cases reversed the burden of proof: Employees would have to show a discriminatory cause and effect, basically ending the old notion of disparate impact (2004: 204).

Intriguingly, one year later in Metro Broadcasting v. FCC (1990), the very same Court upheld two minority preference programs established by the FCC for determining which companies received radio and television broadcast licenses. Thus, the “great affirmative action debate of the

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1980s” was far from over, and affirmative action was sure to remain a major issue during Bush’s presidency. Interestingly, in spite of his connection to the Reagan administration, in the initial months of his presidency, President Bush garnered a high level of support among the African American community. In fact, fifteen months into his presidency, President George H.W. Bush received a 56% approval rating among African Americans, making him the highest rated Republican president since President Eisenhower (Wicker, 1990: A19). Perhaps this should not have been a surprise, given Bush’s promise of a “kinder, gentler” approach to domestic issues. Indeed, Shull found that such support was a result of Bush responding in a much more appeasing way toward African Americans, compared to Reagan (1993: 157). President Bush displayed evidence of this “kinder and gentler” approach in two notable ways. First, he reached out to minorities and women, through the appointment process. According to columnist Ann Devory (1988), even prior to taking the oath of office, Bush was less than pleased with the number of minorities and women within the executive branch. Consequently, as he developed his transition team, Bush called on Betty Heitman, a former president of the National Federation of Republican Women, to assist in recruiting women for positions in the bureaucracy; Jose Martinez, a former officer in the Air Force who had served as an aide to former Senator Tower, to help recruit Hispanics for executive appointments; and Constance Newman, a former employee of the Department of Housing and Urban Development, to reach out to African Americans for possible administration positions (Weinraub, 1988: 42). These efforts resulted in his appointment of Elizabeth Dole to Secretary of Labor, Lauro Cavazos and Manuel Lujan, Jr., both Hispanics, to Secretary of Education and Secretary of Interior, and Louis Sullivan, an African American, to Secretary of Health and Human Services, not to mention his appointment of General Colin Powell, an African American, as chairman of the Joint Chiefs of Staff. As Anderson suggested, “The appointments sent a clear signal that Bush was moving away from many Reagan policies and toward what he referred to as a ‘kinder, gentler’ nation, and this included civil rights” (2004: 200). In addition, President Bush successfully appointed Arthur Fletcher as Chairman of the Civil Rights Commission; the same Arthur Fletcher who was Assistant Labor Secretary under President Nixon and helped lead pro- affirmative action efforts in the late 1960s and 1970s (Jones, 1992: 185).

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The second major way the new president displayed his “kinder, gentler” approach to issues like affirmative action was through reaching out to various constituencies, including African Americans. As political scientist Augustus Jones explained, “During his first three months of his administration, Bush used several public addresses to signal that he was interested in improving ties with the black community” (1992: 179). For instance, in February 1989 in front of a joint session of Congress, President Bush promised, “I will work to knock down the barriers left by past discrimination and to build a more tolerant society that will stop such barriers from every being built again” (Public Papers of the Presidents, 1989, 1990: 75). Similarly one month later the president remarked to the United Negro College Fund in March 1989, “Most Americans, I am convinced, believe that the national government can be an instrument for healing. There are times when government must step in where others fear or tread. I share that belief, and I will act on it” (Public Papers of the Presidents, 1989, 1990: 75). Most remarkably, in a meeting with the Commission on Civil Rights, President Bush stated, “We must see that the affirmative action is not reduced to some empty slogan and that this principle of striking down barriers to advancement has real, living meaning to all Americans” (Public Papers of the Presidents, 1990, 1991: 183). Perhaps more than anything else, what President Bush’s actions illustrated was his political savvy. At the very same time the president effectively used his rhetoric to build support among African Americans; he took actions to undermine affirmative action in the United States. Thus, what we find with the Bush presidency is an ironic situation whereby President Bush’s term began with a fairly positive relationship between the newly elected president and the African American community, but by the end of Bush’s tenure in office he had become a major adversary of the African American community, largely because his administration posed a major threat to the future of affirmative action. The first step taken by President Bush to undermine affirmative action came just four weeks into his term, when on February 24, 1989, President Bush nominated William Lucas for the position of Assistant Attorney General, which oversaw the Civil Rights Division of the Department of Justice (Shull, 1993: 117). The Senate Judiciary Committee eventually defeated Lucas’s nomination by a seven-seven vote, largely because of his inexperience and misrepresentations on his resume, but the crucial point to note is that Lucas was on record as an opponent of quotas and a supporter of federal tax exemptions for segregated private schools

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(Shull, 1993: 118). Thus, while the issue of equal employment opportunity did not draw much attention during the nomination process, it did foreshadow later actions taken by Bush to undermine federal affirmative action programs. For instance, in the case of Metro Broadcasting v. F.C.C. (1990), Solicitor General Kenneth Starr filed a brief with the U.S. Supreme Court, where he suggested “that it was constitutionally impermissible for the Federal Communications Commission to use race in awarding broadcasting licenses to promote diversity” (Jones, 1992: 183). As Jones explained, even though the Supreme Court rejected Starr’s argument, “his efforts convinced many civil rights leaders that the president was not a strong supporter of their cause” (1992: 184). The most significant example of President Bush’s stance against affirmative action during his first two years in office came as the Democratic Congress successfully passed the Kennedy-Hawkins Civil Rights bill in 1990. In particular, the bill’s sponsors sought to essentially overturn the anti-affirmative action cases handed down by the Supreme Court in the previous year. According to the Kennedy-Hawkins bill, victims of discrimination had the opportunity to receive compensatory damages to remedy the wrong done to them and in some cases could receive punitive damages. Moreover, the bill mandated that a jury trial be provided if any of the parties involved in such cases requested a jury. Most importantly, under this legislation, Congress shifted the burden of proof from the employee to the employer (Shull, 1993: 87). While Congress debated the legislation, the President took his message to the American public, standing firm against what he referred to as “quotas.” In May 1990, at the University of Michigan, President Bush warned Americans of “political extremists” who sought policies that would result in “setting citizens against one another on the basis of their class or race” (O’Reilly, 1995: 395). Similarly, at the graduation ceremonies at the FBI National Academy and at West Point, he argued that “Congressional leaders again want to pass a bill that would lead employers to adopt hiring quotas and unfair job practices” and challenged Americans to “cast off the politics of division” caused by viewing one another as “colors or numbers” (O’Reilly, 1995: 395). Despite a great deal of compromises made throughout the legislative process and support among many Republicans in Congress, President Bush vetoed the bill on October 22, 1990, once again referring to it as a “quota bill,” even though the legislation itself had specific language that

161 outlawed the use of quotas. Journalist Elizabeth Drew remarked, “No matter what changes were made, the Administration designated the Democrats’ bill a ‘quota bill.’ Even when the bill’s sponsors added language specifically making quotas illegal” (O’Reilly, 1995: 395). In particular, President Bush stated that the proposed law “employs a maze of highly legalistic language to introduce the destructive force of quotas into our national employment system” (Fowler, et al., 2004: 183). In fact, during his announcement that he vetoed the legislation, Bush used the word “quota” seven times” (Anderson, 2004: 206). The Senate attempted to override his veto, but fell one vote shy. The importance of this veto cannot be understated. As Shull explained, “The veto represented the first defeat of a major civil rights bill in the last quarter century” (1993: 89). O’Reilly further articulated, “Quota wars heated up in October 1990 when Bush vetoed the Kennedy bill” (1995: 392). Indeed, the president’s successful publicity campaign against “quotas” led to racial quotas becoming a major issue in several campaigns, including North Carolina Senator Jesse Helms’ reelection campaign of 1990, Pete Wilson’s 1990 gubernatorial campaign in California, and ex-Klan leader David Duke’s unsuccessful, yet surprisingly strong, gubernatorial campaign in Louisiana in 1991 (O’Reilly, 1995: 392-393). Given President Bush’s harsh stance on the Kennedy-Hawkins bill, it was clear to African Americans that the president was more worried about holding his conservative base, than he was reaching out to minorities. President Bush further substantiated his hard-line position against affirmative action on July 2, 1991 when he nominated Clarence Thomas to fill the seat of Thurgood Marshall on the U.S. Supreme Court. David Broder referred to Bush’s nomination of Thomas as the president’s “new front in the ‘quota’ war” (1991: B7). Thomas had proved his anti-affirmative action philosophy as the Chair of the Equal Opportunity Commission under President Reagan so much that conservative stalwart and former Assistant Attorney General William Bradford Reynolds referred to Thomas as “the epitome of the right kind of affirmative action” (O’Reilly, 1995: 395). Not surprisingly, by the time Thomas made his way through the confirmation process, President Bush’s once incredible approval among African Americans had plummeted to approximately the same level of approval Reagan received throughout his presidency (Shull, 1993: 175). Although Thomas’s razor-thin confirmation vote was a major victory for opponents of affirmative action, just over four weeks later they were dealt a startling blow, as Congress passed

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the Civil Rights Act of 1991. The new law “mandated that all victims of intentional job discrimination, not just minorities, had the right to jury trial,” and it “returned the burden of proof to employers…stating that employers must show that a practice is ‘job-related for the position in question and consistent with business necessity’” (Anderson, 2004: 212). Perhaps most importantly, the legislation effectively overturned the rulings of the 1989 Supreme Court affirmative action decisions. To the surprise of many, President Bush did not put up the same fight against the legislation this time around as he had the year before. The New York Times noted, “after insisting two years that the measure was a ‘quota bill,” Mr. Bush suddenly discovered that a new draft, barely distinguishable from the old ones, was not a quota bill. His instant revision of history fooled nobody” (1991: 31). In his defense, the political situation at the time may not have allowed the president to stand firm on his previous position. After all, the 1991 version passed by substantial margins of 93-5 in the Senate and 381-38 in the House, making the likelihood of a sustainable veto seemingly impossible (Shull, 1993: 90). In fact, even prior to the bill’s passage, Senator Danforth met with President Bush on October 18, 1991 to indicate to the president that there would not be Republican support to sustain a veto this time around (Tiefer, 1994: 55). Furthermore, many observers recognized that President Bush may not have had much of a choice this time around anyhow. He had spent a great deal of his political capital getting Clarence Thomas’s nomination approved. As Ryan Barilleaux and Mark Rozell argued, “That Bush reversed his course on the Civil Rights Act soon after the Thomas confirmation did not appear to be strictly coincidental” (2004: 37). Moreover, Republicans recognized that they had to distance themselves from extremists in their party like David Duke, who had just ran a fairly successful campaign for governor in Louisiana (Shull, 1993: 90; Barilleaux and Rozell, 2004: 36). O’Reilly explained, “Probably the most important reason Bush backed off involved former Klansman David Duke’s electoral success in Louisiana…Because Duke had co-opted Bush’s images and code, he forced the chief executive” who spent “two-plus years of sound bite whining about Teddy Kennedy’s ‘quota bill’ to look in the mirror. Bush saw a hooded Duke staring back and blinked” (1995: 400). Ironically, it was in this defeat that we probably saw the single most important unilateral executive action against federal affirmative action in American history, as President Bush prepared to issue a signing statement along with the enacted legislation. A day before the

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official signing of the bill, the New York Times reported that White House Counsel C. Boyden Gray drafted an administrative directive that would “direct all Federal agencies to phase out regulation authorizing the use of racial preferences and quotas in hiring and promotions when he [President Bush] signs the civil rights bill recently passed by Congress” (Holmes, 1991: A1). Another report indicated that the directive ordered “termination of any regulation that mandates or encourages the ‘use of quotas, preferences, set-asides, or other similar devices on the basis of race, color, religion, sex, or national origin’ – essentially the same executive order that Reagan had threatened to sign to abolish affirmative action” (Anderson, 2004: 213). Not surprisingly, this story prompted immediate responses from leaders within the civil rights community. For instance, Ralph Neas of the Leadership Conference on Civil Rights remarked that if Bush issued the directive it would illustrate “a surrender to Jesse Helms and David Duke” (Holmes, 1991: A1). Likewise, Benjamin Hooks of the NAACP prepared to boycott the signing ceremony if Bush pursued the strategy outlined in the New York Times (Gerstenzang, 1991: A1). White House Press Secretary Marlin Fitzwater responded immediately, distancing President Bush from the reported directive, noting that the president had not viewed the controversial administrative order and would not include it in part of the signing ceremony. Fitzgerald illuminated, “Let me be clear. The president supports affirmative action, preferences, and minority set-asides as long as they are consistent with the new civil rights law, period” (Devroy, 1991: A1). Still, President Bush did choose to attach a signing statement to the adopted legislation. While the eventual signing statement did not include the directive reported in the New York Times, it did include some important language for critics of affirmative action. As Charles Tiefler wrote in his text The Semi-Sovereign Presidency: The Bush Administration Strategy for Governing without Congress, the statement essentially made “the Civil Rights Act into a codifier, rather than an overruler, of the Supreme Court decisions, including the Wards Cove decision, which it was enacted to reverse” (1994: 57). In fact, within the signing statement President Bush argued that one of the major goals promoted by the legislation was to ensure “that employers can hire on the basis of merit and ability without the fear of unwarranted litigation,” which is clearly language supportive of the conservative viewpoint on affirmative action (Tiefler, 1994: 57).

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Furthermore, the signing statement issued by Bush noted that a legislative memorandum drafted by Senator Robert Dole “will be treated as authoritative interpretive guidance by all officials in the executive branch with respect to the law of disparate impact as well as the other matters covered in the documents.” This was of utmost importance because according to many experts, the Dole memorandum was “widely viewed as favoring business over minority and female employees attempting to charge job discrimination” (Devroy & LaFraniere, 1991: A1). Given the history of federal affirmative action since the Johnson Administration, because President Reagan failed to sign the executive order drafted by Attorney General Meese, it can easily be argued that President Bush’s issuance of this signing statement was the single-most important unilateral executive action that challenged federal equal employment opportunity programs up until this point. Consequently, as we look back on the Bush Administration’s record regarding federal affirmative action policy, as both Jones (1992) and Shull (1993) remarked, there was nothing “kinder” or “gentler” about his approach to such policies. First, he successfully vetoed a major piece of legislation that would have expanded the ability for individuals to sue employers for not adequately enforcing equal employment opportunities. Second, he appointed one of the most prominent opponents of affirmative action to the U.S. Supreme Court. Finally, when legislation passed to once again enforce equal employment opportunity for minorities within the private sector, President Bush issued a signing statement that undermined the major purpose of the legislation itself. Ultimately, while President Bush came into office promising a “kinder and gentler” approach to issues like affirmative action, his actions in many ways mirrored his predecessor. Like Reagan, President Bush used harsh rhetoric to denounce affirmative action programs for implementing “quotas,” but by the time he left office, he failed to issue an executive order to end such programs. Also, like his predecessor, President Bush recognized the usefulness of executive orders in regards to equal employment opportunity, as he issued Executive Order 12672 on March, 21, 1989, which simply revised the membership of the Interagency Committee on Handicapped Employees, originally established by the Rehabilitation Act of 1973 and amended by executive orders under Presidents Ford and Reagan. In fact, President Bush seemed to passionately committed to expanding the opportunities for disabled Americans. Not only did he sign Executive Order 12672, which acknowledged his

165 role as chief executive in ensuring equal opportunities for handicapped applicants, but he also signed the Americans with Disabilities Act on July 26, 1990, “with a great sense of enthusiasm and ceremony” (Berkowitz, 2004: 143). The signing of this act was so important that Senator Robert Dole once stated that it will go down as “one of George Bush’s greatest achievements” (Washington Post, 1993: D3). Indeed, according to public policy historian Edward Berkowitz, “the ADA did for people with disabilities what the 1964 law had done for other minorities” (2004: 143).18 The law itself included four major sections. Title I prohibited discrimination in hiring, on the job training, and promotion against qualified individuals with disabilities. Title II prohibited discrimination against disabled Americans by governmental agencies, including within public transportation. Title III mandated that all public accommodations, including hotels, restaurants, theaters, and schools, accommodate individuals with disabilities. Finally, Title IV required that telecommunication companies within the United States had to ensure that they had systems in place that accommodated speech-impaired and hearing-impaired individuals. Thus, like President Reagan, and actually to a greater extent than President Reagan, President Bush viewed equal opportunities for disabled Americans as a primary goal of his administration. Again, in another bit of irony, President Bush, like Reagan, pursued policies for disabled Americans that seemingly contradicted his views regarding equal opportunities for minority Americans. Berkowitz (2004) explained it in the following way: The scope of the law meant that President Bush endorsed, supported, and signed the most ambitious piece of civil rights legislation in the nation’s history. Here was an important paradox. The Republicans and George Bush used civil rights as a wedge issue to separate majority whites from minority blacks, yet Republicans and particularly George Bush viewed civil rights for people with disabilities as ideologically compatible with the Republican approach toward government. The differences in the presidential rhetoric were striking. President Bush did not hesitate to link civil rights with the establishment of hiring quotas… At the same time, the president regarded the ADA as a means toward allowing people with disabilities “to achieve their highest priority, namely, the independence necessary to achieve control of their own lives and integration into the mainstream of American life” (145).

18 As Schaller (2007, 64) explained, several Supreme Court cases in the late 1990s, and then again in 2001-02 “narrowed the definition of ‘disability’ and made it easier for employers to deny certain kinds of jobs to the disabled,” which of course limits the legacy of this act. Still, it remains one of the landmark pieces of legislation signed during the Bush presidency. 166

Given Berkowitz’s (2004) account, the Bush presidency represents an interesting phase of the history of affirmative action in the United States. While his administration largely followed the same policies as his predecessor, President Bush did take his opposition one step further, as he included a signing statement on the Civil Rights Act of 1991, which argued against the implementation of such laws. But again, like Reagan, President Bush did not issue an executive order that would have eliminated federal affirmative action programs. In fact, there does not appear to be any public record that states that such an executive order was even an option, which it clearly was under Reagan. Federal Affirmative Action Policy after the Reagan-Bush Years The 1992 defeat of President Bush by Governor Bill Clinton obviously elated proponents of affirmative action. While it is true that President Bush successfully extended equal employment opportunity to disabled Americans, the important storyline as he left office was that federal equal employment opportunity programs had successfully sustained the onslaught of twelve years of hostile leadership in the White House. During this period, Presidents Reagan and Bush successfully filled the federal courts, including the U.S. Supreme Court, with individuals antagonistic toward affirmative action programs. In addition, neither administration enforced the existing laws regarding affirmative action to the extent that such laws were enforced under Johnson, Nixon, Ford, and Carter, essentially unofficially lowering federal standards on such policies. Still, while Reagan came close to issuing an executive order to eliminate such programs, and Bush apparently came even closer to issuing a signing statement to halt the implementation of such programs; neither president took the necessary step to rid the government of its commitment to equal employment opportunity through affirmative action. Therefore, federal affirmative action remained intact and proved the institutionalization that occurred during the 1970s created an environment whereby equal employment opportunity policies were incredibly sustainable, even through the presidencies of Reagan and Bush. Even in the private sector, affirmative action remained strong, despite becoming increasingly unpopular among the American public after twelve years of denouncements from the bully pulpit. According to a 1991 Business Week study of 400 senior executives at major corporations across the United States, forty percent admitted to using “numerical goals” for hiring women and minorities, eighty percent confirmed the use of programs that make “special

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efforts to recruit” minorities, and only six percent claimed that affirmative action had caused “a lot” of problems in their corporations (Anderson, 2004: 210). Anderson wrote, “Thus, as Reagan discovered in the early 1980s, affirmative action had become an integral part of doing business in America” (2004: 211). Therefore, after studying equal employment policy during the Reagan and Bush presidencies, we come away with an understanding of the incredible sustainability of the federal affirmative action programs that began with President Johnson’s Executive Order 11246, that were institutionalized and expanded by President Johnson’s 11375 and President Nixon’s Executive Orders 11478 and 11480, and effectively implemented by President Carter’s five executive orders. Even under twelve years of hostile leadership, the institutionalization of these programs that occurred during the 1970s proved too difficult for opponents to overcome. As a result, while many hoped the leadership of President Reagan and President Bush would lead to the abandonment of federal affirmative action programs, the sustainability of such programs during the 1980s created an environment that eventually led to the extension of federal equal employment programs under the Clinton administration, even while many Americans, including members of the U.S. Supreme Court, denounced such initiatives.

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CHAPTER 7 – The Expansion of Federal Affirmative Action, 1993-2000

Clinton vigorously supported continuation of affirmative action and, except for the Defense of Marriage Act, pushed for policies to eliminate discrimination on the basis of sexual preference, and he endorsed legislation and administrative rulings that would curb harassment and violence against people on the basis of their sexual preference.

Virginia Sapiro and David Canon, “Race, Gender, and the Clinton Presidency” (2000: 196).

Introduction

The 1992 presidential election was a turning point for equal employment opportunity policies in the United States for two significant reasons. First, November 3, 1992 marked a major shift in presidential politics, as Arkansas Governor Bill Clinton defeated incumbent President George H.W. Bush and billionaire businessman H. Ross Perot. Given the twelve years of hostility toward affirmative action programs by Presidents Reagan and Bush, the defeat of Bush resulted in elation among supporters of such measures, as Clinton won with a pro- affirmative action platform. Second, Governor Clinton ran the first presidential campaign that truly reached out to the homosexual community, as he promised to combat discrimination against gays and lesbians (Anderson, 2004: 223). In fact, the Democratic platform not only supported affirmative action, as it pledged to be the party that would “continue to lead the fight to ensure that no Americans suffer discrimination,” but it extended its support for affirmative action beyond race and gender, as it endorsed affirmative action based on “sexual orientation.” Such language prompted conservative commentator and defeated presidential candidate Pat Buchanan to deliver a rousing address at the Republican convention, where he “declared war on the cultural left” and its support for “homosexual lifestyles” (Anderson, 2004: 218). Still, while proponents of affirmative action finally achieved victory over the Reagan- Bush regime, and while Governor Clinton and the Democratic Party promised to reaffirm and expand the federal government’s role in equal employment opportunity, the 1992 presidential campaign dealt largely with the economy, relegating civil rights to a second tier issue. Thus, it was unclear whether equal employment opportunity would make it onto the new president’s agenda. After all, throughout the campaign, Clinton tried desperately to keep race from becoming an issue. O’Reilly explained:

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Other than appearances in black churches, where he was at home, like Jimmy Carter, and a spot on Arsenio Hall’s television show, where he was cool enough, like Lee Atwater, to play sax in shades, Clinton emphasized race as a nonissue from the primaries forward. He kept black advisers in the background, made no promises, accepted the nomination at a Democratic National Convention that had two hundred fewer black delegates than in 1988, and timed his rare appearances at black events so that they would be too late for the evening news or overshadowed by other events (1995: 409-410).

In fact, even when Clinton made race an issue, he often did so controversially, as he appeared at a photo-op at a Georgia prison with Senator Sam Nunn, where the backdrop included virtually all African American prisoners, and he made his famous comments regarding rapper Sister Soulja at a summit held by the Rainbow Coalition (O’Reilly, 1995: 410, 413). Moreover, unlike previous Democratic presidential nominees, Governor Clinton made no significant policy promises to the African American community. Perhaps even more interesting is the fact that while he made no major promises to the African American community, he did promise to issue an executive order that would eliminate the ban on homosexuals serving in the United States armed forces. As a result, instead of a dramatic expansion of affirmative action during Clinton’s first term, as advocated by proponents of such programs, we actually find a shift in the opposite direction, as more and more Americans grew weary of such policies. In fact, President Clinton’s first executive order concerning equal employment opportunity did not come until midway through his second term, when he issued Executive Order 13078 on March 13, 1998. Still, by the time President Clinton left office, he issued eight executive orders regarding equal employment opportunity, which meant he issued more executive orders in this policy domain than any other president. Ironically, while President Clinton became known for his extremely close relationship with the African American community, none of these orders dealt with increased opportunities for African Americans. Therefore, the purpose of this chapter is to bring a greater understanding of the political environment throughout the Clinton presidency and how the political environment affected the way President Clinton dealt with policies regarding equal employment opportunity. Even though the 1990s marked a period in history where there was greater hostility toward affirmative action policies, this chapter will illustrate the continued sustainability of federal affirmative action during this period of hostility. In addition, this chapter will analyze the factors that led to

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President Clinton’s decision to issue Executive Order 13087, which expanded federal affirmative action programs to homosexuals. In following the same approach as the preceding chapters, to accomplish this task, I will employ a case study analysis of President Clinton’s decision to issue Executive Order 13087. However, there is one notable difference regarding the Clinton case study, as the political environment during his presidency has been broken down into three distinct periods, rather than simply his two terms. During Clinton’s first two years in office, the Clinton administration struggled to establish its footing, which led to two issues dominating the narrative regarding civil rights; gays in the military and the botched nomination of Lani Guinier. While neither issue is directly linked to affirmative action, Clinton’s difficulties with these two issues created obstacles for him that prevented any pursuit of expanding equal opportunity policies. Furthermore, Clinton’s decision to try to overturn the ban on homosexuals in the military during his first week in office highlights his unique commitment to expanding protections to homosexual Americans, which later became important in his issuance of Executive Order 13087. Thus, the first period will simply look at 1993 and 1994. In contrast, Clinton’s second two years in office are dealt with on their own because the political climate dramatically changed with the Republican takeover of Congress in the 1994 congressional elections. Not only did President Clinton have to face a new Congress made up of the opposition party, but the Republican Party made affirmative action a major issue during the 1994 election, and again in the lead-up to the 1996 presidential election, promising to dismantle such programs at the federal level. Thus, the second period will highlight the political environment during 1995 and 1996. Finally, the third period follows the previous case studies, as it simply examines Clinton’s second term in office. Nevertheless, the case study addressed in this chapter follows the same basic outline as the previous cases. This chapter analyzes the political environment throughout the Clinton presidency and the ramifications this environment had on the pursuit of equal employment opportunity policies. In particular, this chapter is concerned with the political environment at the time President Clinton issued Executive Order 13087, the importance of presidential activism illustrated by the issuance of this order, the content of the order, the strategic calculations involved in the decision-making process leading to the issuance of the order, and the legacy of Executive Order 13087. This case study will once again provide further evidence of how

171 presidents over the years promoted equal employment opportunity and became the institution typically associated with major reforms at the national level.

Equal Employment Opportunity & the Political Environment of 1993-94

Race & the 1992 Presidential Election

In order to understand the political environment regarding equal employment opportunity when Clinton entered office in 1993, one must first examine the developments during the 1992 presidential campaign. During the 1992 campaign, Governor Clinton seemed quite optimistic in his ability to bring Americans of all races together. He contended, “Because of my background, because I’m a Southerner, because I’ve had a real commitment to healing between the races and because of my own civil-rights record, I might be in the position to do that in a way that others haven’t” (Meyer, 1999: 261). However, with Clinton, we saw that the so-called “New Democrat,” brought with him a new style of campaign. Clinton deemphasized race, he limited and coordinated his appearances with minority audiences, he took issue with prominent black leaders on particular issues, and he was not afraid to put himself in situations that most Democratic candidates would avoid. O’Reilly remarked, “Bill Clinton calculated that he could not win in 1992 unless he used Sister Souljah to bait Jesse Jackson, put a black chain gang in a crime control ad, golfed at a segregated club with a TV camera crew in tow, and allowed that search for a serviceable vein in Ricky Ray Rector’s arm” (1995: 420). The Sister Souljah and Ricky Ray Rectors events referred to here described Clinton’s speech at the Rainbow Coalition, where he criticized the Coalition’s performer Sister Souljah’s for advising blacks to stop killing one another and kill white people for a change, and Clinton’s decision to proceed with an execution of an African American murderer who had brain damage. Noted African American political columnist Clarence Page argued that Clinton’s stance against Sister Souljah was the “most important moment in the 1992 presidential race” (1992: A19). While this may be a bit of an overstatement, it was shortly after this event that Clinton went from third in the polls behind Bush and Perot, to first in the polls (Sapiro and Canon, 2000: 176). Not surprisingly, such actions disheartened many African American leaders. For instance, Representative Charles Rangel of New York compared Clinton’s treatment of African

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American voters to a man who tells his mistress, “Meet me in the hotel room; I don’t want to be seen with you in the lobby” (Page, 1992: A19). Whether one sees Clinton’s actions as illustrations of political genius, or if one finds them to be repulsive, it is hard to argue with his success. After all, in the Democratic primaries Clinton received 70 percent of the African American vote (according to one analysis this meant 20 percent of his primary votes came from African Americans) and in the general election he received 89 percent of the African American two-party vote, which amounted to 82 percent of the overall African American vote (Sapiro and Canon, 2000: 177). Perhaps just as importantly, Clinton’s ability to downplay the importance of race allowed him to remain popular among working-class white voters. As Anderson explained, “Candidate Clinton avoided speaking on such issues, knowing that it could be a wedge between white male workers and minorities. The New Democrat opposed ‘racial quotas,’ called for more ‘personal responsibility,” and proposed a ‘two years and out’ welfare plan, which countered attempts to label the Democrats the party of ‘handouts’ for minorities” (2004: 218). Similarly, O’Reilly contended, “He understood that racial tensions and resentments had an economic base and that no presidential candidate could succeed by allowing (Dukakis style) an opponent to control a campaign’s racial symbols” (1995: 407). As a result, in terms of equal employment opportunity, the political environment that Clinton faced when he took office was highly volatile. In fact, in early 1993, Newsweek found that among white males there was a “widespread impression that minorities and white women have hopped on a government-protected, quota-fueled gravy train,” which led to “a deep-seated feeling that affirmative action is no longer a device to eliminate discrimination against minorities but a means of discriminating against white males” (Anderson, 2004: 229). Indeed, one 1993 poll found that nearly 50 percent of white males believed they needed to “fight against affirmative action” (Anderson, 2004: 229). Therefore, once in office, President Clinton knew that he had to perform a delicate balancing act. He sought to reward the scores of African American voters who supported him in the 1992 election, while at the same time not upsetting the all-important middle-class white voters. Anderson noted, “The new president was popular with African Americans, but his particular strength was attracting women and middle-class white male voters…so Clinton was well aware that civil rights pronouncements could hurt his tenuous appeal to white males” (2004:

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223). As a result, Clinton chose to disregard civil rights and instead focused his attention on the successful passage of the Family Leave Act, the North Atlantic Free Trade Agreement, the Brady Bill, a tax increase on big business and the rich, and national health-care (Anderson, 2004: 223). Clinton’s First Foray into Civil Rights: Gays in the Military Because Clinton realized the risks associated with racial issues, the new president refrained from pursuing new equal employment opportunity measures. Instead, Clinton chose a rather interesting path; one he would later regret. Anderson recounted, “The president’s first foray into civil rights surprised many because it did not concern either race or gender but gays” (2004: 223). Advisor and close confidant George Stephanopoulos recalled, “David Mixner, the president’s old friend and leading gay fund-raiser, argued that Clinton should issue an executive order lifting the ban on homosexuals in the military and tell the Joint Chiefs that he expected them to implement it with enthusiasm” (1999: 123). This is exactly what Clinton did. This was not a new issue, however. It was during a meeting in October 1991 with a group referred to as ANGLE, comprised of twenty homosexuals who were major campaign donors, where Clinton first promised to issue an executive order that would allow homosexuals to openly serve in the military (Drew, 1994: 42). Elizabeth Drew explained, “At the time Clinton met with this group, he was running third among gays, after Paul Tsongas and Jerry Brown” (1994: 42). Interestingly, Clinton maintained his opposition to a new civil rights bill that would target discrimination against gays and lesbians, and as a result, seemed to realize that he needed to make a bold promise to this constituency, which came in the form of the promised executive order regarding the military’s policy toward homosexuals. As proof of his support for this order, his campaign released its official position paper, which stated, “Bill Clinton has called for an immediate repeal on the ban on gays and lesbians serving in the United States armed forces (Drew, 1994: 43). Shortly after his meeting with ANGLE, Governor Clinton spoke at Harvard on October 30, 1991, whereupon finishing his speech he sought questions from the audience. One questioner asked Clinton’s opinion on the military ban on homosexual service, and Clinton once again affirmed that he was against such a ban. However, insiders within the Clinton campaign did not view this as a major issue. Stephanopoulos recalled, “The exchange was so unremarkable that it wasn’t highlighted in press account of Clinton’s appearance,” and while “Clinton repeated his position at a couple of fund-raisers before gay groups and in a

174 questionnaire for the Human Rights Campaign Fund…it wasn’t mentioned in the convention speech or our advertisements, and it didn’t come up in the debates” (1999: 125). In contrast, homosexual rights activists like Mixner viewed Clinton’s pledge as a major step forward. In fact, despite Clinton’s opposition to the civil rights bill for gays and lesbians, Mixner led a national fundraising campaign within the homosexual community in hopes of getting Clinton in the White House. Throughout this campaign, Mixner referred to Clinton as “the Abraham Lincoln of our movement,” and successfully raised over $3.5 million for Clinton during the 1992 campaign (Drew, 1994: 42). Within days after Clinton defeated Bush and Perot in the 1992 election, the new president-elect gave a Veterans Day speech at the Arkansas statehouse. Following his speech, NBC News correspondent Andrea Mitchell asked Clinton about his prior promise to issue an executive order to overturn the ban on homosexuals in the military. When questioned, Clinton confirmed his commitment, but recognized the need to discuss the matter with the chiefs of the armed services (Drew, 1994: 43). Clinton’s Veterans Day remarks drew immediate criticism. Two days later, Colin Powell, who had openly expressed his opposition to lifting the ban, said that “the Joint Chiefs of Staff and the senior commanders ‘continue to believe strongly that the presence of homosexuals within the armed forces would be prejudicial to good order and discipline’” (Drew, 1994: 43). Then, during a speech at the Naval Academy two months later, Powell argued, “Homosexuality is not a benign behavioral characteristic such as skin color. It goes to the core of the most fundamental aspect of human behavior” (Drew, 1994: 45-46). Despite such intense opposition, within the first week of taking office, President Clinton announced his intention to issue an executive order to overturn the ban on homosexuals within the U.S. military (Anderson, 2004: 224). Stephanopoulos could not believe that an issue perceived by the Clinton campaign as minor, would consume so much time and attention. He remarked, “Our whole first week was overwhelmed by gays in the military” (Stephanopoulos, 1999: 128). In fact, just four days after his inauguration, President Clinton met for two hours with General Powell, Powell’s deputy Admiral David Jeremiah, and the Chiefs of Staff of the four branches of the military. All six of these individuals opposed Clinton’s proposed order (Drew: 1994: 46). In his memoir, Clinton recalled, “When I raised the fact that it apparently had cost the

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military $500 million to kick 17,000 homosexuals out of the service in the previous decade, despite a government report saying there was no reason to believe they could not serve effectively, the chiefs replied that it was worth it to preserve unit cohesion and morale” (Clinton, 2004: 483). Stephanopoulos described, “Their message was clear: Keeping this promise will cost you the military. Fight us, and you’ll lose – and it won’t be pretty” (1999: 123). The Clinton White House knew that with Colin Powell against the new president’s proposed policy, they were in trouble. Stephanopoulos wrote, “Impassioned testimony from the highest-ranking black man in America denying the parallels between skin color and sexual orientation would trump our strongest civil rights argument for ending the ban, and legislation overturning an executive order would fly through both houses of Congress by veto-proof margins” (1999: 124). As a result, Stephanopoulos and newly appointed Secretary of Defense Les Aspin both urged the president to delay his decision. In fact, even prior to inauguration, Aspin proposed that Clinton initiate a study carried out by the Department of Defense, whereby they would report on their findings by July 15 on the best way to approach the issue, including how an executive order should be worded and implemented (Drew, 1994: 44). Aspin and Stephanopoulos once again proposed Aspin’s delay tactic, which would allow Clinton to buy time on the issue. After all, Stephanopoulos argued, “Issuing an executive order only to see it overturned in twenty-four hours would have been a setback for gay rights, and it would have looked as if Clinton were throwing the fight” (1999: 128). Instead, Clinton could hand the matter over to the Department of Defense until July 15, but he could also ask that the service no longer ask applicants about their sexual orientation (Drew, 1994: 47). This is precisely what President Clinton decided to do. Veteran Washington political reporter John Harris wrote, “Clinton agreed to defer a final decision for six months while the Pentagon studied options” (2004:18). Clinton himself further explained, “In the meantime, Secretary Aspin would tell the military to stop asking recruits about their sexual orientation and to stop discharging homosexual men and women who had not been discovered to have committed a homosexual act, which was a violation of the Universal Code of Military Justice” (2004: 483). In spite of this compromise with the Joint Chiefs, the issue was far from over. Now the new president had to face intense opposition within Congress. As Harris reported, even if the

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Joint Chiefs did not oppose the order, “If he tried to force a change in the homosexual policy by executive order, Congress would pass, with a veto-proof majority, a bill writing the existing policy into law” (Harris, 2005: 17). Senator David Boren explained the intense opposition in Congress and among veterans groups to Clinton’s proposal. He noted, “It’s not about allowing gays in the military…It’s about assuming gays will next push for nonregulation of behavior and fearing that Clinton won’t resist…So their worry is that Clinton will allow the gay culture in addition to the status, and they think gays are going to push for that” (Drew, 1994: 46). Even prominent members of the new president’s party came out in opposition to the proposed order. For instance, Senator Sam Nunn of Georgia threatened to use his senatorial powers to prohibit the passage of Clinton’s Family and Medical Leave Act until the differing parties could come to agreement on the issue (Harris, 2004: 17). Even when Clinton chose to delay his decision, in the months leading up to the Defense Department’s announcement, Senator Nunn, Chairman of the Armed Services Committee, carried out hearings on the issue and even toured naval ships with other senators in an effort to examine how openly homosexual sailors may affect living conditions in the Navy (Drew, 1994: 248). Senator Nunn determined that such hearings would illustrate why the ban on homosexuality must stand. According to one account, “The biggest news out of the hearings was Marine Colonel Fred Peck announcing that his son was gay and shouldn’t serve in the Marines because the colonel would fear for his safety. (‘I would be very fearful that his life would be in jeopardy from his own troops.’)” (Drew, 1994: 248). Perhaps the biggest congressional critic of President Clinton’s proposed order was fellow Democrat Senator Robert Byrd of West Virginia. In his memoirs, President Clinton recounted, “Senator Byrd took a harder line than Nunn…He believed homosexuality was a sin; said he would never let his grandson, whom he adored, join the military that admitted gays; and asserted that one reason the Roman Empire fell was the acceptance of pervasive homosexual conduct in the Roman legions from Julius Caesar on down” (2004: 484). During a speech on the Senate floor, Senator Byrd used biblical references and exclaimed, “I am opposed to your policy because it implies acceptance. It will lead to same-sex marriages and homosexuals in the Boy Scouts” (Stephanopoulos, 1999: 127). After months of posturing in Congress, and the July 15 deadline fast approaching, President Clinton knew something had to be done. On the night before the deadline, President

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Clinton held a strategy session at the White House, where prominent members of the administration gave their advice on how Clinton should handle the issue. Leading the “no compromise” delegation was Vice President Gore, who favored completely lifting the ban altogether, even if it meant a major battle with Congress. On the other side was National Security Adviser Anthony Lake, who made the case, “It doesn’t serve a principle to stand on principle and not compromise, if that means you lose altogether” (Drew, 1994: 250). Apparently Lake and his allies convinced Clinton that something was better than nothing. Given the political environment, President Clinton was well aware that his order would not stand, even after the long delay. Therefore, the president asked Secretary Aspin to meet with Powell and the Joint Chiefs to formulate a compromise (Clinton, 2004: 485). That weekend Aspin met with Powell and the Joint Chiefs, and proposed that the new policy should read: ‘The Department of Defense has long held that, as a general rule, homosexuality is incompatible with military service…Nevertheless, the Department…recognizes that individuals with a homosexual orientation have served with distinction in the armed services.” Therefore, the new policy, termed “Don’t ask, don’t tell, don’t pursue,” would not ask recruits their sexual orientation, but stated “that service members would be cashiered for ‘homosexual conduct,’ which it described as a homosexual act, a statement by a service member ‘that demonstrates a propensity or intent to engage in homosexual acts,’ or a homosexual marriage’” (Drew, 1994: 249). After receiving approval from Powell and the Joint Chiefs, Clinton prepared for his formal announcement of the new policy, which he outlined on Tuesday, July 20, 1993 at the National Defense University. During the speech, Clinton declared that the new policy was “the right thing to do and the best way to do it” (Public Papers of the President, 1994: 1109). He explained that: 1) homosexuals had already served admirably in the armed forces, 2) no studies indicated that homosexuals are prone to misconduct more than heterosexuals, 3) military rules still maintained proper conduct among all who serve, 4) other countries, as well as police and fire departments in the United States, had successfully lifted similar bans with no major negative consequences, and 5) lifting the ban entirely would not mean all homosexuals would be open about their sexuality, which means don’t ask, don’t tell is appropriate (Public Papers of the President, 1994: 1110-1111). During the speech Clinton recognized that what he announced was “not a perfect solution” and was not “identical” with his goals, but that it was “an honorable

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compromise” (Public Papers of the President, 1994: 1112). Regarding the new policy itself, Clinton explained: I have ordered Secretary Aspin to issue a directive consisting of these essential elements. One, servicemen and women will be judged based on their conduct, not their sexual orientation. Two, therefore, the practice now six months old, of not asking about sexual orientation in the enlistment procedure will continue. Three, an open statement by a service member that he or she is a homosexual will create rebuttable presumption that he or she intends to engage in prohibited conduct, but the service member will be given an opportunity…to demonstrate that he or she intends to live by the rules of conduct that apply in the military service. And four, all provisions of the Uniform Military Justice will be enforced in an even handed manner as regards both heterosexuals and homosexuals” (Public Papers of the President, 1994: 1112).

President Clinton paid a major price for this issue, which is one reason why he did not further initiate other major civil rights proposals during his first two years in office. In fact, when Clinton reflected on the issue in his memoir, he recalled: In the short run, I got the worst of both worlds – I lost the fight, and the gay community was highly critical of me for the compromise, simply refusing to acknowledge the consequences of having so little support in Congress, and giving me little credit for lifting another ban on gays, the ban against serving in critical national security positions, or for the substantial number of gays and lesbians who were working throughout the administration” (2004: 486).

Furthermore, Clinton lamented that he had been “denied the honeymoon traditionally given new Presidents, partly because of the way the gays-in-the-military issue surfaced early” (2004: 516). Given that a mere “16 percent of the electorate strongly approved of lifting the ban, while 33 percent strongly disapproved,” this obviously was not one of the best issues for a new president to pursue (2004: 485). Clinton’s Appointees Although Clinton did not pursue any major equal opportunity initiatives during his first few years in office, one must recognize his deep commitment to appointing women and minorities to top administration posts. In fact, President Clinton instituted what could easily be referred to as his own affirmative action program; as he kept his campaign pledge to make his cabinet “look more like America” (Anderson, 2004: 219). At one campaign event, Clinton explained, “I want my Cabinet to be more reflective of the American population by race and gender than any previous Cabinet” (Meyer, 1999: 97). Once elected, he far exceeded this goal. In fact, one report found that during his first year in office, only thirty-eight percent of Clinton’s nominees were white males. In contrast, during President Reagan’s first year in office, ninety-

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eight percent of his nominees were white males (O’Reilly, 1995: 417). Columnist Ellen Goodman wrote, “Bill Clinton did what he promised. The class photo of his Cabinet presented a more diverse portrait of Americas than had ever been assembled around a presidential table” (Anderson, 2004: 222). Not surprisingly, many of these individuals were African Americans. Clinton appointed Ron Brown as Secretary of Commerce, Jesse Brown as Secretary of Veterans Affairs, Mike Espy as Secretary of Agriculture, and Hazel O’Leary as Secretary of Energy. In addition, “the president named three dozen black subcabinet appointments, including M. Jocelyn Elders and, later, David Satcher as the surgeon general” (Anderson, 2004: 222). In fact, “An examination of subcabinet-level personnel in Clinton’s first term indicated that about 25 percent of his appointees were members of various groups often described as underrepresented minorities (African Americans, 14 percent of appointees; Hispanic Americans, 6 percent; Asian Americans, 3 percent; Native Americans, 1 percent)” (Aberbach, 2000: 120). In regards to females, over 30 percent of Clinton’s appointees were female, which far exceeded even other Democratic administrations. As Aberbach described, “This contrasts to about 2 percent in the Kennedy administration, 5 percent in the Johnson administration, and 15 percent in the Carter administration” (2000: 120). Furthermore, Aberbach explained, “Of recent administrations, the contrast between the Clinton and Reagan administrations is particularly stark” (Aberbach, 2000: 120). When comparing all presidential appointees requiring Senate confirmation in the fourteen executive departments, the numbers are quite startling, as only 9.5 percent of Reagan’s first-year appointees were female, while 31.3 percent of Clinton’s first year appointees were female (Aberbach, 2000: 121). Moreover, during the appointment process Clinton further illustrated his commitment to the homosexual community, as he “appointed the first (self-acknowledged) lesbian and gay people to senior-level positions in the administration” (Sapiro and Canon, 2000: 189). The most notable example of this came when he nominated San Francisco city supervisor Roberta Achtenberg to be the Assistant Secretary of the Department of Housing and Urban Development. Achtenburg was a well known homosexual rights activist, who was so bold that she introduced her life partner at her confirmation hearings (Drew, 1994: 203). Consequently, while President Clinton did not pursue any significant action regarding equal employment opportunity during his first two years in office, we find that through his

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appointment powers, the new president essentially implemented his own affirmative action program, opening up opportunities to minorities, women, and homosexuals. However, it was also during the appointment process where Clinton ran into another obstacle, which no doubt also had an impact on his decision not to pursue further equal employment opportunity initiatives. At the same time Clinton battled Congress over gays in the military, he nominated an African American law professor named Lani Guinier to fill the position of Assistant Attorney General for Civil Rights. Shortly after her nomination, a number of her writings were called into question because of what many perceived to be extremist views. According to scholars Virginia Sapiro and David Canon, “In various law review articles Guinier had expressed doubts about the ability of our political system to represent the interests of blacks” (2000: 189). As a result, she advocated a system based on what she referred to as “proportional interest representation,” which would allow certain veto powers for specific minority groups (Sapiro and Canon, 2000: 189). At first Clinton stood by his nominee, but he soon realized that he did not have the political capital necessary to maintain his support for Guinier, so he withdrew her nomination. After his botched nomination of Guinier, it took Clinton a whole year before he found a successful replacement, when he nominated African American attorney Deval Patrick to the post in February 1994 (Anderson, 2004: 225). Clinton also encountered obstacles for his first pick for EEOC chairman, so it was not until October 1994, a full twenty-one months after Clinton took office, that Gilbert Casellas finally entered into the role. As a result, when Casellas began his tenure, the EEOC had a backlog of 97,000 complaints (Anderson, 2004: 225-226). Therefore, while the election of Bill Clinton to the presidency brought a great deal of hope among minority groups, his first two years fell well below expectations, making it even more difficult for him to pursue any new meaningful, and thus controversial, equal employment opportunity policies. Equal Employment Opportunity & the Political Environment of 1995-1996 Although President Clinton struggled to establish his footing regarding civil rights and equal employment opportunity during his first two years in office, the changes in the political environment following the 1994 congressional elections further stymied his ability to effectively tackle such issues. The 1994 mid-term elections brought into power the first Republican Congress elected since 1952. By 1995, 57 percent of whites believed that affirmative action

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meant “less opportunity for white men” (Anderson, 2004: 229). In fact, this issue, among others, helped elect 74 Republican freshmen to the House of Representatives in November 1994, as 62 percent of white men voted for Republican candidates. The Washington Post declared that “Angry white men…changed the political face of America by voting disproportionately GOP” (Anderson, 2004: 232). Clinton himself recalled, “The debate intensified when the Republicans won control of Congress in 1994; many of them had promised to end affirmative action,” which “appealed to working-class whites and small-business people, as well as to white students and their parents who were disappointed when they were rejected by the college or university of their choice” (2004: 662). In fact, even members of Clinton’s own inner circle, including deputy domestic policy advisor Bill Galston, deputy counsel Joel Klein, and Associate Attorney General John Schmdit, criticized affirmative action (Stephanopoulos, 1999: 362-363). Sure enough, within a month of taking office, the new Republican majority announced that it would examine whether it was in fact time to eliminate all federal affirmative action programs (Anderson, 2004: 232). Even Republican Majority Leader Bob Dole, the same senator who fought in favor of affirmative action against President Reagan, said on Meet the Press that because of affirmative action, “sometimes the best qualified person does not get this job because he or she may be one color” (Anderson, 2004: 233). Senator Dole later commented, “After nearly thirty-five years of government-sanctioned quotas, time tables, set-asides, and other racial preferences, the American people sense all too clearly that the race-counting game has gone too far” (Anderson, 2004: 235). Not only did Senator Dole change his view on affirmative action, but he became one of the leaders of the movement to rid the government of such programs. According to Stephanopoulos, “Early in the year, Senator Dole had asked the Congressional Research Service to compile a list of all affirmative action efforts administered by the federal government,” which the White House feared would find “programs that were functioning more like illegal quotas than legitimate equal opportunity outreach” (1999: 361). As a result, the Clinton administration determined that they must “find a way to neutralize the Republican threat without abandoning our core principles, defending indefensible programs, or dividing the Democratic Party” (Stephanopoulos, 1999: 361). The first response from the White House was an announcement that it would carry out a study regarding the proper role of affirmative action in contemporary American society. Not

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only would members of the Clinton administration be involved in this study, but the president himself sought increased knowledge on the subject. Veteran political reporter John Harris described, “Christopher Edley Jr., a Harvard law professor who had been tapped to join George Stephanopoulos in heading the White House’s review of affirmative action, tried to help Clinton begin his intellectual journey with a large batch of articles and speeches” (2005: 188). Ultimately, President Clinton concluded that if the White House could frame the issue in the right manner, the majority of Americans would continue to support equal employment opportunity programs. As Harris explained, “Clinton saw the problem as inherently political. Most Americans, as he saw it, believed in promoting racial equality, but their emotions were easily manipulated. ‘The definition makes all the difference,’ he observed to Stephanopoulos. ‘Preferences we lose; affirmative action we win’” (Harris, 2005: 188). The second strategy carried out by the White House was a media blitz devoted to reminding people that Senator Dole, the new leader in the crusade against affirmative action, had been a long time supporter of affirmative action and consistently argued for the necessity of such programs. Anderson recounted: The White House wasted no time reminding Dole that in 1986 he had urged President Reagan not to sign an executive order ending affirmative action, that he had supported set-asides, that he voted in favor of the 1991 Civil Rights Act, and that he and his wife, Elizabeth, were the architects in establishing the Glass Ceiling Commission in 1991, which was currently investigating the status of women in the workplace” (2004: 235).

Interestingly enough, this commission released its report in March 1995, reporting that 97 percent of senior management in Fortune 1000 corporations were white males, even though white males only made up 43 percent of the workforce (Anderson, 2004: 240). The commission’s report argued, “Before one can even look at the glass ceiling one must get through the front door. The fact is large numbers of minorities and women of all races…are nowhere near the front door in Corporate America” (Anderson, 2004: 240). In other words, the vary commission Senator Dole played a pivotal role in creating one year before, once again reaffirmed the necessity of equal employment opportunity programs. In spite of the commission’s findings, the momentum against affirmative action could not be stopped. Political developments at both the state and national levels continued to place affirmative action at the top of the political agenda. For instance, in the spring of 1995, two white male professors in California teamed up with Ward Connerly, an African American

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member of the University of California Board of Regents, and led an initiative drive in California to pass the California Civil Rights Initiative, which would “ban the use of race, sex, or national origin as a criterion for either discriminating against, or granting preferential treatment to, any individual or group in public employment, education, or contracting” (Anderson, 2004: 233). The White House soon realized the possible repercussions of the national debate over affirmative action, as it feared that the California ballot initiative may be placed on the November 1996 ballot, along with the presidential race, which could potentially shift California to the Republican side. Indeed, during the Republican primaries, candidates took strong stances against affirmative action. For instance, Senator Phil Gramm of Texas pledged that the first executive order he issued would abolish all federal affirmative action programs. Former Tennessee Governor Lamar Alexander echoed Gramm’s promise, and also announced his support for the California Civil Rights initiative, which California Governor Pete Wilson not surprisingly used as a major issue to launch his presidential campaign (Anderson, 2004: 234). The contentious environment surrounding affirmative can be further illustrated by the fact that U.S. News and World Report ran a front-cover headline asking, “Does Affirmative Action Mean: Need White Men Apply,” only to be followed by Newsweek’s cover, “Race and Rage: When Preferences Work – and Don’t” (Jackson, 1996: 295). Indeed, as the summer of 1995 approached, Newsweek reported that 79 percent of whites opposed racial preferences in employment and college admissions, while “an ABC poll found that between 77 and 81 percent of males and females opposed preferences for minorities and women” (Anderson, 2004: 234). Due to such findings, the New York Times reported, “For supporters of affirmative action, these are nervous days” (Anderson, 2004: 233). Harris described affirmative action as “that summer’s (1995) most potentially divisive topic” (2005: 187), while U.S. News & World Report called affirmative action “the mother of all wedge issues” (Anderson, 2004: 249). President Clinton recalled, “Matters came to a head in June 1995, when the Supreme Court decided the case of Adarand Constructors, Inc. v. Pena” (2004: 662). In this case, Adarand Constructors, Inc., a white-owned contractor, submitted the lowest subcontractor bid for guardrail work in a project funded by the U.S. Department of Transportation. Because the project was funded by the U.S. Department of Transportation, the contractor, which in this case was the Mountain Gravel and Construction Company, could receive additional compensation if they subcontracted to companies owned by “economically disadvantaged individuals,” namely

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minorities or women. As a result, Mountain Gravel awarded the subcontracting job to Gonzales Construction, a minority-owned business. In response, Adarand Constructors filed a case against the U.S. Department of Transportation, claiming that the loss of the contract based on race was unconstitutional. In a 5 to 4 ruling, the majority of the Justices ruled in favor of Adarand because they reasoned that affirmative action was constitutional only if “narrowly tailored” and served a “compelling governmental interest”. In particular, the majority opinion contended: The Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all government action based on race – a group classification long recognized as “in most circumstances irrelevant and therefore prohibited” – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.

Centrist Justice Sandra Day O’Connor, who wrote the majority opinion, argued that federal affirmative action programs could only be implemented when discrimination against minorities (she did not mention females) was “pervasive, systematic, and obstinate discriminatory conduct.” In his concurrence, Justice Clarence Thomas further argued, “Government-sponsored racial discrimination on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.” Elaine Jones, former head of the NAACP’s Legal Defense Fund, explained that the Court’s decision in Adarand mandated “strict scrutiny” of federal affirmative action programs, and thus, effectively “overruled Fullilove and Metro Broadcasting to the extent that these cases established a more lenient standard for reviewing federal affirmative action” (1996: 130). Stephanopoulos clarified, “To comply with Adarand, the Justice Department would be required to review all federal affirmative action programs and subject them to the stringent constitutional test,” and noted that with such “sweeping reform” of affirmative action mandated by the Court, “the president was now free, indeed obligated, to mount a vigorous defense of its underlying its underlying principles (1999: 369). One month after the Supreme Court’s ruling, the University of California’s Board of Regents convened for their annual July meeting. As Governor Wilson met with the Regents, he decided to preempt the California ballot initiative regarding affirmative action, and instead proposed his own affirmative action reforms regarding higher education. Ultimately, his proposals resulted in a vote of 15 to 10 to eliminate preferences in employment and contracting

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by January 1996 and a vote of 14 to 10 on ending affirmative action in admissions by January 1997. President Clinton immediately responded, calling the action by the regents a “terrible mistake” and threatened to withhold $2.5 billion in federal research funds from the university, since federal programs mandated universities implement affirmative action programs (Anderson, 2004: 250-251). As President Clinton looked back on July 1995, he described, “I was faced with the biggest current challenge to building a more united American community: affirmative action” (2004: 662). Clinton had to be particularly careful about how to deal with the situation because there appeared to be credible threats that Jesse Jackson may enter the 1996 presidential race as an independent, with financing driven by Bob Johnson, the head of Black Entertainment Television, and Earl Graves, publisher of Black Enterprise magazine (Stephanopoulos, 1999: 370). Given the extremely contentious environment, President Clinton believed that it was necessary to give a major speech on affirmative action, which he did at the National Archives on July 19, 2005. According to Stephanopoulos, the goal was simple; “When people thought about affirmative action, we wanted them to see General Colin Powell” (1999: 366). He began his speech with a popular appeal, as he spoke of the need “to restore the American dream of opportunity and the American value of responsibility,” along with the need “to bring our country together” (Clinton, 1996: 258). Then, as he introduced the subject of affirmative action, he immediately spoke of the irony of the issue, because of the bipartisan support affirmative action had at its founding, which included the support of a Republican president (Clinton, 1996: 258). Later in the speech he explained, “There are a lot of people who oppose affirmative action today who supported it for a long time” (Clinton, 1996: 268). While he did not call him out by name, Clinton’s statements no doubt referred to Senator Dole, the perceived frontrunner for the Republican presidential nomination the following year. To Clinton, “The purpose of affirmative action is to give our national a way to finally address the systematic exclusion of individuals of talent on the basis of their gender or race from opportunities to develop, perform, achieve, and contribute” (Clinton, 1996: 263). However, the president did admit that affirmative action had not always been implemented properly, but was adamant in his claim that “When affirmative action is done right it is flexible, it is fair, and it works” (Clinton, 1996: 263). In addition, Clinton devoted part of this speech to outlining the findings of a study regarding affirmative action that members of his administration carried out over several months.

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First, he noted that the “review concluded that affirmative action remains a useful tool for widening economic and educational opportunity,” which he explained had been used best by the military (Clinton, 1996: 270). Second, he explained the utmost importance that presidents had in implementing such programs. In particular, he described: This review also found that the executive order on employment practices of large federal contractors has also helped to bring more fairness and inclusion into the work force. Since President Nixon was here in my job, America has used goals and timetables to preserve opportunity and to prevent discrimination, to urge businesses to set higher expectations for themselves and to realize those expectations” (Clinton, 1996: 271).

Finally, what became the most important element of the speech came when the president admitted that while “Affirmative action has not always been perfect, and affirmative action should not go on forever…We should reaffirm the principle of affirmative action and fix the practices. We should have a simple slogan: Mend it, but don’t end it” (Clinton, 1996: 274-275). Harris reported, “The long-awaited pronouncement of affirmative action was correctly viewed as far more a defense than a critique of the status quo” (2005: 189). To Clinton, the message of the speech was quite simple. In his memoir he described: I proposed to crack down on fraud and abuse in the procurement programs and do a better job of moving firms out of them once they could compete…We would retain the principle of affirmative action but reform its practices to ensure there were no quotas, no preferences for unqualified persons or companies, no reverse discrimination against whites, and no continuation of programs after their equal opportunity purpose had been achieved. In a phrase, my policy was ‘Mend it, but don’t end it’” (2004: 663).

Apparently President Clinton understood the sentiments of the American people, as a Time-CNN poll found that 65 percent of Americans wanted to mend affirmative action, while only 24 percent wanted to end it (Anderson, 2004: 245). Not surprisingly, eight days after President Clinton’s speech, Representative Charles Canady of Florida and Senator Bob Dole both introduced legislation to repeal all federal affirmative action programs, but the president found an unusual ally, as House Speaker Newt Gingrich refused to abandon such programs until they could be replaced by new programs that would help those in need of federal protection (Clinton, 2004: 663). As the 1996 presidential race got under way, the Republican candidates continually sought to out-do one another. As indicated above, Governor Wilson of California successfully convinced the University of California Board of Regents to pass two affirmative action reforms,

187 while Senator Dole took to the airwaves to criticize affirmative action, and even went so far as to introduce legislation to repeal federal affirmative action programs. Similarly, Senator Phil Gramm of Texas “proposed an amendment to a funding bill that aimed to prohibit set-asides,” although the amendment failed 61-36 (Anderson, 2004: 245). Meanwhile political commentator Pat Buchanan campaigned throughout the country denouncing federal equal employment opportunity programs, and argued that “affirmative action belongs in the same graveyard as Jim Crow” (Anderson, 2004: 245). Defenders of affirmative action once again tried to remind voters that many of the critics had previously been crucial supporters of equal opportunity efforts, and that the new found disdain for such programs was simply a result of the political calendar. Jesse Jackson described it best when he wrote: When Bob Dole, Pete Wilson, and others blame our economic woes on affirmative action, they are using race as a cover for failed economic policies. Their positions on affirmative action prior to hitting the 1996 campaign trail are instructive. Wilson, as mayor of San Diego, instituted a sweeping municipal plan for equal opportunity; programs were measured by goals, targets, and timetables as called for by the Nixon administration…In the same vein, Dole, who how leads the Senate effort to dismantle affirmative action, himself led a bipartisan charge against President Reagan’s 1996 efforts to undo Executive Order 11246, the pillar of affirmative action policies (1996: 290).

Although Jackson’s critiques of Wilson and Dole were no doubt accurate, the majority of the country wanted reforms whether proponents of affirmative action liked it or not. Consequently, the issue remained front and center throughout the 1996, especially during the presidential campaign. In 1996, the House of Representatives “considered an amendment to forbid the use of affirmative action in public college admissions,” but the measure failed because 55 Republicans voted against it (Anderson, 2005: 257). In spite of the possible split among Republican legislators, the Republican Platform itself supported “equal rights without quotas or other forms of preferential treatment” and endorsed the passage of Proposition 209 in California (Anderson, 2004: 255). Thus, it was no surprise that during his presidential nomination acceptance speech at the 1996 Republican National Convention, Senator Dole promised that “the guiding light” of his administration would “be that in this country we have not rank order by birth” nor “favoritism by race” (Anderson, 2004: 255). Despite the controversy surrounding affirmative action during the 1996 presidential race, President Clinton was steadfast in his support of such programs because of the discrimination

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that he believed still existed in the United States. During his acceptance speech at the Democratic National Convention, Clinton explained, “In our country, we have seen America pay a terrible price for any form of discrimination. And we have seen us grow stronger as we have steadily let more and more of our hatreds and our fears go, as we have given more and more of our people the chance to live their dreams” (Meyer, 1999: 247). Still, Clinton tried to repeat his success in 1992 by avoiding civil rights issues. During the campaign he reminded people that he was against quotas and only favored “the right kind of affirmative action,” which he was quick to point out Colin Powell favored as well. Though personal issues once again saddled President Clinton throughout the general election campaign, the combination of the booming economy and Senator Dole’s inability to connect with voters allowed Clinton to be the first Democrat since Franklin Roosevelt to be elected to a full second term of office. Even more significant was the fact that he won by an eight and one half million popular vote margin or 8.5 percent. Equal Employment Opportunity & the Political Environment of 1997-98 Just prior to the 1996 election, President Clinton signed into law the “Defense of Marriage Act,” which defined marriage as a “legal union between one man and one women as husband and wife” (Sapiro and Canon, 2000: 193). While his reasons for doing so are beyond the scope of this analysis, the fact that the legislation passed by a vote of 342-67 in the House, and 85-14 in the Senate, no doubt played a substantial role in Clinton’s decision. In regards to the current analysis this matters because it placed Clinton in an extremely difficult position regarding the pursuit of civil rights for homosexuals. After all, at the start of his first term of office, he unsuccessfully tried to overturn the military’s ban on homosexuals. Consequently, the recent passage of the Defense of Marriage Act, along with the fact that the Republicans maintained a 228-207 advantage in the House19 and a 55-45 advantage in the Senate, in spite of President Clinton’s substantial victory over Senator Dole in the 1996 election, made it highly unlikely that Clinton would pursue a major policy regarding homosexual rights. In fact, the beginning of Clinton’s second term seemed to indicate that Clinton intended to maintain the status quo regarding civil rights issues. Perhaps this should not come as a surprise, given that affirmative action took up such a substantial amount of time during 1995 and 1996, with Clinton taking a defensive role at a time when the majority of Americans favored reforms.

19 Independent Bernard Sanders caucused with the Democrats. 189

Still, as we look back on the beginning of Clinton’s second term, it appears that he once again concerned himself with “building a more united American community,” which he had hoped to do in July 1995 when he proclaimed that the country needed to “mend” affirmative action, but not “end it” (Clinton, 2004: 662). As a result of his desire to unite America, Clinton initiated what he termed a “national conversation on race.” In June 1997, President Clinton asked African American historian John Hope Franklin to lead this “national conversation on race,” whereby Franklin, members of the Clinton administration, and other national leaders would meet in town-hall meetings across the United States to discuss prominent issues regarding racial matters (Anderson, 2004: 257). While no substantial reforms resulted from this initiative, it illustrates that equal opportunity continued to be on Clinton’s mind. Interestingly, while affirmative action no longer dominated the political agenda in 1997, it once again made its way onto the political scene in 1998, though initially in a vastly different context than the previous two years. Early in 1998, Republican Senators Jesse Helms and Lauch Faircloth, both of North Carolina, drafted a legislative act, which later became known as the “Veterans’ Employment Opportunities Act.” The act itself set up an affirmative action style preference program for military veterans, causing many to refer to the bill as the “Veterans’ Preference Act.” In fact, one commentator explained, “Supporters of the act have taken pains to distinguish veterans’ preferences from affirmative action” (Rubio, 2001: 186). Indeed, Eric Naschinski of the American Legion, testified in Congress, “Veterans preference is an earned right and not an affirmative action program,” and the two should not be equated with one another because “veterans do not enjoy the ‘protection from discrimination’ that ‘women and minorities’ have with the EEOC” (Rubio, 2001: 186). The bill eventually passed and was signed into law on October 31, 1998. Whether or not one believes this was an affirmative action bill really does not matter; what matters is the fact that we see that affirmative action remained such a volatile issue that those in favor of “veterans’ preferences” wanted to ensure that they were not viewed as supporters of affirmative action measures. In addition to the Veterans’ Employment Opportunities Act, 1998 also marked a substantial shift in presidential activism regarding equal employment opportunity, as President Clinton finally adopted the same strategy followed by all of his predecessors since Franklin Roosevelt, as he initiated his first two orders regarding equal employment opportunity.

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Presidential Activism Illustrated by Clinton, 1997-2000 The first year of President Clinton’s second term followed the same pattern as his entire first term, as the newly re-elected president refrained from issuing any executive orders pertaining to equal employment opportunities. Thus, March 13, 1998 marked the first time President Clinton issued an executive order regarding equal employment opportunity. However, by the time he left office he issued a total of eight executive orders regarding this subject, meaning that he signed more orders pertaining to equal employment opportunities than any other president. In his first order, Clinton followed his two immediate predecessors, as he signed Executive Order 13078, which he titled, “Increasing Employment of Adults with Disabilities.” In particular, the order established the National Task Force on Employment of Adults with Disabilities, comprised of the Secretaries of Labor, Education, Veterans Affairs, Health and Human Services, Treasury, Commerce, Transportation, along with the Commissioner of Social Security, the Director of the Office of Personnel Management, the Administrator of the Small Business Administration, the Chair of the EEOC, the Chair of the National Council on Disability, the Chair of the President’s Committee on Employment of People with Disabilities, and other senior executive branch officials. Thus, the Task Force included several prominent members of the administration. The order itself described that the purpose of the Task Force was “to create a coordinated and aggressive national policy to bring adults with disabilities into gainful employment at a rate that is as close as possible to that of the general adult population.” While the order does not use such language, this statement obviously finds an origin in the “goals and timetables” followed by the Johnson and Nixon administrations. In order to accomplish this task, the order mandated that the Task Force “develop and recommend to the President…a coordinated Federal policy to reduce employment barriers for persons with disabilities.” President Clinton later amended this order with the signing of Executive Order 13172 on October 25, 2000, where he expanded the role of the Task Force to include young people with disabilities as well. Thus, Clinton’s first attempt to reform equal employment opportunities through executive order was a relatively uncontroversial action. The order itself sought to ensure that the government of the United States was actively implementing the Americans with Disabilities Act of 1990. Not only did the order not overturn any previous order, but it included the Chair of the

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President’s Committee on Employment of People with Disabilities, established by President Reagan through Executive Order 12640, as a member of the new task force. Lastly, Clinton indicated that the Task Force would be terminated on July 26, 2002, which happened to be the ten year anniversary of the initial implementation of the American with Disabilities Act of 1990. Just over two months later, President Clinton issued his second executive order pertaining to equal employment opportunities. In contrast to his first order, which was a relatively uncontroversial order, Clinton’s second executive order concerning such programs immediately drew the ire of critics. His second order, Executive Order 13087, sought to prohibit employment discrimination based on sexual orientation. Along with the order, President Clinton included an accompanying statement, whereby he argued, “Individuals should not be denied a job on the basis of something that has no relationship to their ability to perform their work” (New York Times, 1998: A16). He also advocated that Congress pass legislation that would protect homosexuals in all employment opportunities throughout the United States (New York Times, 1998: A16). Thus, we see with Executive Order 13087 that Clinton returned to his commitment to opening up opportunities for homosexual Americans. While the details of the content of the order will be discussed in more detail below, it is important to highlight the fact that Clinton issued this order at a very unfavorable time, as impeachment proceedings had just begun. Furthermore, the Republican leadership in Congress obviously opposed extending such preferences to homosexuals. Consequently, it should come as no surprise that Executive Order 13087 was extremely controversial from the day Clinton signed the directive. Donald Devine, head of the Office of Personnel Management from 1981 through 1995 complained: President Clinton’s Executive Order 13087 was issued out of the glare of public attention but can have far-reaching implication in both the short- and long-term. In my opinion, this order mandates a completely unwise, unworkable, and Unenforceable policy that will make the government even more difficult to manage. Far-reaching policies such at these should be developed with the benefit of reasoned debate and public consensus, two things obviously lacking here (Mayer, 2001: 214).

Devine further argued that the courts could not overturn this “unwise” order because the American political system does not allow quick actions by the courts, so he advocated a response by Congress (Mayer, 2001: 214). Even without Devine’s advice, Clinton’s issuance of Executive Order 13087 no doubt would have infuriated the Republican Congress. In fact, Republicans in Congress and prominent

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religious groups immediately bewailed Clinton’s action (Scully, 1998). Eventually, this led to two major attempts to stop the implementation of the order. First, Representative Bob Barr drafted and submitted a bill on July 23, 1998 to repeal the order; however the legislation never reached the floor for a vote (Mayer, 2001: 214, 276). Second, Representative Joel Heflin introduced an amendment to an appropriations bill on August 5, 1998, which would have prevented the proper funding to carry out the order, but his amendment failed by a vote of 176 in favor and 252 opposed (Alvarez, 1998: A16). Consequently, Mayer concluded, “For all the huffing and puffing about presidential imperialism, though, Congress did nothing about the order itself” (Mayer, 2001: 214-215). Following Executive Order 13087, President Clinton did not issue any additional order regarding equal employment opportunity until almost twenty-one months later, when he issued Executive Order 13145 on February 8, 2000. Executive Order 13145 was a rather intriguing order that was a result of the changing medical technologies at the turn of the century. In this specific order President Clinton prohibited discrimination based on “genetic information.” In particular, the order prohibited federal agencies from releasing employees or from refusing to hire individuals because of genetic information; from requiring or collecting genetic information from employees; and from disclosing genetic information of employees to third-party sources. As indicated above, President Clinton issued this order in response to the growing concern of potential misuse of genetic information. The Christian Science Monitor reported, “the public is worried that profit-driven employers and insurance companies will try to exclude people with genetic flaws to hold down rising healthcare costs” (Tyson, 2000: 3). Clinton himself expressed this concern at a speech in front of the American Association for the Advancement of Science, where he outlined the worry among many Americans “that their genetic information will not be kept secret” and that their genetic information “will be used against them” (Gillis, 2000: A19). Consequently, while unique in terms of content, the order itself should not have come as a surprise. After all, several bills were introduced in both houses of Congress prior to President Clinton’s decision to issue the order, but none had passed because of a partisan divide (Tyson, 2000: 3). Still, by 2005, forty-one states had adopted restrictions on the ability of insurance providers to gain access to genetic information, while an additional thirty-one had passed laws restricting employers to discriminate based on such information (Preciphs, 2005). Thus, we find

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that the issue was in fact a major issue among legislators across the United States at the time Clinton signed the order. Three months after Executive Order 13145, Clinton followed with another unique order, as he issued Executive Order 13152 on May 2, 2000. This order simply added an additional category of those protected by federal equal employment opportunity laws. This time he added “status as a parent” to the protected list. According to the order, “status as a parent,” referred to biological, adoptive, or foster parents, as well as stepparents and legal custodians of children. The order itself came in response to a failed bill in Congress that sought to accomplish the same task. Overall, this bill seemed largely symbolic, especially since President Clinton signed it at a ceremony dedicated to parenting teenage children. Following Executive Order 13152, Clinton once again returned to the issue of equal opportunity for individuals with disabilities, as he signed Executive Order 13163 on July 26, 2000. In this order, Clinton contended: Recent evidence demonstrates that, throughout the United States, qualified persons with disabilities have been refused employment despite their availability and qualifications, and many qualified persons with disabilities are never made aware of available employment opportunities. Evidence also suggests that increased efforts at outreach, and increased understanding of the reasonable accommodations available for persons with disabilities, will permit persons with disabilities to compete for employment on a more level playing field.

Due to this evidence of discrimination, the president called on the federal government to hire 100,000 individuals with disabilities over the next five years, which would not only open up opportunities for such individuals, but would allow the federal government to be “a model employer,” by taking “the lead in educating the public about employment opportunities available for individuals with disabilities.” Just over two months later, on October 12, 2000, only three months before leaving office, President Clinton finally issued his first executive order pertaining to ethnic minorities and equal employment opportunity. This came in the form of Executive Order 13171, where Clinton focused particularly on opportunities for Hispanic Americans. In the order Clinton noted that Hispanics only made up 6.4 percent of the Federal civilian workforce, which was only half of the percentage they made up in the civilian labor force overall. Consequently, the order mandated that “The head of each executive department and agency shall establish and maintain a program for the recruitment and career development of Hispanics in Federal employment.” The order

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indicated twelve components that should be incorporated in each department’s or agency’s program, as well as five major responsibilities of the Director of the Office of Personnel Management, which was responsible for overseeing the implementation of the order. Clinton finally concluded his barrage of equal employment opportunity orders ten days before leaving office, with the signing of Executive Order 13187, which established the President’s Disability Employment Partnership Board. Most notably, the order revoked the President’s Committee on Employment of People with Disabilities, established by President Reagan under Executive Order 12640. The crucial difference between the two committees were the members of the committee, as President Clinton tried to develop a joint-partnership between the federal government and private employers, along with a joint-partnership between the federal government and state and local governments. As a result, Clinton’s order mandated that representatives of private businesses, labor organizations, state governments, local governments, and private organizations serving individuals with disabilities, all of seats on the committee, as well as scholars who conduct research on disabilities, veterans with disabilities, and other individuals with disabilities. Thus, as we look back to the Clinton presidency, we find a president who seemingly overlooked or disregarded President Kennedy’s famous dictum that presidents could significantly change civil rights policy “with a stroke of a pen.” Perhaps this harkens back to his failure to issue his promised executive order regarding homosexuals in the military, and consequently feared backlash for any controversial changes. Nonetheless, during his final three years in office, President Clinton used his unilateral power of executive order in the realm of equal employment opportunity more than any of his predecessors. Still, given that four of the orders concerned individuals with disabilities (something other presidents had already sought to address in previous executive orders), one regarded genetic information (a matter already dealt with in many states across the country), one pertained to parental rights (a largely symbolic order), and one sought to remedy discrimination among Hispanics (an ever-growing key political constituency), perhaps Clinton’s activism should not be viewed in the same manner as the actions taken by Presidents Johnson and Nixon, or the near action by President Reagan. However, an intriguing development occurred on May 28, 1998, as President Clinton issued Executive Order 13087, whereby Clinton extended the protections established in Johnson’s Executive Order 11246, and institutionalized in Nixon’s Executive Order 11478, to

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homosexuals. Consequently, we are once again faced with the question, what factors led to President Clinton’s strategic calculation to issue such an order? The Content of Executive Order 13087 Unlike previous presidential orders regarding equal employment opportunity, President Clinton’s Executive Order 13087 only required three paragraphs. In fact, his order literally only added eight simple words to President Nixon’s Executive Order 11478. The entire order reads as follows: By the authority vested in me as President by the Constitution and the laws of the United States, and in order to provide for a uniform policy for the Federal Government to prohibit discrimination based on sexual orientation, it is hereby ordered that Executive Order 11478, as amended, is further amended as follows:

Section 1. The first sentence of section 1 is amended by substituting "age, or sexual orientation" for "or age".

Section 2. The second sentence of section 1 is amended by striking the period and adding at the end of the sentence ", to the extent permitted by law.".

WILLIAM J. CLINTON THE WHITE HOUSE, May 28, 1998.

In spite of its short length, given the subject matter and the controversy surrounding civil rights for homosexuals, the order itself was in fact a major policy move, as it extended federal affirmative action benefits to homosexuals. Presidential Decision-making & Executive Order 13087 Again, the first question in Chapter One dealt with the extent to which modern presidents have been active in using executive orders for equal employment policy prior to actions taken by other institutions. President Clinton’s decision to issue Executive Order 13087 clearly illustrated presidential activism in this realm. After all, he signed the order three years after a nationwide debate over affirmative action, which ended with a consensus that affirmative action should be scaled back, not expanded. Furthermore, Clinton issued the order less than two years after Congress successfully passed the Defense of Marriage Act. Thus, while Congress was intent on significantly limiting affirmative action programs and had shown signs of limiting the rights of homosexuals, rather than expanding such rights, we find that President Clinton went against the grain and moved toward increased equal employment opportunity benefits for homosexuals.

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As with the Johnson and Nixon case analyses, it is quite apparent that President Clinton was both active and strategic in his use of an executive order to establish equal opportunity employment policy for homosexuals and it is evident that several factors led to President Clinton’s decision to issue Executive Order 13087. Given the complexities of the Clinton presidency, there are several reasons why it is rather astounding that President Clinton chose to issue such an order. First, the president himself acknowledged the significant set-backs his administration faced because of his failed attempt at opening up the military to homosexuals, and this happened at a time where he had a Democratic Congress. Second, this was the same president who just three years earlier led the movement to “mend,” but not end affirmative action, which seemingly meant “scale back,” not “expand.” Third, even though President Clinton articulated his support for affirmative action during the 1996 campaign, as outlined above, he tried to avoid civil rights issues. Fourth, throughout his first five years in office he did not even issue one executive order pertaining to equal employment opportunity, so to think that he would extend benefits to homosexuals, prior to dealing with other minority groups, such as African Americans or Hispanics, is quite amazing. Finally, by 1998, Clinton was a lame-duck president who faced an increasingly combative Republican Congress, which only a few months prior to Clinton’s order, had initiated impeachment proceedings against the weakened president. Accordingly, we are once again faced with the question, what factors explain President Clinton’s decision-making regarding the issuance of Executive Order 13087 and the expansion of federal affirmative action to include homosexuals? Unfortunately, unlike the previous cases in this study, where presidents and members of their administration gave detailed accounts regarding the orders, virtually no attention has been given to Clinton’s order by himself or his staff. In fact, in his memoir, President Clinton only mentioned the order in passing. In describing his actions in the spring of 1998, the president remarked: I spent the rest of the spring lobbying for my legislative program and doing the business at hand: issuing an executive order to prohibit discrimination against gays in federal civilian employment; supporting Boris Yeltsin’s new economic reform program; receiving the emir of Bahrain at the White House; addressing the UN General Assembly session on global drug trafficking; hosting a state visit for South Korean president Kim Dae Jung; holding a National Ocean Conference in Monteray, California…; signing a bill that provided funds to buy bulletproof vests for the 25 percent of our law-enforcement officers who didn’t have them; speaking at three university commencements; and campaigning for Democrats in six states (2004: 791).

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Consequently, when examining the president’s own recollection of the order, we find a bit of a paradox. On the one hand he mentions very little of the order. On the other hand, the order seems quite important to the president because he mentions it as a significant event during the spring of 1998, he mentions it first in the list of events during the period, and he does not mention any other executive order signed at this time, even though he issued a total of fifteen orders between March 10 and June 29. Even though members of the administration have not provided the detailed accounts necessary to arrive at fundamental conclusions, we can identify circumstantial evidence that suggests particular answers as to why President Clinton chose to issue the order. First, as we look back on his presidency, we find that the issue of civil rights for homosexuals was important from his first day in office. After all, why would he risk so much of the limited political capital he had following the 1992 election on the issue of homosexuals in the military? In fact, during his first couple of weeks in office, Clinton chose to continue his push for eliminating discrimination against homosexuals in the military, while he broke with his promise to initiate a middle class tax cut. One senator remarked, “A lot of people can’t understand why he’s breaking his promise to the middle class and fulfilling one to gays” (Drew, 1994: 47). Consequently, it seems obvious to assume that the issue of civil rights for homosexuals was quite personal for President Clinton. Further evidence suggests his personal commitment to homosexual rights. Perhaps the best example came when the Clinton White House released its report entitled “The Clinton-Gore Administration: A Record for Progress for Gay and Lesbian Americans” (Clinton, 2000). In this report, the administration highlighted Executive Order 13087, along with other major accomplishments in regards to homosexual rights, including the fight for hate-crime legislation, appointment of the first homosexual ambassador, appointing over 150 openly gay and lesbian individuals to administration positions, increasing access to health care for individuals in the homosexual community, along with several other undertakings. In addition to Clinton’s personal commitment to homosexual rights, we find a personal commitment to homosexual rights among prominent members of his administration. For example, Stephanopoulos lamented the fact that the administration pursued lifting the military ban on homosexuals because passing “legislation banning discrimination against gays and lesbians in the workplace would have been far wiser strategy” (1999: 129). In other words, the 198 failed attempt at lifting the ban on homosexuals in the military caused Stephanopoulos to fear that the administration had wasted an opportunity to significantly expand opportunities to all homosexuals, not just those seeking to enter the armed forces. Clinton’s order essentially sought to do exactly what Stephanopoulos hoped Clinton would do, although given that Clinton had to use an executive order rather than legislation, the order only pertained to the federal civilian workforce, rather than the entire civilian labor force. In fact, this leads to the third reason why Clinton chose to issue the order, which was his intent to illustrate to Congress its need to implement legislation that would protect homosexuals in the entire civilian workforce. As indicated above, we see this fact demonstrated in President Clinton’s statement that accompanied Executive Order 13087, where he called upon Congress to enact such legislation (New York Times, 1998: A16). The current study indicates that throughout history Congress has indeed followed presidential leadership in regards to affirmative action policy, which seems to be at least part of the reason why Clinton initiated this new policy. Fourth, we must recognize that by May 1998 Clinton reached a phase of his presidency where he determined that he did in fact have to use additional unilateral actions in order to accomplish significant policy reforms. According to one analysis, Clinton issued a mere 27 executive orders during his first year in office, but 102 in the first ten months of 1998 leading up to the midterm elections (Aberbach, 2000: 128). In fact, in June 1998, the New York Times reported that “Mr. Clinton is continually stretching his executive and regulatory authority to put his stamp on policy. He has issued a blizzard of executive orders, regulations, proclamations, and other decrees to achieve his goals, with or without the blessings of Congress” (Pear, 1998: WK3). A week later, in a similar article, Elizabeth Shogren of the Los Angeles Times reported that “President Clinton plans a blitz of executive orders during the next few weeks, part of a White House strategy to make progress on Clinton’s domestic agenda with or without congressional help…Clinton’s proposals are intended to make gradual progress on largely popular social reforms until Republicans in Congress start to cooperate – or lose power after the November elections” (1998: A1). Consequently, while the addition of homosexuals as a protected group under federal affirmative action was a major policy initiative, this came at a time when President Clinton was relying much more on his unilateral powers, and thus helps explain why he issued the order at this particular time.

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Finally, while the issue itself was indeed personal to the president, given the intensity of his political calculations and obsession with polls, we should probably assume that the Clinton White House observed support among the majority of Americans. After all, two months following the order, Dick Morris conducted a survey that found sixty-six percent of Americans supported Clinton’s directive, while only twenty-four percent opposed the order (Morris, 1998: 41). In sum, a thorough examination of the Clinton presidency indicates that presidential activism by President Clinton was quite important for the extension of federal equal employment opportunity benefits to homosexuals. This is particularly crucial because Congress advocated a scaling back of equal employment opportunity programs and seemed prone to limit the rights of homosexuals guaranteed by the federal government. Thus, as with the Nixon case, the contentious political environment that Clinton faced makes it increasingly important to study the various factors that led to his decision to defy an openly combative Congress. By examining his decision to issue Executive Order 13087, we see that President Clinton took into account several major factors, including, but not limited to: 1) his personal beliefs regarding homosexual rights, 2) the beliefs of prominent individuals within his administration, 3) his desire to lead in this particular policy area in hopes that Congress would pass comprehensive legislation that dealt with the same subject, 4) his decision at a particular phase of his presidency to rely more on presidential unilateral powers, and 5) evidence that suggested a majority of Americans supported his new policy. The Legacy of President Clinton & Executive Order 13087 Ultimately we find that President Clinton’s legacy in regards to equal employment opportunity is a mixed record. On the one hand, even though he had such a great relationship with minority groups, particularly African Americans, he introduced the notion that affirmative action was in need of mending. On the other hand, while he may have noticed the necessity of scaling back some affirmative action efforts, he significantly expanded federal equal employment opportunity policies, as he added homosexuals to the protected list of minorities. Unfortunately, given the fact that President Clinton signed Executive Order 13087 so late in his presidency, along with the fact that Clinton’s successor is a Republican president who has not pursued policies regarding homosexual rights with the same intensity as President Clinton, there is no available data regarding the ramifications of the order, and thus it is quite difficult to

200 judge the legacy of the order itself. However, it is worth noting that President George W. Bush could have easily issued his own order to overturn Clinton’s directive, but for whatever reason, chose not to. In addition, the Republican Congress could have passed legislation to repeal the order now that it had a presidential administration that would most likely support such a repeal, but again, this did not occur either. As a result, nearly eight years after Clinton left office, Executive Order 13087 remains intact. In fact, in 2004 Scott Bloch, head of the Office of Special Counsel, the agency responsible for prosecuting claims against federal departments or agencies that homosexuals feel have violated the order, eliminated all references to his office’s jurisdiction in such matters and announced that his office would conduct a legal analysis regarding the order (United States Office of Special Counsel, 2004). Interestingly, Human Rights Campaign, an interest group devoted to homosexual rights, reported that the White House denounced Bloch’s actions. Furthermore, according to Human Rights Campaign’s website, “federal civil service offices do appear to follow the executive order, with some holding events in June in honor of gay, lesbian, bisexual and transgender pride month,” seeming to indicate that Bloch’s efforts to hinder enforcement have failed (Human Rights Campaign, 2008). Indeed, in examining the websites of various federal departments and agencies, one finds reference to Executive Order 13087 and the responsibility of all federal departments and agencies to follow the guidelines outlined by President Clinton in the order. For example, the Office of Personnel Management maintains its link to a report it published following Clinton’s issuance of the order entitled “Addressing Sexual Orientation Discrimination in Federal Civilian Employment,”20 the Department of Defense references the order on its page entitled, “Legal Authorities and Policies,”21 and the Department of Transportation includes it on a page devoted to possible civil rights complaints that can be brought against the department.22 In fact, even the U.S. Fish and Wildlife Service addresses the order on its website.23 In addition to the evidence that federal departments and agencies continue to pursue Clinton’s enacted policy, it is also important to note that long after the signing of the order, opposition to the order did not wane. This is important to point out because if opponents merely

20 http://www.opm.gov/er/orientation.htm 21 http://www.dodea.edu/offices/eeo/legalpolicy.cfm?sid=4 22 http://www.dotcr.ost.dot.gov/asp/Complaint.asp 23 http://www.fws.gov/pacific/aba/dcr/complaints_cb.htm 201 lambasted the order in the weeks following the signing of the directive, but later subsided in their criticisms of the order, perhaps the reaction to the order could simply be viewed as a heated response to any volatile issue. On the other hand, if long after the order critics still worry about the ramifications, perhaps the order continues to have important policy implications. In regards to Executive Order 13087, we do in fact find prominent critics concerned about the order years after it was signed. For example, in November 2000, nearly two and one half years after Clinton signed the order; it still drew the ire of conservative stalwart Phyllis Schlafly (2000). Even today we find Executive Order 13087 on Conservative Action’s webpage for the “worst executive orders.”24 In sum, while we cannot conclude how beneficial the order has been for homosexuals, we do find ample evidence that federal departments and agencies continue to carry-out the specifics of the order, and thus we can assume that it has opened up employment opportunities for homosexuals within the federal civilian labor force. On the other hand, it is also quite apparent that Congress has not followed President Clinton’s lead, as it has not passed civil rights legislation that includes homosexuals as a protected minority, which was one of the major reasons for the order. Still, given that Mayer (2001) suggested that this can often take more than a decade, we should not be surprised if Congress eventually passes legislation similar to Clinton’s enacted order.

24 http://www.conservativeaction.org/resources.php3?nameid=worsteo 202

CHAPTER 8 – Conclusion

Despite two contentious decades and accumulating evidence of successful state and local efforts to move away from state-sanctioned racial preferences, the federally mandated affirmative action programs created by Executive Order 11246 have proved amazingly durable.

Kenneth Mayer, With the Stroke of a Pen (2001: 213)

In his brief synopsis of presidents and civil rights policy, Kenneth Mayer noted, “Presidents used executive orders to prod and drag Congress when the legislature refused to enact significant new protections” (2001: 216). Indeed, as this dissertation illustrates, presidents played the crucial role in establishing federal affirmative action programs in the United States. However, the four cases presented in this study also demonstrate the variety of political environments different presidents must face. Because of these varying political environments, each president must strategically assess the proper action for each particular policy area. In the Johnson case, we find the ideal circumstances for a president to effectively utilize the persuasive powers of the presidency advocated by Neustadt (1960). After all, just prior to issuing Executive Order 11246, President Johnson successfully advocated for the passage of two major pieces of legislation regarding equal opportunities for minorities (the Civil Rights Act of 1964 and the Voting Rights Act of 1965), and thus had considerable persuasive power within Congress. Indeed, compared to the other three presidents in this study, when he signed Executive Order 11246, President Johnson had a considerably positive political environment, with a fairly supportive Congress. In fact, given the details of the case itself, many would probably wonder why President Johnson did not simply initiate legislation regarding equal employment opportunities, rather than use an executive order, but as we saw in Chapter 4, Johnson strategically assessed the situation and determined an executive order was most appropriate. In contrast, President Nixon faced an extremely difficult situation when he issued Executive Order 11478. In the latter stages of the Johnson presidency, the U.S. Congress turned against federal affirmative action programs. Once in office, after President Nixon announced his support for such programs, thousands of Americans literally took to the streets. Furthermore, members of Congress fought the president on such matters, as they sought to defund any equal employment opportunity initiative. However, the Nixon case shows the ability of a president to

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effectively wield his power through the use of executive orders, even at a time when he had little support in Congress, or in the American public, for such programs. Interestingly, by the early 1980s, it was members of Congress who maintained their support for federal affirmative action programs, while the new president, President Reagan, openly sought to eliminate the programs. What is important to note in the Reagan case is the evidence that presidential power via executive order can be quite limited. During both presidential campaigns Reagan promised to issue an executive order to overturn prior affirmative action orders, and once in office, he even had his attorney general draft an order for him. Ultimately, pressure from Congress, as well as pressure from influential special interests, prevented Reagan from issuing his promised order. Finally, with the Clinton case we once again see a president faced with an extremely difficult situation, as the majority of members of Congress and the majority of the American people desired to scale back on affirmative action measures, while President Clinton sought to expand such programs to include homosexual Americans. In fact, the simple fact that his order dealt with the issue of homosexual rights, shortly after the Republican Congress passed the Defense of Marriage Act and more and more states sought to restrict the rights of homosexuals within their jurisdiction, presented the president with an even more complicated set of circumstances. Still, President Clinton formulated a new major policy regarding equal employment opportunity for homosexuals because of the power available to him through presidential executive orders. Therefore, as we examine these four case studies, we find distinctly different political environments. President Johnson wielded considerable persuasive influence over Congress, yet still relied on an executive order when it came to affirmative action. In contrast, President Nixon and President Clinton had limited influence among members of Congress, but once again proved the forcefulness of presidential unilateral powers. Finally, President Reagan appeared to have considerable persuasive abilities, but failed to issue his often-promised executive order to overturn federal affirmative action programs. Consequently, we find that Mayer (2001) and Howell (2003) were correct in their assertions regarding the importance of unilateral policymaking by presidents, which downplay the Neustadtian view regarding the emphasis on persuasive powers. As indicated in Chapter 2, through his analysis, Mayer (2001) found that Neustadt’s (1960) emphasis on personal skill,

204 personality, and persuasive ability was misguided. Instead, Mayer (2001) articulated a position whereby presidents can use executive orders as unilateral policymaking tools, allowing presidents to act alone, regardless of the individual’s political skills and persuasive abilities. Likewise, Howell argued, “modern presidential power does not strictly involve persuasion as Neustadt insists…Rather, modern presidents often exert power by setting policy on their own and preventing Congress and the Courts – and anyone else, for that matter – from doing much about it” (2003: 14). The Nixon and Clinton cases presented in this dissertation affirm Mayer’s (2001) and Howell’s (2003) conclusions, as neither president had considerable persuasive influence over Congress, yet effectively used presidential unilateral power through executive orders to institute policy provisions contrary to the desires of the majority within Congress. Thus, at least in regards to equal employment opportunity, prerogative power mattered much more than persuasive power. In other words, even though neither president had the ability to persuade Congress concerning their proposed policy, they decided to act contrary to the desires of Congress. Given that Mayer (2001) found that other institutions consistently follow presidential actions, even if it takes decades to do so, this indicates that presidential leadership based on prerogative power does in fact prove to be important and influential in a way contrary to Neustadt’s (1960) conclusions regarding presidential leadership. Perhaps even more importantly, the Johnson case also proved the importance of prerogative power, as he relied on his unilateral power to issue an executive order, rather than on his already proven ability to persuade members of Congress. After all, President Johnson’s persuasive reputation in Congress typically supersedes all other modern presidents (with the possible exception of Franklin Roosevelt), yet he too recognized the importance of prerogative power. This reliance on prerogative power once again illustrates that effective presidential leadership goes beyond persuasive power. Moreover, the Johnson case indicates that the use of unilateral command does not necessarily mean a failure of persuasive power, as argued by Neustadt (1960); instead, it proves that effective presidential leadership relies on both types of power. However, the Reagan case presents us with an example that should cause presidential scholars to pause and take a second look at the extent to which presidents can simply wield such incredible influence over policy areas, as suggested by Howell (2003). Yes, presidents can and

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do act alone without congressional approval, but the U.S. Congress, as well as the federal courts and the policy implementers within the bureaucracy, continue to exert a substantial amount of power that can prevent such action. Thus, we cannot look at presidential unilateral power through executive orders as an imperial power with no limitations. Instead, we must analyze the political environments presidents face and the strategic decision-making involved regarding the issuance of executive orders. As such, the cases presented in this analysis illustrate the importance of such contextual variables and how presidents view their political environments. Still, in spite of the varying intricacies of these four studies, by examining them in detail, we can arrive at some important conclusions regarding presidential executive orders equal employment opportunity. We began this analysis with two fundamental questions. First, to what extent have modern presidents used executive orders to establish federal affirmative action policy in the realm of equal employment opportunity for underrepresented groups in American society, prior to actions taken by other governmental institutions? Second, what factors explain presidential decision-making regarding executive orders pertaining to equal employment opportunity for underrepresented groups? Regarding the first question, this study clearly indicates that presidents played the crucial role in establishing equal employment opportunity programs in the United States and consistently took action prior to actions initiated by other institutions. Indeed, as we look back historically on equal employment opportunities for underrepresented groups in America, it is quite apparent that presidential executive orders played a significant role in such expanded opportunities. With President Johnson, we find that an extremely popular president, with a highly supportive Congress, realized that the best way to expand opportunities for underrepresented groups was through the issuance of an executive order. He determined that previous actions by presidents, Congress, and the bureaucracy did not extend the necessary opportunities for minority groups, especially African Americans. In fact, he even believed that the Civil Rights Act of 1964 did not go far enough. In response, instead of relying solely on the persuasive powers advocated by Neustadt (1960), President Johnson determined the most appropriate action for this particular issue was to issue an executive order. Thus, Johnson signed one of the most important executive orders ever in the United States, as he formally established what became known as “affirmative action.”

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As indicated in Chapter 4, just four years after Johnson instituted the order, John Hannah, Chairman of the United States Commission on Civil Rights, wrote a letter to Richard Nixon’s newly appointed Secretary of Labor, George Shultz, where he explained the vast importance of Executive Order 11246. Chairman Hannah wrote, “The potential impact of the requirements of Executive Order 11246 as a force for equal employment opportunity has been and is now enormous since it has been estimated that nearly one third of the nation’s labor force is employed by government contractors” (United States Commission on Civil Rights, 1969: 2). In fact, according to one report, “By the late 1960s, federal funds were reaching 225,000 contractors involved in $30 billion in annual construction” (Graham, 1990: 281). In addition, while Executive Order 11246 targeted employment, Leon Panetta, who served as Secretary for the Department of Health, Education, and Welfare during the Johnson administration, used President Johnson’s order as the basis for requiring colleges and universities that received federal funding to implement their own affirmative action programs (Kotlowski, 2001: 116). In other words, President Johnson’s decision to issue Executive Order 11246 led to increased opportunities for potentially thousands of underrepresented individuals across the United States. Moreover, the order established a precedent, which influential members of the executive branch used to further expand opportunities for underrepresented Americans. Perhaps even more importantly, however, was President Nixon’s decision to institutionalize the programs, with his signing of Executive Order 11478. Through this order, Nixon effectively endorsed Johnson’s efforts and expanded such efforts by mandating that states and localities work to ensure minority groups receive the proper education and training to establish themselves in technical jobs. Furthermore, President Nixon’s decision to implement Executive Order 11478 led to significant decisions and actions by other federal officials, and thus resulted in a continued expansion of federal affirmative action policy. In fact, the institutionalization of federal affirmative action in employment that resulted from such presidential activism, led to a domino effect in the other major institutions in government. In other words, the presidential activism displayed by Nixon spurred activity by the other institutions in government, including the federal bureaucracy, the courts, and eventually Congress itself. Ramifications of such institutionalization came first in the bureaucracy. In February 1970, under the leadership of Secretary Shultz, the Department of Labor issued what became

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known as Order No. 4, which in affect extended all of the provisions in the Philadelphia Plan to all federal contractors working on projects that exceeded $50,000 (Moen, 2001: 33). Furthermore, the new order required contracting companies to file their affirmative action plans with the Department of Labor within 120 days of signing the contract and explain any areas where the contractor currently had “fewer minorities…than would reasonably be expected by their availability” (Graham, 1990: 341). In addition, Shultz announced that the Department of Labor selected nineteen cities, whereby local officials had to implement adequate local affirmative action plans. Failure to do so would result in federally mandated plans (Graham, 1990: 341). Finally, in December 1971, the Department of Labor revised Order No. 4, and for the first time included women among “affected classes” (Graham, 1991: 167; Moen, 2001: 33). Shultz’s successor, James Hodgson, continued Shultz’s efforts, but specifically encouraged local implementation of affirmative action plans, as Shultz had begun when he targeted the nineteen cities. Such localization became known as “hometown plans.” Within the first year of such “hometown plans,” fifty-six cities across the United States implemented their own affirmative action initiatives (Kotlowski, 2001: 110). Besides the federal bureaucracy, we also find support for President Nixon’s affirmative action plans in the federal courts, which in turn resulted in further expansion and institutionalization of federal affirmative action. In early 1970, a U.S. District Court in Pennsylvania ruled in favor of the Labor Department’s implementation of the Philadelphia Plan in the case of Contractors Association of Eastern Pennsylvania v. Secretary of Labor, while the U.S. Supreme Court rejected a motion to review the case of Weiner v. Cuyahoga Community College, in affect upholding the Ohio court ruling that the lowest bidder on a project could be rejected if they did not submit an affirmative action program with their bid (Moen, 2001: 51; Weiss, 1997: 133; Graham, 1990: 341). Federal courts followed these precedents in a number of cases during the early-to-mid-1970s. Finally, Congress followed the pattern, as it passed the Equal Employment Opportunity Act of 1972. Under this act, Congress expanded the purview of Title VII found in the Civil Rights Act of 1964. In the 1964 act, Title VII pertained only to employers with twenty-five or more workers, while the new act covered employers with fifteen or more workers (Moen, 2001: 48). In addition, the 1972 law gave prosecutorial powers to the EEOC. Lastly, Congress used Johnson’s and Nixon’s affirmative action orders as guides to formulate and pass affirmative

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action programs for handicapped individuals under the Rehabilitation Act of 1973 and Vietnam War veterans, under the Vietnam-Era Veterans’ Readjustment Act of 1974 (Turner, 1990: 87). As Kotlowski recently described, “Affirmative action, solidified under Nixon, has produced a web of interlocking interests that make its repeal unlikely, perhaps even impossible, for the foreseeable future” (2001: 262). In other words, it was Nixon’s decision to both maintain and expand federal affirmative action policy that led to an environment in which even a popular president like Ronald Reagan could not dismantle federal affirmative action during the 1980s, nor could a Republican Congress, with the support of an overwhelming majority of Americans, eliminate such programs during the 1990s. In fact, even though President Ford and President Carter chose not to follow their predecessors with further advancement of federal affirmative action policy, by 1980, such programs were firmly rooted in the government of the United States. As Detlefsen argued, “the civil rights elite in America” successfully developed a “civil rights ideology” that overtime has “successfully managed to de-legitimate alternative strategies for securing civil rights based on race- and gender-neutral criteria” (1991: 13). Similarly, Mayer found, “The resilience of affirmative action programs during the Reagan years confirms a central premise…institutions, once they are created, can resist attempts to impose significant change” (2001: 208). I believe the same could be said when looking at the Clinton case, as Republicans in Congress and the majority of Americans sought to dismantle such programs, but instead ended up with an expansion to homosexuals. Furthermore, we see with Clinton that once again it took a presidential executive order to formally extend affirmative action programs to homosexuals. While other branches have not followed with regards to affirmative action for homosexuals, we do see that courts across the United States, including the Supreme Court in 2003, have struck down laws that restrict homosexual rights. Given that Mayer (2001) found that it can take decades before other institutions follow presidential leadership, we should not be surprised if Congress and the courts eventually endorse Clinton’s enactment. Therefore, as we analyze the four cases presented in this study in the context of the first research question addressed in the introduction, I believe we are able to conclude that the cases outlined in this study demonstrate both the unique role presidential executive orders played in the extension of opportunities for underrepresented groups and the process of institutionalization that made reforms to such policies nearly impossible.

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Thus, the current analysis provides a modern day defense of historian James MacGregor Burns’ assertion that the presidency is “the most effective single protector of individual liberty in our governmental system” and his claim that presidential protection of civil rights and individual liberties is no longer tied to individual presidents, but has become institutionalized (1965: 281). Such institutionalization made reforms virtually unattainable. In fact, because of the institutionalization process itself, presidents must be conscious of the actions taken by previous chief executives; a lesson President Reagan learned. Warber noted that presidents “must be aware of the potential costs when diverting from the policy paths taken by their predecessors or when deciding to terminate existing executive orders” (2006: 10). Perhaps just as importantly, this institutionalization extends to Congress as well. As Mayer explained, “there have been dozens of attempts since the early 1970s to eliminate affirmative action requirements generally and to nullify E.O. 11246 specifically,” but only a few have reached the floor of Congress and not one has ever passed (2001: 212). Concerning the second research question, this study clearly confirms Warber’s (2006) assertion that presidents are rational actors who take into account the political environment and strategically determine if, and when, to issue an executive order. The Johnson case illustrated seven different factors that President Johnson took into account when he decided to issue Executive Order 11246. By examining this order, we see that President Johnson took into account: 1) the failure of previous executive orders signed by himself and previous administrations, 2) the ineffectiveness of past legislative actions, 3) the preferences of prominent civil rights leaders, 4) bureaucratic responsiveness, 5) his personal reputation, 6) the level of political capital necessary for legislative action, and 7) his personal desire to move from equality of opportunity, to equality of results. Similarly, in his decision to sign Executive Order 11478, President Nixon also analyzed several variables, as his decision was ultimately guided by: 1) his personal beliefs regarding equality, 2) his personal beliefs regarding the importance of creating a middle-class among minority groups, 3) the possibility of driving a wedge between two influential groups within the Democratic Party, 4) the possibility of uniting his own party against organized labor, 5) the possibility of building a new electoral coalition for the 1972 election, and 6) pressure from outside individuals and groups within the civil rights movement.

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Likewise, President Reagan analyzed the political environment he faced and ultimately determined not to issue the vary order he asked Attorney General Meese to draft. This case is important because it illustrates that presidents do indeed evaluate the political environment and the potential risks of issuing an order that is either highly unpopular, or could fail because of a combative Congress ready to overturn the order. On the one hand President Reagan recognized that his proposed order had the support of: 1) white, blue collar workers, 2) the construction industry, 3) the majority of small business owners, and 4) conservative special interest groups. On the other hand, Reagan realized his proposed order faced opposition among: 1) moderate Republicans in Congress, 2) most large companies across the United States, and 3) prominent civil rights groups. Thus, while his personal beliefs, the beliefs of influential individuals in his administration, and the support for reform among key constituency groups all pointed toward overturning federal affirmative action policy, Reagan understood that there was a significant chance that Congress would overturn his order, that the issue of affirmative action could split the Republican Party, and that the largest businesses across the United States would maintain their own affirmative action programs, negating his action. Therefore, the political costs of implementing the order far exceeded the political benefits. Finally, with the most recent case of substantial change in federal affirmative action policy, we once again find that President Clinton took into account several factors when issuing Executive Order 13087. By examining his decision to issue Executive Order 13087, we see that President Clinton took into account: 1) his personal beliefs regarding homosexual rights, 2) the beliefs of prominent individuals within his administration, 3) his desire to lead in this particular policy area in hopes that Congress would pass comprehensive legislation that dealt with the same subject, 4) his decision at a particular phase of his presidency to rely more on presidential unilateral powers, and 5) evidence that suggested a majority of Americans supported his new policy. Therefore, as we analyze the second research question presented in this study, we find that as Warber (2006) suggested, presidents are rational actors who take into account several factors regarding the political environment and strategically determine if, and when, to issue executive orders. Given the strategic nature of presidential decision-making and executive orders, I believe this study allows us to arrive at three significant conclusions regarding executive orders, all of which contribute to academic research on the presidency.

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First, while scholars generally view executive orders as a very broad power (Cooper, 1986; Cooper, 1997; Ragsdale, 1996; Mayer, 2001; Howell, 2003), leading some to fear the unlimited power of presidents, this study illustrates that even though presidential unilateral power to issue executive orders is broad, in terms of domestic policy, it is limited by numerous political factors. Second, because of the numerous political factors highlighted in the first finding, this study suggests that while the ability to issue executive orders is an important unilateral power wielded by presidents that can expand presidential power, failed orders or failed efforts to issue an order can significantly weaken presidents as well. Third, given the limitations addressed in the first finding, this study reveals that in particular instances, the political risks associated with of issuing a particular executive order can outweigh the political rewards. While the Johnson and Nixon cases may support the arguments of those who fear presidential power via executive orders, the Reagan case particularly illustrates the limitations suggested in the three findings just mentioned, but we also find the arguments supported in the Clinton case as well. Looking first at the Reagan case, we find that a quite popular president, who also had an extraordinary ability to communicate his ideas to the American people and to members of Congress, realized his leadership limitations when it came to dismantling federal affirmative action programs. Although he personally favored eliminating goals and timetables, and his close friend Attorney General Meese favored eliminating such programs, he had to take into account several political factors in his decision-making process regarding whether or not he should issue Meese’s proposed order. While he had a couple hundred thousand small businesses, the overwhelming majority of the construction industry, many large conservative interest groups, and the conservative base in the Republican Party supporting the reform, he also had to take into account the tens of thousands of large corporations and the Republicans within Congress opposed to the reforms. In fact, one fear Reagan had was that the issue itself would cause a significant divide within the Republican Party. These factors weighed heavily on the president’s decision. After all, many large businesses announced that even if President Reagan issued his own order, they intended to continue with their existing affirmative action programs. Moreover, it became increasingly likely that a bipartisan coalition within Congress could pass legislation that would make President Reagan’s order largely symbolic.

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Ultimately, President Reagan concluded that any reforms to such a divisive issue needed the support from a substantial majority within his party, which by 1986, did not exist. Therefore, President Reagan realized that too many political factors obscured his ability to reinvent federal affirmative action policy. While he had the support of several key constituent groups, the risks of issuing the order (i.e., dividing the Republican Party, facing the possibility that Congress would pass legislation to override his order, and large corporations ignoring his order), far outweighed the political benefits. Faced with a seemingly insurmountable task, President Reagan realized that he had no politically viable option available to him to significantly reform federal affirmative action, and he thus abandoned his effort. In regards to the Clinton case, we see limits on presidential power via executive orders in two different ways. First, while the gays in the military issue is not directly linked to equal employment opportunity, it does once again highlight the limitations placed on presidential executive orders. Like Reagan, Clinton promised during the 1992 campaign to use his extraordinary power of issuing executive orders to eliminate the ban on homosexuals in the military, but once in office he found that such a reform was simply not feasible. High-ranking members of the military and prominent members within Congress, including two of the most powerful Democrats (Nunn and Byrd), all publicly acknowledged their opposition to President Clinton’s proposed order. The second way the Clinton case displays the limitations on presidential executive orders is the fact that it took President Clinton six years to use this authority in regards to equal employment opportunity. When Clinton finally did issue his first order, it dealt with the non- controversial issue of ensuring equal employment opportunities for disabled Americans. In fact, half of his orders regarding equal employment opportunity dealt with disabled Americans. In contrast, President Clinton failed to issue one order that would open up more opportunities for African Americans, in spite of their overwhelming support for him. Instead, Clinton only issued one equal employment opportunity executive order which dealt with ethnic minorities, and this was limited solely to Hispanic Americans. He did of course issue Executive Order 13087, which opened up affirmative action programs to homosexuals, but once again, this came nearly six and one half years after entering office. Therefore, in both the Reagan and Clinton cases we find that while presidential unilateral power to issue executive orders is broad, in terms of domestic policy; it is limited by numerous

213 political factors. This contrasts previous scholarship that warns of the almost imperial power presidents possess because of such orders. As Louis Fisher once noted, “At some point, after passing beyond a threshold of common sense and prudence, aggressive actions become counterproductive” (1997: 299). In fact, with the Clinton case, we find that failed efforts to issue an order can indeed weaken a president. Although not as apparent, we find this argument supported in the Reagan case study as well, as the president and members of his administration recognized the substantial risks of issuing the proposed order, which in due course outweighed the political rewards. Ultimately, this dissertation suggests that contrary to Neustadt’s (1960) assertions, presidential unilateral powers are quite significant in the ability of presidents to effectively lead, as noted by Mayer (2001) and Howell (2003). However, the findings in this dissertation should cause presidential scholars to pause and examine how the political environment either enhances or inhibits a president’s ability to use executive orders effectively. Yes, the ability of presidents to issue executive orders results is a significant advantage for presidents in the implementation of domestic policy, but numerous political factors limit such power, failed orders or failed efforts to issue an order can significantly weaken presidents, and the political risks associated with issuing particular orders can outweigh the potential political benefits.

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