THE GEORGETOWN LAW JOURNAL VOLUME 58 JUNE 1970 NUMBER 6 EXECUTIVE BOARD Editor in Chief Managing Editor Harry J. Stevens, III Barry D. Drees Topics Editors Case & Note Editors Articles Editors Robert S. Towsner Nicholas R. Allis Alan H. Goodman Louis Wiley David A. Middaugh Martin S. Pinson Yaroslav R. Sochynsky Linda S. Thayer Administrative Editor Martin Frost EDITORS George R. Abramowitz William E. Donnelly Howard A. Mandell William V. Alesi Gary R. Edwards Warren E. Miller Joseph G. Baxter John N. Fenrich Joan S. O’Brien Richard D. Belford Joel M. Freed David T. Peterson Bertram Jay Berlin John E. Gillick Harold S. Poster Alexander W. Booth Geoffrey P. Gitner Wm. Gar Richlin Cary C. Boyden Melvin Goldstein Robert H. Scheibe Edward J. Cabic Lawrence W. Hicks Robert E. Scott, Jr. Alan J. Chaset Daniel Kaufman Ira C. Waddey, Jr. David Cosson Donald L. Logerwell Alan I. White Gregory T. Diaz James R. Long acre Stephen C. Yohay Business Secretary Louise Peltier Faculty Advisor Sherman L. Cohn The Law Journal is pleased to announce the selection of the following to the Executive Board for Volume 59: John C. Kane, Editor in Chief Paul A. Alexis, Managing Editor William I. Althen, Executive Editor Joseph G. Baxter, Case & Note Editor James F. Mulhern, Executive Editor Lizabeth L. Beegle, Case & Note Editor John L. Altieri, Jr., Articles Editor Grove M. Callison, Case & Note Editor Ernest C. Baynard, Articles Editor Gary R. Edwards, Case & Note Editor Samuel J. Buffone, Topics Editor Jerome F. O’Neill, Case & Note Editor Peter B. Trumbull, Topics Editor Peter J. Smith, Case & Note Editor Michael A. Pace, Administrative Editor ( 1185 1 NOTE THE PHILADELPHIA PLAN: REMEDIAL RACIAL CLASSIFICATION IN EMPLOYMENT In recent years the civil rights of minority groups have been the focus of growing concern, and as a result, significant efforts have been made to promote such policies as school integration,1 open and fair housing,2 equal voting rights,3 and desegregation of facilities catering to the pub­ lic.4 The right, however, to nondiscriminatorv employment opportuni­ ties, which is essential if minority groups are to achieve the economic ability to enjoy fully their revitalized rights,5 6has not been advanced 1 E.g., Dowell v. Board of Educ., 396 U.S. 269 (1969) (immediate desegregation); Alex­ ander v. Holmes County Bd. of Educ., 396 U.S. 19 (1969) (immediate desegregation); Green v. County School Bd., 391 U.S. 430, 439-41 (1968) (“freedom of choice” unconstitutional). See generally Cohen, Defining Racial Equality in Education, 16 U.C.L.A.L. Rev. 255 (1969); Fiss, Racial Imbalance in the Public Schools: The Constitu­ tional Concepts, 78 Harv. L. Rev. 564 (1965). See also Vieira, Racial Imbalance, Black Separatism, and Permissible Classification by Race, 67 Mich. L. Rev. 1553 (1969). -E.g., Hunter v. Erickson, 393 U.S. 385, 391-93 (1969) (repeal of open housing law violates equal protection); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439-43 (1968) congressional prohibition on private discrimination in sale or lease of property valid under thirteenth amendment); Reitman v. Mulkey, 387 U.S. 369, 378-79 (1967) state may not grant right to privately discriminate in sale of land); Shelley v. Kraemer, 334 U.S. 1, 16-17 (1948) (racial covenants in real property contracts cannot l>e enforced). See generally Kohl, The Civil Rights Act of 1866, Its Hour Come Round at Last: Jones v. Alfred H. Mayer Co., 55 Va. L. Rev. (1969); Symposium, Non-discrimination in the Sale or Rental of Real Property: Comments on Jones v. Xlfred H. Mayer Co. and Title Vlll of the Civil Rights Act of 1968, 22 Vand. L. Rev. 455 (1969); Note, Jones v. Mayer: The Thirteenth Amendment and the Anti-Discrimi­ nation Laves, 69 Coi.um. L. Rev. 1019 (1969). 3 Gaston County v. United States, 395 U.S. 285 (1969) (reinstatement of literacy test prohibited); Iladnott v. Amos, 394 U.S. 358 (1969) (black candidate need not meet higher standards than others to be placed on ballot); Allen v. State Bd. of Elections, 393 U.S. 544 (1969) (state cannot change qualifications for voters without approval of Attorney General). See generally Avins, Fifteenth Amendment and Literacy Tests: The Original Intent, 18 Stan. L. Rev. 808 (1966); Note, Voting Rights Act of 1965; An Evaluation, 3 Harv. Civ. Rights-Civ. Lib. L. Rev. 357 (1968); Note, Federal Protection of Negro Voting Rights, 51 Va. L. Rev. 1053 (1965); Note, Federal Civil Action Against Private Individuals for Crimes Involving Civil Rights, 74 Yale L.J. 1462 (1965). 4 Daniel v. Paul, 395 U.S. 298 (1969) (swimming pool); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (Civil Rights Act of 1964’s prohibitions on discrimination in private restaurants and motels held constitutional); Katzenbach v. McClung, 379 U.S. 294 (1964) (restaurant). 6 As stated in the Elouse Judiciary Committee’s Report accompanying H.R. 7152, later revised and enacted as the Civil Rights Act of 1964, “(tjhe rights of citizenship I 1187 ] 1188 The Georgetown Law Journal [Vol. 58:118" concomitantly.0 Unemployment rates among minority groups are gen­ erally twice the national average,7 and the Department of Labor esti­ mates that within the next decade unemployment rates for nonwhites will increase to approximately 25 percent.8 In addition, whites are more likely to be employed in skilled positions than nonwhites, who fre­ quently are consigned to unskilled and hence lower paying positions, resulting in a substantially disproportionate earning capacity.9 Thus, it is more probable that nonwhite workers not only will be unemployed, but even if employed, will have a lower job status with commcnsurateh' less remuneration than similarly situated whites. Recognizing the seriousness of these problems, the Department of Labor has promulgated the Philadelphia Plan,10 which is designed to mean little if an individual is unable to gain the economic wherewithal to enjoy or properly utilize them.” Bureau of National Affairs, The Civil Rights Act of 1964, at 284 (1964) [hereinafter cited as BNAJ; see Gould, Black Power in the Unions: The Impact upon Collective Bargaining Relationships, 79 Yale L.J. 46 (1969); Kaplan, Equal Justice in an Unequal World: Equality J or the Negro—The Problem of Special Treatment, 61 Nw. U.L. Rev. 363 (1966). 43 See generally Blumrosen, The Duty of Fair Recruitment Under the Civil Rights Act of 1964, 22 Rutgers L. Rev. 465 (1968); Cooper & Sobel, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv. L. Rev. 1598 (1969); Gould, The Emerging Law Against Racial Discrimination in Employment, 64 Nw. U.L. Rev. 359 (1969). 7 In November 1969, the national unemployment rate for white males between the ages of 20 and 64 was 1.8 percent; for nonwhite males of the same age group, the rate was 3.6 percent; unemployment for persons between the ages of 25 and 54 was 1.4 percent for white males and 2.8 percent for nonwhite males. Bureau of Labor Statistics, U.S. Dep’t of Labor, Employment and Earnings 51 (1969). 8 1 Nat’l Comm’n on Technology, Automation, and Economic Progress, Report: Technology and the American Economy 31 (1965); Interview with Arthur A. Fletcher, Assistant Secretary of Labor, in Washington, D. C., Sept. 9, 1969 [hereinafter cited as Fletcher Interview]. See also CCH Employment Practices fl 16,175, at 7151 (Aug. 25, 1969). 9 In November 1969, 21 percent of the total white male population was employed as craftsmen or foremen, while only 15.5 percent of the total nonwhite population was so employed; only 25.2 percent of white males were listed as blue collar operatives or nonfarm laborers, while 45.4 percent of the nonwhite male population was in the same category. Bureau of Labor Statistics, supra note 7, at 63. See also CCH Employment Practices fl 8006, at 6008-09 (1969). 10 Memorandum of U.S. Dep’t of Labor, June 27, 1969 [hereinafter cited as Order of June 27], as modified, U.S. Dep’t of Labor, Office of the Assistant Secretary, Order, Sept. 23, 1969 [hereinafter cited as Order of Sept. 23]. Both orders are reprinted in 115 Cong. Rec. S17213-18 (daily cd. Dec. 18, 1969) and CCII Employment Practices flfl 16,175-76, at 7151-62 (Aug. 25, 1969). Together they comprise the Philadelphia Plan. The Philadelphia Plan as promulgated by these two orders is actually the second plan so named. The first plan, which was abandoned in November 1968, required con­ 1970J Philadelphia Plan 1189 eliminate discrimination in hiring by contractors and subcontractors on federal and federally assisted construction projects. The Plan, however, has been the subject of considerable criticism, particularly in regard to the legality and wisdom of its underlying policy of imposing minimuM employment requirements for utilizaton of minority group manpower. Because of the Plan’s significance as a prototype vehicle for combating the deleterious effects of past and present racial discrimination, it is nec­ essary that its legality be established. This Note, therefore, after discussing the Plan itself, evaluates the Plan’s legality by examining first, the use of Executive orders to eliminate racial discrimination by government contractors; second, the authority of the President to issue such orders; third, the constitutional objections to the Plan under the fifth amendment; and last, the Plan’s legitimacy in light of the Civil Rights Act of 1964. The Plan and Its Background Justification for the Philadelphia Plan was provided by extensive find­ ings that Philadelphia’s labor unions, from which building contractors obtained their employees, had discriminatory membership admission policies.11 For example, in each of the construction trades less than two percent of union membership representd minority groups,12 a ratio sub­ stantially disproportionate to the number of minority group members tractors to negotiate minority manpower utilization goals after having been awarded federal contracts.