“
The Times celebration of Brown as confirming constitutional color blindness was widely shared in America. In the debates over the Kennedy-Johnson civil rights bill in 1963 and 1964, the bipartisan congressional leadership appealed to the classical liberal model of color-blind justice, leaning over backwards to deny charges by southern opponents that the law could lead to quotas or other forms of preference for minorities. Indeed, the legislative history of the Civil Rights Act shows what John David Skrentny, author of The Ironies of Affirmative Action, called “an almost obsessive concern” for maintaining fidelity to a color-blind concept of equal individual rights. Senator Hubert Humphrey of Minnesota, the majority (Democratic) whip behind the bill, explained simply: “Race, religion and national origin are not to be used as the basis for hiring and firing.”
Title VII required employers to treat citizens differing in race, sex, national origin, or religion equally, as abstract citizens differing only in merit. Section 703(j) of the Civil Rights Act states: “Nothing contained in this title shall be interpreted to require any employer… to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which my exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by an employer.” The syntax was classic legalese, but the meaning was unambiguous. The Senate’s floor managers for Title VII, Joseph S. Clark (D-Pa.) and Clifford P. Case (R-N.J.), told their colleagues, “The concept of discrimination… is clear and simple and has no hidden meanings. …To discriminate means to make a distinction, to make a difference in treatment or favor, which is based on any five of the forbidden criteria: race, color, religion, sex, or nation origin.” They continued:
There is no requirement in Title VII that an employer maintain a balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of Title VII because maintaining such a balance would require an employer to hire or refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited to any individual.
Humphrey, trying to lay to rest what he called the “bugaboo” of racial quotas raised by filibustering southerners in his own party and by some conservative Republicans as well, reaffirmed the bill’s color-blind legislative intent: “That bugaboo has been brought up a dozen times; but it is nonexistent. In fact the very opposite is true. Title VII prohibits discrimination. In effect, it sways that race, religion, and national origin are not to be used as the basis for hiring and firing.” Humphrey even famously pledged on the Senate floor that if any wording could be found in Title VII “which provides that an employer will have to hire on the basis of percentage or quota related to color, … I will start eating the pages [of the bill] one after another.
”
”