Constructing Race Policy in the
United States and Great Britain:
History and Politics in the Development of
Employment Discrimination Policy
Robert C. Lieberman
Columbia University and Russell Sage Foundation
Through 1 August 1999:
Russell Sage Foundation
112 East 64th Street
New York, NY 10021
USA
(212) 750-6028
Fax: (212) 371-4761
ROBERT@RSAGE.ORG
After 1 August 1999:
Department of Political Science
Columbia University
420 West 118th Street
New York, NY 10027
USA
(212) 854-4725
Fax: (212) 222-0598
RCL15@COLUMBIA.EDU
1
Constructing Race Policy in the United States and Great Britain:
History and Politics in the Development of Employment Discrimination Policy*
For much of 1999, Americans have scarcely been able to pick up their newspapers
without reading stories about racial violence, notably racially charged encounters between the
police force of their country’s largest city and that city’s black residents. In February, four New
York City police officers shot an unarmed Guinean man forty-one times, killing him and setting
off a wave of protests and an investigation by the United States Commission on Civil Rights. In
May, one of the New York City police officers charged with the savage torture of a Haitian man
in police custody in 1997 pled guilty to several counts, including violating the victim’s civil
rights. All the while, columnist Bob Herbert of the New York Times has reported on incidents of
less violent harassment of minority citizens by white police officers. In the neighboring state of
New Jersey, the head of the state police was fired after a controversy over “racial profiling,” the
use of racial characteristics in identifying crime suspects, that also involved a federal
investigation.
No, wait, start again . . .
For much of 1999, Britons have scarcely been able to pick up their newspapers without
reading stories about racial violence, notably racially charged encounters between the police
force of their country’s largest city and that city’s black residents. In February, a high-level
government commission issued its report on the poor police response to the racially motivated
stabbing of a young man of Jamaican background in 1993. The report found that the
Metropolitan Police had long been “riven with pernicious and institutionalized racism” that had
contributed to the corrosion of race relations in Britain and it recommended a series of steps to
improve the racial sensitivity of the country’s criminal justice system. In April, bombs
*
I am grateful to the Russell Sage Foundation, the German Marshall Fund of the United States, and the Lyndon
Baines Johnson Foundation for financial support and to Lisa Kahraman and John Smelcer for research assistance.
For their generous advice, I thank Sheri Berman, Frank Dobbin, Michèle Lamont, John Skrentny, and Steve Teles.
2
exploded in two London neighborhoods with large nonwhite populations, leading immediately to
suspicions that the attacks were racially motivated.
This brief (and, admittedly, rather arch) comparison serves to emphasize similarities that
have long been apparent between American and British race politics. Not only in Britain but
elsewhere in Europe, too, countries are struggling with racial diversity in politics and society to
an unprecedented degree. Driven in some instances by immigration from former colonies and in
others by the demand for cheap labor (and in some cases by both), this new diversity in Europe
has spawned a grimly familiar litany of problems: racism; discrimination in housing, education,
and employment; political powerlessness; and even racial violence. To Americans, these are the
common disorders of a society that has long been divided by race. To Europeans, however, the
problem of coping with racial diversity at such close quarters is relatively new. Although
Britain as well as other European countries ruled for centuries over multiracial colonial empires
while struggling with national integration at home, it is only since the collapse of those empires
in the wake of World War II that these countries have confronted significant problems of racial
diversity within their own borders.1
Although the racial problems facing these countries may be similar to American racial
problems, the responses of European states to racial diversity and its concomitant maladies has
been anything but uniform. Countries often conceive of the problems of a multiracial society in
entirely different terms, leading them to reach for very different remedies for ultimately similar
policy problems. While Britain, for example, has followed the United States in framing race
politics in terms of “race relations,” the ability of racially defined groups to coexist on an equal
footing in a multicultural society, France has defined the problem as one of “racism,” the
illegitimate definition and mobilization of racial categories in a unitary republic.2
1
On the historical construction of British national and racial identity, see Linda Colley, Britons: Forging the Nation,
1707-1837 (New Haven: Yale University Press, 1992); Philip D. Curtin, The Image of Africa: British Ideas and
Action, 1780-1850 (Madison: University of Wisconsin Press, 1964).
Erik Bleich, “Problem-Solving Politics: Ideas and Race Policies in Britain and France, 1945-1998" (Paper
presented to the American Political Science Association, Boston, 1998). See also Adrian Favell, Philosophies of
Integration: Immigration and the Idea of Citizenship in France and Britain (New York: St. Martin's, 1998); Patrick
2
3
But even countries where similar conceptions of race relations and multiculturalism
prevail often reach different settlements to address race policy problems that are identically
framed. The United States and Britain share a generally liberal political ethos that places a high
value on the protection of individual rights and freedom of association, although this is an ethos
that has frequently been compromised by alternative political strains that emphasize either
homogenization or ascriptive inequality.3 Moreover, the United States has been a constant and
familiar point of reference for the discussion of racial politics in the United Kingdom; British
intellectuals and policymakers have quite explicitly seen their own evolving problems of racial
conflict as similar to American ones and sought to emulate American successes and avoid
American mistakes in making race policy.4 As a result, these two countries share an approach to
race as a political category that emphasizes both the equal treatment of individuals and the
legitimacy of racial groups as social and political units (although these two aims are often in
considerable tension with one another).
Despite these broad political similarities and their generally compatible approaches to
race as a political category, the United States and Britain have adopted quite different approaches
to racial policy. In particular, they have responded differently to one of the most important
policy challenges of any multiracial society: job discrimination. American and British
employment discrimination policy differ both in the explicit policies they enacted — the kind of
discrimination that is proscribed, the structure of the institutions established to fight
Weil and John Crowley, “Integration in Theory and Practice: A Comparison of France and Britain,” West European
Politics 17 (1994): 110-26.
3
Louis Hartz, The Liberal Tradition in America: An Interpretation of American Thought Since the Revolution (New
York: Harcourt Brace Jovanovich, 1955); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S.
History (New Haven: Yale University Press, 1997); Judith N. Shklar, “Positive Liberty, Negative Liberty in the
United States,” trans. Stanley Hoffmann, in Judith N. Shklar, Redeeming American Political Thought, ed. Stanley
Hoffmann and Dennis F. Thompson (Chicago: University of Chicago Press, 1998); Desmond King, “Liberal and
Illiberal Immigration Policy: A Comparison of Early British (1905) and US (1924) Legislation” (Paper presented to
the American Political Science Association, Boston 1998).
Bleich, “Problem-Solving Politics”; E. J. B. Rose, Colour and Citizenship: A Report on British Race Relations
(London: Oxford University Press, 1969).
4
4
discrimination, and the powers available to those institutions — and in the ways in which those
policies have been implemented. Briefly, British law as enacted by Parliament in the Race
Relations Act of 1976 takes a much broader view of discrimination and gives greater potential
power to the state than American law as enacted by Congress in the Civil Rights Act of 1964.
Ironically, however, American antidiscrimination practice has been much more potent than in
Britain. Despite apparently weaker legislation, the United States has developed producing a
welter of policies and practices known collectively as affirmative action, while Britain, whose
law explicitly authorizes “positive action,” has shied away from such practices. In this essay I
explore these differences in the evolution of employment discrimination policy in the United
States and Britain and offer an explanation for these differences that focuses on political
institutions and the historical evolution of race politics in the two countries. I argue that the
critical factor that accounts for these divergent outcomes is the nature of political institutions in
the two countries, and in particular the historical trajectories that situated racial minorities
differently in two different political systems.5 Whereas American political institutions were
from their very beginnings suffused with race, British institutions were not — or at least not so
visibly — and the different ways in which race entered American and British politics have had
resounding consequences.
History and Sequence in the Development of Racial Politics
From its earliest moments, American politics has had to contend with racial division.6
The first Africans arrived in British North America even before the settlement of the Plymouth
and Massachusetts Bay colonies, and by the end of the seventeenth century not only was African
See Ann Shola Orloff and Theda Skocpol, “Why Not Equal Protection?: Explaining the Politics of Public Social
Spending in Britain, 1900-1911, and the United States, 1880s-1920,”American Sociological Review 49 (1984):
726-50.
5
6
This paragraph draws on Robert C. Lieberman, Shifting the Color Line: Race and the American Welfare State
(Cambridge: Harvard University Press, 1998), 230-34.
5
slavery central to the political economy of the American colonies but a distinctive American
political identity — including the roots of Gunnar Myrdal’s “American creed” of liberty and
equality — had emerged out of the distinction between black slavery and white freedom.7
Thus American politics itself evolved in a context where race relations were already a central
concern, and American political institutions were themselves structured to accommodate slavery
and contain the political conflict that it provoked. The three-fifths, fugitive slave, and
slave-trade clauses of the Constitution are obvious examples, but other institutions also
responded to the pressures of slavery: the party system, for example, which helped contain (or at
least delay) sectional conflict over slavery, or the electoral college, the Senate, and the
Democratic Party’s two-thirds rule for presidential nominations, which enhanced the South’s
power to keep growing Northern power at bay.8 After the Civil War, political institutions
continued both to reflect and to construct race-laden power relations, again through the party
system but also through the distinctive political economy of the South, the patronage politics of
the North that effectively shut African-Americans out of local power structures, and a
Congressional structure that effectively institutionalized Southern power.9
As I have argued elsewhere, this configuration of race and political institutions shaped
7
Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W.
Norton, 1975); Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York:
Harper & Brothers, 1944).
8
E. E. Schattschneider, Party Government (New York: Rinehart & Company, 1942), 123; David M. Potter, The
South and the Concurrent Majority, ed. Don E. Fehrenbacher and Carl N. Degler (Baton Rouge: Louisiana State
University Press, 1972); John H. Aldrich, Why Parties?: The Origin and Transformation of Party Politics in
America (Chicago: University of Chicago Press, 1995); Barry R. Weingast, “Political Stability and Civil War:
Institutions, Commitment and American Democracy,” in Robert H. Bates, Avner Greif, Margaret Levi, Jean-Laurent
Rosenthal, and Barry R. Weingast, Analytic Narratives (Princeton: Princeton University Press, 1998).
9
V. O. Key Jr., Southern Politics in State and Nation (New York: Alfred A. Knopf, 1949); C. Vann Woodward, The
Strange Career of Jim Crow, 3d rev. ed. (New York: Oxford University Press, 1974); J. Morgan Kousser, The
Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South (New Haven: Yale
University Press, 1974); Ira Katznelson, Black Men, White Cities: Race, Politics and Migration in the United States,
1900-1930, and Britain, 1948-1968 (Chicago: University of Chicago Press, 1976); Lieberman, Shifting the Color
Line; Robert C. Lieberman and John S. Lapinski, “American Federalism, Race, and the Administration of Welfare”
(Typescript, Columbia University, 1999); Richard Franklin Bensel, Sectionalism and American Political
Development, 1880-1980 (Madison: University of Wisconsin Press, 1984).
6
the development of the American welfare state, forging particular kinds of links between
different racial groups and the emerging welfare state in the New Deal.10 Because of the
institutionalization of racial hierarchy in the American state, I argue,African-Americans were
relegated to a subordinate place in the New Deal welfare state. They were disproportionately
excluded from notionally “universal” national social insurance programs such as Social Security
and instead were linked to political weak and often discriminatory public assistance programs
such as Aid to Families with Dependent Children (AFDC). These programs were parochially
structured, meaning that their beneficiaries were linked not directly to the national government
through claims based on social rights but to local political structures, with weaker claims on
social provision. Thus the particularly weak position of African-Americans in contemporary
welfare politics is in part a consequence of the historical sequence of the evolution of racial
conflict and the welfare state, and more generally of political institutions: “race before politics.”
This historical pattern may also account, in part, for the persistence of racial inequality, even in
the face of declining racial antagonism at the level of attitudes and beliefs;11 because American
welfare institutions have incorporated African-Americans weakly, it has not helped them escape
poverty and dependency as readily as other groups.
This argument, however, suggests an alternative historical path, in which the
development of political institutions precedes the introduction of widespread racial conflict into
national political life: “politics before race.” When state institutions develop in a society, such
as the United States, where power is allocated along racial lines, then the process of state
building often involves codifying the racial hierarchy, whether through formal legal structures of
domination (such as apartheid) or through less formal, but equally powerful, institutional means
(such as the American welfare state).12 Conversely, when state institutions develop without
10
Lieberman, Shifting the Color Line.
11
On American racial attitudes, see Howard Schuman, Charlotte Steeh, Lawrence Bobo, and Maria Krysan, Racial
Attitudes in America: Trends and Interpretations, rev. ed. (Cambridge: Harvard University Press, 1997).
12
Anthony W. Marx, Making Race and Nation: A Comparison of the United States, South Africa, and Brazil
(Cambridge: Cambridge University Press, 1998).
7
racial hierarchy in society and hence where the political interests of state builders are not racially
defined, the resulting institutions need not be constructed so as to preserve racial dominance. I
do not intend this as a functionalist claim; the need for racial dominance does not by itself
explain the emergence of institutions that preserve it. Institutions, rather, emerge out of contests
over power, and they reflect the power resources arrayed in society at the time of their creation.
By the same token, it is in the nature of institutions that they outlive the immediate contexts in
which they were created, and in new situations they might operate for another purpose (that
might seem altogether dysfunctional). The institutions that emerge in the absence of racial
division might thus turn out to be quite capable of excluding racial minorities should racial
division subsequently emerge in such a society. Neither is it a deterministic argument, such that
“race before politics” equals race-laden institutions while “politics before race” equals racially
egalitarian institutions. Obviously, countries can overcome even the most virulent legally
encoded racism, as the United States and South Africa have done.13 Similarly, neutral,
egalitarian institutions alone will not save a country from developing racial inequality.
The sequence argument is, rather, a claim about the tendency of institutions to reflect the
distribution of power at the time of their creation. Countries where racial hierarchy is in place
before institutional development will be more likely to create political institutions that pose
barriers to the full inclusion of racial minorities, barriers that can operate independently of other
factors such as racist attitudes or economic forces. Countries where the sequence is reversed
will be less likely to develop institutions that are quite so systematically closed to the
participation of racial minorities. Pointing out these tendencies, however, does not constitute a
causal argument about the reproduction of racial hierarchies and the maintenance of racial
inequality or the achievement of racial equality. The sequence argument, then, is also an
argument about the political mechanisms through which such institutions are created and through
13
George M. Fredrickson, Black Liberation: A Comparative History of Black Ideologies in the United States and
South Africa (New York: Oxford University Press, 1995).
8
which they operate to maintain racial power.14 Uncovering these mechanisms (and, hence,
substantiating the argument I have set forth) will require not only correlating sequences with
outcomes but also reconstructing the historical processes by which political institutions both
reflect and shape patterns of racial equality or inequality. What kind of institutional universe do
racially defined minorities confront, and how do those institutions affect their integration into
society and, ultimately, their chances for equality and for protection against discrimination (or
worse)?15
History, Sequence, and Employment Discrimination Policy in the US and Britain
As with any other policy development, the story of employment discrimination policy in
the United States and Britain is, among other things, a story of the formation of coalitions for
particular policy choices in distinct historical circumstances. The question, then, is how did the
processes of coalition formation around particular forms of employment discrimination law
differ in the two political systems? The implication of the sequence argument has to do with the
place of racially defined groups in the institutions that structure the formation and maintenance
of those policy coalitions, and the consequent ability of those groups to affect, whether directly
or indirectly, the making and administration of policy. How did the particular links between
African-Americans and the American state, forged out of the co-evolution of racial politics and
American political institutions, shape the strategic calculations of policymakers in the United
States? And how did the relative lack of such institutional links, the result of the relative
newness of race-making in British domestic politics, similarly affect British policymakers? In
Jon Elster, Nuts and Bolts for the Social Sciences (Cambridge: Cambridge University Press, 1989); Jon Elster, “A
Plea for Mechanisms,” in Social Mechanisms: An Analytical Approach to Social Theory, ed. Peter Hedström and
Richard Swedberg (Cambridge: Cambridge University Press, 1998).
14
15
To these questions one might add, how does the institutional context affect the very definition of race? I concede
that I am sidestepping here this matter of the social or political construction of race and simply stipulating racial
distinctions in these societies that appear to be politically consequential. I do this for simplicity’s sake, and not to
“essentialize” racial differences.
9
order to explore these questions, it is necessary to compare the contrasting historical
development of race and institutions in the United States and Britain that produced different
configurations of political conditions, in which similar ideas about race and discrimination were
translated into different policies.16
In the United States, the political evolution of race politics and the changing position of
African-Americans in the political system prepared the ground for the civil rights legislation of
the 1960s. The New Deal marked a fundamental political and institutional transformation for
African-Americans. For the first time since Reconstruction, African-Americans were part of a
national party coalition. The New Deal coalition, which was first assembled in Franklin
Roosevelt’s election as president in 1932 and sealed in his landslide reelection in 1936, brought
together an odd agglomeration of groups: Southern whites, Northern urban workers (especially
“ethnics” and Catholics), Midwestern farmers, Western Progressives, and Northern blacks. The
first of these, Southern whites, had formed the core of the Democratic coalition, such as it was,
under the generation of Republican dominance in national politics since the 1890s, a period
when the Democrats had elected only one president. The others were united primarily by their
status as outsiders to the economic and sociocultural orthodoxy of the Republican party, although
it took the Great Depression and the skillfully vague and evocative campaigning of Franklin
Roosevelt in 1932 (and his more strident rhetoric against “economic royalists” four years later)
to draw these fragments together into an effective electoral and policymaking coalition.17
The presence of African-American voters in this coalition was doubly remarkable. First,
On this sort of comparative, configurational analysis, see Ira Katznelson, “Structure and Configuration in
Comparative Politics,” in Comparative Politics: Rationality, Culture, and Structure, ed. Mark Irving Lichbach and
Alan S. Zuckerman (Cambridge: Cambridge University Press, 1997); Charles C. Ragin, The Comparative Method:
Moving Beyond Qualitative and Quantitative Strategies (Berkeley: University of California Press, 1987).
16
17
James L. Sundquist, Dynamics of the Party System: Alignment and Realignment of Political Parties in the United
States, rev. ed. (Washington: Brookings Institution, 1983); Everett Carll Ladd Jr. with Charles D. Hadley,
Transformations of the American Party System: Political Coalitions from the New Deal to the 1970s, 2d ed. (New
York: W. W. Norton, 1978); Arthur M. Schlesinger Jr., The Age of Roosevelt: The Politics of Upheaval (Boston:
Houghton Mifflin, 1960), 499-657; Kenneth Finegold, “From Agrarianism to Adjustment: The Political Origins of
New Deal Agricultural Policy,” Politics and Society 11 (1981): 1-27.
10
it marked the end of seventy years of solid allegiance to the Republican party, the “party of
Lincoln.”18 Second, it meant that African-Americans, at least in the North, were in a position
potentially to wield electoral influence and to reap some of the benefits of national political
power in a way that they had not been previously.19 The influence of African-American
interests in the New Deal was weak; Southerners, who held key positions in Congress and within
the Democratic party, were clearly the senior partners in the coalition and were able to shape
legislative outcomes to avoid benefitting African-Americans.20 Despite these clear limits,
Roosevelt found areas of common interest that joined Southern whites and Northern blacks,
advancing a program of social provision, labor rights, and regulatory expansion that, on balance,
benefitted African-Americans more than any administration since Lincoln’s.21 Roosevelt was
even susceptible to direct pressure from African-Americans, as when he issued his executive
order on fair employment practices in response to A. Phillip Randolph’s threatened march on
Washington in 1944.
As African-American moved north in vast numbers during and after the Second World
War, their political leverage grew within the Democratic party, particularly in the critical states
of the Northeast and upper Midwest where African-American voters came to represent the
critical margin that meant the difference between victory and defeat in the all-or-nothing contest
for electoral votes in presidential elections. Such, at least, was the perception of Harry Truman,
who supported relatively weak (but still unprecedented for the Democratic party) civil rights
18
Nancy J. Weiss, Farewell to the Party of Lincoln: Black Politics in the Age of FDR (Princeton: Princeton
University Press, 1983).
19
On the political weakness of urban blacks before the New Deal, see Katznelson, Black Men, White Cities.
Lieberman, Shifting the Color Line. As Roosevelt told Walter White, the secretary of the NAACP, in 1934, “I did
not choose the tools with which I must work. Had I been permitted to choose them I would have selected quite
different ones. The Southerners by reason of the seniority rule are chairmen or occupy strategic positions on most
of the Senate and House committees. If I come out for the anti-lynching bill now, they will block every bill I ask
Congress to pass to keep America from collapsing. I just can’t take that risk.” Walter White, A Man Called
White: The Autobiography of Walter White (New York: Viking, 1948), 169-70.
20
21
Harvard Sitkoff, A New Deal for Blacks: The Emergence of Civil Rights as a National Issue (New York: Oxford
University Press, 1978).
11
measures before and during the 1948 presidential campaign. The result was that Southern
delegates stormed out of the Democratic National Convention in Philadelphia in July and
nominated their own presidential ticket on a states’-rights, segregationist platform, which won
four Southern states — and Truman still won the election, largely on the strength of black votes
in states such as Illinois, Michigan, and Ohio.22 Civil rights, which had barely divided the
parties until then, increasingly drove wedges both between the parties and between wings of the
Democratic party through the 1950s and into the 1960s.23
Although growing, African-American electoral power remained weak, especially in the
South, where it was nil. African-Americans therefore, sought influence through other means
available to them within the institutional structure of American political life. One such avenue
was the courts, where a concerted legal strategy led by the NAACP Legal Defense Fund won
important victories in outlawing restrictive covenants on property, banning white-only primary
elections, and desegregating public schools. Another was protest; Southern blacks created a
social movement during the 1950s and 1960s that attacked the structures of segregation through
the few openings available in Jim Crow’s formidable defenses, with national repercussions.
This configuration of links between African-Americans and the variegated structures of
the American state laid the political and institutional groundwork for the development of the
Civil Rights Act in the 1960s, and particularly for its equal employment opportunity provisions.
This episode suggests limits to Paul Burstein’s argument that aggregate national public opinion shifts drove the
timing of civil rights legislation. Truman, who as president clearly had reason to consider national public opinion
very carefully, chose to promote a fairly strong civil rights agenda despite the fact that (on Burstein’s own evidence)
such an agenda had nothing approaching majority support in the country as a whole. In doing so, Truman clearly
took a big political risk, but he did so based on a strategic calculation, supported by the logic of electoral geography,
that the support of Northern blacks would help his election prospects more than the enmity of Southern blacks
would hurt them. The strategic position of African-Americans in the institutional framework of American politics
played an important causal role, suggesting that the public opinion shifts that Burstein charts were linked to public
policy outcomes through a complex filter of institutionally structured strategic action. Paul Burstein,
Discrimination, Jobs, and Politics: The Struggle for Equal Employment Opportunity in the United States since the
New Deal (Chicago: University of Chicago Press, 1985).
22
23
Edward G. Carmines and James A. Stimson, Issue Evolution: Race and the Transformation of American Politics
(Princeton: Princeton University Press, 1989); Thomas J. Sugrue, “Crabgrass-Roots Politics: Race, Rights, and the
Reaction Against Liberalism in the Urban North, 1940-1964,” Journal of American History 82 (1995): 551-78.
12
Northern and Southern Democrats had long been divided on issues of civil rights and labor, and
that split only deepened as African-American votes in the North became more important to the
party’s political strategy.24 Still, the structure of Congress — the committee and seniority
systems of the House and the filibuster rule in the Senate — gave Southerners inordinate power
over legislation, although this power came under increasing assault from party leaders beginning
in the late 1950s as powerful Southerners threatened to block pieces of the party’s national
agenda. The Republican party, too, remained supportive of civil rights although skeptical of
invoking national power to protect civil rights, putting them in a pivotal strategic position in
Congress on civil rights legislation. Meanwhile, African-Americans were developing a range of
increasingly institutionalized links with other components of the American state, particularly the
courts. Finally, the civil rights movement gave African-Americans an unprecedented platform
for political influence in the late 1950s and early 1960s. Two points are essential in assessing
these links between African-Americans and the shape of the American state. First, whether
conscious or latent, civil rights (and racial politics more broadly) was an essential element in the
political strategies of the parties in the middle of the twentieth century, and thus was critical
component of the American political order. And second, this deep structural connection
between race and American politics was the result of the coevolution of race and politics in the
United States through the twentieth century, conditioned on prior historical developments.
In Britain, by contrast, the pattern of linkage between “blacks” — immigrants from the
New Commonwealth and their descendants — and national political institutions was entirely
different. Unlike American blacks, British blacks did not have a long history of engagement
with Britain’s political institutions — or, to put the point more precisely, Britain’s domestic
political institutions had not long had to concern themselves with the problem of racial division
in British society. The British Empire at its peak had ruled tens of millions of nonwhite
subjects, but few had found their way to the home country, creating effective institutional
Ira Katznelson, Kim Geiger, and Dan Kryder, “Limiting Liberalism: The Southern Veto in Congress, 1933-1950,”
Political Science Quarterly 108 (1993): 283-306.
24
13
segregation.25 Before World War II, when nonwhites slowly began to find their way to British
shores, mostly as merchant seamen, the government found itself unsure how to deal with them,
precipitating a dispute between the Home Office and the Colonial Office over whose
responsibility they were and what, if any, protections and rights they could claim.26
Without any substantial history either of black participation in domestic politics or of
political engagement with racial issues, British race politics through the 1950s embodied what
Ira Katznelson has called a “pre-political consensus,” in which the two major political parties did
not differ on racial issues not so much because they agreed on principles or policies but because
there were no racial issues to speak of, because race as a social category and political axis had
not yet penetrated domestic political institutions.27 That began to change in the 1950s,
particularly after violent incidents in Nottingham and the Notting Hill section of London in 1958,
and for a time the consensus broke down, devolving into a series of policy battles over
immigration restriction and race relations.28 In opposition, the Labour Party opposed the
Conservative government’s 1962 Commonwealth Immigrants Act, which limited the rights of
entry into Britain formerly accorded to those from the New Commonwealth, suggesting an
incipient division between the parties. But although Labour won the 1964 general election, a
prominent Labour MP and former cabinet minister was defeated in the Midlands constituency of
Smethwick, the victim of a notorious Conservative campaign that focused on the purported
dangers of nonwhite immigration.29 The ensuing Labour government enacted two Race
25
I estimate that nonwhites comprised more than 50% of the population of the British Empire, excluding India, in
1930. Robert C. Lieberman, “Race and Political Institutions: The United States in Comparative-Historical
Perspective” (Paper presented to the American Political Science Association, Washington, 1997).
Laura Tabili, “We Ask for British Justice”: Workers and Racial Difference in Late Imperial Britain (Ithaca:
Cornell University Press, 1994).
26
27
Katznelson, Black Men, White Cities.
28
Kathleen Paul, Whitewashing Britain: Race and Citizenship in the Postwar Era (Ithaca: Cornell University Press,
1997); Randall A. Hansen, “The Institution of Citizenship: Immigration Policy and Nationality Law in Postwar
Britain” (D.Phil. diss., University of Oxford, 1997).
29
Paul Foot, Immigration and Race in British Politics (Harmondsworth: Penguin, 1965).
14
Relations Acts intended to protect nonwhites against discrimination, further suggesting a partisan
split on matters of race and immigration, with Conservatives favoring immigration limits and
Labour favoring protective legislation. In 1968, however, Conservative front-bencher Enoch
Powell made his famous truculent speech in which he painted an apocalyptic vision of a
multiracial Britain. Tory leader Edward Heath promptly sacked Powell from the shadow
cabinet, but the overwhelmingly positive public reaction to the speech (and the Conservatives’
electoral success in the Midlands in the general election of 1970) suggested to both parties that
extreme racial liberalism was not a winning strategy. In the late 1960s and 1970s, a new
consensus emerged in British race politics, combining immigration restriction (the Labour
government passed a new Commonwealth Immigrants Act in 1968) and protective legislation for
racial minorities (the Tory front bench backed Labour’s Race Relations Act of 1976).30
Despite increasing racialized electoral patterns, a tendency accelerated in the 1980s by
the relative indifference of Margaret Thatcher’s government to their interests, race has not come
to penetrate British political institutions as it has in the United States. Much of this difference is
doubtless due simply to the institutional structure of British politics. Although there are
certainly parliamentary constituencies in which blacks comprise a dominant or pivotal voting
bloc, there is no British analogue to the electoral college, which effectively makes some
constituencies (that is, states) more important than others in the national partisan balance. The
party discipline of the British parliamentary system makes intraparty splits, although they no
doubt occur, less prominent as strategic openings for policymaking. As a result, despite black
voting patterns that have tended to favor Labour quite strongly, the Labour party has made very
little effort to incorporate British blacks, whether by offering policy concessions, forging links
with leaders of immigrant communities, or working to mobilize black voters; it has, for example,
resisted the call for the formation of “black sections” within the party organization to represent
30
Katznelson, Black Men, White Cities; Anthony M. Messina, Race and Party Competition in Britain (Oxford:
Oxford University Press, 1989).
15
and mobilize black voters.31 Above all, it seems evident that the presence of racial division in
British politics has done little to reshape the robust preexisting institutional patterns of British
politics, which were the result of long and deep prior development. While racial issues have
moved on and off the British national agenda over the course of a half century, race has not
played the same role in shaping British politics that it has in American politics, where race has
long been a central axis of conflict. Thus the sequence of race and political development in
Britain left British blacks and their allies less well poised to shape the development and
implementation of equal employment opportunity law when employment discrimination arrived
on the agenda.
Political Development and Employment Discrimination Policy: A Comparative Approach
These contrasting developmental sequences had important consequences for the shaping
and implementation of racial policy in the two countries, particularly for policies aimed at
guaranteeing equal employment opportunity. While it is not the only element of race relations
policy, employment discrimination is certainly a critically important one. The right to work is
generally considered to be a central element of modern citizenship, and access to jobs remains
one of the most important sources of group inequality in modern industrial economies.32
Moreover, employment discrimination has become a central policy problem in both countries in
the last generation, and the role of the state in enforcing employment rights has grown more
Messina, Race and Party Competition, 160-77; Ivor Crewe, “Representation and Ethnic Minorities in Britain,” in
Ethnic Pluralism and Public Policy: Achieving Equality in the United States and Britain, ed. Nathan Glazer and Ken
Young (Lexington, Mass.: D. C. Heath, 1983); Steven M. Teles, “Why Is There No Affirmative Action in Britain?,”
American Behavioral Scientist 41 (1998): 1022-23.
31
T. H. Marshall, “Citizenship and Social Class,” in Class, Citizenship, and Social Development (Garden City, N.Y.:
Doubleday, 1964); Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard
University, 1991); Ian Gordon, “The Impact of Economic Change on Minorities and Migrants in Western Europe,”
in Poverty, Inequality, and the Future of Social Policy: Western States in the New World Order, ed. Katherine
McFate, Roger Lawson, and William Julius Wilson (New York: Russell Sage Foundation, 1995); R. Zegers de Beijl
and W. R. Böhning, “Labour Market Integration of Migrants and Legislative Measures to Combat Discrimination”
(Geneva: International Labour Office, Employment Department, 1995).
32
16
complex and controversial. The principle of employment discrimination enforcement is
disarmingly simple: no one should be denied a job or a promotion or be fired simply because of
his race. But this simple proposition conceals a nest of thorny legal and political questions
about the state's role in defining and enforcing racial fairness in employment; establishing legal
guidelines, procedures, and sanctions; and devising coercive mechanisms to ensure compliance.
There is no better example of the politically explosive nature of these questions about the form
and extent of state power in employment than the current controversy over affirmative action in
the United States. Although the American debate is, in one sense, an argument between
color-blind and race-conscious views of employment policy, it is also a conflict over the nature
of state power and the structure of political institutions.33
Such controversy over the role of the state in making and enforcing antidiscrimination
policies is not unique to the United States. All the member states of the European Union,
among others, have antidiscrimination policies in force, and more than one hundred countries are
parties to the International Convention on the Elimination of All Forms of Racial Discrimination,
which was adopted by the United Nations General Assembly in 1965.34 Among European
countries, Britain is among the most vigorous pursuers of antidiscrimination policy (along with
France, Germany, and the Netherlands), and it rivals the United States in the policy emphasis it
places on preventing and punishing employment discrimination.
During the 1960s and 1970s, both countries passed major laws aimed at (among other
33
John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago:
University of Chicago Press, 1996); Hugh Davis Graham, The Civil Rights Era: Origins and Development of
National Policy, 1960-1972 (New York: Oxford University Press, 1990). On the current affirmative action
controversy see Christopher Edley Jr., Not All Black and White: Affirmative Action and American Values (New
York: Hill and Wang, 1996).
34
Ian Forbes and Geoffrey Mead, Measure for Measure: A Comparative Analysis of Measures to Combat Racial
Discrimination in the Member Countries of the European Community (Southampton: Equal Opportunities Study
Group, University of Southampton, 1992); Committee on the Elimination of Racial Discrimination and the Progress
Made Towards the Achievement of the Objectives of the International Convention on the Elimination of All Forms of
Racial Discrimination (New York: United Nations, 1979). See also Patrick R. Ireland, “Migration, Free
Movement, and Immigrant Integration in the EU: A Bifurcated Policy Response,” in European Social Policy:
Between Fragmentation and Integration, ed. Stephan Leibfried and Paul Pierson (Washington: Brookings
Institution, 1995).
17
things) outlawing employment discrimination. These laws — the American Civil Rights Act of
1964 and the British Race Relations Act of 1976 — had much in common. Each forbade
employers to refuse to hire or promote or to fire a person on racial grounds, making such
discrimination a civil offense that gives rise to legal action between private parties. Each
provided the national government with new and unprecedented power to enforce this prohibition
against private employers. Each created a new government agency dedicated exclusively to
enforcing racial equality, whether exclusively in employment (the US Equal Employment
Opportunity Commission, or EEOC) or generally (the British Commission for Racial Equality,
or CRE).
But these similarities between American and British policies mask two important
differences. First, while the Civil Rights Act of 1964 added a new agency, the EEOC, to a
growing and increasingly fragmented alphabet soup of civil rights agencies, the Race Relations
Act consolidated several institutions into a single, overarching agency, the CRE. Second,
American enforcement power was, at first, exclusively individual in nature; the EEOC was
empowered to resolve individual claims of employment discrimination, and not to investigate or
remedy collective patterns of discrimination.35 In Britain, by contrast, the CRE had both sorts of
power from the outset, and it was weighted toward collective over individual enforcement
activities. Finally, and ironically, the United States built, atop its relatively weak foundation, an
effective (if controversial) policy of affirmative action, while British enforcement of remained
relatively weak despite the strong language of the law.
The politics of racial conflict, of course, differs across these two countries in ways that
importantly affect the comparison. The legacies of colonialism and slavery have produced
different histories of racial division in the two societies. The rise of racial politics in Britain has
resulted from immigration, mostly from their former colonies and mostly after World War II, so
that race relations policy is closely linked with immigration and naturalization policy in ways
35
In 1972, Congress granted the EEOC limited power to file lawsuits, but not cease-and-desist power. Graham,
Civil Rights Era, 434-45.
18
that it is not in the United States.36 Racial minorities make up a smaller percentage of the total
population in Britain than in the United States — about 6% in Britain compared to
approximately 12% African-Americans and 20% total nonwhites in the most recent national
censuses — and the “black” population in Britain is more diverse and often divided than in the
United States.37 These factors doubtless play a central role in any comprehensive explanation of
differences in policy, although I do not treat them at any length here. Nevertheless, they
operate, in part, through the workings of political institutions and processes that structure
political decision making. Thus a comparison of the institutional settings of policy choices in
these countries will provide a platform for further, deeper investigation of how such factors
influence policy and politics to produce important difference in race policies.
36
Although Katznelson points out striking parallels between colonialism and immigration in Britain and the United
States in Black Men, White Cities. See also Michael Hechter, Internal Colonialism: The Celtic Fringe in British
National Development, 1536-1966 (Berkeley: University of California Press, 1975); Bensel, Sectionalism and
American Political Development. On the links between race and citizenship law in the United States, see Smith,
Civic Ideals.
Richard Berthoud and Sharon Beishon, “People, Families and Households,” in Tariq Modood et al., Ethnic
Minorities in Britain: Diversity and Disadvantage (London: Policy Studies Institute, 1997); David Owen, “Size,
Structure and Growth of the Ethnic Minority Populations,” in Ethnicity in the 1991 Census, Volume 1: Demographic
Characteristics of the Ethnic Minority Populations, ed. David Coleman and John Salt (London: Her Majesty’s
Stationery Office, 1996). The American data are from the 1990 Census. See also Teles, “Why is There No
Affirmative Action in Britain?”
37
19
The Development of Employment Discrimination Policy
In the comparative histories of employment discrimination policy evolution in the two
countries, we can trace the consequences of these different configurations of race and political
institutions. In particular, political differences led the United States and Britain to diverge on
two institutional dimensions of antidiscrimination policy. The first is the centralization and
coordination of antidiscrimination policy: is policy streamlined and is power vested in a single
agency, or is it fragmented and dispersed among several state organs? The fragmentation of
policy and power might indicate coordination problems that could lead to weak enforcement,
with important racial consequences. Such institutions may or may not be constructed on
motives that explicitly entail particular ideas about race; rather, they may result from earlier
institutional legacies, such as federalism or the general fragmentation of state power in the
United States.38 But such a finding about the origins of race policy institutions would suggest, at
the very least, the relationship between racial ideas and policy is more complicated than simple
causation.
The second aspect of institutional context is the individual or collective nature of the
enforcement power. Is the state's enforcement role to resolve individual claims of
discrimination, or is it empowered to regulate employment practices more generally through
collective powers of coercion? This question also entails an institutional answer that may or
may not have racial origins, but that may have important consequences for the ways in which
particular racial ideas are translated into state action.
Together, these two dimensions of antidiscrimination institutions have shaped the
subsequent implementation of policy and the development (or nondevelopment) of affirmative
action or other practices that entail some form of race-conscious positive action. Once they
were established, these antidiscrimination policy institutions interacted with the political and
institutional configurations in which they were forged to produce often unintended and
unexpected results. Three characteristics of state institutions are especially consequential in the
comparison: the politics of coalition-formation in Congress and Parliament; the nature of the
administrative state and its potential independence from political control; and the existence of
independent courts and other avenues for political influence outside regular legislative
policymaking channels. In the United States, the fragmented and individualistic enforcement
regime established in 1964 created the arena in which battles over enforcement would be carried
out by the same institutional and political forces responsible for its creation. Those battles
involved many of the same political imperatives (and many of the same actors) that had driven
the politics of the Civil Rights Act — the building and maintenance of party and legislative
coalitions, movement pressures, and legal strategies in federal courts. But these imperatives
were now filtered through a new legal and institutional prism that reconfigured
antidiscrimination politics. In Britain, by contrast, the structure of party and parliamentary
politics and the absence of independent courts provided fewer openings for pressures toward
alternative interpretations and practices based on the law. By tracing these processes, I begin to
sketch out an institutionally grounded approach to the comparative politics of race policy.
See J. P. Nettl, “The State as a Conceptual Variable,” World Politics 20 (1968): 559-92; Stephen Skowronek,
Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (Cambridge:
Cambridge University Press, 1982).
38
20
The United States
The struggle for passage of the Civil Rights Act of 1964 reflected the United States’s
distinctive, race-laden institutional configuration. The fundamental problem facing President
Lyndon Johnson and his lieutenants in Congress was assembling a supportive coalition that
would pass a bill in both houses of Congress, over the absolute objections of most Southern
Democrats and the ambivalence of many Republicans. The problem of coalition formation was
particularly problematic in the Senate, where a two-thirds vote was required to end a filibuster,
which meant that a minority of thirty-four senators could delay the bill’s passage indefinitely and
possibly kill it. At the same time, the political imperative for Northern Democrats to pass
serious civil rights legislation was becoming increasingly irresistible, largely as a result of
African-American pressure applied through both protest and politics. Thus the first effect of the
distinctive configuration of links between African-Americans and the American polity was to
shape the dynamics of coalition formation in making antidiscrimination law.
Title VII of the Civil Rights Act of 1964 outlawed racial discrimination in employment,
and created the Equal Employment Opportunity Commission to enforce the new law. But Title
VII was not written on a blank slate, nor was the EEOC the first or only American government
agency to be charged with enforcing racial fairness in employment. In 1941, President Franklin
Roosevelt had created the federal Fair Employment Practices Committee (FEPC) to enforce
nondiscrimination in government employment and defense contracts. Although symbolically
important, the FEPC was practically impotent, and it and a string of executive-branch successors
came and went during the 1940s and 1950s; meanwhile, Congressional support for federal action
on equal employment opportunity was gradually growing.39 The Civil Rights Act of 1957,
shepherded through Congress by Senate majority leader Lyndon Johnson, created the United
States Civil Rights Commission, which was supposed primarily to investigate and publicize civil
rights matters. In 1961, newly elected President John F. Kennedy issued an executive order
creating the President's Committee on Equal Employment Opportunity (PCEEO), chaired by
Lyndon Johnson, now vice president. The large and unwieldy PCEEO was, like the FEPC,
charged with enforcing nondiscrimination in government contracts and employment. It enjoyed
some success, but without law and funding behind it, the PCEEO made little progress. Add to
the mix the Civil Rights Division of the Justice Department, also created by the 1957 act, and the
array of state FEPCs and it is clear that the EEOC entered an already complicated and
fragmented environment.
As Congress debated Title VII in 1964, many civil rights advocates envisioned the
creation of a new agency, a super-FEPC, backed by statute and appropriated funds, that would
wield powerful and comprehensive authority over job discrimination, including the regulatory
powers to conduct investigations and impose sanctions against employers. This vision of the
administrative power attached to the new law involved a streamlined institutional structure, in
which a newly constituted FEPC would consolidate the functions that were scattered throughout
the federal and state governments. It also entailed a strong agency, empowered not merely to
mediate individual disputes but to rule on and regulate broader, collective patterns of
discrimination. Both of these institutional paths were frustrated by the compromise that broke
the logjam in Congress and allowed the Civil Rights Act to become law.
39
Graham, Civil Rights Era, 10-19; Desmond King, Separate and Unequal: Black Americans and the US Federal
Government (Oxford: Oxford University Press, 1995); Burstein, Discrimination, Jobs, and Politics, 13-39
21
The EEOC began its gestation as a full-fledged regulatory agency, modeled on agencies
such as the powerful National Labor Relations Board and Federal Trade Commission — an
independent board, whose members were not subject to presidential removal, with the power to
issue blanket regulations and enforce them by ordering noncompliant employers to cease and
desist their discriminatory activities. This was the form in which the bill was approved by a
subcommittee of the House Judiciary Committee in the October 1963, after Representative
Adam Clayton Powell Jr. of Harlem threatened to move a freestanding bill to create such an
agency. This move conciliated Powell, but it was too much for conservatives and moderates on
the Judiciary Committee, and it worried the Kennedy White House, which favored a moderate
strategy in order to get a bill passed. Judiciary chairman Emmanuel Celler engineered a
compromise that dropped the EEOC's cease-and-desist authority and gave it instead the
prosecutorial authority to file lawsuits against recalcitrant employers.40
The Senate debate on the Civil Rights Act of 1964 famously lasted three months and
filled more than 60,000 pages of the Congressional Record.41 The compromise that finally
ended the record breaking Southern filibuster was brokered by minority leader Everett Dirksen
of Illinois. The Dirksen compromise included important language in Title VII to ensure that
only intentional discrimination would be a violation of the act, and not so-called “statistical
discrimination” (inferred from numerical imbalances). But two other important provisions of
the Dirksen compromise directly concerned the structure of the EEOC and the scope of its
power. First, it stripped the EEOC of the power to file antidiscrimination lawsuits directly,
reserving this power for the Justice Department, and then only in “pattern or practice” cases,
where it could document systematic, rather than simply individual, discrimination. Second, it
required that the EEOC defer to state FEPCs in disputes over jurisdiction.42 These two
provisions effectively did two things. They lowered the EEOC from its proposed status as first
among equals, the lead regulatory agency in the field of job discrimination, and they limited its
power to mediating in individual cases.
Here a further institutional constraint shaped the development of antidiscrimination
policy: the characteristic fragmentation of the American state. One source of this fragmentation
was simply the constitutional limitation on the federal government’s authority to restrict the
actions of private employers, as opposed to government contractors (as well as direct
government employment).43 In the latter case, the government’s authority was less ambiguous,
and the executive branch had already begun to try to enforce antidiscrimination rules on both
contractors and the government’s own departments and agencies, mostly through the PCEEO.
But despite the Supreme Court’s generally deferential stance toward economic regulation since
1937, banning private discrimination still required congressional action, which placed it on a
separate institutional track from public-sector regulation.
40
Graham, Civil Rights Era, 131-34; Robert D. Loevy, To End All Segregation: The Politics of the Passage of the
Civil Rights Act of 1964 (Lanham, Md.: University Press of America, 1990), 52-54.
41
Graham, Civil Rights Era, 139-52; Charles and Barbara Whalen, The Longest Debate: A Legislative History of the
1964 Civil Rights Act (Cabin John, Md.: Seven Locks Press, 1985).
42
43
Graham, Civil Rights Era, 145-49.
I am indebted to Frank Dobbin for this point. See Michael I. Sovern, Legal Restraints on Racial Discrimination
in Employment (New York: Twentieth Century Fund, 1966). On segregation and discrimination in federal
employment, see King, Separate and Unequal.
22
The result is that coordination was the first problem that the EEOC faced. The EEOC
began its life swimming in the alphabet soup of antidiscrimination agencies. While the EEOC
was supposed to enforce Title VII, it was not clear how its activities were to fit in with those of
other agencies with similar jurisdiction. The President's Committee on Equal Employment
Opportunity coordinated antidiscrimination activities in the executive branch itself and it
operated a program called “Plans for Progress,” which sought to encourage large government
contractors to practice nondiscrimination. Moreover, the PCEEO was, by executive order,
chaired by the vice president, and vice-presidential nominee Hubert Humphrey, a civil rights
champion, could be expected to cling to this role after taking office. Dirksen actually proposed,
only half seriously, abolishing the PCEEO; intended as a dig at the administration, this move
might have ironically strengthened the EEOC's hand.44 The Justice Department's role also posed
coordination problems, as did the mandated deference to state FEPCs. Moreover, in 1965,
President Johnson's Executive Order 11246 on nondiscrimination in government employment
and contracting led to the creation of the Office of Federal Contract Compliance (OFCC) in the
Department of Labor, creating a further muddle of jurisdictions and enforcement powers.
From the moment the Civil Rights Act passed, the coordination of antidiscrimination
enforcement was a problem for the Johnson administration. In fact, discussions of coordination
issues began in the White House even before the president signed the bill. In a mid-June 1964
memorandum to the White House, Civil Rights Commission staff director William L. Taylor
outlined the impending coordination problems, which, he worried, would impede the expeditious
implementation of the act. He suggested the need for a well staffed White House office charged
with coordinating executive-branch civil rights enforcement. He also counseled speed,
especially in setting up the EEOC, arguing that although “implementation of the Civil Rights Bill
and concrete results are bound to come slowly,” it was important to “show that the Government
is making a prompt good faith effort to meet its responsibilities.”45 Although the EEOC's
enforcement powers would not begin until one year after the act became law, Taylor
recommended that the president move quickly to appoint EEOC commissioners and to hold the
national conference on equal employment opportunity that the act mandated. Lee White, a
White House aide who was also concerned with civil rights coordination, also counseled speed
but cautioned against doing anything that might stir up trouble for Johnson's reelection campaign
against Senator Barry Goldwater, an opponent of the Civil Rights Act. “There is,” White wrote
in September, “good reason to get the Commission going as quickly as possible but . . . it is hard
to find any compelling reasons for doing this prior to the election. Should it be done before the
election this would focus attention on a difficult area and could arouse criticism over the
selection of members for the Commission. Again in this case, there has not been any criticism
over the failure to have named the members.”46 The EEOC was thus slow getting off the
ground, compounding its already apparent institutional difficulties; Johnson did not get around to
appointing commissioners until May 1965.47
44
Graham, Civil Rights Era, 146.
45
Memorandum, William L. Taylor to Lee White, 17 June 1964, Office Files of Lee C. White, Box 2, Lyndon B.
Johnson Library (hereafter cited as LBJL).
46
Memorandum, Lee C. White to Johnson, 28 September 1964, LE, White House Central File (hereafter cited as
WHCF), Box 167, LBJL.
47
Graham, Civil Rights Era, 177-79.
23
Also in June 1964, the Bureau of the Budget (BOB) began preparing a supplemental
appropriation request to Congress for money to fund the new activities that the act would require,
including the operation of the EEOC. In a memorandum to budget director Kermit Gordon,
BOB staff flagged coordination with the PCEEO as an important concern in setting up the
agency, although they put off serious consideration of how this coordination should be
achieved.48 Assistant Attorney General for Civil Rights Burke Marshall proposed an
interagency commission to coordinate the activities of the proliferating civil rights executive
establishment, and the Department of Labor also weighed in on the subject.49
After the election, Johnson asked Humphrey to coordinate the coordination of civil rights
activities, and in a long memorandum to the vice president-elect, Acting Attorney General
Nicholas deB. Katzenbach laid out the basic challenges: central direction of policy from the
White House and the growing number of entities with overlapping functions, especially in
employment.50 To address the first, Katzenbach proposed a presidential committee, chaired by
Humphrey, to set and oversee civil rights policy. To address the second, he laid out a strong
argument for abolishing the PCEEO and lodging all employment enforcement power in the
EEOC. He went on, however, to recommend retaining the PCEEO to avoid offending its
members and supporters (including, of course, Humphrey himself). Thus Katzenbach's proposal
to improve coordination boiled down to the creation of yet another committee without
streamlining or abolishing anything.
Humphrey and Johnson took up Katzenbach's suggestion, and in January 1965 the
President's Council on Equal Opportunity was created, chaired by the vice president.51 Not
surprisingly, the new council did not last long. Rather than providing coordination, it merely
confused matters, and by summer the White House was already looking for ways to reorganize
civil rights enforcement again and entertaining a variety of proposals. One such proposal came
from LeRoy Collins of the Commerce Department, who argued for the merger of all the major
civil rights bodies into a single “Agency for Civil Rights.”52 An August memo from Harry
McPherson to Joseph Califano, both White House aides, indicates that the decision to “demolish
the VP's Council” had been all but taken, with uncertainty only about the timing of the action.53
In mid-September Humphrey was still clinging to his role as civil rights enforcement czar, but a
memo to the president suggests that coordination efforts had gotten nowhere. “It would be most
embarrassing to the Administration,”he wrote, “if [the various agencies’] efforts are not carefully
48
Memorandum, Labor-Welfare Division to Kermit Gordon, 26 June 1964, Office Files of Lee C. White, Box 2,
LBJL.
49
Memorandum, Kermit Gordon to Lee White, 22 August 1964, Civil Rights During the Johnson Administration,
1963-1969: A Collection from the Holdings of the Lyndon Baines Johnson Library, part 1, reel 13; Department of
Labor Suggestions for Preliminary Implementation of Title VII, Civil Rights During Johnson, part 1, reel 13.
50
Memorandum, Nicholas deB. Katzenbach to Humphrey, 23 November 1964, Civil Rights During Johnson, part 1,
reel 2; Johnson to Humphrey, 2 December 1964, Civil Rights During Johnson, part 1, reel 2.
51
Graham, Civil Rights Era, 161-62.
LeRoy Collins, “Analysis of Civil Rights Functions of the Federal Government and Recommendations for their
Consolidation in a Single Agency,” July 1965, HU 2, Confidential File, WHCF, Box 56, LBJL.
52
53
Memorandum, Joe Califano to Harry McPherson, 20 August 1965, HU, WHCF, Box 3, LBJL.
24
and closely coordinated. While initial cooperation has been good, there is still room for
substantial improvement. . . . Coordinated action by the Roosevelt Commission [the EEOC, to
which Humphrey here refers by the name of its chairman, Franklin D. Roosevelt Jr.], by the
Attorney General in bringing pattern or practice suits, and by the Contract Compliance System
enforcing the Executive Orders applicable to Government contractors, could make a significant
contribution.”54 The next week, in fact, the White House, in fact, maneuvered Humphrey into
publicly calling for the dismantling of his own committees in a “memorandum” that was released
to the press along with the text of Johnson's Executive Order 11246, which transferred their
enforcement responsibilities to the Civil Service Commission and the Departments of Labor and
Justice, scarcely mentioning the EEOC.55 Humphrey's committees had failed to fulfill their
coordination role, but now it seemed as though the White House was throwing in the
coordination towel altogether. In fact, Executive Order 11246 led directly to the creation of the
Office of Federal Contract Compliance in the Labor Department, setting up perhaps the most
important jurisdictional battle of the EEOC's brief career.
The OFCC quickly emerged as the EEOC's chief rival in the employment discrimination
enforcement game. The EEOC bumbled through its first few years, including running through
four chairmen in five years, beginning with the frequently absent and universally disliked
Franklin D. Roosevelt Jr. During these years the commission's enforcement efforts ran up
against the limits of both its statutory power and its position in a fragmented executive
establishment for civil rights. Unable to marshal full regulatory power, largely because pieces
of this power had been parceled out elsewhere, the EEOC began inching pragmatically toward
affirmative action, based on the notion of statistical discrimination. Meanwhile the OFCC also
began working toward a pragmatic strategy to police discrimination in the construction industry,
and particularly in construction unions working on federally funded projects.56 This strategy,
which led ultimately to the Philadelphia Plan, was unsuccessful under the Johnson
administration, coming to fruition, ironically, only after Richard Nixon's election. Despite its
obscure origins and relatively subordinate place in the executive hierarchy, the OFCC had what
the EEOC lacked: an effective sanction against noncompliant employers (or, in this case,
unions), namely the power to withhold federal contracts.57
The EEOC coveted this power, without which it was reduced to a role as conciliator in
individual cases and sideline cheerleader (and sub rosa advisor) in discrimination suits in federal
courts. From the passage of the Civil Rights Act, administration officials had recognized that
contract compliance was an important element of job discrimination enforcement, although the
EEOC's relationship to this effort was always left to vague pronouncements about the need for
coordination between it and other agencies. But as OFCC grew more vigorous in its
54
Memo to the president from the vice president, 17 September 1965, Civil Rights During Johnson, part 1, reel 7.
55
Memo from the vice president to the president, 24 September 1965, Civil Rights During Johnson, part 1, reel 11;
Executive Order 11246, Federal Register 30 (1965): 12319; Graham, Civil Rights Era, 180-87; Skrentny, Ironies of
Affirmative Action, 133-34.
56
On administrative pragmatism in both the EEOC and the OFCC, see Skrentny, Ironies of Affirmative Action,
111-44. See also Graham, Civil Rights Era, 282-97.
57
Although the OFCC never actually canceled a contract during the Johnson administration, it did not need actually
to do so in order to be powerful. Merely the threat of cancellation gave it substantial leverage before contracts were
awarded. Skrentny, Ironies of Affirmative Action, 134; Graham, Civil Rights Era, 284-87.
25
enforcement efforts, civil rights advocates began to take notice and to recognize the potential that
lay in merging its coercive instrument with the EEOC's legal and political stature. In 1968, an
interagency civil rights task force headed by Attorney General Ramsey Clark recommended that
the contract compliance function be transferred to the EEOC.58 This primary benefit of this
transfer, the task force, argued, would be to “transform [the EEOC] from a conciliator into an
effective law enforcement agency” by giving it a legitimate and powerful sanction with which to
back its attempts at conciliation. The task force also touted the benefits of coordination and
efficiency that such a transfer might bring. A group of liberal Democratic Congressmen also
argued for the merger of employment discrimination and contract compliance functions in a
1968 letter to Johnson.59 Although their concern was the enforcement of equal opportunity in
the federal government rather than the private sector and did not directly concern the EEOC,
they, too, clearly recognized the political and administrative advantages to be gained from
consolidation of these functions. These proposals, however, arrived in the waning months of the
Johnson administration, and the Nixon administration used OFCC to revive the Philadelphia
Plan, leaving the EEOC isolated, weak, and drowning in a growing backlog of unresolvable
cases.
The task force also noted that merging the OFCC into the EEOC might place a hurdle in
the way of another crusade of longer standing: a drive to expand the EEOC's power to give it the
“cease-and-desist” authority that had been part of its original conception. The task force's report
noted that the merger might reduce the urgency of this expansion of the EEOC's power, which
civil rights advocates both in and outside of the administration had been seeking for some time.
Another important limitation on the EEOC's power (beside its lack of effective sanctions) was
the stipulation that it could respond only to individual claims of discrimination and not to
plant-wide or broader collective claims. One way to address this limitation was to give the
commission full regulatory power. The drumbeat for this expansion of power began almost
before the EEOC had lumbered into existence. In their plans for civil rights legislation in 1966,
the idea of granting the commission cease-and-desist power drew support from White House
aides, the attorney general, the Civil Rights Commission, the Bureau of the Budget, and the
EEOC itself. Katzenbach outlined two options: granting cease-and-desist authority in individual
cases, and expanding the EEOC into a full-blown regulatory agency with the power “to prescribe
general rules and practices having the force of law.” Katzenbach himself favored the first
option, both because it would preserve his own department's power to file “pattern or practice”
suits and because, as he wrote to Joseph Califano, the latter “represents much more serious
political problems. I cannot conceive of Senator Dirksen’s going this far.”60 Despite extensive
internal support for the stronger option, the administration never threw itself fully behind
58
Memorandum, Steve Pollak [Assistant Attorney General] to James Gaither [White House], with attached
memorandum to Joseph Califano, 30 October 1968, Civil Rights During Johnson, part 1, reel 10.
59
Reps. William F. Ryan, Philip Burton, John Conyers Jr, Edward R. Roybal, and Charles C. Diggs to Johnson, 20
June 1968, Civil Rights During Johnson, part 1, reel 7.
60
Memorandum, Lee C. White to Johnson, 5 October 1965. Civil Rights During Johnson, part 1, reel 5; William L.
Taylor [Staff Director, U.S. Commission on Civil Rights] to Lee C. White, 8 December 1965 [Forwarded by White
to Harry McPherson], Civil Rights During Johnson, part 1, reel 11; Memorandum, Nicholas deB. Katzenbach to
Joseph Califano, 13 December 1965, LE, WHCF, Box 65, LBJL; Memo W.H. Rommel [Acting Director of
Legislative Reference, Bureau of the Budget] to Harry McPherson, 22 April 1966, Civil Rights During Johnson, part
1, reel 11.
26
cease-and-desist authority. Indeed, Katzenbach's political judgment proved correct; although
the House passed a bill in April 1966 granting the EEOC cease-and-desist authority by more than
3-1, the bill died after a desultory Senate filibuster (prompting Roy Wilkins of the NAACP and
the Leadership Conference on Civil Rights to ask Johnson to support a reform of the Senate's
cloture rule). After several more years of agitation, the EEOC was finally given the power to
file lawsuits, but not cease-and-desist authority, in 1972.61
Despite these limitations imposed by both coalitional dynamics and institutional
fragmentation, antidiscrimination policy has been remarkably effective in the United States. For
one thing, affirmative action evolved in the United States, a development made possible by the
confluence of institutional conditions in the late 1960s and early 1970s. These conditions
included the independence of the federal courts, the continued activities of civil rights
organizations in a variety of political and legal arenas, and continuing contest over the place of
African-Americans (as well as women, Latinos, and other groups) in the partisan and coalitional
patterns of American politics.62 As John Skrentny has shown, affirmative action — a set of
practices that allow (and often require) group-conscious treatment of individuals — arose not out
of the ideological triumph of race-consciousness over color-blindness but rather out of the
pragmatic gropings of politicians and bureaucrats to make antidiscrimination policy work within
the limitations of institutional weakness and fragmentation.63 The ironic development of
affirmative action in the United States resulted from many forces acting together. But what
made it possible was precisely the same set of factors that conditioned the development of
American antidiscrimination law in the first place — particularly the fragmentation of American
political institutions and the particular configuration of links between African-Americans and the
American state that evolved in the post-New Deal era — although the strategic context was now
enriched by the Civil Rights Act and the EEOC itself. Hamstrung by its limited coercive power
and its restricted institutional position, inundated in short order with an overwhelming caseload,
and limited by the legal requirement of proving discriminatory intent in individual cases, the
EEOC turned to a variety of tactics to pursue its aims. It was able exert entrepreneurial
influence through informal channels precisely because of the organizational slack in the federal
government, because its precise role in the pantheon of enforcement agencies was so ill defined
and because it was able to find outside partners and allies. It effectively used its limited
regulatory power to prevent newspapers from publishing job advertisements that specified the
race of acceptable applicants, although it was forced to negotiate an compromise agreement with
the American Newspaper Publishers Association on single-sex ads. It used the power of
publicity, holding a series of high-profile hearings on employment practices in New York City in
1968 that shone a rather embarrassing spotlight on, among other employers, The New York
61
Memorandum, Roy Wilkins to Johnson, 29 December, 1966, Civil Rights During Johnson, part 1, reel 11;
Memorandum, Harry C. McPherson Jr. to Johnson, 30 December 1966, Civil Rights During Johnson, part 1 reel 11;
Ramsey Clark [Acting Attorney General] to Humphrey, 17 February 1967, Civil Rights During Johnson, part 1, reel
10; Graham, Civil Rights Era.
Paul Frymer and John David Skrentny, “Coalition-Building and the Politics of Electoral Capture During the Nixon
Administration: African Americans, Labor, Latinos,” Studies in American Political Development 12 (1998): 131-61
62
Skrentny, Ironies of Affirmative Action. For a more nuanced definition of what “affirmative action” has come to
mean, see pp. 7-8. See also Sunita Parikh, The Politics of Preference: Democratic Institutions and Affirmative
Action in the United States and India (Ann Arbor: University of Michigan Press, 1997).
63
27
Times.64 It participated with the NAACP and other civil rights organizations in
precedent-setting antidiscrimination actions in labor negotiations and the federal courts that
shaped antidiscrimination practices in a wide swath of American industry.65 Finally, as Frank
Dobbin and John Sutton have shown, the EEOC has also had an indirect but profound influence
on American corporate structure, inducing companies to institutionalize equal employment
opportunity practices without the actual exercise of coercive authority or legal action. 66 The flip
side of institutional fragmentation has been a level of improvisatory suppleness that has made
the EEOC and the rest of the American race relations establishment remarkably effective.
These institutional opportunities, in turn, were the result not simply of the structure of American
political institutions but of the way in which African-Americans had been incorporated in those
institutions through the historical processes of political development.
Great Britain
In comparison with the United States, the development of employment discrimination
law in Great Britain seems quite straightforward. Britain's approach to the problem of race
relations was quite similar to the American approach of liberal integrationism that the Civil
Rights Act of 1964 represented. In the early 1970s the consensus that had been forged between
the parties on race and immigration began to break down, and race began to appear more
frequently on the public agenda. In the first of two general elections held in 1974, neither party
won a majority in the House of Commons. In a second election some months later, Labour won
a majority of three seats, and ensuing analyses suggested that nonwhite voters, who were
beginning to favor Labour, had provided the margin of victory.67
Thus when the government proposed a new Race Relations Act in 1976, it was
responding not only to increasing racial tension but also to increasing partisan pressure to take
strong action on race relations, much as the Johnson administration had faced a decade earlier.
The political imperative was, quite similarly, to attack discrimination in employment, education,
and public accommodations, and generally to ensure equal treatment to all regardless of race. In
64
Graham, Civil Rights Era; Memorandum, Luther Holcomb [EEOC] to Marvin Watson, 16 December 1965, HU
2-1, WHCF, Box 57, LBJL; Memorandum, Luther Holcomb [EEOC] to Marvin Watson, 25 March 1966, FG,
WHCF, Box 380, LBJL; Memorandum, Clifford L. Alexander Jr. [Chairman, EEOC] to Lloyd Hackler, 28
December 1967, FG, WHCF, Box 380, LBJL; Memorandum, Clifford L. Alexander Jr. [Chairman, EEOC] to Henry
Fowler [Secretary of the Treasury], 12 April 1968, HU 2-1, WHCF, Box 44, LBJL.
65
The EEOC, for example, played a central role in Griggs v. Duke Power Company [401 U.S. 424 (1971)], the case
in which the Supreme Court ruled that employers could not use even ostensibly race-neutral tests or other
occupational qualifications that tend disproportionately to bar minority applicants, unless the employer could show
that they were a bona fide qualification for the job in question. Graham, Civil Rights Era, 383-90. On the role of
the EEOC and civil rights groups in devising affirmative action plans in industry, see Judith Stein, Running Steel,
Running America: Race, Economic Policy, and the Decline of Liberalism (Chapel Hill: University of North Carolina
Press, 1998).
Frank Dobbin, John R. Sutton, John W. Meyer, and W. Richard Scott, “Equal Opportunity Law and the
Construction of Internal Labor Markets,” American Journal of Sociology 99 (1993): 396-427; Frank Dobbin and
John R. Sutton, “The Strength of a Weak State: The Rights Revolution and the Rise of Human Resources
Management Divisions,” American Journal of Sociology 104 (1998): 441-76.
66
67
Messina, Race and Party Competition, 143-49.
28
introducing the act to the House of Commons in March, Home Secretary Roy Jenkins announced
that the principles on which the government's policy were founded were (along with immigration
restriction) the permanence of racial minorities in the United Kingdom and the imperative of
affording them equal treatment.68 Racial division in British society would not go away, Jenkins
said, and the government ought to address it forthrightly.
In making and implementing antidiscrimination law, however, the government faced very
different institutional pressures than the Johnson administration had in passing the Civil Rights
Act. Most important, in passing legislation the parliamentary government did not face the same
coalition-building problems as an American presidential administration. Under the British
parliamentary system, which nearly always produces majority governments (as opposed to
minority or coalition governments), the process of policymaking does not depend on the ad hoc
or piecemeal assembly of legislative coalitions, nor does it, as a rule, allow either concerted
minorities or fragments of the majority party to block government-sponsored legislation.
Moreover, because of the limited incorporation of blacks into the structure of British party
politics, the parliamentary process was even more insulated than its American analogue from
electoral pressure. Thus the government had no opponents, whether within their own party or
on the opposite benches, who could block the march of legislation. Prime Minister Harold
Wilson and Jenkins (and James Callaghan, who became prime minister after Wilson’s
resignation in April) had no Dirksens or Richard Russells or Sam Ervins of their own to appease
in passing race relations legislation; they could, and did, adopt the government's favored policy
without complicating amendments. Thus, despite similar ideological moorings, British race
relations law departs substantially from its American counterpart, the result of institutional
differences in the policymaking process. Nevertheless, the parliamentary debates on the Race
Relations Act of 1976 reveal disagreements over issues of institutional structure and power
similar to those that shaped American antidiscrimination policy debates of the 1960s.
As in the United States, arguments over the structure and power of the state institution
established to enforce antidiscrimination law were at the center of the politics of the Race
Relations Act. Rather than creating a fragmented set of enforcement institutions, the act
consolidated two older agencies into a new Commission for Racial Equality (CRE), which was
charged with the comprehensive enforcement of antidiscrimination law in employment as well as
other areas. Moreover, the CRE was to have extensive powers to address collective
discriminatory patterns in addition to remedying individual claims of discrimination. In both
respects, the British institutional pattern departed from the American model, despite the
similarity of general ideological approach.
In his opening speech on the bill, Jenkins emphasized both aspects of the bill, arguing
particularly that the greater coordination and more extensive power represented by the new
commission would allow the government “not only to combat discrimination and encourage
equal opportunity but also to tackle what has come to be known as racial disadvantage.” The
act explicitly defined discrimination to include “not only deliberate and direct discrimination but
also unjustifiable indirect discrimination. A particular practice may look fair in a formal sense,”
Jenkins explained, “or at least neutral in its original intent, but may be discriminatory in its
operation.”69 The CRE was empowered to investigate and sanction employers who engaged in
68
69
Parliamentary Debates (Commons), 5th ser., vol. 906, cols. 1547-48.
Parliamentary Debates (Commons), 5th ser., vol. 906, cols. 1548, 1552. See also Christopher McCrudden,
“Anti-Discrimination Goals and the Legal Process,” in Ethnic Pluralism and Public Policy, ed. Glazer and Young.
29
such collective discriminatory practices, as well as to assist individuals who believed themselves
to be victims of discriminatory acts bring cases in the courts. Moreover, there was no problem
of overlapping jurisdiction or fragmented authority concerning race relations in the British
government; the CRE was given sole authority over these matters.
Both of these aspects of the CRE were controversial. Although the Conservative front
bench supported the act, Shadow Home Secretary William Whitelaw worried that the new
commission's powers would “be used in a bureaucratic and harrying manner.” Other
Conservative members were more direct. “We do not want hordes of officials instructing
people in what they may or may not do,” said Dudley Smith. “That would invoke the hostility
of elements in the white community. People of all colours, white and black, are wary of the
constant proliferation of officialdom in our national life.” Even proponents of the legislation
disagreed over whether the commission's new powers should emphasize collective or individual
authority. Evan Luard, a Labour member, argued that the commission should be primarily
concerned with helping individuals make complaints. Others worried that the Home Office,
which was to oversee the CRE, was notoriously disorganized and overloaded, and suggested that
a more modest individual approach might get better results. Similarly, some members opposed
combining the existing Community Relations Commission and the Race Relations Board into a
single body, largely on the grounds that they served two different purposes (enforcement and
education, respectively) that should remain separate.70
On the government's side proponents of the newly configured CRE argued that it was
precisely this consolidated, collective power that would render the CRE effective. Alexander
Lyon, the Minister of State for the Home Office and the government's leading spokesman on
race relations, explicitly cited the American EEOC's experience in support of these goals.
One of my concerns has been that the Commission should not be burdened to
anything like the same extent as is the Equal Employment Opportunity
Commission in the United States of America, by individual investigations of
complaints. If, for instance, the Race Relations Commission decides that it wants
to do a strategic investigation into the employment, promotion and general
conditions at, say, Ford of Dagenham, and comes to the conclusion that a system
of discriminatory practices has grown up, based upon racial grounds, within Ford,
and then issues a non-discrimination notice putting an end to these discriminatory
practices, it will affect the lives of thousands of people by one decision, whereas
the Race Relations Board in the whole of its life considered 7,000 complaints
most of which in the end had to be rejected.
The individual complaints system is important for the individual. I do not
minimise it, and we have made a provision for it. But the real test will be what
the Commission does in its strategic investigation. It is for this reason that [this
bill] is more than a brushing up of the 1968 [Race Relations] Act. . . . It is a
completely new approach to problems of dealing with racial discrimination.
70
Parliamentary Debates (Commons), 5th ser.,vol. 906, cols. 1574, 1588-89, 1591, 1607-8.
30
Lyon went on to explain that resource constraints would not allow the Government actively to
pursue both the individual and the collective routes to antidiscrimination enforcement, and that
the government had chosen to emphasize the latter, in direct contrast to the direction the United
States took in the Civil Rights Act of 1964.71 Thus the contrasting institutional contours of the
legislative process led to two different outcomes from similar ideological impulses.
The resulting legislation was, on paper at least, an extremely strong antidiscrimination
measure, certainly among the strongest in Europe and stronger in many ways than the American
Civil Rights Act in terms of the power it conferred on the state to seek out and punish racial
discrimination in employment.72 In fact, unlike the Civil Rights Act, which seemed explicitly to
rule out affirmative action (at least for private employers), the Race Relations Act of 1976
seemed to invite it, by defining discrimination to include indirect discrimination, endowing the
CRE with strong regulatory enforcement power, and even calling for some forms of “positive
action.” But the consequences of the Race Relations Act were quite limited in comparison with
the ironic development of affirmative action in the United States. Like the EEOC, the CRE
lacks strong coercive sanctions with which it could compel employers to adopt affirmative hiring
programs. But it was precisely the institutional fragmentation of the American state that gave
the EEOC and other affirmative action advocates in the United States the opportunity to find
other coercive means, particularly through the courts and the peculiar political independence of
the administrative agencies like the EEOC itself. Dealt a weak hand and forced to find policy
solutions that worked, the EEOC was able to maneuver through its institutional environment to
pursue a policy that was never explicitly enacted into law. The CRE, on the other hand,
although it had legal sanction to pursue and enforce certain kinds of “positive action,” took very
71
Parliamentary Debates (Commons), 5th ser., vol. 906, 1663-64.
Forbes and Mead, Measure for Measure; Martin MacEwen, “Anti-Discrimination Law in Great Britain,” New
Community 20 (1994): 353-70; Chris Boothman and Martin MacEwen, “The British Commission for Racial
Equality as an Enforcement Agency,”in Anti-Discrimination Law Enforcement: A Comparative Perspective, ed.
Martin MacEwen (Aldershot: Avebury, 1997).
72
31
little action to do so, even in some instances opposing preferential hiring actions.73
A number of institutional factors constrained the CRE from pursuing “positive action.”
First, disagreements within the Home Office and the Labour Party over the role of the state in
acting against racial discrimination made it difficult for the CRE to act vigorously. Even before
the Race Relations Act was passed, a Cabinet shuffle forced Alexander Lyon, Labour's chief
champion of action on race relations, off the front bench. Not only was there bad blood between
Lyon and new Prime Minister James Callaghan (who took a much harder line on race and
immigration than Lyon's patron, Roy Jenkins), but Lyon had also clashed with Home Office civil
servants about race relations and immigration matters.74 Moreover, the Government's
indifference, if not outright hostility, to vigorous antidiscrimination enforcement increased
further when Margaret Thatcher's Conservatives swept into office in 1979.75 The Labour
government had intended to increase the CRE’s budget by nearly twenty-five percent in 1979,
suggesting a strengthening commitment to enforcement; Thatcher’s increase was less than five
percent, and her government actually cut the CRE’s budget in real terms over the next six years. 76
The Thatcher government also repeatedly ignored proposals that the CRE be given expanded
powers.77
73
Teles, “Why is There No Affirmative Action in Britain?”
"10 Promotions, four resignations in Callaghan reshuffle,” Times, 15 April 1976, 1-2; “Mr Callaghan accused on
racial harmony,” Times, 17 April 1976, 2; “Alex Lyon ‘invited sacking’,” Observer, 18 April 1976, 3; “Former
minister tells of clash with civil servants over immigration,” Times, 26 April 1976, 2; “Callaghan denial of change in
race relations policy,” Times, 27 April 1976, 3; “Mr Lyon describes how reform attempts were frustrated,” Times, 10
May 1976, 3; Alex Lyon, “Race: Why we must act now,” Sunday Times, 23 May 1976, 16; Katznelson, Black Men,
White Cities, 181; Gary P. Freeman, Immigrant Labor and Racial Conflict in Advanced Industrial Societies: The
French and British Experience, 1945-1975 (Princeton: Princeton University Press, 1979), 58, 126.
74
MacEwen, “Anti-Discrimination Law in Great Britain”; Boothman and MacEwen, “The British Commission for
Racial Equality”; Messina, Race and Party Competition. See also Sven Steinmo, Taxation and Democracy:
Swedish, British, and American Approaches to Financing the Modern State (New Haven: Yale University Press,
1993).
75
76
Messina, Race and Party Competition, 134.
MacEwen, “Anti-Discrimination Law in Great Britain,” 363-67; Ray Honeyford, The Commission for Racial
Equality: British Bureaucracy and the Multiethnic Society (New Brunswick, N.J.: Transaction Publishers, 1998),
67-72.
77
32
Finally, and perhaps most important, the British political system provided few openings
for alternative routes to positive action, and the integration of British blacks into this
nonreceptive polity was weak. Only marginally integrated into the party system, without
institutionalized recourse to other sources of power, and without even the residue of a social
movement to press claims from outside the regular channels of policymaking, British blacks
were unable to convert the potential embodied in the Race Relations Act into actual outcomes.
In particular, he British judicial system, which is not predisposed to grant claims based on
constitutional rights as are courts in the United States, is a weak vehicle for advancing
antidiscrimination claims. The rigidity of executive control under the British parliamentary
system and the rapidity of the Conservative takeover after the creation of the CRE produced very
unfavorable conditions for strong state action against collective patterns of discrimination or for
the pursuit of “positive action”; in fact, even before the Tories’ 1979 victory, MPs from both
sides came to condemn the principle of positive discrimination.78 Some years later, the Home
Office considered and rejected implementing a contract compliance system for public
contractors, modeled on the successful American practice and rejected the idea, leaving it instead
to local government to pursue such policies at their own option.79
The fundamental difference between the British and American cases, then, was not
simply the acceptance of group-based remedies for discrimination in one country and their
rejection in the other, but the political and institutional avenues available for their adoption.
Despite its vaunted advantages of capacity and effectiveness, the British parliamentary system
actually produced weaker enforcement of fair employment laws, even with stronger “parchment”
institutions. As Kent Weaver and Bert Rockman have suggested, institutional differences, while
not entirely determinative of outcomes, created both opportunities and constraints for strategic
78
John Edwards, Positive Discrimination, Social Justice, and Social Policy: Moral Scrutiny of a Policy Practice
(London: Tavistock Publications, 1987), 28-31.
Elaine Dubourdieu, “The Theory and Practices of ‘Positive Discrimination’,” in Discourse on Inequality in France
and Britain, ed. John Edwards and Jean-Paul Révauger (Aldershot: Ashgate, 1998), 95.
79
33
action that elites in both countries exploited to pursue antidiscrimination policy.80 In the British
case, the relative rigidity of these institutions in the context of an increasingly multiracial society
meant that British blacks had few routes to power. Not only was the policymaking system less
directly porous than in the United States — less open to influence through the courts, the
bureaucracy, or social movement pressure — but the policymaking and coalition-building
strategies of British political actors were more effectively buffered (to borrow Katznelson’s
word) from black pressures and interests. Thus the sequence of racial and political development
proved decisive in the United Kingdom as well as in the United States: preexisting British
political institutions were relatively less malleable in the face of racial division, and so offered a
less robust policy response. Whether they will prove more brittle in the face of current strains
remains an open question.
Conclusion: History, Ideas, and Institutions
This comparison of the development of equal employment opportunity policy in these
two countries, and particularly the juxtaposition of the historical and political contexts in which
these two national policies evolved, serves to clarify the reasons for the striking divergence
between two apparently similar nations. In this regard, it points toward an explanation of policy
outcomes that emphasizes how particular configurations of factors — ideas, interests, and
institutions — combine to produce policy. But by emphasizing such configurations, it also
demands specification of the causal mechanisms that connect these factors, without giving
explanatory priority to one factor over another.
In the United States, the clash among the multiple ideological traditions underpinning
debates about American citizenship — Myrdal’s liberal “American creed” and its illiberal,
R. Kent Weaver and Bert A. Rockman, “Assessing the Effects of Institutions,” in Do Institutions Matter?:
Government Capabilities in the United States and Abroad, ed. R. Kent Weaver and Bert A. Rockman (Washington:
Brookings Institution, 1993).
80
34
ascriptive challengers — were clearly fundamental to midcentury debates about civil rights in
general and equal employment opportunity policy in particular. These broad cultural and
ideological traditions framed the debate, focusing attention on certain kinds of ideas about how
the state should recognize and manage racial difference and inequality in society. But these
ideas were situated in a political and historical context in which institutions clearly defined and
delimited the role of African-Americans in the political economy, so that the interests of
African-Americans and their allies and supporters in equal employment opportunity policies
were constituted and organized in particular ways that reflected configurations of power and the
political opportunities they offered to a variety of actors. American policy was made in
institutions that incorporated African-Americans only on particular terms, the result of a long,
often antagonistic history of engagement between blacks and the American state. The result
was a relatively circumscribed law that ironically proved a relatively strong instrument for the
vigorous pursuit of affirmative action.
Britain began with a very similar ideological tradition, and British policy leaders even
self-consciously modeled their ideas about race and race policy on the American experience,
although not without dissent. British policy debates were similarly framed, but they occurred in
a very different institutional context, in which interests were constituted, organized, and
represented in very different ways. British blacks did not have a long history of engagement —
constructive or otherwise — in British politics, and British political institutions thus offered them
little leverage to shape policy outcomes; at the same time, opposition to antidiscrimination policy
was also less deeply rooted in British politics than in the United States and a higher degree of
consensus prevailed on racial issues than in America’s deeply race-laden political landscape.
The result was that Britain adopted a law that appeared to settle on an alternative paradigm of
antidiscrimination policy — affirmative, or positive, action, of the sort that American law
seemed to rule out — but that in the end provided a weak platform for the pursuit of affirmative
action.
These conclusions suggest the explanatory power of a comparative approach to the
35
construction of race politics and policy, and particularly one that emphasizes the mutually
constitutive role of ideas and institutions in shaping race policy. Unlike comparative analyses of
race policy that explore cases with very different prevailing ideas about race and the role of the
state in addressing racial inequality, this comparison begins with basic ideological and cultural
similarities and explores how ideas about race are filtered through political institutions to
produce different policy outcomes. Paul Burstein shows, for example, that broad shifts in
American public opinion were critically important in determining both the timing and the
substance of the antidiscrimination legislation.81 But as Lawrence Jacobs has argued in another
policy context, “culture is not encoded into policy, with government officials serving as
latter-day scribes. Rather, . . . policymakers’ response to the public was refracted through the
organized deliberations of policy networks.”82 Cultural scripts and the shared conceptions of
society and its problems that they help to produce are certainly important in ruling out certain
approaches to policy, directing policy elites toward others, and shaping the broad outlines of
public opinion.83 But within these broad cultural and ideological boundaries, public ideas shift,
changing the repertoire of acceptable policy outcomes.84 Moreover, policymakers with different
institutional positions and sources of power and influence attempt to mobilize ideas in a variety
of different ways to create and sustain successful policy coalitions.85
Thus this analysis poses an important paradox for the comparative perspective on race
policy that emphasizes the causal role of ideas and the framing of policies: while, as Erik Bleich
81
Burstein, Discrimination, Jobs, and Politics.
82
Lawrence R. Jacobs, The Health of Nations: Public Opinion and the Making of American and British Health
Policy (Ithaca: Cornell University Press, 1993). The quotation is on p. 228
83
Frank Dobbin, Forging Industrial Policy: The United States, Britain, and France in the Railway Age (Princeton:
Princeton University Press, 1994). See also Walter W. Powell and Paul J. DiMaggio, eds., The New
Institutionalism in Organizational Analysis (Chicago: University of Chicago Press, 1991).
Benjamin I. Page and Robert Y. Shapiro, The Rational Public: Fifty Years of Americans’ Policy Preferences
(Chicago: University of Chicago Press, 1992).
84
John L. Campbell, “Institutional Analysis and the Role of Ideas in Political Economy,” Theory and Society 27
(1998): 377-409.
85
36
has shown, France and Britain arrived at very different policy solutions because they framed
their problems and their policy options differently, Britain and the United States also arrived at
policy differences although they differed little in their ideological frames. Ideas and their
political framing clearly matter in shaping policy, but even if Britain and the United States are
choosing from the same menu in assembling race policies (a menu that differs greatly from, say,
the French), politics is guiding them to make different selections, with important consequences.
But at the same time, this comparison poses challenges for the alternative,
institutions-centered family of explanations.86 Political institutions and their capacity, based on
historical trajectories, to integrate racial minorities into structures of power and decision-making
appear to have been decisive in shaping policy in these two cases. But institutional analysis by
itself can explain neither the prevalence of a particular race relations paradigm in the
Anglo-American world, nor the patterns of ideological influence and cross-fertilization between
the United States and Britain, nor the patterns of stability and change in policy paradigms that
are apparent in both countries even in the short time span under study here.87 Clearly both ideas
and institutions matter — ideas as frames for the definition of problems and the linkage of
problems with solutions, and institutions as filters of ideas and regulators of the process of policy
choice — and a complete explanation of race policy will consider not only both elements but
also the ways in which they interact to reconstruct patterns of race relations.
Finally, for both the United States and Britain this comparison offers possibilities and
perils. For the United States, these are one and the same. Race and American politics are
deeply and historically interconnected, mutually constitutive, and, for racial minorities,
See Kathleen Thelen and Sven Steinmo, “Historical Institutionalism in Comparative Politics,” in Structuring
Politics: Historical Institutionalism in Comparative Analysis, ed. Sven Steinmo, Kathleen Thelen, and Frank
Longstreth (Cambridge: Cambridge University Press, 1992); Peter A. Hall and Rosemary C. R. Taylor, “Political
Science and the Three New Institutionalisms,” Political Studies 44 (1996): 936-57; Ellen M. Immergut, “The
Theoretical Core of the New Institutionalism,” Politics and Society 26 (1998): 5-34; Kathleen Thelen, “Historical
Institutionalism in Comparative Politics,” in Annual Review of Political Science, vol. 2 (Palo Alto, Calif.: Annual
Reviews, Inc., 1999).
86
Peter A. Hall, “Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain,”
Comparative Politics 25 (1993): 275-96.
87
37
double-edged. Much of American political development consists of the reproduction of
race-laden structures of power and inequality, which have imposed a heavy burden on
African-Americans in the politics and policy. America’s fragmented and decentralized political
institutions have often been the agent of these inequalities, but have also provided sites of access
to the political system that have provided leverage in surprising and often inspiring ways. In
Britain, by contrast, the state offers greater potential for authoritative and decisive action to
mitigate racial inequality in the labor market and elsewhere, but the limited access to power that
British institutions have historically afforded to minorities restricts the ameliorative potential
inherent in that power. The question facing both countries is whether they can mobilize their
very different sources of political strength in the service of their common ideals.