The Griggs Decision and Affirmative Action

Griggs v. Duke Power Co. does not have the name recognition of Roe v. Wade or Brown v. Board of Education, but it is nonetheless one of the most consequential decisions ever rendered by the U.S. Supreme Court. As we approach the 50th anniversary of the case, which was handed down on March 8, 1971, it is worth reflecting on its impact -- first, in moving American racial policy from civil rights to affirmative action and second, in its unintended effect of increasing the demand for college degrees and thus raising the cost of and dependence on university education.

At issue in the Griggs case was the legality of employment tests that Duke Power Company administered to its job applicants. Employees hired into service jobs at the power company were required to possess a high-school diploma and achieve a minimum score on an intelligence test. The tests were professionally developed and the company had no intention of discriminating against any applicant.

Nevertheless, the Supreme Court ruled against Duke Power, holding that even a facially neutral employment test could be illegal if it had a “disparate impact” (that is, if significantly more minority than white applicants failed). In his book The Age of Entitlement: America Since the Sixties, Claremont Institute scholar Christopher Caldwell explained that the Griggs decision “made clear that the government was now authorized to act against racism even if there was no evidence of racist intent.”

According to Amy Wax, Professor of Law at the University of Pennsylvania Law School:

“[T]he purpose of the newly established disparate-impact rule was to ‘achieve equality of employment opportunities’ by removing ‘built-in headwinds’ and ‘barriers that had operated in the past’ to impede minorities' workplace advancement. In Griggs and several subsequent cases, the Court has repeatedly stressed that the doctrine's goal is fully consistent with a competitive meritocracy -- one in which businesses remain free to seek out, hire, and promote the best and most productive workers regardless of race and to adopt personnel practices that best achieve that result. The purpose of the rule, according to the Court, is not to enact affirmative-action or group quotas for employment, but simply to eliminate arbitrary disadvantages suffered by minority job-seekers.”

However, despite this assertion, Professor Wax explained, “the development of the Griggs doctrine has proved anything but friendly to meritocratic objectives. Although the Supreme Court has never held that all workplaces must be racially balanced, lower courts and the Equal Employment Opportunity Commission (EEOC), which is charged with administering Title VII, have firmly embraced the presumption that the racial profiles of particular workplaces should reflect the racial composition of the broader population.”

And thus, civil rights – equality of opportunity as broadly envisioned by the 1964 Act -- has morphed into the culture of racial identity.

But Griggs has had another unfortunate, though unintended, effect: it has led to an increase in the demand for college degrees. A 2008 study written by Bryan O’Keefe and Richard Vedder, jointly published by the Pope Center for Higher Education Policy and the Center for College Affordability and Productivity, explored the question of whether the huge increase in college enrollment over the past three decades occurred in part because of the changing pressure on employers due to the Griggs decision.

According to the O’Keefe/Vedder study, “The Griggs ruling established the standard that tests could not have a disparate impact and be legally permissible unless they were directly related to the task the employee was being asked to perform, and the burden of showing this fell on the employer. The import of this history is that employers are deterred by the threat of litigation from using general intelligence tests and aptitude tests to measure job candidates.”

The result, the study noted, is that colleges and universities stepped in to fill the informational void. “A college degree often indicates a certain amount of aptitude and determination. It reveals that a student has met a certain set of standards on a consistent basis over a period of time and thus probably has some valuable aptitudes and skills.”

In other words, with standard intelligence tests outlawed, the college degree became the de facto intelligence test. As the authors note, “Applicants for many jobs are now required to have a college degree. Seldom is that done because the work is so demanding that it couldn’t be done by a person who didn’t go to college, but instead it is a means of screening out presumably less trainable applicants.”

Arguably, this increase in the demand for the college credential had led to the explosive growth in total college enrollment, which went from 5.8 million in 1970 to nearly 20 million in 2019. Moreover, the average cost of college tuition is 31 times more than it was fifty years ago.

If businesses were allowed to use intelligence testing to screen applicants, the authors sensibly conclude, all parties could save a tremendous amount of time, money, and other resources.

Ironically, the study showed, one consequence of the Griggs holding is that it has likely made employment more difficult for minorities. “Qualified minorities who performed well on an intelligence or aptitude test and would have been offered a job directly thirty or forty years ago are now compelled to attend a college or university for four years and incur significant costs. For some young people from poorer families, those costs are out of reach.”

To bottom line it: if the O’Keefe/Vedder study is correct, many young people are being pushed needlessly into getting a college degree, borrowing huge sums of money in the process, and getting indoctrinated into leftism for good measure.

Forcing taxpayers to bail out college students would solve none of those problems. The solution is for the courts to abolish the disparate impact rule. We need to return civil rights law to its stated purpose -- the abolition of discrimination, not the abolition of unequal outcomes.

Image: Jeff Kubina

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