6
e Taft Proposal of 1946 s the
(Non-) Making of American
Fair Employment Law
David Freeman Engrom
F
the
evolution of American fair em-
ployment law, the years clustered
around provide the most obvious
opportunities to identify so-called “critical
junctures” – those hinge moments in history
when a number of different pathways of le-
gal or political development remain open. It
was during this period that federal appeals
courts approved class-action lawsuits under
Title VII of the Civil Rights Act of , and
that the Supreme Court’s Griggs¹ decision
sanctioned a “disparate impact” standard, al-
lowing plaintiffs to prove job discrimination
with something less than concrete evidence
of discriminatory intent.² It was also around
then that the Nixon Administration imple-
mented the so-called “Philadelphia Plan,”
prescribing “goals and timetables” for hiring
minority workers by contractors bidding
on federally assisted construction projects.³
Together, these developments transformed
federal fair employment law from the “poor,
enfeebled thing” that had emerged from the
legislative compromises of into a potent
set of anti-discrimination policies.⁴
David Engstrom is an associate, Kellogg, Huber, Hansen, Todd, Evans s Figel, P.L.L.C. is piece draws
on the author’s Ph.D. dissertation, titled “e Lost Origins of American Fair Employment Law: State Fair
Employment Practices Bureaus and the Politics of Regulatory Design, 1943–1964.” e author gratefully ac-
knowledges the support of the John M. Olin Program in Law, Economics, and Public Policy at Yale Law
School during 2004–2005.
Griggs v. Duke Power Co., U.S. ().
See, e.g., John Donohue III s Peter Siegelman, e Changing Nature of Employment Discrimination
Litigation, S. L. R. (); A M. B, M L: T L T-
S E E O ().
See omas J. Sugrue, Affirmative Action from Below: Civil Rights, the Building Trades, and the Politics
of Racial Equality in the Urban North, 1945–1969, J. A. H. (); Paul Frymer s John Da-
vid Skrentny, Coalition-Building and the Politics of Electoral Capture During the Nixon Administration:
African-Americans, Labor, Latinos, S. A. P. D. (); H D G, T
C R E: O D N P, – –, –
().
e phrase “poor, enfeebled thing” is from M I. S, L R R
D E (), though he was referring to the Equal Employment
182 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
But few know that the history of Ameri-
can fair employment law reached an equally
critical juncture more than years earlier, in
. It was in May of that year that Repub-
lican Senator Robert Taft of Ohio, perhaps
the leading conservative voice in Congress at
the time, privately approached an emerging
coalition of civil rights, labor, religious, and
civic groups with a draft bill – reproduced
in its entirety at the end of this essay – that
broadly prohibited job discrimination on the
basis of race, creed, color, or national origin
and empowered federal courts to oversee
sweeping injunctive remedies, including the
requirement that employers hire a particular
quota of protected workers.⁵ e stunning
details of that proposal, and its quiet rejection
by the nascent liberal coalition, offer a win-
dow onto the early, pre-Brown politics of civil
rights in the United States. What makes the
Taft episode so intriguing, however, are the
rich counterfactual possibilities it presents.
ough the liberal coalition’s rejection of the
Taft bill prevented its formal introduction in
Congress, a contrary response would have
fundamentally altered the course of Ameri-
can fair employment law and the American
civil rights movement along with it. More
sweeping still, it is not at all implausible that
enactment of the Taft measure would have
transformed the post-war American party
system, making Republicans, not the sec-
tionally challenged Democrats, the party of
civil rights going forward. It is therefore sur-
prising that Taft’s offer has entirely escaped
popular or scholarly treatment until now.
Taft had long been a thorn in the side of
the broad coalition of groups lobbying for
federal fair employment legislation in the
immediate post-war period. e drive for
fair employment had begun in when
President Roosevelt, responding to a threat
by civil rights groups to unleash a “March
on Washington,” signed Executive Order
declaring a national policy against dis-
crimination and establishing the President’s
Committee on Fair Employment Practice.⁶
But soon after it opened its doors, the Com-
mittee’s limited reach became clear. Because
it was authorized only to hold hearings and
receive and “conciliate” discrimination com-
plaints, but lacked any further enforcement
authority where those efforts failed, many
employers simply ignored the Committee’s
directives.⁷ Soon civil rights groups called for
the vesting of the Committee with new pow-
ers modeled on the recently established Na-
tional Labor Relations Board, including the
authority to order that an employer “cease
and desist” from discriminatory practices and
take various types of action, including hiring,
Opportunity Commission (EEOC), not the entire regime. On Title VII’s potency after , see Paul
Frymer, Acting When Elected Officials Won’t: Federal Courts and Civil Rights Enforcements in U.S. Labor
Unions, 1935–95, A. P. S. R. (); Robert C. Lieberman, Weak State, Strong Policy: Para-
doxes of Race Policy in the United States, Great Britain, and France, S. A. P. D. ().
Finally, for the argument that judicial interpretation of Title VII went beyond the original statutory
bargain, see Daniel Rodriguez s Barry Weingast, e Positive Political eory of Legislative History: New
Perspectives on the 1964 Civil Rights Act and Its Interpretation, U. P. L. R. ().
A Bill (undated) (NAACP Papers, Library of Congress, Part II, Box A). See page below.
Studies of the Committee include A K, R, J, W: T FEPC
M, – (); M E. R, S M C R
M: T P’ C F E P, – ();
L R, R, J, P: T S FEPC ().
L C K, T S P FEPC: A S R P
M n. (); R, supra note , at ; F E P C-
, F R – ().
From The Ba g Wi nte r 2 006 183
The Taf t Pro posal of 1946
promotion, or backpay. Such hopes would
be dashed in early , however, when an
awkward alliance of Southern Democrats
and conservative Republicans, including Taft,
slashed the Committee’s budget, leaving just
enough to liquidate its affairs.⁸
As lobbying efforts for and against a per-
manent and more powerful Fair Employ-
ment Practices Commission (FEPC) moved
fair employment to the center of the Ameri-
can political stage, Taft’s strategy was to press
instead for a “voluntary” fair employment
scheme that, like Roosevelt’s Committee
before it, vested a new federal commission
with the power to receive and conciliate com-
plaints, but otherwise lacked coercive powers.
Anything more, Taft argued, would prove
counter-productive in the delicate area of
race relations. Taft’s strategy derived its pow-
er from the peculiar political economy of the
immediate post-war period. Referred to by
allies and enemies alike as “Mr. Republican,”
Taft was the arbiter of a key voting bloc of a
dozen northern Republican Senators on the
key political issues of the day. Indeed, Taft’s
staunch refusal to support anything more
than “voluntary” fair employment measures,
when combined with the outright opposition
of Southern Democrats to any bill that even
mentioned civil rights, had proven just barely
sufficient to defeat cloture votes during dra-
matic Senate filibusters in the previous Con-
gress. All the while, Taft and his Republican
allies seemed content to stand back as Dem-
ocrats struggled to overcome the deepening
sectional split within their ranks.⁹
e draft measure Taft put forward in
, however, was different from his previ-
ous offerings – and strikingly different from
all other fair employment bills before or after.
e bill’s opening paragraphs carefully avoid-
ed creating any rights, instead establishing a
“policy” against discrimination. e bill then
provided for the creation of a five-member
Fair Employment Practices Commission
wielding a full complement of subpoena and
investigatory powers. In each of these re-
spects, it was not significantly different from
many of the “voluntary” bills from before.
e clean break from past bills came in
Section , titled “Preparation and Enforce-
ment of Compulsory Plan.” is Section
directed the new Commission to make a
“comprehensive study” of discrimination and
prepare a “comprehensive plan” for eliminat-
ing discrimination. “Such plan,” the bill con-
tinued, “may provide for additional employ-
ment throughout the area by increasing the
number of persons of the group discriminat-
ed against to be employed by specified em-
ployers who employ more than fifty persons”
and by requiring any union certified under
federal labor law “to admit to membership
persons of the group discriminated against.”
e concluding paragraph of Section
and Section provided the “teeth” that so
thoroughly differentiated the bill from past
bills. Once a compulsory plan had been in
operation for at least six months, “any sub-
stantial failure” to implement the plan would
trigger “compulsory enforcement.” is
would begin with a Commission order re-
quiring that an employer “provide forthwith
employment of specified character for the
number of persons belonging to the group
discriminated against” or that a union ad-
mit “members of such group.” Any failure to
comply with such an order, the bill contin-
ued, would result in the Commission’s filing
of a petition in federal court. Further, any
person aggrieved by a failure of an employer
or union to comply with a compulsory plan
R J. W, W W J: A H A A ().
See Sean Farhang s Ira Katznelson, e Southern Interposition: Congress and Labor in the New Deal and
Fair Deal, S. A. P. D. (); R, supra note , at .
184 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
could, after filing a written request with the
Commission and waiting for days, file suit
in federal court to compel compliance.
Compared to previous Taft offerings, this
new bill was shockingly broad. Unlike previ-
ous proposals, this one was fully enforceable,
albeit after the various delays built into the
scheme. Taft’s scheme also provided indi-
vidual claimants with more-or-less direct re-
course to federal courts. Indeed, once a plan
was in place, an individual needed only ad-
vise the Commission, wait days, and then
seek injunctive relief in court. Finally, its core
provisions, centered as they were upon the
creation of regional “comprehensive plans,”
seemed to contemplate widespread use of
systemic, quota-based hiring.
One reason that the Taft proposal has not
previously come to light¹⁰ is that Taft only
privately communicated his offer to the Na-
tional Council for a Permanent FEPC (“Na-
tional Council”), the leading national orga-
nization lobbying in the fair employment
area, and the National Council quietly and
unceremoniously rejected it. Neither side, it
seems, was willing to make public its con-
sideration of the measure. But the National
Council’s decision to reject Taft’s offer also
occasioned heated internal deliberation, and
it is here that the archival record offers a rare
glimpse of the complex coalitional politics of
civil rights at mid-century.
Founded by black labor leader A. Philip
Randolph in , the National Council
exemplified the broad set of interests that
came to march beneath the fair employment
standard in the immediate post-war period.¹¹
Among its member groups were more than
a hundred different organizations, includ-
ing unions like Randolph’s all-black Broth-
erhood of Sleeping Car Porters, the United
Auto Workers of the Congress of Industrial
Organizations (CIO), and the International
Ladies’ Garment Workers Union of the
American Federation of Labor (AFL); race
advancement organizations such as the Na-
tional Association for the Advancement of
Colored People (NAACP) and the Urban
League; religious groups such as the Ameri-
can Jewish Congress and the Catholic Inter-
racial Council; and liberal civic groups like
the Americans for Democratic Action. e
real decision-making power, however, lay
with the Council’s Policy Committee, where
only the more influential member organiza-
tions held seats. And it was here that the Taft
proposal had to gain traction if it was ever to
see the light of day.
As the Policy Committee members
worked their way through the provisions of
Taft’s offer, Randolph was the first to weigh
in, by way of a starkly worded telegram.¹²
“Since no FEPC bill can get thru without
bipartisan support,” he pleaded, “I strongly
urge acceptance of amended Taft bill since
it has enforcement and investigatory powers.”
Moreover, Randolph conceded that it was
not “just what Council and cooperating or-
ganizations may want” but was nonetheless
e sole mention of the Taft plan in any writing is the following sentence in K, supra note ,
at : “When Randolph suggested that the National Council accept a watered-down FEPC bill spon-
sored by Senator Robert A. Taft of Ohio to salvage something out of the legislative drive, White
and Carey vigorously rejected the proposal, giving temporary credence to the National Council’s claim
that the responsibility for leadership had been broadened.” No discussion follows.
K, supra note , at –. On the rise of “racial liberalism” through groups like the National
Council, see M B, C L: C R S A’ “R
F,” – (), esp. Chapter One.
Telegram from A. Philip Randolph to Walter White (May , ) (NAACP Papers, Library of Con-
gress, Part II, Box A).
From The Ba g Wi nte r 2 006 185
The Taf t Pro posal of 1946
“a step in right direction.” “Have spent some
time in Washington lobbying for FEPC and I
am familiar with political problems involved,”
Randolph concluded. “It is my considered
judgment that it would be tragic blunder
not to push Taft bill now with all our forces
since there appears to be some possibility of
getting passed. Kindly advise Council your
reaction immediately.”
Over the next two days, a series of tele-
grams, letters, and phone messages made
their way into National Council headquar-
ters.¹³ Two of these were guarded but favor-
able. e position of Charles Houston, per-
haps the leading civil rights lawyer of his day,
was that “we should accept compromise if
it is best we can get since bill would at least
establish policy.” “Must however be assured,”
he continued, “of enactment this Congress.”
Another leading civil rights lawyer, urman
Dodson, arrived at a similar conclusion: de-
spite the bill’s “terribly emasculated” state, he
would “reluctantly consent to the proposal if
we had a guarantee of its passage.”
e remaining responses, however, were
uniformly negative. Walter White, head of
the NAACP, announced that the bill was “so
weak it is tantamount to throwing in sponge.”
He continued, “Bill unsatisfactory in that
it does not contemplate redress individual
grievances but predicated upon discrimina-
tion against groups.” When the “year or eigh-
teen months” required to negotiate a compul-
sory plan was combined with the six-month
waiting period prior to court action, the re-
sulting delay would “virtually insure issue be-
ing dead one by that time.” White also noted
that Congress was due to adjourn in July,
leaving little time to enact even this “greatly
weakened compromise measure.” “Regret we
cannot go along with you,” he concluded.
Equally dismissive was the response of
organized labor. e AFL’s Boris Shishkin
echoed many of the NAACP’s concerns, ob-
jecting above all to the group ontology of the
remedial scheme. “e individual is reached
secondarily and may or may not be reached,”
Shiskin asserted, since the individual “does
not have the right to go to court until the
plan is in effect.” Shishkin also decried the
“time lag” built into the scheme, and then fin-
ished with a flourish: “If you deal with a right,
you deal with the right of a man. [With the
Taft bill, y]ou are improving a condition per-
haps, but you are not making employment
opportunity the basic right of an individual.”
A telegram from James B. Carey, Secretary-
Treasurer of the CIO, was less detailed but
just as emphatic in its conclusion: “Cannot
endorse contents of amended Taft Bill. Be-
lieve we should push principles original pro-
gram.”
e remaining voices in the archival
record were equally opposed. “is bill,”
George Hunton of the Catholic Interracial
Council charged, “is a detailed procedural
survey only,” and its acceptance would make
Council members “traitors to the people sup-
porting us.” A.S. Makover, a Baltimore lawyer
consulted by the NAACP, noted the asym-
metrical treatment of employers and unions,
since increasing “the number of persons” dis-
criminated against would not ensure that an
aggrieved was actually given a job, but indi-
viduals denied union membership would be
specifically admitted. Moreover, Makover
See Telegram from Leslie Perry to Walter White (May , ) (NAACP Papers, Library of Congress,
Part II, Box A); Memorandum, Reactions to Proposed Taft Bill (May , ) (NAACP Papers,
Library of Congress, Part II, Box A); Telegram from Walter White to A. Philip Randolph (May ,
) (NAACP Papers, Library of Congress, Part II, Box A); Telegram from James B. Carey, Sec-
retary-Treasurer of the CIO to Walter White (May , ) (NAACP Papers, Library of Congress,
Part II, Box A); Letter from A.S. Makover to Anna Arnold Hedgeman (May , ) (NAACP
Papers, Library of Congress, Part II, Box A).
186 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
expressed concern about the plan’s judicial
review provisions, citing “past experience in
other legislation” and warning of “the emas-
culation of any good in any plan proposed
by the Commission by some of the District
Court judges.”
What impelled Taft to change course in
and propose a fully enforceable fair employ-
ment scheme? e reasons surely include
many of the same forces that drove fair em-
ployment to the top of the post-war politi-
cal agenda in the first place: widening public
concern about the deterioration of American
race relations in response to a spate of war-
time race riots; the moral authority conferred
by African-American contributions to the
war effort; the obvious disjunction between
the political values projected abroad and
those practiced at home as the Cold War
chill set in; and a rapidly shifting electoral
landscape with the migration of some three
million southern African-Americans to piv-
otal northern industrial states. On the latter,
Taft may have been looking to shore up his
popularity among black voters as he eyed
a presidential run in . Firmer answers
than these, however, are hard to come by, for
Taft’s own papers at the Library of Congress
make no mention of his offer.
e mix of factors that explains the
mostly negative reaction of various mem-
bers of the fair employment coalition to the
Taft offer is no less certain. As White at the
NAACP argued, there were strong pragmat-
ic reasons that militated against throwing co-
alition support behind a new scheme so late
in the congressional session. e Taft episode
also came at a liminal moment in American
political development. e Lochner-ism of
recent decades meant that most regulatory
architects saw courts as a brake on, not a
spur to, social and political change.¹⁴ When
combined with a cresting New Deal faith
in administrative governance, this may have
been enough to drive civil rights groups away
from the hybrid agency-court Taft propos-
al and towards the more agency-centered
FEPC approach.
ere is strong evidence that political-
organizational considerations played a role
as well. e NAACP had long taken heat
for its middle-class tenor and elite-litigation
focus.¹⁵ Its preference for an individualized,
agency-centered model without the Taft
scheme’s delays may have reflected an orga-
nizational imperative to support a scheme
that could deliver rapid and concrete relief
to particular complainants rather than more
elite-level litigation. Similarly, much has
been written documenting the famously am-
biguous relationship of organized labor to
the fair employment movement as stemming
from pervasive rank-and-file racism and the
differing economic incentives that faced the
low- and semi-skill industrial unions of the
CIO and the higher-skill and more exclusive
craft unions of the AFL.¹⁶ But it is also clear
that much of labor’s support for fair employ-
ment was instrumental, conceived as much
e Supreme Court’s decision in Lochner v. New York, U.S. (), has come to symbolize the
anti-regulatory stance of the pre-New Deal judiciary. See Gary D. Rowe, Lochner Revisionism Revisited,
L s S. I ().
See, e.g., Risa Lauren Goluboff, ‘Let Economic Equality Take Care of Itself ’: e NAACP, Labor Liti-
gation, and the Making of Civil Rights in the s, UCLA L. R. , – (); Beth
Tompkins Bates, A New Crowd Challenges the Agenda of the Old Guard in the NAACP, –,
A. H. R. ().
See, e.g., D E. B, O O P R: A-A, L R-
, C R N D –, – ().
From The Ba g Wi nte r 2 006 187
The Taf t Pro posal of 1946
as an opportunity to win over black voters
and fend off attacks on the New Deal state
by Southern Democrats and conservative,
Taftite Republicans as it was a principled
stance on equality.¹⁷ Enactment of the Taft
plan would have both exposed union locals
to regulation and likely spelled the end of
what was serving as a fruitful rallying point
for labor’s political organizing efforts.
Whatever its precise cause, the National
Council’s rejection of the Taft offer would
critically shape the future course of the
fair employment movement and perhaps
post-war American law and politics more
broadly. Fall-out from the Taft episode led
to changes in leadership at the National
Council and, after a careful effort to obtain
buy-in from member groups, the final crys-
tallization of the agency-centered FEPC
model as the consensus choice of the fair
employment coalition.¹⁸ e Taft episode
also marked a pronounced centralization of
the fair employment movement as a whole,
including much more aggressive National
Council oversight of state-level legislative
campaigns.¹⁹ What emerged from this dual
process of crystallization and centraliza-
tion in the years after was an ironclad
consensus in favor of the administratively
enforced and highly individualized FEPC
approach over other, more court-centered or
systematic alternatives. Ultimately, of
states that enacted fully enforceable fair em-
ployment laws prior to created purpose-
built bureaus to enforce them. No state en-
acting fair employment legislation opted for
anything resembling the Taft plan.²⁰
If the short-run consequences of the
National Council’s rejection of the Taft pro-
posal were significant, then the long-term
consequences of that rejection are incalcu-
lable. It is clear, for instance, that the Taft
plan would have yielded far more vigorous
efforts to regulate job discrimination than
anything seen until the s, when expan-
sive judicial interpretations of Title VII and
the advent of affirmative action programs in
public contracting transformed American
fair employment law into a potent regula-
tory scheme. Fair employment groups would
not be successful in their efforts to enact a
federal-level fair employment law until
– a full years later – and even then would
fail to win creation of a centralized admin-
istrative body armed with cease-and-desist
authority. Similarly, in the years following
the Taft episode, the delays that accompa-
nied the adjudication of complaints by the
fair employment practices commissions cre-
ated by many states – and that, in , were
already operating in New York, New Jersey,
and Massachusetts – often rivaled the year-
and-a-half to two years that the NAACP
worried would elapse prior to court enforce-
ment of a compulsory plan under the Taft
K B, T UAW H A L, – (); H-
S, A N D B: T E C R N
I – ().
See Meeting Minutes of Policy Committee (November , ) (McLaurin Papers, Schomburg Center
– New York Public Library, Box ); Memorandum from Roy Wilkins to Walter White (November ,
) (NAACP Papers, Library of Congress, Part II, Box A); Meeting Minutes of Legal Commit-
tee (November , ) (McLaurin Papers, Schomburg Center – New York Public Library, Box ).
See, e.g., K, supra note , at , ; Letter from Albert J. Weiss to “Friend” (December , )
(NAACP Papers, Library of Congress, Part II, Box A).
David Freeman Engstrom, e Lost Origins of American Fair Employment Law: State Fair Employment
Practices Bureaus and the Politics of Regulatory Design, 1943–1964 – (unpublished Ph.D. disserta-
tion, Yale Univ., ).
188 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
scheme.²¹ Finally, the concern that the Taft
measure was insufficiently focused on indi-
vidual-level remedies stands in stark contrast
to a pervasive criticism of the state commis-
sions in subsequent years: that the individual-
complaint method at the core of the FEPC
model hampered efforts to move more than
trivial numbers of minorities into labor mar-
kets and unions.²² All of this compels the
conclusion that implementation of the Taft
plan would have improved the labor market
position of African-Americans.
e most arresting counterfactual pos-
sibilities, however, go far beyond increased
enforcement vigor and labor-market gains
for African-Americans. For instance, the
Taft scheme would have been the most
significant policy intervention on behalf of
African-Americans since Reconstruction.
Its symbolism alone would have provided a
powerful boost to early civil rights mobiliza-
tions a full eight years before Brown v. Board
of Education,²³ and the Mississippi murder
of Emmett Till a year later, catalyzed the
movement.
e Taft plan’s explicit authorization of
quota-based relief could also have altered the
trajectory of federal equal protection juris-
prudence by forcing a much earlier reckon-
ing with the constitutionality of preferential
treatment under the Fourteenth Amendment.
at issue would not be squarely before the
Supreme Court until more than years later,
in the Bakke case.²⁴ A decision uphold-
ing the Taft scheme might have made Bakke,
as well as City of Richmond, Adarand, and
the recent Bollinger cases, relatively straight-
forward as a precedential matter, reducing
the political salience of affirmative action.²⁵
A contrary decision invalidating the systemic
components of the Taft plan might have fore-
closed development of the affirmative action
programs at issue in these later cases in the
first place. Either ruling could have excised a
highly divisive issue from American politics
in later decades.
is latter point hints at perhaps the most
sweeping counterfactual possibility of all, for
it is not a stretch to suggest that enactment
of the Taft plan in would have funda-
mentally altered the post-war American
party system. Indeed, Taft’s apparent will-
ingness to support a wide-open, highly sys-
temic remedial scheme, and the rejection of
that scheme by coalition members because
it was insufficiently individualized, reverses
the partisan valence of much recent debate
over affirmative action. If Taft’s offer was a
legitimate one – and biographies of Taft
himself, as well as his status as “Mr. Repub-
lican” in the Senate chamber, suggest no rea-
son to believe he could not deliver the nec-
essary votes – then Republicans stood ready
to put into place a fully enforceable scheme
Herbert Hill, Twenty Years of State Fair Employment Commissions: A Critical Analysis with Recommenda-
tions, B. L. R. , , (–); Elmer A. Carter, Practical Considerations of Anti-Discrimi-
nation Legislation – Experience Under the New York Law Against Discrimination, C L.Q. ,
().
See, e.g., Symposium, Toward Equal Opportunity in Employment: e Role of State and Local Government,
B. L. R. (); D L, T E O (), esp. Chapter ;
P H. N s S E. H, T F E (), esp. Chapter ; Note,
e Right to Equal Treatment: Administrative Enforcement of Antidiscrimination Legislation, H. L.
R. (); Albert L. Alford, FEPC: An Administrative Study of Selected State and Local Programs
(unpublished Ph.D. dissertation, Princeton Univ., ).
U.S. ().
Regents of the Univ. Cal. v. Bakke, U.S. ().
Gratz v. Bollinger, U.S. (); Grutter v. Bollinger, U.S. (); Adarand Construc-
tors, Inc. v. Pena, U.S. (); City of Richmond v. J.A. Croson Co., U.S. ().
From The Ba g Wi nte r 2 006 189
The Taf t Pro posal of 1946
that would have advanced the clock by more
than twenty years in providing for a systemic,
group-based approach to remedying job
discrimination.²⁶ At the dawn of American
fair employment law, it was the fair employ-
ment coalition, not Republicans, that shied
away from systemic remedies and insisted
on the creation of individualized rights to be
administratively enforced via case-by-case
adjudication of complaints.
Here, the Taft episode also implicates
a well-known storyline among students of
post-war American politics: that the unrav-
eling of the New Deal coalition flowed, at
least in part, from the quickening of the civil
rights movement after and the develop-
ment by Republicans of a so-called “South-
ern strategy” that capitalized on a growing
white backlash against anti-discrimination
policies in employment, housing, and edu-
cation.²⁷ How might enactment of the Taft
plan have changed matters? One view is that
the systemic remedies called for by the Taft
plan – combined with an emboldened civil
rights movement – would have spawned an
earlier backlash. But this is by no means a
given. A more aggressive approach to job dis-
crimination might have just as easily defused
the situation. Observers in believed as
much, arguing that aggressive early imple-
mentation efforts by state FEPCs would
have ensured that any backlash was “stimu-
lated and met between and ,” set-
ting “a different pattern … for the administra-
tion of anti-bias legislation generally.”²⁸ On
this view, the opening of labor markets to
black workers was a race against time before
the civil rights movement turned to the more
emotional questions raised by the desegrega-
tion of housing and schools.
Perhaps most important of all, enactment
of the Taft measure might have dampened
the later politics of backlash, either by pre-
venting civil rights policy from traveling
down the bitterly partisan road that it did, or
perhaps even making Republicans, not Dem-
ocrats, the party of civil rights going forward.
Neither possibility is as implausible as it
sounds. Race had been swept under the car-
pet during the period of Republican ascen-
dance that stretched roughly from McKinley
to Hoover, and even during the New Deal
itself.²⁹ is decades-long silence on race is-
sues meant that the partisan mantle on civil
rights was largely up for grabs.
Further, while we are conditioned to
think of African-Americans as thoroughly
aligned with the Democratic party – in the
and presidential elections, more
than percent of blacks voted Democratic
– the movement of black voters away from
the “party of Lincoln” and towards the Dem-
ocratic party was far from complete in .
is was surely the case in the liberal North-
east, where moderate Republicans like New
York Governor omas Dewey remained
out front on civil rights issues, and in key
cities like Philadelphia where Republican
machines continued to hold power.³⁰ In the
presidential election that pitted Tru-
See J T. P, M R: A B R A. T (). On advancing
the clock, the Taft plan resembles in some of its particulars proposals as recent as . See, e.g., David
Strauss, e Law and Economics of Racial Discrimination in Employment: e Case for Numerical Stan-
dards, G. L.J. , – ().
See generally T B. E s M D. E, C R: T I R,
R, T A P ().
Joseph B. Robinson, Comment, B. L. R. , (–).
P F, U A: R P C A (); N
W, F P L: B P A FDR xiv ().
Oscar Glantz, Recent Negro Ballots in Philadelphia, in Miriam Ershkowitz s Joseph Zikmund II, eds.,
190 9 G r e e n Bag 2d 181
Davi d Fre eman En gs trom
man against Dewey, held just four months
after President Truman integrated the mili-
tary and civil service, and just one year after
his high-profile Commission on Civil Rights
set forth an aggressive civil rights agenda
in To Secure ese Rights, Truman could
not muster more than percent of black
votes nationwide. ( Just eight years later, in
, Democratic candidate Adlai Stevenson
could garner only percent in his second
loss to Eisenhower.³¹) Enactment of the Taft
plan two years before the election might
have undercut Truman’s civil rights efforts,
stanching the flow of black voters away from
the Republican party, putting Dewey in the
White House in the short-term, and making
racial appeals of the later, “Southern strategy”
sort politically risky over the long-term.
Finally, because it retained strong judicial
control over implementation, the Taft plan
might have halted the growing partisan bent
of American civil rights politics by unhitch-
ing Republican opposition to the New Deal
administrative state from the fair employ-
ment issue. Here is a weakness of the few
existing histories of early American fair em-
ployment law, which have too often strained
to see in early legislative debates the devel-
opment of a rhetorical template of racial
reaction centered around quotas, preferen-
tial treatment, and reverse discrimination.³²
Missing in this rush to uncover the histori-
cal antecedents to contemporary affirmative
action debates, however, is an equally criti-
cal point: the choice of the FEPC model at
the dawn of the fair employment movement
delivered that movement – and the early
civil rights movement more broadly – into
the teeth of a larger, and mostly partisan,
struggle over the legitimacy of the New Deal
administrative state and its place within the
post-war American legal and political order.
If the Taft episode is any indication, Republi-
can objections to fair employment regulation
at the dawn of the movement were rooted
at least as much in concerns about creeping
administrative power as in race matters or
racial preferences. Separating out regulatory
concerns from civil rights issues might have
further denied the partisan soil in which the
later politics of backlash would take root and
flourish.
B P P (); J R, T A G: R
O P P ().
For general discussion, see Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement,
V. L. R. , – ().
Anthony Chen, “is Law Would … Result in the Hitlerian Rule of Quotas”: e Rhetoric of Racial Back-
lash and the Politics of Fair Employment Practice Legislation in New York State, 1941–1945 (forthcoming,
J. A. H., ); P D. M, F D A A A: F E-
L P A, – (); J D S, T I
A A: P, C, J A ().
From The Ba g Wi nte r 2 006 191
The Taf t Pro posal of 1946
192 9 G r e e n Bag 2 d 181
Davi d Fre eman En gs trom
From The Ba g Wi nte r 2 006 193
The Taf t Pro posal of 1946
194 9 G r e e n Bag 2 d 181
Davi d Fre eman En gs trom
From The Ba g Wi nte r 2 006 195
The Taf t Pro posal of 1946
19 6 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
From The Ba g Wi nte r 2 006 197
The Taf t Pro posal of 1946
198 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
From The Ba g Wi nte r 2 006 199
The Taf t Pro posal of 1946
200 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
From The Ba g Wi nte r 2 006 201
The Taf t Pro posal of 1946
202 9 G r e e n Ba g 2 d 181
Davi d Fre eman En gs trom
