societal issues are at stake.nThe Supreme Court’s recent decision in Johnson v.nTransportation Agency, Santa Clara County, Californianillustrates this point. The Court in Santa Clara reviewed annaffirmative action plan that was challenged under Title VIInof the Civil Rights Act of 1964. The affirmative action plannwas not intended to redress identifiable discrimination;ninstead, the plan was intended to change “conspicuousnimbalances in job categories traditionally segregated by racenand sex” to reflect the makeup of the available work force.nRace and sex were each to be just “one factor” taken intonaccount in evaluating candidates for promotion. JusticenBrennan, writing for the majority, held that this affirmativenaction plan was “fully consistent” with Title VII.nTitle VII provides that “[i]t shall be an unlawful employmentnpractice for an employer (1) . . . to discriminatenagainst any individual with respect to his compensation,nterms, conditions, or privileges of employment because ofnsuch individual’s race, color, religion, sex, or nationalnorigin; or (2) to limit, segregate, or classify his employeesn… in any way which would tend to deprive any individualnof employment opportunities . . . because of such individual’snrace, color, religion, sex, or national origin.” On itsnface, the text of Title VII could not be more clear. Itnexpressly prohibits the very activities contemplated by thenaffirmative action plan reviewed in Santa Clara. How thenCourt found that Title VII could accommodate this plan innthe face of such clear statutory language to the contrary isnno less interesting than the policy implications of thendecision itselfnThe Santa Clara decision was primarily the product ofnan earlier Supreme Court decision, Steelworkers v. Weber,ndecided in 1979. In Weber, Justice Brennan, writing for thenmajority, concluded for the first time that Titie VII did notnprohibit an affirmative action plan that reserved 50 percentnof all openings in a craft-training program for black employeesnuntil the percentage of black craftworkers reflected thenpercentage of blacks in the local labor force. Acknowledgingnthat a literal interpretation of Title VII seemed to precludenany discrimination, Brennan nonetheless concluded that itnwas necessary to look beyond the text to the legislativenhistory because the letter of the statute was “not within itsnspirit.” How Justice Brennan reached this conclusion withoutnalready having looked beyond the letter of the statutenwas not explained.nThe Weber Court concluded that the purpose of thenstatute, expressed in themes found in the legislative history,nwas at odds with a literal interpretation. The first theme wasnCongress’ concern to provide opportunities for blacks in theneconomy. The legislative history was replete with examplesnof opponents alleging that Title VII could require employersnto grant preferential treatment to minorities. The objectionsnwere answered by an amendment stating that “nothing . . .nshall be interpreted to require any employers … to grantnpreferential treatment.” From this, the Court discovered ansecond theme: Had Congress intended to prohibit allndiscrimination, it could “easily” have provided that TitlenVII would not “require or permit preferential treatment.”nConcluding that the statute’s purposes were at odds withnits literal terms required the Court to make several assumptions.nFirst, they assumed that a mere prohibition ofndiscrimination could not possibly provide employmentnopportunities for blacks; rather, some reverse discriminationnwas always necessary.nSecondly, they assumed that there was no prohibitionnagainst preferential treatment. The Weber Court emphasizednthe legislators’ concern that Title VII would undulynregulate private businesses. But rather than interpret this asna concern that Title VII might place the federal governmentnin an intrusive regulatory role, the Court cited this concernniu- concluding that Title VII thereby left private businessesnfree to structure affirmative action plans. The Court’snreading, however, forces the somewhat implausible conclusionnthat legislators in 1964 were worried that Title VIInwould prevent previously discriminatory businesses fromnaggressively remedying their past wrongs.nFinally, the Court concluded that the appearance ofn”require” rather than “require or permit” implied thatnCongress intended to allow private employers to grantnpreferential treatment to minorities. One may well questionnthe legitimacy of such an inference in the face of an expressnprovision. Moreover, the Court’s conclusion conflicts withnrepeated statements of the bills’ sponsors. It is revealingnthat, for all his reliance on external aids. Justice Brennanndismissed that particular legislative history with littie discussion.nJustice Blackmun, concurring in the majority opinion,nconcluded, somewhat disingenuously, that “if thenCourt has misperceived the political will, it has the assurancenthat because the question is statutory Congress may setnnn–>”5 ^••••S*?;C*VS.nDECEMBER 19871 39n