The Civil Rights Act of 1991 therefore forbids quotas, and itsrnsupporters point to this as proof that the act cannot lead tornquotas. Alas, things are not so simple. It is as if an electric utilityrnwere forbidden to run its wires above ground . . . but werernalso forbidden to dig holes. Something the act forbids (quotas)rnis the only sure way to avoid something else that it forbidsrnmuch more vehemently (disparate impact).rnAn illuminating illustration of the impossible demands thatrnantidiscrimination law places on an employer is found in thernhistory of the one exception to the disappearance of standardizedrnemployment testing. The General Aptitude Test Batteryrn(GATE), versions of which have been used since 1947, has beenrnwidely popular for evaluating employee potential. Since whitesrnget higher average scores than blacks, and since it is a generalrntest not designed around the narrow requirements of a singlernjob, in 1971 its use suddenly became an example of illegal disparaternimpact.rnThere was much dismay at its demise, since it was a thoroughlyrnvalidated and useful test. In 1981, the Department ofrnLabor salvaged the GATE by inventing a new way to score it.rnThe raw scores of all test-takers were compared only with thosernof test-takers of the same race. Thus, if an Asian, a white, a Hispanic,rnand a black each got a raw score of 300, the black wouldrnbe ranked in the 87th percentile, the Hispanic in the 74th, withrnthe white and the Asian together in the basement in the 47th.rnThis “race-norming” was kept secret from millions of testtakersrnand hundreds of employers. Only the adjusted percentilernscores were reported to employers, who hired manyrnblacks and Hispanics who had actually scored lower than whiternand Asian candidates.rnEventually whites got wind of race-norming and madernenough trouble for the GATE to be retired once again in 1990,rnnearly a decade after being revived. Race-norming now hasrnsuch a malodorous reputation that the Givil Rights Act ofrn1991 bans it just as it bans quotas. Eut in doing so the act forbidsrna clever and reasonably fair way to avoid disparate impact.rnStandardized tests were devised to avoid capricious employmentrndecisions. Employers value them because they are suchrngood indicators of future performance on the job. For this reason,rndespite the terrible publicity that accompanied revelationsrnabout race-norming, business interests lobbied earnestly tornkeep it legal. After all, as many sophisticated employers realized,rndisparate impact doctrine was a way of smuggling racialrnquotas into the workplace, and a race-normed GATE was onernof the best ways to do it. Even if it forced companies to hirernblacks and Hispanics who were less qualified than whites andrnAsians—just as quotas do—it at least allowed them to hire thernbest blacks and Flispanics.rnSince race-norming and hiring quotas are illegal but racialrnquotas are the only sure way to avoid prosecution, an employer’srnhands appear to be tied. Fortunately, there is a loophole.rnAffirmative action “goals” are not merely legal, they are obligatoryrnfor government contractors and many state agencies. Ifrn”goals” are calculated in the same way as quotas and are alwaysrnmet, the circle can be neatly squared.rnWhat happens to a company that is not shrewd enough tornrealize that in order to comply with today’s “antidiscrimination”rnlaws it must jettison the merit principle and carefully jugglernthe racial makeup of its work force? It finds itself with toornmany white employees, is successfully sued by the Equal EmploymentrnOpportunity Commission (EEOC) at taxpayer expense,rnand is forced to implement rigorous programs to makernup for past “discrimination.” A company that may never haverndiscriminated against anyone can be ordered by a judge henceforthrnto discriminate systematically . . . against whites. All toornoften, this is what is behind news stories of lawsuits in whichrncompanies agree, “without admission of guilt,” to make largernpayments to nonwhite employees and promise that a certainrnpercentage of all new hires will henceforth be nonwhite. Clearly,rnthe E E O C cannot put every American company under thernmicroscope, and a great deal of “disparate impact” still goes unpunished.rnNevertheless, current thinking is clear from thernway enforcement agencies act. In one famous case, a white entrepreneurrnwas sued for racial discrimination when he fired anrnincompetent black. He pointed out to the Illinois Departmentrnof Human Rights that 63 of his 83 employees were black,rnPuerto Rican, or Mexican, and that the replacement for thernblack he had fired was also black. The bureaucrats then reportedlyrnasked him to prove that he had not hired so many minoritiesrnjust to make it look as though he did not discriminate!rnWe live in an era in which one of the worst possiblerncrimes is to subscribe to “negative stereotypes.” However,rnthere is one group about which the most reckless grouprncalumny is not only permitted but encouraged. Reflect, for arnmoment, on what it means to punish disparate impact just asrnseverely as blatant, back-of-the-bus discrimination. It meansrnthat in the eyes of the law there are thousands, no, tens of thousandsrnof businessmen who, having had their bigotry forced underground,rnhave never ceased to dream up ingenious ways tornhold the black man down. They use job standards as a cover forrnracism. They use ostensibly race-neutral employment tests onlyrnto weed out blacks. They may even hire large numbers ofrnnonwhites as a smoke screen to conceal their perfidy. Worst ofrnall, they conceal their motives so cunningly that their ill willrncannot even be detected. They can, however, be trapped by statisticalrnanalysis and then be held guilty until they prove their innocence.rnThey must be constantly watched and hounded,rnsince they will express their true Jim Grow nature at the first opportunity.rnAs much as this may sound like caricature, it is nothingrnmore than an explicit statement of the assumptions thatrnunderlie the doctrine of disparate impact. The massive investmentrnin regulation, enforcement, vigilance, and self-righteousnessrnthat the race relations industry now represents can bernjustified only if whites are virulently and doggedly racist.rnOf course, if whites were a tenth as “racist” as the current enforcementrnefforts assume they are, the white majority wouldrnnever have passed the Civil Rights Act of 1964. Even if the actrnhad been a freak concession to principles that most whites despised,rnthere would have been a huge public fight against evenrnthe slightest shift from “equal employment opportunity” towardrn”affirmative action.” There has been no such fight.rnWhites have not merely been silent in the face of governmentmandatedrndiscrimination; they have been among the first tornclamor for ever more pervasive forms of race-based preferencesrnfor nonwhites.rnIt is now more than 20 years since the doctrine of “disparaternimpact” completely rewrote American antidiscriminationrnlaw, yet there is not a single mainstream organization orrnpolitical party that recognizes whites as having legitimate interestsrnas whites. Those rare whites who object to racial discriminationrnagainst them are routinely dismissed as “racists.”rnIt is this astonishing disappearance of white racial consciousnessrnthat explains much that cannot otherwise be explained. It ex-rn16/CHRONICLESrnrnrn