Book Review

Paul D. Moreno sets out to furnish a legal, historical, and analytical explanation of "the transformation of the color-blind, individual rights, equality of opportunity formula into the color-conscious, group rights, equality of result formula" (2). He succeeds admirably in his exposition of the social, economic, and political settings within which fair employment law in the United States developed. He provides fascinating accounts of a series of cases that predated the modern civil rights acts and of the federal and state agencies that became the prototypes for the Equal Employment Opportunities Commission and the Federal Contract Compliance. However, Moreno falls short of his goal of adding to our analytical understanding. Despite a tone of neutrality the book consists of one long buildup to the contention that the 1972 Supreme Court decision in Griggs v. Duke Power Company "marked the end of the fair employment era" and substituted a "new definition of discrimination, with its tendency toward racial proportionalism, racial preference, and racial quotas" (280). Ending his historical account with the Griggs case, Moreno sets the stage for the modern affirmative action cases that came later.	1
The book reveals that in the 1930s, 1940s, and 1950s various groups and governmental entities were already struggling with issues familiar to us today, including such perceived dichotomies in fair employment law as individual versus group rights, disparate treatment versus disparate impact, quotas versus goals, public versus private enforcement, administrative versus judicial enforcement, conciliation versus litigation, and retrospective versus prospective remedies. In fact, most of these dichotomies are more apparent than real, because the choices are not so stark or because the two choices are not mutually exclusive.	2
Moreno projects the facts through a lens tinted with his thesis of racialism, a thesis that uncritically adopts the views of Hugh Davis Graham and Andrew Kull. For example, in a chapter entitled "Racial Proportionalism in the 1930s" he describes New Negro Alliance v. Sanitary Grocery Co. (303 U.S. 552 [1938]). Moreno broadly implies that the Alliance had been seeking proportional representation among employees in Sanitary's stores and that Justice Roberts's reference to "race discrimination by an employer ... "begged "the question of whether Sanitary's employment policy was discriminatory" (50). He fails to mention that Justice Roberts stressed that the picketers were carrying a sign stating: "Do Your Part! Buy Where You Can Work! No Negroes Employed Here!" Thus, the picketers were claiming that blacks could not work there, and the case as it reached the Court had nothing to do with proportional representation and everything to do with discrimination. Indeed, Moreno later acknowledges that "the New Negro Alliance was protesting discrimination rather than making any specific numerical demands" (52).	3
Moreno's discussion of the Hughes case typifies the strengths and weaknesses of his approach. He traces the case in meticulous detail, from the circumstances that led to the picketing of the grocery store, to the positions of the parties and amici at each stage, to the opinions of the trial and appellate judges. He draws on briefs, transcripts, letters, and contemporary law review commentary. His discussion on the whole is thorough, readable, accurate, and balanced. However, his characterization of California Supreme Court Justice Roger Traynor's dissent is distorted by the lens through which Moreno views the issues. Moreno refers to Traynor's "indifference to the means used to combat racial discrimination in employment" and implies that Traynor had authored a general endorsement of racial quotas (91-93). However, he chooses not to quote Traynor's understanding of the reason the petitioners had sought proportionate representation: "petitioners seek, not a monopoly of the jobs available, but only a share of those jobs that they believe they would have had if there had been no discrimination against them" (32 Cal. 2d 850, 867). Nonetheless, Moreno's ultimate conclusion that the United States Supreme Court decision in the case was "part of an emerging pattern of decisions ... which disapproved of racial classifications" seems correct (105).	4
The conflict around which Moreno organizes his historical analysis is well demonstrated by his introduction to the spate of state laws establishing fair employment practices commissions [FEPCs] after World War II. He says that "two approaches" were available to the FEPCs: "the race-conscious model of the 'Don't Buy Where You Can't Work' pickets and certain New Deal agencies and the color-blind model pursued by the wartime FEPC" (107). He then rephrases these by referring to the FEPCs' belief "that an overly aggressive enforcement of antidiscrimination laws must lead to race-conscious employment decisions and racial quotas," leading them instead to adhere "scrupulously to the fair employment model" (107-8). Thus, vigorous enforcement is inconsistent with fair employment.	5
The same theme reemerges in a later chapter, where Moreno refers to the erosion of inhibitions civil rights organizations had felt against seeking overtly race-conscious preferential treatment. He argues that they began to call for "fair employment tactics that risked encouraging preferential treatment and quotas." These tactics "consisted of aggressive legal enforcement, pattern-centered approaches, and statistically determined proof of discrimination" (157-58). Moreno attributes to Brown v. Board of Education the "tendency toward color-consciousness, group rights, and equal outcomes through social engineering" (158). He states as fact that "the new civil rights movement began to reject the goal of merit employment as an undesirable barrier to racial preference" (159). While Moreno argues that civil rights groups sometimes "couched their demands for equal outcomes in traditional language of equal opportunity," he could also have concluded that it was the denial of equal opportunity that prompted the call for statistical measures (160). Still later, he asserts that abolition of racially exclusive waiting lists "implied preferential treatment for minority group members as compensation for the effects of past discrimination" (195). The last chapter begins: "The movement toward adopting racial proportionalism as the standard in antidiscrimination law accelerated in 1970" (267).	6
The book is well-written. It calls upon a rich variety of sources. It contains many pearls, such as its description of the origins of the term "affirmative action" (189). The misspelling of Senator Jacob Javits's name is an aberration from a generally very clean text (203, 207). A few pronouncements, such as that Yick Wo v. Hopkins has usually "been overlooked" (25) or that the Supreme Court "continues to regard racial classifications as valid if reasonable" (19) baffled this reader.	7
Read the book for its history, but not for its legal analysis, which confuses ends and means. In criticizing "a vigorous antidiscrimination effort" as leading to "racial proportionalism" (279), Moreno fails to consider the consequences of a weak antidiscrimination effort in a society still plagued by racial discrimination. A more balanced and helpful presentation would have acknowledged both that some Supreme Court decisions and government enforcement activities have encouraged racial proportionalism and that they have consistently rejected proportionalism as an end and embraced nondiscrimination and equal opportunity as the ends being sought. That would have set the scene for a discussion of the costs and benefits of race-conscious action as a means.	8
Brian K. Landsberg University of the Pacific, McGeorge School of Law (Professor Landsberg's review was received prior to the publication of LHR 17.3, in which Professor Moreno reviewed a book by Professor Landsberg.—Ed.)

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