- - Tuesday, February 25, 2014


As the discussion of inequality intensifies, it has further highlighted the importance of school reform and school choice in terms of charter schools and school vouchers. Programs for both have been increasing nationwide with general success. What has received almost no attention, however, is vocational education tied to the needs of employers.

One of the ironies of our economy is that, despite the lowest work participation rate in decades, there are many skilled jobs that cannot be filled. This skills gap is one of the drivers for immigration reform. Opponents of reform say immigrants would take jobs from Americans, but many Americans are not properly trained for tens of thousands of jobs that are empty.

Employer-driven vocational-style education might seem to be the logical approach to fill the gaps. Such an approach is widely credited with being a key to Germany’s extraordinary economic success. Why has there not been more debate and discussion here?

The answer may lie with the Supreme Court. In 1954, the court decided Brown v. Board of Education on a 9-0 vote, with the chief justice beginning his historic opinion with the observation that education is the most important function of (local) government. Less than 20 years later, the Supreme Court decided in Griggs v. Duke Power, a case virtually unknown to the public, that employers are barred from taking education into account in making hiring decisions unless, as subsequent government rules made clear, the employer could prove that the educational factors used in hiring were essential to success in a particular job.

Because it takes five or so years to conduct the studies necessary to satisfy the standard, by which time job descriptions usually will have changed, employers essentially gave up. The Equal Employment Opportunity Commission then approved hiring related to academic rank so long as the rankings were “race-normed” — that is, calculated on a race-by-race basis. This was a most elegant way of inducing quotas.

In 1990, the Supreme Court decided a case called Wards Cove that effectively overruled Griggs. The civil rights community responded with proposed legislation to require hiring of races in proportion to their percentage in the surrounding population. This would, among other things, have repealed a key anti-preference provision of the Civil Rights Act of 1964. President George H.W. Bush vetoed the legislation, and the final bill used the relevant hiring language from the Americans with Disabilities Act, which was not a quota bill.

The press accounts, however, described the legislation as a victory for quotas and a loss for Mr. Bush. It took more than 20 years before the Supreme Court decided (5-4) in the New Haven firefighters case, Ricci v. DeStefano, that education could be used in hiring, against a vigorous dissent that the 1991 Civil Rights Act prohibited the use of educational criteria that might have a disparate impact on minorities.

Dissent or not, the law is now clear, after more than four decades of confusion, that employers can get directly involved in shaping educational curricula and hiring standards based thereon. Let’s hope this approach catches fire, as it is the missing piece of the education-hiring reform agenda.

C. Boyden Gray has served as White House counsel, U.S. ambassador to the European Union, special envoy for Eurasian energy and special envoy for European Union affairs. “Arbitrary and Capricious” runs monthly.

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