The conventional wisdom about the civil-rights bill compromise is that President Bush, afraid he was looking more and more like KKK-alumnus David Duke, simply caved in.

Liberals exult that the president abandoned a morally and politically indefensible position by embracing belatedly the same salutary reforms that they had been seeking all along.

Meanwhile, conservatives like columnist Patrick Buchanan bash the president for capitulating to a "quota bill."

Wrong, wrong, wrong.

These figments of Democratic spin-controllers and right-wing hardliners, uncritically adopted by much of the national press as the bill sped toward final passage last week, are egregious oversimplifications.

Not as egregious, to be sure, as the president’s own transparently absurd position that what he had been denouncing for 20 months as a "quota bill" had been transubstantiated, by a few strokes of the pen, overnight, into a good and upright "source of pride for all Americans … a non-quota civil-rights bill."

Oversimplified rhetoric begets oversimplified rebuttal. President Bush and his aides may deserve a dose of their own medicine.

Irreconcilable Differences

But the truth is that this was a classic, convoluted legislative deal, with both sides giving significant ground, inch by inch, while papering over irreconcilable differences and leaving the hardest policy decisions unresolved:

• The White House won more than it lost on the "quota" front, by holding out for crucial last-minute changes in language regarding statistically based "disparate impact" lawsuits. The compromise bill is far less likely than the original Democratic proposals to increase pressure on employers to use racial hiring preferences and significantly less likely to do so than the revisions advanced last summer by Sen. John Danforth (R-Mo.).

• The White House did cave in on the "lawyers’ bonanza" front, by accepting almost verbatim all the Danforth proposals for jury trials and damage awards it had previously denounced as "radical" measures to "promote excessive litigation."

• The president and Congress agreed to disagree on the meaning of the most controversial provisions, such as the vague, undefined language on what an employer must prove to justify as "job related" any selection criteria that screen out disproportionate numbers of minorities or women.

In doing so, the deal makers punted the most difficult and important policy issues to the federal judiciary-which happens to be a bastion of Reagan and Bush appointees that is even more conservative now than in 1989, when the Supreme Court laid, down the five decisions that civil-rights groups have been clamoring to overrule.

Should employers be free to require that applicants for secretarial jobs have high-school diplomas? Should they be free to use standardized intelligence tests to screen applicants for positions as firefighters? As auto mechanics? Should law firms be free to reject all applicants with mediocre law-school grades?

Blank Check

Congress has not clearly answered questions like these. The answers will be supplied, in due course, by the Court of Rehnquist, Scalia, Thomas, Kennedy, Souter, O’Connor, White et al.

White ‘House lawyers may not like giving judges a blank legislative check to resolve such glaring statutory ambiguities. But they have reason to anticipate they will like the way the blanks are filled in by the Reagan-Bush courts.

"The press is all wet in saying that the president caved," says Glen Nager, who represents employers as a partner with Jones, Day, Reavis & Pogue’s Washington office and knows the legal issues as well as anyone.

"What’s mind-boggling to me," adds Nager, who as an assistant solicitor general helped write the Reagan administration’s briefs in key civil-rights cases, "is that the administration’s opponents would think that they could win die battle by going to the courts, when throughout the debate they’ve been saying that Congress needed to legislate very subtle rules of employment litigation with detail and particularity, because the courts could not be trusted."

So the gonzo-conservative Wall Street Journal editorialists have been shortsighted in announcing that "this remains very much a quota bill"-just as their liberal New York Times counterparts have been disingenuous in Mau-Mauing the quota issue as no more than an "ugly slogan" from the start.

Media Blunders

News coverage of the civil-rights battle has been marred by glaring inaccuracies as well as tendentious oversimplifications.

One example: Andrea Mitchell’s flagrantly biased report on the NBC Nightly News of October 24, which unqualifiedly branded as "false" (in bold red graphics, no less) four of the points in summary critiques of the then-pending Danforth proposal that were prepared by White House and Justice Department lawyers.

In fact, all four points, such as a claim that the Danforth bill could be read as authorizing compensatory and punitive damages even in disparate-impact cases involving no discriminatory intent, were arguably correct and within the realm of fair advocacy, if perhaps a bit overdrawn.

The significance of the compromise legislation’s retreat into ambiguity on key issues is that, as Nager argues, the Rehnquist Court is not likely to back off from its own interpretations of the civil-rights laws except to the extent that Congress explicitly overrules those decisions, in whole or in part.

The compromise legislation does indeed overrule portions of the five 1989 decisions and three others. But it leaves intact key aspects of the most important one, Wards Cove Packing Co. v. Atonio, and leaves key terms undefined.

It is speculative at best to predict the impact of legislation as murky as this on a world of litigation jointly ruled by the Reagan-Bush judiciary and the ancient law of unanticipated consequences.

Shadow on Affirmative Action

One contrarian possibility is that the compromise bill-far from pushing more employers to use hiring quotas-may drive many away from even the milder form of affirmative action that both sides say they want: reaching out to give women and minorities-even when they lack paper credentials, references, and job experience-a chance to show what they can do.

Far-fetched? Consider: The vague new language shifting to employers part of the burden of proof in disparate-impact suits is probably too weak to overcome the formidable hurdles that have long faced suits based on failure to hire enough minorities and women. If so, employers will feel little new pressure to use affirmative action at the hiring stage.

Meanwhile, employers will henceforth find it more risky to fire employees, whether for subpar work or otherwise. That’s because fired employees, who have always been far more likely to go to court than those not hired, will have new incentives to litigate: the availability of jury trials and limited compensatory and punitive damages for discrimination claims based on sex, national origin, religion, or disability. (Such remedies are already available for racial-discrimination claims.)

The net result could be to make employers more risk averse about hiring employees who would be hard to fire if they don’t work out-especially those without the traditional badges of qualification, and those most likely to raise discrimination claims.

Then again, maybe the threat of more damage suits will give some marginal new impetus to hiring quotas. Nobody really knows. It could depend on questions that hardly anyone (except Nager and a few other litigators) is even thinking about now, such as whether courts will sustain employer efforts to require employees to submit to arbitration of discrimination claims.

The Griggs legacy

How, exactly, does the compromise bill change the law in the most controversial area-disparate-impact suits, quotas, preferences, and all that?

First, a little history: In 1971, in Griggs v. Duke Power Co., a unanimous Supreme Court implausibly gleaned from between the lines of the 1964 Civil Rights Act a congressional intent to expose employers to liability for racial discrimination-even if they had no discriminatory intent-for using selection criteria (such as standardized intelligence tests) that have the effect of excluding disproportionate numbers of black applicants.

Griggs imposed on employers the burden of proving the "business necessity" of any selection criteria that had such a disparate impact.

This was dubious statutory interpretation but pretty good policy, because it gave employers a needed incentive not to use selection criteria that tend to screen out minorities unless these criteria indeed help them choose better workers.