EQUAL OPPORTUNITY ACT OF 1995
Y 4. J 89/1:104/60
Equal Opportunitu Act of 1995» Seri... t/^
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
ON
H.R. 2128
EQUAL OPPORTUNITY ACT OF 1995
DECEMBER 7, 1995
Serial No. 60
Printed for the use of the Committee on the Judiciary
23-805 cc
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1995
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-052786-4
EQUAL OPPORTUNITY ACT OF 1995
Y 4. J 89/1:104/60
Equal Qppoptunitii Act of 1995, Seri... jr^
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
ON
H.R. 2128
EQUAL OPPORTUNITY ACT OF 1995
DECEMBER 7, 1995
Serial No. 60
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
2.^-805 CC WASHINGTON : 1995
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-052786-4
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE,
CARIX)S J. MOORHEAD, California
F. JAMES SENSENBRENNER, JR.,
Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
MARTIN R. HOKE, Ohio
SONNY BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia
Illinois, Chairman
JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California
JOSE E. SERRANO, New York
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
Alan F. COPFEY, Jr., General Counsel /Staff Director
JUUAN Epstein, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
MICHAEL PATRICK FLANAGAN, Illinois
F. JAMES SENSENBRENNER. JR.,
Wisconsin
MARTIN R. HOKE, Ohio
LAMAR SMITH, Texas
BOB GOODLATTE, Virginia
BARNEY FRANK, Massachusetts
MELVIN L. WATT, North Carolina
JOSE E. SERRANO, New York
JOHN CONYERS, Jr., Michigan
PATRICIA SCHROEDER, Colorado
Kathryn a. HazEEM, Counsel
WILUAM L. McGRATH, Counsel
Keri D. Harrison, Assistant Counsel
John H. LadD, Assistant Counsel
Robert Raben, Minority Counsel
(II)
CONTENTS
HEARING DATE
Page
December 7, 1995 1
TEXT OF BILL
H.R. 2128 4
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of
Florida, and chairman, Subcommittee on the Constitution 1
WITNESSES
Amselle, Jorge, communications director. Center for Equal Opportunity 132
Baer, Arthur A., associate counsel, Puerto Rican Legal Defense and Education
Fund, Inc 141
Bolick, Clint, vice president and director of litigation, Institute for Justice 36
Browne, Kingsley R., associate professor, Wayne State University Law
School 96
Cohen, Carl, professor of philosophy, University of Michigan, Ann Arbor,
MI 24
Greenberger, Marcia D., co-president. National Women's Law Center 42
Herman, Barbara, board member, National Council of Jewish Women 135
Jackson Lee, Hon. Sheila, a Representative in Congress from the State of
Texas 17
Kull, Andrew, professor of law, Emory University School of Law 120
Loury, Glenn C, professor of economics, Boston University, and vice chair-
man. Center for New Black Leadership, Washington, DC 54
Molinari, Hon. Susan, a Representative in Congress from the State of New
York 13
Patrick, Deval L., Assistant Attorney General, Civil Rights Division, Depart-
ment of Justice 77
Pavton, John, attorney, Wilmer, Cutler & Pickering 30
Pelayo, Luis E., executive director, Hispanic Council 137
Wu, Frank H., assistant professor, Howard University School of Law Ill
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Amselle, Jorge, communications director. Center for Equal Opportunity: Pre-
pared statement 133
Baer, Arthur A., associate counsel, Puerto Rican Legal Defense and Education
Fund, Inc.: Prepared statement 142
Bolick, Clint, vice president and director of litigation, Institute for Justice:
Prepared statement 39
Browne, Kingsley R., associate professor, Wayne State University Law School:
Prepared statement 99
Cohen, Carl, professor of philosophy, University of Michigan, Ann Arbor,
MI: Prepared statement 28
Greenberger, Marcia D., co-president. National Women's Law Center: Pre-
pared statement 45
Herman, Barbara, board member. National Council of Jewish Women: Pre-
pared statement 136
(III)
IV
Page
Jackson Lee, Hon. Sheila, a Representative in Congress from the State of
Texas: Prepared statement 21
Kull, Andrew, professor of law, Emory University School of Law: Prepared
statement 124
Ix)ury, Glenn C, professor of economics, Boston University, and vice chair-
man, Center for New Black Leadership, Washington, DC: Prepared state-
ment 57
Molinari, Hon. Susan, a Representative in Congress from the State of New
York: Prepared statement 16
Patrick, Deval L., Assistant Attorney General, Civil Rights Division, Depart-
ment of Justice: Prepared statement 82
Payton, John, attorney, Wilmer, Cutler & Pickering: Prepared statement 33
Pelayo, Luis E., executive director, Hispanic Council: Prepared statement 139
Wu, Frank H., assistant professor, Howard University School of Law: Pre-
pared statement 114
APPENDIX
Material submitted for the hearing 151
EQUAL OPPORTUNITY ACT OF 1995
THURSDAY, DECEMBER 7, 1995
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:10 a.m., in room
2237, Rayburn House Office Building, Hon. Charles T. Canady
(chairman of the subcommittee) presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Bob
Inglis, Michael Patrick Flanagan, F. James Sensenbrenner, Jr.,
Martin R. Hoke, Barney Frank, Melvin L. Watt, and John Conyers,
Jr.
Also present: Representative Robert C. Scott.
Staff present: William L. McGrath, counsel; Jacquelene McKee,
paralegal; Mark Carroll, staff assistant; and Robert Raben, minor-
ity counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. Canady. The subcommittee will come to order. We are here
today to consider H.R. 2128, the Equal Opportunity Act of 1995,
which I introduced in July on behalf of myself and over 70 House
cosponsors. Senator Dole has introduced companion legislation in
the Senate.
This subcommittee has held six hearings this year on the general
topic of racial and gender preferences. Today's hearing is especially
significant, however, because it marks the first time this or any
other committee or subcommittee of the 104th Congress has consid-
ered an actual legislative proposal dealing with this important
issue. By now, we have heard the arguments pro and con. We have
conscientiously and respectfully considered the different view-
points. We have, I think, gained an appreciation for all sides of the
debate. It is time now to focus on the specifics of what we should
do.
H.R. 2128 represents my proposal on how to start that process.
It is, I believe, a principled, meaningful, yet measured approach to
the issue of racial and gender preferences. It reflects my conviction
and the conviction of the cosponsors that it is time for the Federal
Government to get out of the business of granting preferences on
the basis of race and sex. That is what this legislation is about.
The Federal Government every day and in more ways than any
of us can claim to know treat citizens differently depending on
their skin color and sex. I believe it is time for the Government to
adopt a bright line rule. In the eyes of the Federal Government, the
(1)
race and sex of its citizens are simply irrelevant. It is time to con-
form our laws to the principle Justice Scalia articulated in the
Adarand decision. In the eyes of the Government, we are just one
race here. It is American.
It is somewhat odd that in 1995 we should even be discussing
the need for Government to change its laws so that all citizens are
treated in a race and gender neutral fashion. One would have
thought that the great civil rights achievements of the 1960's, the
enactment of the Civil Rights Act of 1964, the Voting Rights Act
of 1965, and the Fair Housing Act of 1968, would have achieved
just that. Certainly by their terms, these laws appear to make ra-
cial and gender considerations off limits. We had, most people
thought, finally completed our long and tortuous national journey
from a regime that tolerated and nurtured the hateful institution
of chattel slavery based on race, to one in which our laws finally
comported with the ideals set forth in the Declaration of Independ-
ence.
But almost as soon as we had enshrined the principle of non-
discrimination in our laws, we began pursuing policies and enact-
ing laws that directly contravened the mandate of equal treatment
without regard to race or sex. From Executive Order 11246, which-
ever time has come to be little more than a numbers driven en-
forcer of racial and gender proportionality on Federal contractors,
to the Civil Service Reform Act of 1978, which has caused the Fed-
eral Government itself to seek proportionality for its own sake in
the Federal work force, and from laws like the Public Works Em-
ployment Act of 1977 and the Energy Policy Act of 1992, both of
which have a 10-percent minority set-aside provision, to similarly
preferential contracting programs like the SBA's 8(a) program, and
the 1207 program administered by the Pentagon, we have over the
course of the past 25 years erected an elaborate regime of programs
that explicitly require the Federal Government to prefer certain
citizens over others, based solely on skin color or gender.
At the time the first of these laws were enacted, people of good
will could justly claim that they thought temporary deviations from
the principle of equal treatment were permissible and maybe even
necessary, to address lingering inequities in conditions. But we
know now that such well-intentioned beliefs were wrong in at least
two important ways.
First, these race and gender-based laws, some now 20 and even
30 years old, show no signs of being temporary. They have instead
become fixtures on our national landscape. Indeed, far from wind-
ing down, preference programs were picking up speed as recently
as the end of the last session of Congress. In 1994, we enacted the
Federal Acquisitions Streamlining Act or FASA, which if fully im-
plemented, would constitute the largest Federal racial and gender
preference program.
When President Clinton spoke in favor of preference programs at
the National Archives in July, he said that the evidence suggests,
indeed screams, that the day to end such programs has not yet
come. To the contrary, I believe that the evidence screams that if
we do not end these programs now, there is a very real risk that
we will never end them. The time to act is running out.
The proponents of preference are also wrong in a second more
important sense. Even the most committed supporters of racial and
gender preference programs concede that these programs are incon-
sistent with fundamental American ideals. That is why they say,
as President Clinton did this summer, that these programs should
not go on forever.
But if these programs should not go on forever, if there is some-
thing wrong with them such that they should end at some unspec-
ified future date, then they should end now. We cannot as a nation
continue to trifle with our principles. If equal treatment is a moral
and legal imperative in our country, then we must act now or we
may find that we have so lost sight of the principle, that a future
return to it is no longer an option.
Defenders of preferences will argue that H.R. 2128 is naively pre-
mised on the notion that we live in a colorblind society, free from
discrimination. They will also argue that it somehow weakens our
national efforts to combat racial and gender discrimination. Both
charges are simply false.
Supporters of H.R. 2128 do not believe that our society is free of
discrimination. We know that discrimination still exists and we
fully support the vigorous and conscientious enforcement of our
antidiscrimination laws. But the preference programs that H.R.
2128 would effect have nothing whatsoever to do with combating
discrimination. These programs, in fact, do not even purport to
identify instances in which particular persons or companies were
treated disadvantageously because of race or gender. Rather, they
embody the concept of group entitlement and award benefits based
on crude racial and gender classifications. We simply must not be
deceived by defenders of the status quo into accepting their claim
that eliminating preferences will undermine our determination to
fight discrimination.
On the contrary, by acting now to eliminate preferences, we will
reaffirm our continuing national commitment to the principles of
equality and nondiscrimination. That is the motivation behind H.R.
2128. I commend the bill to you for your careful consideration.
[The bill, H.R. 2128, follows:]
104TII COXGRP]SS
1st Session
H.R.2128
To proliibit disfriiniiiatioii and proferciitial treatment on tlie l)a.sis of race,
coloi-. national origin, or sex witli res|)eet to Federal einplo\inent, eon-
traets. and pro^Tanis, and for other purposes.
IN THE HOUSE OF REPRESENTATRT^S
July 27, 1995
.Mr. Canady of Florida (for himself, Mr. HYDE, Ms. MoLIN.VRI, Mrs. FowL-
ER, Mr. Wicker, Mr. Sk.xsexbrenner, Mr. Hoke, .Mr. Smith of
Texas, Mr. (Ji)ODL.vTTE, Mr. McCoLLUM, Mr. Coble, Mr. Heine.alvx,
Mr. BKY.VXT of Teiuiessee, Mr. BONO, Mr. Barr, Mr. ROHILVBACIIER,
Mr. ISTOOK, Mr. Herger, Mr. Norwood, Mr. Call^ulvn, Mr.
Ci"NNiN(Jiu.M, Mr. CiLuiBLiss, Mr. Hutchinson, Mr. Jones, Mr.
KiN(}, Mr. Lightkoot, Mr. Paciovrd, Mr. Paxon, Mr. Roberts, Mr.
Roth, Mr. Stump, Mr. Young of Alaska, Mr. Burton of Indiana, Mr.
Dreier, Mr. Emerson, Mr. Scilvefer, Mr. Miller of Florida, Mr.
Goss, Mr. Doolittle, Mr. McIntosh, Mr. Combest, Mr. Mica. Mr.
Sc.u?B()ROUGH, Mr. Smith of New Jersey, Mr. STOCK.MAN, .Mr. Walk-
er, Mr. Weldon of Florida, Mr. Ev'ERETT, Mr. Lewis of Kentucla-,
Mrs. Vucaxomch, .Mr. BiLBR^VY, .Mr. Solomon, Mrs. Se.vstrand, Mr.
Bilir.\kis, .Mr. Christe.nsen, Mrs. Cubin, .Mr. H.\stert, -Mr.
Large.nt, .Mr. Bunning of Kentucky, .Mr. Clinger, .Mr. KoLBE. .Mr.
IL^NCOCK, Mrs. ROUKEJLV, Mr. Hostettler, Mr. GR.ULV.M, Mr.
FLvDA.NOMCH, Mr. OXLEY, .Mr. HoEKSTR^v, .Mr. Barrett of .Nebraska,
Mr. Bass, Mr. Dornan .Mr. S^u^.mon, and Mr. Ballenger) introduced
the followiTi": hill; which was referred to the Committee on the Judiciary-,
and in addition to tlie Committees on Economic and Educational Oppor-
tunities, Govennnent Reform and Oversifrht, and House Oversifjht, for a
period to be subsecjuently determined by the Speaker, in each ca.se for
consideration of such pro\isions as fall within the jurisdiction of the com-
mittee concerned
A BILL
To prohibit discrimination and preferential treatment on the
2
basis of race, color, national origin, or sex \vith respect
to Federal employment, contracts, and programs, and
for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Equal Opportunity Act
5 of 1995".
6 SEC. 2. PROHIBITION AGAINST DISCRIMINATION AND
7 PREFERENTIAL TREATMENT.
8 Notwithstanding any other provision of law, neither
9 the Federal Government nor any officer, employee, or de-
10 partment or agency of the Federal Government —
11 (1) may intentionally discriminate against, or
12 may grant a preference to, any individual or group
13 based in whole or in part on race, color, national ori-
14 gin, or sex, in connection with —
15 (A) a Federal contract or subcontract;
16 (B) Federal emplojuient; or
17 (C) any other federally conducted program
18 or acti\ity;
19 (2) may require or encourage any Federal con-
20 tractor or subcontractor to intentionally discriminate
21 against, or grant a preference to, any individual or
22 group based in whole or in part on race, color, na-
23 tional origin, or sex; or
•HR 2128 IH
3
1 (3) may enter into a consent decree that re-
2 quires, authorizes, or permits any acti\nty prohibited
3 by para^aph (1) or (2).
4 SEC. 3. RECRUITMENT AND ENCOURAGEMENT OF BIDS.
5 Nothing in this Act shall be construed to prohibit or
6 limit any effort by the Federal Government or any officer,
7 employee, or department or agency of the Federal Govern-
8 ment —
9 (1) to recruit qualified women or qualified mi-
10 norities into an applicant pool for Federal employ-
1 1 ment or to encourage businesses owned by women or
12 by minorities to bid for Federal contracts or sub-
13 contracts, if such reciiiitment or encouragement
14 does not involve using a numerical objective, or oth-
15 envise granting a preference, based in whole or in
16 part on race, color, national origin, or sex, in select-
17 ing any indi\idual or group for the relevant employ-
18 ment, contract or subcontract, benefit, opportunity,
19 or program; or
20 (2) to require or encourage any Federal con-
21 tractor or subcontractor to recruit qualified women
22 or qua.ified minorities into an applicant pool for em-
23 ployment or to encourage businesses owned bj'
24 women or by minorities to bid for Federal contracts
25 or subcontracts, if such requirement or encourage
•HR 2128 IH
4
1 merit does not involve using a numerical objective,
2 or othenvise granting a preference, based in whole
3 or in part on race, color, national origin, or sex, in
4 selecting any individual or group for the relevant
5 employment, contract or subcontract, benefit, oppor-
6 tunity, or program.
7 SEC. 4. RULES OF CONSTRUCTION.
8 (a) HiHTORiCiVi.LY Black Colleges .vxd Uximer-
9 SITIES. — Nothing in .this Act shall be construed to prohibit
10 or limit am^ act that is designed to benefit an institution
11 that is a historically Black college or university on the
12 basis that the institution is a historically Black college or
13 university.
14 (b) IXDLVX Tribes. — Nothing in this Act shall be
15 construed to prohibit or limit any action taken —
16 (1) pursuant to a law enacted under the con-
17 stitutional powers of Congress relating to the Indian
18 tribes; or
19 (2) under a treaty between an Indian tribe and
20 the United States.
21 (c) BoxA Fide Occlpatioxal Qualificatiox,
22 Privacy, ^vnd Natiox.vl Security Coxcerxs. — Noth-
23 ing in this Act shall be construed to prohibit or limit any
24 classification based on sex if —
•HR 2128 IH
8
5
1 (1) sex is a bona fide occupational qualification
2 reasonably necessary to the normal operation of the
3 Federal Government entity or Federal contractor or
4 subcontractor involved;
5 (2) the classification is designed to protect the
6 privacy of indi\iduals; or
7 (3) (A) the occupancy of the position for which
8 the classification is made, or access to the premises
9 in or on which any part of the duties of such posi-
10 tion is performed or is to be performed, is subject
11 to any requirement imposed in the interest of the
12 national security of the United States under any se-
13 curity program in effect pursuant to or administered
14 under any Act or any Executive order of the Presi-
15 dent; or
16 (B) the classification is applied with respect to
17 a member of the Armed Forces sening; on active
18 duty in a theatre of combat operations (as deter-
19 mined by the Secretary of Defense).
20 SEC. 5. COMPLIANCE REVIEW OF POLICIES AND REGULA-
21 TIONS.
22 Not later than 1 year after the date of enactment
23 of this Act, the head of each department or agency of the
24 Federal Government, in consultation with the Attorney
25 General, shall re\iew all existing policies and regulations
•HR 2128 IH
6
1 that such department or agency head is charged with ad-
2 ministering, modify such pohcies and regulations to con-
3 form to the requirements of this Act, and report to the
4 Committee on the Judiciary of the House of Representa-
5 tives and the Committee on the Judiciar}-^ of the Senate
6 the results of the review and any modifications to the poli-
7 cies and regulations.
8 SEC. 6. REMEDIES.
9 (a) Ix General. — In any action involving a \iolation
10 of this Act, a court may award only injunctive or equitable
1 1 relief (including but not limited to back pay), a reasonable
12 attorney's fee, and costs.
13 (b) COXSTRUCTION. — Nothing in this section shall be
14 construed to affect any remedy available under any other
15 law.
16 SEC. 7. EFFECT ON PENDING MATTERS.
17 (a) Pending Cases. — This Act shall not affect any
1 8 case pending on the date of enactment of this Act.
19 (b) Pending Contracts, Subcontr.\cts, and
20 Consent Decrees. — This Act shall not affect any con-
21 tract, subcontract, or consent decree in effect on the date
22 of enactment of this Act, including any option exercised
23 under such contract or subcontract before or after such
24 date of enactment.
•HR 2128 ra
10
7
1 SEC. 8. DEFINrnONS.
2 As used in this Act:
3 (1) Federal government. — The term "Fed-
4 eral Government" means the executive and legisla-
5 tive branches of the Government of the United
6 States.
7 (2) Grant a preference. — The term "grant
8 a preference" means use of any preferential treat-
9 ment and includes but is not limited to any use of
10 a quota, set-aside, numerical goal, timetable, or
11 other numerical objective.
12 (3) HiSTORIC.VLLY BLACK COLLEGE OR UNI-
13 VERSITY. — The term "historically Black college or
14 university" means a part B institution, as defined in
15 section 322(2) of the Higher Education Act of 1965
16 (20 U.S.C. 1061(2)).
O
•HR 2128 ra
11
Mr. Canady. Mr. Frank.
Mr. Frank. Those who have the impression that there is no prob-
lem any longer with discrimination in America, that race prejudice
and gender prejudice and ethnic prejudice are really not a serious
problem, probably could have gotten that idea from watching this
subcommittee this year. This is the subcommittee that has jurisdic-
tion over the civil rights laws. This subcommittee, as this year
comes to an end, has not had one single hearing on problems of dis-
crimination against people based on their race, based on their gen-
der, based on their ethnicity.
We have had many hearings about the problems with the efforts
to combat discrimination. We have had hearings critical of the Civil
Rights Commission. We have had a number of hearings on affirma-
tive action. I do believe that in this area, what we do is what peo-
ple have a right to look at.
When you have the subcommittee of the Congress in the House
that is charged with the enforcement of the antidiscrimination
laws, that is charged with recommending antidiscrimination poli-
cies, have no hearings whatsoever, no committee business whatso-
ever aimed at strengthening those laws or seeing how well they op-
erate, and we have had none. We have had nothing about allega-
tions, which seem to me to be serious of unequal law enforcement,
where African-Americans have been discriminated against in var-
ious cities, Philadelphia and others. We have had none to talk
about the report of the Glass Ceiling Commission, appointed by a
Republican administration originally.
We have had no hearings about this. That is what I think is at
issue here. Rhetoric to the contrary, this legislation is put forward
by people who have us act as if the problem of discrimination has
essentially gone away, and that we therefore have the luxury of
dealing only with excesses in the enforcement of antidiscrimina-
tion. I think that is plainly wrong.
I do not agree with everything the Supreme Court did, but unlike
my chairman, I think the Supreme Court majority got this much
better than the Supreme Court minority, the side of Justice Scalia,
who may have the support of Justice Thomas, but no other on this
principle. The great majority of the Supreme Court affirmed that
yes, in a society which has grown up with severe discrimination
based on gender, based on race, based on ethnic origin, it is legiti-
mate to do more than simply outlaw discrimination. It is legitimate
to get serious about accomplishing that goal.
The legislation before us would make it very difficult to do that.
For example, the legislation goes far beyond outlawing quotas. It
outlaws the use of goals. Now my understanding is that the U.S.
military, for example, has found the use of goals very helpful in its
affirmative action policy, affirmative action policies that have been
praised by Gen. Colin Powell, who says that he was himself the
beneficiary of them, and who believes that they were needed.
I think banning the use of goals in that way goes far beyond an
argument about denying preferences, and interferes in a very sub-
stantial way with our ability to make operational the principles of
nondiscrimination.
Finally, yes, many of us hope this will go away. We hope we will
reach the point when society in fact is not so cursed still with prej-
12
udices that have been of such long standing that we will not have
to spend as much time and energy in enforcing antidiscrimination.
We have clearly made a lot of progress. This society, the United
States, has made more progress than many others because this is
a curse that affects a lot of human beings. But that's really the
question before us.
Have we reached the point where we no longer have to get into
serious efforts to enforce the antidiscrimination laws. Abolish goals,
abolish the use of statistical evidence to prove discrimination, and
you are left with very little. The number of bigots who will conven-
iently in front of witnesses or on tape, announce that they are fir-
ing you because of your race or your gender, that they are not hir-
ing you because of your race and your gender, has dwindled. The
bigots have gotten a little more sophisticated.
This legislation would be a safe haven for sophisticated bigotry.
Not in intent, but in effect. Because if in fact you do what this leg-
islation says and you can not use goals, and you can not use statis-
tics, you cannot use your common sense about what is in fact hap-
pening, then we will have antidiscrimination statutes on the books,
but they will be largely ignored as they have been by this sub-
committee all year.
Mr. Canady. Mr. Hyde.
Mr. Hyde. Well, I have no formal opening statement. I found the
remarks of mv friend from Massachusetts, as always, interesting.
I simply would comment in defense of this subcommittee that I
have served on this subcommittee, this is my 21st year. I cannot
ever recall hearings that weren't on the very things the gentleman
complains we're not holding hearings on. For 21 years, we have
had hearings under Mr. Don Edwards aegis on discrimination and
affirmative action and all of the things that are important. But this
new committee, new subcommittee is taking a look at a broader
definition of discrimination, because every preference results in dis-
crimination against somebody.
Equal protection of the law. That is what our fundamental char-
ter says. That is what we are trying to have hearings on, to see
whether indeed, equal protection of the law applies to members
outside of the designated victim, the official victim group. Discrimi-
nation is real. Discrimination has not diminished. There will al-
ways be discriminations as long as human nature is human nature.
But our ideal is equal protection of the law. Does that apply to ev-
erybody or only to a favored few to be benefited by preference, by
timetables, by goals, by multidiversity, or does it apply to all Amer-
icans.
So that is an important issue. I congratulate our chairman for
holding this hearing. Thank you.
Mr. Sensenbrenner. Mr. Chairman.
Mr. Canady. Mr. Sensenbrenner.
Mr. Sensenbrenner. Mr. Chairman, I did not plan to make an
opening statement, but after listening to the gentleman from Mas-
sachusetts, I feel obliged to do so. He implies, that those of us who
support this legislation are engaged in sophisticated bigotry. I take
exception to that.
The issue of how affirmative action has worked and how it has
turned out is a legitimate issue of concern for people who aren't
13
bigots, who have open minds, and who have fought discrimination
through a good part of their pubhc career and a good part of their
lives.
I, for one, feel affirmative action was something that was ex-
tremely well intentioned at the time that it was first proposed and
enacted into law, but has become horribly, horribly off the track
where it has ripened into goals and timetables, with the effect that
Eeople who do not belong to targeted groups are actually way, way
ehind the 8-ball in being able to achieve the equal opportunity
that belongs to them. Now this is a legitimate issue where reason-
able people can differ as to both the approaches and the results.
To insinuate that those of us who have cosponsored this legislation
are involved in sophisticated bigotry, I think, gets the debate on
the legitimate issues significantly off the track right at the start.
I yield back the balance of my time.
Mr. Canady. Mr. Flanagan.
Mr. Flanagan. I have no statement.
Mr. Canady. Mr. Conyers, the ranking minority member of the
full committee had hoped to be here to make an opening statement.
We will allow him to make his statement when he arrives.
Mr. Frank. Thank you. We appreciate that courtesy, Mr. Chair-
man, because you didn't have to do it. I thank you for that.
Mr. Canady. Our first panel today consists of two Members. Con-
gressman Tillie Fowler, a cosponsor of H.R. 2128 was also sched-
uled to testify. However, I have just been informed that her father
has passed away. Our thoughts and prayers are with Mrs. Fowler
and her family at this time.
First we will hear from Congressman Susan Molinari. Since
1990, Congresswoman Molinari has served New York's 13th Dis-
trict, which includes Staten Island and parts of Brooklyn. We will
also hear today from Congresswoman Sheila Jackson Lee. Ms.
Jackson Lee represents the 18th District of Texas, and is a member
of the House Judiciary Committee.
I want to thank both of you for being here today. We appreciate
your participation in the hearing. I would ask that each of you
summarize your testimony in no more than 10 minutes. Your full
written statement will, without objection, be made a part of the
record.
Ms. Molinari.
STATEMENT OF HON. SUSAN MOLINARI, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW YORK
Ms. Molinari. Thank you, Mr. Chairman. Mr. Chairman, mem-
bers of the subcommittee, distinguished guests, thank you for giv-
ing me the opportunity to address you this morning. Let me devi-
ate from my original text immediately to state that in fact, I think
we all understand and have all been victims of discrimination, and
understand readily, as do all Americans, that discrimination has
indeed and in fact not gone away.
The question is, after all these years of affirmative action pro-
grams that have cost the taxpayers and hurt the spiritual together-
ness of a group of Federal workers in particular, if in fact discrimi-
nation has gotten better. And if at a time in our society we look
and say that as well intentioned as it was, if it hasn't gotten better,
14
then maybe we have used afTirmative action as an excuse and a
placebo to make us all feel a little bit better about our attempts
to deal with discrimination, than to in fact delve into the painful
issue of why discrimination continues to exist, and to come up with
solutions that are more adaptable to today's America.
I believe the Equal Opportunity Act of 1995 recognizes and rein-
forces an important distinction that should guide our efforts to
fi^ht discrimination. Just over 30 years ago, Congress enacted the
Civil Rights Act of 1964 in an attempt to end prejudice and dis-
courage future bias. The landmark bill has done much to reduce
discrimination against women and minorities. One of the reasons
that I support the Dole-Canady bill is that it does nothing to weak-
en the important protections of the 1964 act and the civil rights
acts that have followed.
However, affirmative action, which also began in the 1960's, has
done more in this country to divide than to unite. It presumes that
a characteristic such as skin color or gender define the amount of
governmental assistance and support that one should need and one
in fact should receive. As Linda Chavez has stated, affirmative ac-
tion today has strayed from its original intent, and has become
largely a pro-am to confer special benefits on a designated group
to achieve not equal opportunity, but equal results. Simply put, af-
firmative action is a good idea that went bad.
Now while Government cannot cure the evils of hate, it may still,
and I would say it is incumbent upon us to provide opportunities
for less fortunate Americans based on their opportunities and their
economic scales, not based on the color of their skin or their gen-
der. Equal opportunity is woven into the fabric of America in the
Declaration of Independence, and reiterated in the 14th amend-
ment to the Constitution. But we can never truly be a nation of
equal opportunity while our Grovernment facilitates discrimination
based on race and gender. Preferential treatment, whether born
out of hatred or well-intentioned legislation, is always wrong.
The Dole-Canady bill restores, I believe, the original meaning
and purpose to Executive Order 11246, which requires that a Fed-
eral contractor not discriminate against any employee or applicant
from employment based on race, religion, sex, or national origin.
Ironically, this Executive order, which expressly prohibited dis-
crimination in the Federal work force has been so manipulated that
rather than prohibiting discrimination, it has been used as a vehi-
cle to promote discrimination.
Now what message do we send to our citizens when the Federal
Government can arbitrarily change the true meaning of its own
mandates through bureaucratic wrangling. The Equal Opportunity
Act, I believe, statutorily prescribes tnat the Federal Government
must adhere to its own rules. At the same time, the Dole-Canady
bill realizes the importance of encouraging minorities and women
into the applicant pool. It preserves the ability to allow nondiscrim-
inatory outreach, recruiting and marketing efforts. In addition, it
does not affect current antidiscrimination laws. If anything, this
bill expresses an intention to increase enforcement of these laws.
So the merits of this bill are clear, equal achievement for all
Americans. But let's take a moment to consider why preferences,
set-asides and quotas are inappropriate. We have all neard this ex-
15
ample, but I think it bears repeating to the general public today.
Consider some of the beneficiaries of this program, and this does
not in fact go for all beneficiaries of this program. But as long as
these loopholes are allowed to be exploited, we in Congress, I be-
lieve, must address them.
As reported by the Wall Street Journal, in the FCC's personal
communications auction, female and minority-owned businesses are
given a 25-percent discount, plus tax and financing breaks in ac-
quiring PCS licenses. Former Manhattan Borough president and
multimillionaire Percy Sutton, was given a preference and received
such a license. Also, Sandra Martis, daughter of MCI founder John
Goeken, as well as Janice — I hope she excuses my pronunciation —
Obuchowski, former FCC staffer and Assistant Secretary of Com-
merce in the Bush Administration, were also given licenses based
on quotas, clearly not on need.
Ms. Obuchowski's case was especially egregious, because she was
one of the Government policymakers responsible for creating the
FCC auction rules. Can we truly call this a level playing field?
Let me just give one example of what happens in New York City
all the time. We have been plagued by the legacy of minority race
and gender set-asides which have cheated the taxpayers while
often lining the pockets of wealthy individuals or shell companies,
designed to take advantage of affirmative action's good intentions.
We have minorities who have overbid and won contracts, even
though they themselves have admitted that they may not have
been discriminated against.
In my district, in addition to the many stories of local business-
men unable to give the taxpayer the best job at the best price be-
cause they were the wrong background or gender, two examples
come to mind. In my district at the Department of Interior, we des-
perately need and have authorized and appropriated for an edu-
cation center. It also acts as a visitor center down at our Gateway
State Park. The Federal Government has appropriated the exact
amount of funding necessary for that. That job could not go to a
local Staten Island or New York City contractor who had performed
Department of Interior work successfully and capably before that,
because the Federal Government decided that this would be a
project for set-asides. So the job went to a group in New Jersey
who shortly thereafter defaulted.
So what do we have in an instance like this, one instance in Stat-
en Island. Local businesses do not get the job. The taxpayer has
to pay more. Right now, because we are still maintaining that this
must be for a set-aside, the people of Staten Island go without a
project authorized and appropriated by the U.S. Congress.
In addition, the Staten Island Institute of Arts has been held
hostage to bureaucrats and legislators intent on providing special
preferences. My colleagues, I submit to you, if these are two
projects in the course of a year that have had congressional intent
thwarted by virtue of our projects of special preferences, how many
more go on in the course of a year throughout our Nation? How
many taxpayer dollars are wasted? How many projects that are
really worth the citizen's effort are not being completed because of
these preferences and set-asides.
16
Let me just conclude by stating in New York City the cost of
these minority set-aside programs are enormous. On top of the
extra cost to the taxpayers incurred by giving contracts to firms
who do not meet the lowest bid, the simple act of merely admin-
istering the set-aside program in 1993 would have paid the salary
of 100 more additional cops or teachers. Under new management
in the city for the first time in a long time, Mayor Giuliani and
New York City have now begun to Iook at ways to ease these ex-
pensive exclusionary and inefficient programs and replace them
with minority outreach ones instead.
Now I applaud these steps taken in my home city, and especially
for Chairman Canady, for his leadership in prodding the Federal
Government to do the same. I thank you for the honor and the op-
portunity to appear here before you. I also want to thank you for
the opportunity to spend a few extra minutes with my colleague.
We just got back from Bosnia together. I have learned during the
course of that time together, that while we may not always agree
on issues before this Congress, that she is in fact a worthy adver-
sary. We are very lucky to have her here.
[The prepared statement of Ms. Molinari follows:]
Prepared Statement of Hon. Susan Molinari, a Representative in Congress
From the State of New York
Chairman Canady, Members of the Subcommittee, distinguished guests, thank
you for giving me the opportunity to address you this morning. Our country, indeed
the entire world has continually wrestled with discrimination. Discrimination based
on race, based on gender, based on religion, even discrimination based on cultural
values.
The Equal Opportunity Act of 1995 recognizes and reinforces an important dis-
tinction that should guide our efforts to fight discrimination. Just over 30 years ago,
Congress enacted the Civil Rights Act of 1964 in an attempt to end prejudice and
discourage fiiture bias. That landmark bill has done much to reduce aiscrimination
against women and minorities. One of the reasons I support the Dole-Canady bill
is that it does nothing to weaken the important protections of the 1964 Act or simi-
lar antidiscrimination laws.
However, affirmative action, which also began in the 1960's, has done more to di-
vide than unite. It presumes that a characteristic such as skin color or gender, de-
fine the amount of governmental assistance and support that one should receive. As
Linda Chavez, President of the Center for Equal Opportunity, has said, affirmative
action today has strayed from its original intent and has become largely a program
to confer special benefits on designated groups to achieve not equal opportunity but
equal results. Simply put, affirmative action was a good idea that went bad.
while government cannot cure the evils of hate, it may still, and I would say is
incumbent upon it to provide opportunity for those less fortunate Americans. Equal
opportunity is woven into the fabric of America: in the Declaration of Independence,
and reiterated in the Fourteenth Amendment to the Constitution. But we can never
truly be a nation of equal opportunity while our government facilitates discrimina-
tion based on race and gender. Preferential treatment whether borne out of hatred
or well intentioned legislation is always wrong.
The Equal Opportunity Act of 1995 restores the principle of equal protection for
all Americans, embodied in the 14th Amendment. This Amendment, ratified over
125 years ago, represents our belief that our society should be blind to distinctions
based on color, gender or any other immutable characteristic and yet tells us to be
well aware of insidious acts of discrimination. It expressly prohibits discrimination
and preferential treatment on the basis of race, sex, or national origin. These at-
tributes may not be considered in hiring, promoting or contracting. Furthermore,
none of these factors should be considered a so-called plus and therefore determina-
tive of the government's decision to hire, promote or contract.
In addition, the Dole-Canady bill restores the original meaning and purpose to
Executive Order 11246 which required that a federal contractor not discriminate
against any employee or applicant for employment, based on race, religion, sex or
national origin. Ironically, this Executive Order, which expressly prohibited dis-
17
crimination has been manipulated so much, that rather than prohibiting discrimina-
tion, it has been used a vehicle to promote discrimination. What message do we
send to our citizens when the federal government can arbitrarily change the true
meaning of its own mandate through hureaucratic wrangling? The Eaual Oppor-
tunity Act statutorily prescribes that the — federal government must aohere to its
own rules.
At the same time, the Dole-Canady bill realizes the importance of encouraging mi-
norities and women into the applicant pool. It preserves the ability to allow non-
discriminatory outreach, recruiting and marketing efforts. In addition, it does not
affect current antidiscrimination laws. If anything, the Dole-Canady express an in-
tention to increase enforcement of these laws.
The merits of the bill are clear: equal treatment for all Americans. But let's take
a moment to consider why preferences, set-asides, and quotas are inappropriate.
Consider some of the benenciaries of these programs In the FCC's personal commu-
nication auction, female and minority owned businesses are given a 25% discount
plus tax and financing breaks in acquiring PCS licenses. Former Manhattan Bor-
ough President and multimillionaire Percy Sutton, was given a preference and re-
ceived such a license. Also, Sandra Goeken Martis (dau^ter of MCI founder John
Goeken) as well as Janice Obuchowski (former FCC stafier and Assistant Secretary
of Commerce in the Bush Administration) were also given licenses based on quotas.
Ms. Obuchowski's case is especially eCTegious: She was one of the government pol-
icymakers responsible for creating the FCC auction rules. Can we truly consider this
a "level playing field"?
Our country nas long believed that people should be measured on their own merit,
not because of their skin color or sex. Moreover, the bill would help create a system
that insures when a person succeeds, it is not p)erceived that they did so solely be-
cause they are part of a group which receives preferential treatment. According to
Deroy Murdock, an African-American free-lance writer, "To claim minorities and
women cannot succeed under such a system [blind to any race or gender characteris-
tics] is to demean their talents and declare them commercially handicapped — (this
is) a bigoted notion, whether uttered by 'racist white males' or progressive minority/
female advocates'."
In New York City, for example, vie have been plagued by the legacy of minority
race and gender set-asides which cheat the taxpayer while often lining the pockets
of wealthy individuals or shell companies designed to take advantage of Affirmative
Action's good intentions. We have minorities ho have overbid and won contracts,
even though they themselves admit they have never been discriminated against.
And, in my district, in addition to the many stories of local businessmen unable to
give the taxpayer the best job at the best price because they were the wrong color —
the latest problem came courtesy of the Interior Department — we have recently seen
the construction of our Staten Island Institute of Arts held hostage to bureaucrats
and legislators intent on providing special preferences.
To New York City the costs of these minority set-aside programs are enormous.
On top of the extra cost to taxpayers incurred bv giving contracts to firms who do
not meet the lowest bid, the simple act of merely administering the set-aside pro-
gram in 1993 could have paid the salary of 100 more cops or teachers.
Under new management now for the first time in a long time, Mayor Giuliani and
New York City has oegun looking at ways to ease these expensive, exclusionary and
inefficient programs and replace them with minority outreach ones instead.
I applaud the steps taken in my home city and also Sen. Dole and Rep. Canady
for their leadership in prodding the federal government to do the same.
Mr. Canady. Thank you, Ms. Molinari. Representative Jackson
Lee.
STATEMENT OF HON. SHEILA JACKSON LEE, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Ms. Jackson Lee. Mr. Chairman, I thank you very much. I
thank you for the opportunity to appear before this committee, rec-
ognizing the seriousness in which this committee and all of those
who would support this legislation have taken this issue.
Let me also give my sympathies to the Honorable Tillie Fowler,
and as well, acknowledge my colleague Susan Molinari. As she in-
dicated, we spent 4 days, 4 very hectic days together in Bosnia be-
cause we care about this country. I appreciate her leadership.
18
Let me thank the ranking minority member Barney Frank for
his longstanding years of pressing the point of equahtv for all
Americans. I applaud him and continue to hope that he will be that
lightening rod for those who can not come and express their views.
Might I add a personal note to say that, Mr. Chairman, I am
boldly and proudly a product of affirmative action. The women that
went into Yale for the first time in 1969 were affirmatively re-
cruited to the opposition of many who were alumni of that institu-
tion. I would offer to say to you, nowever, that we were not affirma-
tively graduated. That is the distinction that I make this morning
about the whole journey that this Nation and now this Congress
wants to take.
I heard much mentioned about the Federal Government and
what we should ask the Federal Government to do or not to do.
Just a few days ago, reported in my local newspaper an ex-IRS
auditor left in New York, by the way, $22 million to Yeshiva Uni-
versity. Not a well-known individual, but Ms. Scheiber, as her
name is, was 101 years old. She had worked for the IRS. Might I
ask, Mr. Chairman, unanimous consent to include this article in
the record. Let me read Ms. Scheiber's comments. "Ms. Scheiber
wanted the money used to help other women overcome job discrimi-
nation, which she endured at the IRS, said her attorney Benjamin
Clark. While working at the tax agency, a Federal agency, she
never earned more than $4,000 a year, and never received a pro-
motion despite having a law degree, he said. She felt she was dis-
criminated against because she was a female. This grew on her
year after year, Clark said. She was very much embittered while
employed at the IRS, the Internal Revenue Service," a Federal
agency.
I am glad to come here this morning to testify on the Equal Op-
portunity Act of 1995. As most of you know, affirmative action is
an issue of great importance to me. Thus, I am disheartened by the
introduction of legislation which would in fact roll back the clock
on civil rights in this country. Under the guise of returning to the
original intent of civil rights laws, and calling upon the name of Dr.
Martin Luther King emphasizing a colorblind society, this legisla-
tion would forbid the use of race and gender in governmental deci-
sionmaking and curtail proven and widely accepted remedies for
past and present discrimination.
I argue today that there is still a need for affirmative action pro-
grams and that antidiscrimination laws are not sufficient alone to
remedy the structural and gender discrimination which persists in
our society. Might I add the words of Susan B. Anthony, as long
ago as 1877.
"Even when man's intellectual convictions shall be sincerely and
fully on the side of freedom and equality to women, the force of
long existing customs and laws will impel him to exert authority
over her. . . . Not even amended constitutions and laws can
revolutionize the practical relations of men and women . . . any
more than the constitutional freedom and franchise of black men
. . . constitutional equality only gives to all the aid and protec-
tion of the law ... it simply allows equality of chances."
That is where affirmative action came into play. The sponsors of
Equal Opportunity Act of 1995 claim that the legislation will put
19
the Federal Government's own house in order by prohibiting the
Federal Grovernment from granting preferences based on race, na-
tional origin or sex in Federal procurement, Federal employment,
and the administration of federally conducted programs. This legis-
lation defines granting a preference as "any preferential treatment
that includes, out is not limited to any use of a quota, set-aside,
numerical goal, timetable or other numerical objective."
Goals and timetables should not be confused with quotas. Goals
and timetables are targets set by employers for the employment of
women and minorities, along with time frames for achieving the
targets. Employers are encouraged to make good-faith efforts, but
there are no legal penalties if they make good faith efforts that are
unable to meet the goals.
Federal affirmative action programs are not quotas, nor are they
preferences for unqualified persons. Quotas are illegal under cur-
rent law. Affirmative action programs focus on giving everyone an
equal opportunity to compete for good jobs, educational oppor-
tunity, and Government contracts.
Let me add a personal note from the city of Houston, which im-
plemented some 12 years ago what we call a minority women's
business enterprise program. Before that time, there were no mi-
nority and women businesses doing business with the city of Hous-
ton. Nowhere in our affirmative action goals ordinance did we indi-
cate that we must take unqualified individuals. But over the 10-
year period, we have enhanced the opportunity for women and mi-
nority businesses. We have employed individuals throughout the
community, and we have had an overwhelmingly successful pro-
gram to the extent that our Mayor Bob Lanier has campaigned two
elections in a row about the value of affirmative action diversity,
winning at one time 91 percent of the vote, and the next time, 83
percent of the vote against an antiaffirmative action candidate. I
think the actions are there for us to see.
Likewise, as a council member, in 1990 I came to the city council
and noted that there had been no women assistant chiefs, indicat-
ing that no one was qualified. Yet however, when we began to
press the chief of police, we found not only a woman, we found a
Hispanic and an African-American who now serve in dignity and
respect. In fact, that woman police chief now serves and is going
on to be the police chief for the city of Austin in Texas.
Goals are yardsticks to measure equal opportunity, not guaran-
tee of results. Fashioned correctly, goals have legally and fairly
provided equal opportunity for all Americans. Federal courts, in-
cluding the Supreme Court, have continuously supported the use of
carefully crafted goals to broaden opportunities for all to compete
for a share of the American dream. I have with me a map that
shows resources for women in America. We'll find that most States
in America provide resources of less than 2 percent for women in
this Nation. That means that resources dealing with violence
against women, family issues, other types of dollars that provide
support for women issues, our country finds itself at the bottom of
the Western world and Western civilization.
Affirmative action has always had strong bipartisan support.
Eight successive presidents have supported affirmative action. The
Business Roundtable and the National Association of Manufactur-
20
ers have repeatedly endorsed affirmative action, stating that af-
firmative action is good for business. When I have queried the
CEO's in my business district, if you will, none have offered to say
to me that they have a problem with informing and affirming di-
versity in their corporate work place. During the Reagan adminis-
tration, the majority of the Cabinet, led by Secretary Bill Brock,
successfully fought efforts by Ed Meese and Clarence Thomas to
undermine the Executive order on affirmative action. They were
joined by strong bipartisan majorities in the Congress.
The implementation of affirmative action programs have in-
creased the proportion of women and minorities employed in the
private and governmental sectors. This is not a time to turn the
clock back. According to the EEOC, from 1966 to 1993, the propor-
tion of minorities in the private sector increased from 11.4 percent
to 23.5 percent. It is very rare to find on the list of cases in the
EEOC, any reverse discrimination cases. From 1972 to 1992, the
proportion of minorities employed in the Federal Government rose
from 19.7 percent to 29 percent. I would venture to say that our
benefactor, Ms. Scheiber, would have benefited from the affirma-
tive action program that was implemented under President Nixon.
Affirmative action has been a significant factor in opening up
employment opportunities for qualified women and minorities.
While affirmative action policies have begun to expand opportunity
for women and minorities, these programs are still critically needed
to bring about equal opportunity in education and employment.
Study after study concludes that in employment, education, hous-
ing and voting, minorities and women do not have equal oppor-
tunity. That is why I am proposing and will submit legislation enti-
tled the Fairness and Equalitv Act of 1995.
The U.S. Department of Labor's Glass Ceiling Commission report
released just this year shows that while white men are only 43 per-
cent of the Fortune 2000 work force, they hold 95 percent of senior
management jobs. Today, women make up 23 percent of lawyers,
but only 11 percent of partners in law firms. Women are 48 percent
of all journalists, but only 6 percent of the top jobs in journalism.
Women are 72 percent of elementary school teachers, but only 29
percent of school principals. Women are not involved in the man-
agement level.
While the number of women earning advanced degrees has in-
creased dramatically in the past 20 years, women comprise only 40
percent of all college and university faculty in the United States,
and only 46 percent of all women faculty are tenured, compared
with more than 70 percent of all male faculty. Women are only 14
percent of full professors, and 12 percent of college presidents. In
the African-American community, we are finding our numbers of
college young people in the institutions of higher learning are going
down.
Mr. Chairman, I would simply say that we have a task and a job.
We have not yet reached the task and concluded it so that we can
fully appreciate a colorblind society. What I would offer to say to
you, Mr. Chairman, that now is not the time. We have a policy that
must be completed.
I hope that as we proceed, we'll begin to understand that there
are still too many people, African-Americans, Hispanics, Asians,
21
and women, who have not yet reached the equahty of all men and
women in this Nation. This legislation is ill timed. It is important
that we fix what may not be accurate. It is important that we make
our laws suitable to apply in a fair manner. But this is not the
time to retrench. This is not the time to eliminate the Govern-
ment's moral stand on equality for all men and women.
I would ask, Mr. Chairman, that I allow my full text to be sub-
mitted for the record.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of Hon. Sheila Jackson Lee, a Representative in
Congress From the State of Texas
I would like to thank the Chairman and the Members of the Subcommittee on
the Constitution for inviting me to testify before you today on the "Equal Oppor-
tunity Act of 1995." As most of you know, affirmative action is an issue of great
importance to me. Thus, I am disheartened by the introduction of legislation which
would roll back the clock on civil rights in this country. Under the guise of returning
to the "original intent" of civil rights laws, this legislation would forbid the use of
race and gender in governmental decision making and curtail proven and widely ac-
cepted remedies for present and past discrimination.
I argue that there is still a need for affirmative action programs and that anti-
discrimination laws are not sufficient to remedy the structural racial and gender
discrimination which persists in our society today. In 1877, Susan B. Anthony ex-
plained that:
Even when man's intellectual convictions shall be sincerely and fully on
the side of Freedom and eqpality to woman, the force of long existing cus-
toms and laws will impel him to exert authority over her. . . . Not even
amended constitutions and law can revolutionize the practical relations of
men and women . . . any more than did the Constitutional freedom and
franchise of Black men. . . . Constitutional equality only gives to all the
aid and protection of the law ... it simply allows equality of chances.
The sponsors of the "Equal Opportunity Act of 1995" claim that the legisla-
tion will "put the federal government's own house in order" by prohibiting
the federal government from granting preferences based on race, national
origin, or sex in federal procurement, federal employment, and the adminis-
tration of federally-conducted programs. This legislation defines granting a
preference as "any preferential treatment that in eludes but is not limited
to any use of a quota, set-aside, numerical goal, timetable, or other numeri-
cal objective."
Goals and timetables should not be confused with quotas. Goals and timetables
are targets set by employers for the employment of women and minorities, along
with time frames for achieving the targets. Employers are encouraged to make good
faith efibrts, but there are no legal penalties if they make good faith efibrts that
are unable to meet the goals.
Federal affirmative action programs are not quotas nor are they preferences for
unqualified persons. Quotas are illegal Affirmative action programs locus on giving
under current law. an equal opportunity to compete for good jobs, everyone edu-
cational opportunity, and government contracts.
Goals are yardsticks to measure equal opportunity, not of results. Fashioned cor-
rectly, goals have legally guarantees and fairly provided equal opportunity for all
Americans. They respect merit and hard work, wnile ensuring that everyone has a
chance to participate. Federal courts, including the Supreme Court, have continu-
ously supported the use of carefully crafted goals to broaden opportunities for all
to compete for a share of the American dream.
Current standards for affirmative action were recommended in the late 1960's to
the Nixon Administration by a group of several large corporations. These rec-
ommendations, accepted by President Nixon and implemented by Secretary of Labor
George Schultz, included the "management-by-objectives" concepts of employment
goals and timetables.
Affirmative Action has always had strong bipartisan support. Eight successive
presidents have supported affirmative action. The Business Roundtable and the Na-
tional Association of Manufacturers have repeatedly endorsed affirmative action,
stating that affirmative action is good for business. And during the Reagan Admin-
istration, the majority of the Cabinet, led by Secretary Bill Brook, successfully
22
fought cfTorta by Ed Mcesc and Clarence Thomas to undermine the Executive Order
on Affirmative Action. They were joined by strong bipartisan majorities in Congress.
In recognizing the historical legacy of sexism, racism and prejudice, federal af-
firmative action programs are designed to help end the systematic exclusion of all
women, and all minorities, from opportunities in education, employment and other
areas of American society and they have been successful.
The implementation of affirmative action programs has increased the-proportion
of women and minorities employed in the private and government sectors. According
to the EEOC, from 1966 to 1993, the proportion of minorities in the private sector
increased from 11.4% to 23.5%. From 1972 to 1992, the proportion of minorities em-
ployed in the federal government rose form 19.7% to 29%.
Affirmative action has been a significant factor in opening up employment oppor-
tunities for qualified women and minorities on college and university faculties and
staffs, and in expanding educational opportunities for women and minority students.
Without affirmative action, many talented students would never have attended col-
lege, and many gifted teachers and researchers would not have been hired.
While affirmative action policies have begun to expand opportunity for women and
minorities, these programs are still critically needed to bring about equal oppor-
tunity in education and employment. Study after study concludes that in employ-
ment, education, housing and voting, minorities and women do not have equal oppor-
tunity. Too often, individual or institutional discrimination, intentional or not, pre-
cludes minorities and women from participating in many levels of our society.
The U.S. Department of Labor's Glass Ceiling Commission report, released on
March 16, 1995, shows that while white men are only 43% of the Fortune 2000 work
force, they hold 95% of senior management jobs. Today, women make up 23% of
lawyers but only 11% of partners in law firms. Women are 48% of all journalists,
but hold only 6% of the top jobs in journalism. Women are 72% of elementary school
teachers but only 29% of school principals. And while the number of women earning
advanced degrees has increased dramatically in the past twenty years women com-
prise only 40% of all college and university faculty in the United States and only
46% of all women faculty are tenured, compared with more than 70% of all men
faculty. Women are only 14% of full professors and 12% of college presidents.
While women are over half of the adult population and nearly half of the work
force in this country, women remain disproportionately clustered in traditionally "fe-
male" jobs with lower pay and fewer benefits. For example, in 1991 one in four
working women worked in an administrative support job, and 82% of administrative
workers in all industries are women. Sixty-seven percent of the sixty-two million
working women in the United States earn less than $20,000 annually, and 38% earn
less than $10,000.
Moreover, research on the status of girls in education done by the American Asso-
ciation of University Women found that the glass ceiling is constructed in kinder-
farten. Beginning in grade school, girls are systematically tracked away from the
etter-paying jobs in science and technology into "pink-collar" occupations. As long
as women make up only 8% of engineers, 31% of scientists, and 16% of physicists,
we have much work ahead of us.
Minority women have lagged particularly far behind in both employment and edu-
cation. In 1993, for example, African American women earned a median income of
$19,816, compared to $22,023 for white women and $31,089 for white men. Hispanic
women earned a median income of $16,758. Even in sectors where women have
made inroads into management, minority women continue to be under represented.
In the banking industry, only 2.6% of executive, managerial and administrative jobs
were held by African American women, and 5% by Hispanic women, compared to
37.6% by white women. In the hospital industry, African American and Hispanic
women each held 4.6% of these jobs, while white women held 50.2%.
Minority women also earn fewer college degrees than white women. In 1992,
white women made up 42.3% of college undergraduates and 48% of graduate stu-
dents; minority women were only 13.4% of undergraduates and 8.4% of graduate
students.
And although white men constitute a minority of both the total work force (47%)
and of college educated persons (48%), they dominate the top jobs in virtually every
field. Moreover, white males' median weekly earnings in 1993 were 33% higher than
those of any other group in America. The earnings of non-Hispanic white men were
49% higher than those of any other group. Full-time, year round working women
earned only 72 cents for every dollar a man earned in 1994. African American
women earned only 63 cents and Hispanic women only 55 cents. African American
men earn 75 cents, and Hispanic men earn only 64 cents for every dollar white men
earn.
23
In 1990, African Americans accounted for 12.1% of the population, but African
Americans owned only 3.1% of the total businesses and 1% of receipts of all U.S.
firms. Hispanic Americans accounted for 9% of the population, 3.1% of U.S. busi-
nesses and 1.2% of all receipts. In 1987, according to a U.S. Department of Com-
merce survey of minority businesses, 93 % of minority-owned firms were individual
proprietorships, 80% had no paid employees, and 79% had gross receipts under
$50,000 per year. While this record has improved somewhat over the years, this is
not the time to retreat on ensuring that minority-owned firms reach parity, in terms
of their population, in receiving government contracts.
The unfinished task of developing the nation's collective and diverse brainpower
is essential preparation for effective competition in the global and technological mar-
kets of the next century. This is no time to roll back affirmative action.
Some have suggested that affirmative action programs that take race, national or-
igin or gender into account should be eliminated entirely and replaced by affirma-
tive action programs to aid the economically disadvantaged (i.e., anti-poverty or
"need based remedies). Programs to eliminate poverty and enhance opportunities
for the economically disadvantaged are critically needed. But affirmative action
based on economic need cannot provide an adequate or workable substitute for pro-
grams aimed specifically at eliminating the past and present efiects of discrimina-
tion based on race, national origin, or gender.
In the workplace, discrimination cuts across all economic lines; women and mem-
bers of racial or ethnic minorities who are not poor are nonetheless subject to the
effects of sexual stereotyping and racial or ethnic prejudice. For example: a minority
or a woman can be refused a promotion regardless of income level; a woman can
be sexually harassed no matter what her income; women and minority business
owners can be denied credit despite their incomes; pay disparities between men and
women persist across the entire spectrum of occupations and income levels; and the
"glass ceiling" bars minorities and women from moving into senior management po-
sitions in business based on their race, ethnic origin, and gender — not their income.
As long as there is discrimination based on race and gender, we must fashion rem-
edies that take race and gender into account. Race and gender conscious remedies
have proved essential and remain essential. All Americans want a color or gender
blind society. That is our goal. But serious discrimination persists and we cannot ig-
nore it. As Lyndon Johnson said in 1965:
Freedom is not enough. You do not wipe away the scars of centuries by
saying: Now you are free to go where you want, do as you desire, choose
the leaders you please. You do not take a person who has for years been
hobbled by chains and liberate him, bring him to the starting line and then
say, "You are free to compete with all others," and still justly believe that
you have been completely fair. ... We seek not just freedom but oppor-
tunity, not just equality as a right and a theory but equality as a fact and
as a result.
I am opposed to this legislation and I would urge my colleagues to resist the at-
tempt to turn back the clock on civil rights in this country. I thank the Chairman
and the Subcommittee for allowing me to testify this morning.
Mr. Canady. I want to thank you, Ms. Jackson Lee, and again,
Ms. Molinari. We appreciate your being here. We are very grateful
for your taking the time to participate in this hearing. Thank you.
I'd Hke to now ask that the members of the second panel prepare
to come forward and take your seats. I want to thank all the mem-
bers of this panel for being with us today. I will introduce each of
the members of the panel and then will recognize them in turn.
Our first witness on this panel is Prof. Carl Cohen. Mr. Cohen
is a professor of philosophy at the University of Michigan in Ann
Arbor. Professor Cohen has authored many books and articles, in-
cluding his recent work titled, "Naked Racial Preference, the Case
Against Affirmative Action" where he gives an indepth analysis of
the issues concerning today's hearing.
Next to testify will be Mr. John Payton. Mr. Pay ton is a partner
at the Washington, DC, law firm of Wilmer, Cutler & Pickering. He
has defended a number of challenges to race based preference pro-
grams.
24
Our next witness is Mr. Clint Bolick. As cofounder, vice president
and director of litigation for the Institute for Justice, Mr. Bolick en-
gages in constitutional litigation to protect individual liberties. He
has also authored several books and articles, including "Unfinished
Business, a Civil Rights Strategy for America's Third Century."
Next to testify is Ms. Marcia Greenberger, the founder and co-
president of the National Women's Law Center. She is an expert
on sex discrimination and the law, particularly as it effects wom-
en's rights in the areas of employment, education, and health.
To conclude this panel, we will hear from Prof. Glenn Loury. In
addition to his positions of university professor and professor of ec-
onomics at Boston University, Professor Loury has been actively in-
volved in public debate and analysis of America's problems with ra-
cial inequality. A collection of his writings has recently been pub-
lished under the title, "One by One, from the Inside Out, Essays
and Reviews on Race and Responsibility in America."
Again, I want to thank each of you for being here.
Mr. Conyers has arrived. If you would like to make a statement
now, I'll recognize you for that purpose. Then we'll continue with
the members of this panel.
Mr. Conyers. Thank you very much for your courtesy, Mr.
Chairman. I appreciate it. Could I defer any remarks I might make
until after later because the need for House remarks might evapo-
rate? I may not need to use the time.
Mr. Canady. Certainly.
Mr. Conyers. Thank you.
Mr. Frank. You know how to get to him.
Mr. Canady. Professor Cohen.
STATEMENT OF CARL COHEN, PROFESSOR OF PHILOSOPHY,
UNIVERSITY OF MICHIGAN, ANN ARBOR, MI
Mr. Cohen. Thank you, sir. Good morning. My name is Carl
Cohen. Mr. Chairman, members of the committee, I am professor
of philosophy at the University of Michigan in Ann Arbor, MI. I am
grateful for the opportunity to express my vigorous support for the
Equal Opportunity Act of 1995, and to present in the very few min-
utes at my disposal the essence of the argument against preference
by ethnic group. A list of references has been provided to the com-
mittee for your convenience.
The object of the Equal Opportunity Act of 1995 is to prohibit our
Federal Government from giving preference based on race or sex,
and to prohibit the Government from requiring or encouraging oth-
ers to do so. Why in the world would any fair-minded person object
to that? Surely there is no ground for complaint if our Government
does not discriminate. But many well-intentioned people do com-
plain, struggling to retain group preferences. Some, because they
seek to engineer a redistribution of goods to match the proportion
of races and sexes. Some, because they think such preferences give
compensation for past injuries. Reasons of both kinds are deeply
mistaken.
The moral case against group preference, whether in the form of
quotas or goals or timetables or numerical targets or whatever, is
overwhelming. The constitutional case against it, resting upon the
due process clause of the fifth amendment addressed to the Federal
25
Government, and the equal protection clause of the 14th amend-
ment addressed to the several States, I leave to the lawyers. You
know that case well.
But underlying these clauses of the Constitution, Mr. Chairman,
and underlying the unambiguous language of the Civil Rights Act
of 1964, there lies a moral foundation, a universal understanding
of right conduct, that does not depend upon the words of any clause
or statute, but stems directly from our recognition of the moral
equality of persons and the obligation — certainly the obligation of
democratic governments — to treat persons equally.
Here is the nub of it: to give favor to males or to females, to
whites or to blacks or to persons of any color because of their sex
or their race is morally wrong, because doing so is intrinsically un-
fair. Color, nationality, sex, are not attributes that entitle anvone
to more or less of the good things of life, or to any special mvor
or disfavor. When in the past whites or males did receive such pref-
erences, that was deeply wrong. It is no less wrong now when the
colors or sexes are reversed.
Justice Thurgood Marshall long ago made it clear that the plain
words of Federal law, "proscribe racial discrimination . . .
against whites on the same terms as racial discrimination against
nonwhites." Equality applies to all.
But what of those who have been badly hurt by earlier racial dis-
crimination? Do they not deserve to be compensated? Yes. Persons
may be entitled to remedy for unlawful injury done to them be-
cause they were black or brown or female. We give such remedy
rightly. But it is the injury for which remedy is given, not the color
of the skin or the sex. There is all the difference in the world be-
tween compensation for injury and preference bv race.
When preference is naked, given flatly by skin color or by sex,
the inevitable result is the award of advantages to some who de-
serve no advantage, and the imposition of burdens upon some who
deserve no burden. Most often those who benefit did not suffer the
wrong for which "compensation" is supposedly being given. Those
who are disadvantaged by the preference most often did not do any
wrong whatever, and certainly not that earlier wrong to a minority
group for which the preference is alleged to redress.
The oppression of blacks and some other minorities in our coun-
try has been grievous, a stain on our history. No honest person will
deny that. But the notion that we can redress that historical griev-
ance by giving preference now to persons in the same racial or sex-
ual group as those earlier wronged is a mistake, a moral blunder.
It supposes that rights are possessed by groups and that therefore
advantages given to some minority group now can be payment for
earlier injuries to other members of that minority group.
But moral entitlements are not held by groups. Whites as a
group do not have rights. Blacks as a group do not have rights.
Rights are possessed by persons, individual human persons. When
persons are entitled to be made whole for some injury earlier done
to them, the duty owed to them is not to members of their race or
sex or nationality, not to their group, but to them as individuals.
The effort to defend preference as group compensation fails because
it misconceives fundamentally the relationship between wrongs and
remedies.
26
Does this mean that affirmative action must be abandoned? That
depends upon what one means by affirmative action of course. In
its original sense, affirmative action was intended to ensure the
elimination of racially discriminatory practices. That is the sense
in which the phrase is used in the Civil Rights Act of 1964. There
is nothing in the bill before us that would hinder that honorable
aim.
But if by affirmative action one means, as unfortunately most
Americans now do mean, preferential devices designed to bring
about the redistribution of the good things in life to match ethnic
proportions in the population, affirmative action in that sense must
be rejected because the preferences it employs are inconsistent with
the equal treatment of all persons. No sound principles, constitu-
tional or moral, justify discriminating by race or sex to achieve
some predetermined numerical distribution of goods.
This principle of equal treatment, Mr. Chairman, is the moral
foundation upon which the equal protection clause of the 14th
amendment ultimately rests; our Supreme Court has repeatedly
emphasized that the rights guaranteed by that clause are individ-
ual rights. The rights of persons, "State shall . . . deny to any
person within its jurisdiction . . . not the rights of groups." That
is why, Mr. Chairman, every program relying upon naked pref-
erence by race or sex, whether in the form of set-asides in the
award of contracts, or bonuses for hiring persons of certain colors,
or extra credit to bidders in the competition for broadcast licenses,
or additional consideration in competitive employment or pro-
motion or admission systems, all such preferences, and whether de-
fended as compensatory or as redistributive, must be unjust.
Some will reply, "Well that's easy for you, a white male, to say.
No more preference after you and yours have enjoyed so much pref-
erence over the generations. But the tables are turned now and you
get a taste of your own medicine. We were oppressed yesterday. We
are entitled to advantage today. It's your turn to pay."
The anger is understandable, but the reasoning is bad. Racial
and sexual vindictiveness, like preference itself, is the product of
"group think," the confused conviction that one group has an enti-
tlement and another group a debt, again supposing that racial or
sexual groups are the bearers of rights. It is that blunder that led
us long ago to the evils that flow from categorization by race, dif-
ferential treatment by race. It was wrong then, and it's wrong now.
We can not bring those evils to an end by rejuvenating that prac-
tice with new beneficiaries and new victims. The only way the in-
justice of racial discrimination will be brought to an end is through
a national determination, morally resolute, and backed by law
where that is appropriate, never again to give preference by race
or color or sex.
We do not, we cannot right the wrongs of times past by engaging
now in the same invidious practices that engendered those wrongs.
Justice Scalia in Croson put it very succinctly when he said,
"Where injustice is the game, turnabout is not fair play."
The case against racial preference has an entirely different di-
mension, Mr. Chairman, which my very limited time permits me
to outline only very briefly. Beyond its unfairness, about which I
27
would like to say more, racial preference is injurious, counter-pro-
ductive. This in three contexts is very quickly noted.
One. Preference corrupts and damages the institutions that prac-
tice it. Where employees are appointed or promoted or contracts let
on grounds that are not relevant to the work to be done, it is inevi-
table that the quality of the work done will suffer. Minorities are
most certainly not less qualified. But whenever we select on the
basis of race, whether favoring minority or majority, we select stu-
pidly and corrupt the process. If we were to prefer the majority in
selecting basketball players, we know what that would do to the
quality of play. And to the retort: "But the players selected would
still be qualified to play," we would respond with laughter.
All institutions must suffer similarly when race and sex enter il-
legitimately into the appointment or admission or promotion proc-
ess.
Two. Preference corrupts the society at large. Resentment pro-
duced by preference is unavoidable. It is already widespread. The
product of resentment is distrust and before long, hostility. The
corrupting spiral leads eventually to ugly racial incidents which in
turn ignite the fires of racial hatred. Racial tension in our country
today grows ever more pronounced. Since the early 1970's when ra-
cial preferences began in earnest, race relations have been going
downhill. Racial antagonism exacerbated by preference has come to
infect almost all of our public life. We see it everywhere, in the
public schools, in playgrounds, on our streets, in offices and fac-
tories, even in legislatures.
I know this biil does not deal with university affairs, but I ob-
serve that I have been teaching at the University of Michigan since
1955. I report to you what my students know very well, and what
all talk about diversity and multiculturalism cannot hide: pref-
erential affirmative action on our campus, as on many campuses
around the nation, has driven race relations among us to a point
lower than it has ever been. The story is long and complicated and
has many variants, but the short of it is this. Give preference by
race, and you create hostility by race. For that, we Americans are
paying and will continue to pay a dreadful price.
Finally, Mr. Chairman, preference is injurious to the very per-
sons it was supposed to assist. Individual members of minorities
may benefit of course. But the minority group is not helped. It is
subverted when preference is given.
Preference results inevitably in the appointment and admission
of persons on grounds irrelevant to their duties or their studies.
The manifest disparity in resultant performance is everywhere
seen as the product of that preference, so that the nasty stereo-
types of racial inferiority, which are not true, are reinforced by the
preferential devices that were supposed to give support to a pre-
viously disadvantaged group.
If some demon had sought to concoct a scheme aimed at under-
mining the credentials of minority businessmen, minority profes-
sionals and students, to stigmatize them permanently and to hu-
miliate them publicly, there could have been no more cruel or inge-
nious plan devised than the preferential affirmative action that is
now rampant in our country.
28
Mr. Chairman, I express my thanks for the opportunity to out-
line here the moral case against preference. On these argumen-
tative bones, I have not had the time to put much flesh. But the
case against preference by race and sex is truly compelling. Pref-
erence is wrong, intrinsically unjust, ethically confused. It is more-
over, socially counterproductive, damaging to those who practice it,
injurious to the society in which it breeds, and above all, cruelly
hurtful to the minorities who were to have been helped by it. The
Equal Opportunity Act of 1995 is one valuable step on the road to
the elimination of naked racial preference. Thank you, Mr. Chair-
man.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of Carl Cohen, Professor of Philosophy, University of
Michigan, Ann Arbor, MI
Mr. Chairman and Members of the Committee:
Good morning. My name is Carl Cohen; I am a professor of philosophy at the Uni-
versity of Michigan, in Ann Arbor. I am grateful for the opportunity to express my
vigorous support for the Equal Opportunity Act of 1995, and to present, in the few
minutes at my disposal, the essence of the argument against preference by ethnic
group. A list of references on this topic — in law reviews and elsewhere — has been
submitted to the Committee for your convenience.
The object of The Equal Opportunity Act of 1995 is to prohibit our Federal Gov-
ernment from giving preference based on race or on sex — and to prohibit the Gov-
ernment from requiring or encouraging others to give such preference. Why in the
world would any fair-minded person object to that? Surely there is no ground for
complaint if our government does not discriminate! But many well intentioned peo-
ple Qo complain, struggling to retain group preferences — some because they seek to
engineer a redistribution of goods to match the proportions of the races and the sex
a, and some because they think that such preferences give compensation for past
injuries. Reasons of both kinds are deeply mistaken. The moral case against group
preference — whether in the form of quotas, or goals and timetables, or numerical
targets, or whatever — is overwhelming.
The Constitutional case against it, resting upon the Due Process Clause of the 5th
Amendment addressed to the government of the United States, and the Equal Pro-
tection Clause of the 14th Amendment addressed to the several states, I leave to
the lawyers; you know it well.
But underlying these clauses of our Constitution, Mr. Chairman, and underlying
also the unambiguous language of the Civil Rights Act of 1964, there lies a moral
foundation — a universal understanding of right conduct that does not depend upon
the words of any clause or statute, but stems directly from our recognition of the
moral equality of persons, and the obligation — certainly the obligation of democratic
governments — to treat persons equally.
Here is the nub of it: to give favor to males or to females, to whites or to blacks
or to persons of any color, oecausc of their sex or color, is morally wrong because
doing so is intrinsically unfair. Color, nationality, sex are not attributes that entitle
anyone to more (or less) of the good things of life, or to any special favor (or disfa-
vor). When in the past whites or males did receive such preference that was deeply
wrong; it is no less wrong now when the colors or sexes are reversed. Justice
Thurgood Marshall long ago made it clear that the plain words of Federal law "pro-
scribe racial discrimination . . . against whites on the same terms as racial dis-
crimination against non-whites." [McDonald v. Santa Fe Trail Transportation Co.
(1976) 427 U.S. 273, at 280] Equality apolies to all.
But what of those who have been badly hurt by earlier racial discrimination; do
they not deserve to be compensated? Yes; persons may indeed be entitled to remedy
for unlawful injury done to them because they were black or brown or female. We
give such remedy, rightly — but it is the injury for which remedy is given, not the
skin color or sex. There is all the difTerence in the world between compensation for
injury and preference by race.
when preference is naked — given flatly by skin color or by sex — the inevitable re-
sult is the award of advantages to some who deserve no advantage, and the imposi-
tion of burdens upon some who deserve no burden. Most often those who benefit
did not suffer the wrong for which "compensation" is supposedly being given; those
who are disadvantaged by the preference most often did not do any wrong whatever.
29
and certainly not that earlier wrong to a minority group for which the preference
is alleged redress.
The oppression of blacks and some other minorities in our country has been griev-
ous, a stain on our history; no honest person will deny that. But the notion that
that we can redress that historical grievance by giving preference now to persons
in the same racial or sexual group as those earlier wronged is a mistake, a blunder.
It supposes that rights are possessed by groups, and that therefore advantages
fiven to some minority group now can be payment for earlier injuries to other mem-
ers of that minority. But moral entitlements are not held by groups. Whites as a
group do not have rights; blacks as a group do not have rights; Rights are possessed
by persons, individual human persons. And when persons are entitled to be made
whole for some injury earlier done to them, the duty owed is not to members of their
race or sex or nationality, not to their group, but to them as individuals. The effort
to defend preference as group compensation fails because it fundamentally
misconceives the relation between wrongs and remedies.
Does this mean that affirmative action must be abandoned? That depends upon
what is meant by affirmative action, of course. In its original sense affirmative ac-
tion was intended to insure the elimination of racially discriminatory practices —
that is the sense in which the phrase is used in the Civil Rights Act of 1964 — and
there is nothing in the Bill beiore us that would hinder that honorable aim. But
if by affirmative action one means (as most Americans now do mean) preferential
devices designed to bring about redistribution of the good things of life to match eth-
nic proportions in the population, affirmative action in that sense must be rejected —
because the preferences it employs are inconsistent with the equal treatment of all
persons. No sound principles, constitutional or moral, justify discriminating by race
or sex to achieve some pre-determined numerical distribution of goods. This defense
of preference fails for the same reason all other defenses of preierence fail: it con-
travenes the equal treatment of individual persons that fair process demands.
This principle of equal treatment is the moral foundation upon which the Equal
Protection Clause of the 14th Amendment ultimately rests; our Supreme Court has
repeatedly emphasized that the rights guaranteed by that clause are individual
rights, the rights o{ persons ["No state shall . . . deny to any person . . ." and
not the rights of groups. And that is why, Mr. Chairman, eveiy program relying
upon naked preference by race or sex, whether in the form oi set-asides in the
award of contracts, or bonuses for hiring persons of certain colors, or extra credit
to bidders in the competition for broadcast licenses, or additional consideration in
competitive employment, or promotion, or admission systems — all such pref-
erences— and wnetner defended as compensatory or as redistributive — must be un-
just.
Some will reply: "It's easy for you, a white male, to say 'No more preference' after
you and yours nave enjoyed so much preference over the generations. But the tables
are turned now and you get a taste of your own medicine. We were oppressed yes-
terday, so we are entitled to advantage today; it's your turn to pay."
The anger is understandable, but the reasoning is bad. Racial and sexual vindic-
tiveness, like preference itself, is the product of "group think" — the confused convic-
tion that one group has an entitlement, another group a debt; again supposing that
racial or sexual groups are the bearers of rights. It is that very blunder that led
us, long ago, to the evils flowing from categorization by race, differential treatment
by race. It was wrong then and it is wrong now. We cannot bring those evils to an
end by rejuvenating that practice with new beneficiaries and new victims. The only
way the injustice of racial discrimination will be brought to an end is through a na-
tional determination, morally resolute and backed by law where that is appropriate,
never again to give preference by race or color or sex. We do not, we cannot right
the wrongs of times past by engaging now in the same invidious practices that en-
gendered those wrongs. Justice Scalia [in City of Richmond v. Croson (1989) 488
U.S. 469, at 524] put it succinctly: "Where injustice is the game, turnabout is not
fair play."
The truth of this moral principle has been recognized by virtually every great
statesman of recent times. Nelson Mandela has said it forcefully: color of skin is not
relevant in public affairs. Martin Luther King said it beautifully: in a decent society
what counts is not the color of our skin but "the content of our character." Racial
or sexual preference makes it impossible to deal with individuals as the persons
they truly are, but instead obliges us to treat them first as members of their group.
It gives and takes on grounds having no genuine relevance to what is given or
taken. It is inescapably unjust.
Let us seek to respond justly to injury, giving appropriate remedy where remedy
is due, without regard to sex or color of skin. And let us see to it that our Federal
Government, in its dealings with citizens and groups, is scrupulously impartial. The
23-805 0-96
30
Eqrual Opportunity Act of 1995, by forbidding our Government to give racial or sex-
ual preference or to require others to do so, cannot insure equal treatment in every
sphere of course, but does surely move in the right direction.
The case against racial preference has another dimension, Mr. Chairman, which
my limited time permits me to outline only very briefly. Beyond its unfairness, ra-
cial preference is injurious, counterproductive. And this in three contexts, quickly
noted:
1) Preference corrupts and damages the institutions that practice it. Where employ-
ees are appointed or promoted, or contracts let, on grounds not relevant to the work
to be done, it is inevitable that the quality of work done will suffer. Minorities are
most certainly not less qualified; but whenever we select on the basis of race, wheth-
er favoring minority or majority, we select stupidly and corrupt the process. Basket-
ball players we would not dream of selecting to reflect racial proportions; we know
very well what that would do to the quality of play. And to the retort: "But the play-
ers selected would still be qualified to play!" we would res|X)nd with laughter. All
institutions must sufTer similarly when race and sex illegitimately enter the ap-
pointment or admission or promotion process.
2) Preference corrupts the society at large. Resentment, produced by preference, is
unavoidable and is already widespread; the product of resentment is distrust, and
before long, hostility. The corrupting spiral leads eventually to ugly racial incidents,
which in turn ignite the fires of racial hatred. Racial tension in our country today
grows ever more pronounced; since the early 1970s, when racial preferences began
in earnest, race relations have been going downhill. Racial antagonism has come to
infect almost all of public life; we see it in our public schools and playgrounds, on
our streets, in offices and in factories, even in legislatures. I have been teaching at
The University of Michigan since 1955; I report to you what my students know well,
and what all the talk about diversity and multiculturalism cannot hide: preferential
affirmative action on our campus (as on many campuses around the nation) has
driven race relations among us to a point lower than it has ever been. The stoiy
is long and complicated and has many variants, but the short of it is this: give pref-
erence by race and you create hostility by race. And for that we Americans are pay-
ing, and we will pay, a dreadful price.
3) Finally, preference is injurious to the very persons it was supposed to assist. In-
dividual members of minorities may benefit, of course — but the minority group is
not helped, it is subverted when preference is given. Preference results inevitably
in the appointment and admission of persons on grounds irrelevant to their duties
or their studies. The manifest disparity in resultant performance is everywhere seen
as the product of that preference, so that the nasty stereotypes of racial inferiority —
which are not true! — are reinforced by the preferential devices that were supposed
to give support to previously disadvantaged groups. If some demon had sought to
concoct a scheme aimed at undermining the credentials of minority businessmen,
minority professionals and students, to stigmatize them permanently and to humili-
ate them publicly, there could have been no more cruel or ingenious plan devised
than the preferential afiirmative action that is now rampant in our country.
Mr. Chairman, I express my thanks for the opportunity to outline here the moral
case against preference. On these argumentative bones I have not had the time to
put much flesn. But the case against preference by race and sex is truly compelling.
Preference is wrong, intrinsically unjust, ethically confused. It is moreover socially
Counterproductive: damaging to those who practice it, injurious to the society in
which it breeds, and above all cruelly hurtful to the minorities who were to have
been helped by it. The Equal Opportunity Act of 1995 is one valuable step on the
road to the elimination of naked racial preference.
aa 10 me enmmauon oi naxea racial preierence.
Mr. Canady. Thank you, Professor, very much.
Mr. Payton.
STATEMENT OF JOHN PAYTON, ATTORNEY, WILMER, CUTLER
& PICKERING
Mr. Payton. Good morning, Mr. "Chairman, and members of the
subcommittee. I am John Payton, a lawyer here in private practice.
I have brought with me Hampton DelHnger, an associate in my law
firm who worked on my remarks. Over the years, as you men-
tioned, I have represented a number of governmental entities that
have sought to use of race-based remedies to address past discrimi-
nation. I represented Richmond in the Supreme Court in the
31
Croson case. I have filed briefs in Adarand and Metro Broadcast-
ing. I have been in a myriad of litigation that involves these issues.
Let me just say just sort of preliminarily and only briefly that
first, affirmative action is not the cause of the problems that we
face in race relations today. Second, I think that there is no one
in our society, man or woman, black or white or brown or Asian,
who has not been affected by past discrimination in this country,
no one todav. Everyone has been affected one way or another. The
argument about victims and not victims and perpetrators is sort of
missing the point. Our society has been forged by racism.
But I actually want to turn to the legislation that is before us
and address most of my comments, if not all the rest of my com-
ments, H.R. 2128, the Equal Opportunity Act of 1995, as it relates
to racial discrimination. I will leave to Ms. Greenberger the com-
ments on how it relates to discrimination against women.
With regard to race, I believe the bill is both deceptive and un-
precedented. It is deceptive in this sense: the language of the act,
and I believe some of the remarks that I have heard today, suggest
that its passage is necessary in order to prohibit intentional racial
discrimination in Federal employment and contracts and Federal
programs. In fact, all Americans are today already protected
against that discrimination by the Constitution and a wide range
of Federal statutes. So I think that is absolutely an unnecessary
aspect of the bill.
Second, the act would make it unlawful for a Federal entity or
employee, to grant a preference, that is the term that is used,
based on race. The phrase grant a preference is defined to mean
"use of preferential treatment." That in turn, continuing the defini-
tion, "includes numerical goals and timetables as well as quotas
and set-asides." I am confused by the inclusion of goals and time-
tables. I agree with some of the remarks that have already been
made about that. Clearly, and I think there would be no real oppo-
sition to this point, goals and timetables can be used in a way that
would not result in preferential treatment. To the extent that they
are used to provide preferential treatment, the addition of goals
and timetables in the definition is simply unnecessary.
Instead, I would propose to use the phrase — as I think the term
preferential and preferential treatment is inherently confusing and
does not help us in this discussion — I would propose instead to use
the phrase that Justice O'Connor used in Croson. I'll just quote it.
"Race-based measures to ameliorate the effects of past discrimina-
tion on the opportunities enjoyed by members of minority groups
in our society." That is what I think we are really addressing in
this bill.
Setting aside the semantics, the permissible use of such race-
based measures as I just used the term, by the Federal Govern-
ment has been essentially confined by the Supreme Court to the
following situation. Here it is. Where a Federal entity has deter-
mined through explicit findings that in order to remedy the con-
tinuing effects of racial discrimination, it is necessary to use a nar-
rowly tailored race-based remedy. That is where we are today in
the law. In other words, a race-based remedy can only be an option
reserved for situations where a nonracial remedy would be inad-
equate.
32
H.R. 2128 would prohibit that remedy of last resort, and would
prevent the Federal Government from fulfilling its responsibility to
ensure that racial discrimination is effectively addressed and eradi-
cated. Apart from that, I believe the act would have virtually no
other effect.
I believe there is absolutely nothing, either in the Federal Gov-
ernment's current operation of such programs, or in the present
state of race relations in our country, to justify such an abandon-
ment of a fundamental Federal responsibility. This debate is not
about loopholes in any existing program and whether or not they
ought to be closed. It is about the much larger issue.
Let me make my last point again. This bill purports to make un-
lawful intentional racial discrimination. It already is unlawful.
This bill purports to make the use of race-based means, remedial
means unlawful. Much of race-based measures are already unlaw-
ful under current Supreme Court law. The Federal Government's
authority to use race-based measures, remedial measures was nar-
rowed considerably this year in the Adarand case, where the Court
held that strict scrutiny and a narrowly tailored remedy is a re-
quirement that applies to the Federal Government and all of its ac-
tions as well.
So the present state of constitutional law, as it applies to govern-
mental use of race-based remedial measures in contracting, in em-
ployment, across the board, is that such measures can be used only
to remedy ongoing racial discrimination or its ongoing effects by
means of narrowly tailored means and measures. This strict stand-
ard presumably applies not just to Government contracting, but as
I said, to employment and other things as well.
The Supreme Court has effectively made unlawful any uses of
race by the Government, including the Federal Government, that
cannot meet its exacting standards in Adarand. But the premise of
this entire litany of Supreme Court cases from Wygant to Croson
to Adarand, the premise behind every one of those decisions is that
it is appropriate and necessary for the Government to consider
race-based remedial measures in appropriate cases and where the
requirements set forth by the court are satisfied.
In Adarand, the most recent statement by the Supreme Court,
applying all of this to the Federal Government, Justice O'Connor
said for the Court, and let me just quote, 'The unhappy persistence
of both the practice and the lingering effects of racial discrimina-
tion against minority groups in this country is an unfortunate re-
ality. The Grovernment is not disqualified from acting in response
to it. As recently as 1987," says Justice O'Connor this year, "as re-
centlv as 1987, for example, every justice of this court agreed that
the Alabama Department of Public Safety's pervasive, systematic,
and obstinate discriminatory conduct justified a narrowly tailored
race-based remedy. When race-based action is necessary to further
a compelling interest, such action is within constitutional con-
straints if it satisfies the narrow tailored test this Court has set
out in previous cases." That is the Supreme Court this year in
Adarand.
The bill that is before us, H.R. 2128, would prohibit Congress
from acting in precisely the situation that Justice O'Connor just de-
scribed. It would handicap the ability of the Government to in fact
33
remedy that persistent and continuing racial discrimination and its
continuing effects. It would in fact prohibit the very remedy that
the Court said is appropriate and the standards that the Court said
should apply to remedies for racial discrimination in Adarand.
The act declares that there can be no race-conscious remedy re-
gardless of the egreg^ousness of the race-based violation and re-
gardless of the lack of any other effective remedy. Thus, the bill's
impact would be necessarily to allow some identifiable discrimina-
tion and its continuing effects to continue unchecked. Beyond that,
I'm not sure the bill has much effect.
Now I agree with remarks made by a number of persons earlier
this morning, that we have made progress in the last 30 or 40
years in this country. I don't think there is any question about
that. Clearly, racial discrimination that was once lawful and often
required by law is now prohibited. Voting rights, public accom-
modations, equal employment laws, educational opportunities, civil
rights enforcement. These and other areas have seen dramatic and
measurable improvement. But we must not mistake progress for
victory or anything even close to vict(?ry.
Clearly we as a country greatly, greatly misjudged the persist-
ence and virulence of racial discrimination in our society. We all
wish that the civil rights measures taken in the 1960's would have
caused us today to look around and see a largely racism-free soci-
ety. But it did not work out that way. Earlier this week I heard
former Attorney General Katzenbach talking about the state of
race relations today and back in the 1960's when he testified before
this very committee on the Civil Rights Act. In his phrase, race re-
lations in this country remain "shameful and intractable."
What is needed now is a renewed commitment to direct the ef-
forts of the Federal Government toward the elimination of racial
discrimination and its continuing effects. H.R. 2128 would instead
give up part of the fight entirely, and incredibly, prohibit the Fed-
eral Grovernment from seeking any remedy for some of the most
egregious instances of race discrimination in our society. Thank
you.
[The prepared statement of Mr. Payton follows:]
Prepared Statement of John Payton, Attorney, Wilmer, Cutler & Pickering
Mr. Chairman and Members of the Subcommittee, I am John Payton, a lawyer
in private practice here in Washington D.C. Over the years I have defended a wide
range of legislation that was designed to remedy the effects of racial discrimination
by means of race-based measures. I represented the city of Richmond, Virginia be-
fore the United States Supreme Court in Richmond v. Croson. I have also filed
briefs on behalf of various groups in other Supreme Court cases in which the issue
of the use of race-based measures has arisen, including Metro Broadcasting and
Adarand. In addition, I have intervened in lower court proceedings involving similar
legislation on behalf of the National Lawyers' Committee for Civil Rights Under
Law, the Washington Lawyers' Committee for Civil Rights and Urban Affairs, and
the Minority Business Enterprise Legal Defense and Education Fund.
I am here to comment on H.R. 2128, titled the Equal Opportunity Act of 1995,
as it relates to racial discrimination in this country. I will leave it to other distin-
guished persons — testifying before this Committee and expert in the area of gender
discrimination — to comment on the adverse impact H.R. 2128 could have on women.
With regard to race, I am compelled to describe the Act as both deceptive and dan-
gerous for at least two reasons:
First, the language of the Act suggests that its passage is necessary in order
to prohibit raciEU discrimination in federal employment, contracts and programs.
34
But, in fact, all Americans are already protected against such discrimination by
existing civil rights statutes.
Second, the Act would make it unlawful for a federal entity or employee to
"grant a preference" based on race. The phrase "grant a preference" is defined
to mean "use of preferential treatment" and that in turn in dudes "numerical
goals" and "timetables," as well as "quotas" and "set-asides." I am confused by
the inclusion of goals and timetables. Clearly, goals and timetables could be
used in a way that do not result in "preferential treatment." To the extent that
they are used to provide "preferential treatment," the addition of goals and
timetables is unnecessary to the definition.
I would instead propose to use the phrase that Justice O'Connor relied upon in
Croson: "race-based measures to ameliorate the efTects of past discrimination on the
opportunities enjoyed by members of minority groups in our society." City of Rich-
mond V. J A. Croson, Co., 488 U.S. 469, 476-77 (1989). Setting semantics aside, the
permissible use of such race-based measures has essentially been confined by the
Supreme Court to the following situation: a federal entity has determined through
explicit findings that in order to remedy the continuing effects of racial discrimina-
tion it is necessary to use a narrowly tailored, race-based remedy. In other words,
a race-based remedy can only be a last resort; an option reserved for situations
where a non-racial remedy would be inadequate. This Act would prohibit that rem-
edy and would prevent the federal government from fulfilling its responsibility to
ensure that racial discrimination is effectively addressed and eradicatea. Apart from
that, the Act would have virtually no effect.
I believe there is absolutely nothing — either in the federal government's current
operation of such remedial programs or in the present state of race relations in our
nation — to justify such an abandonment of federal responsibility.
The operative language of the Act is contained in Section 2, which provides as fol-
lows:
Notwithstanding any other provision of law, neither the Federal Govern-
ment nor any ofncer, employee, or department or agency of the Federal
Go vemme nt
(1) may intentionally discriminate against, or may grant a preference to,
any individual or group based in whole or in part on race, color, national
origin, or sex, in connection with
(A) a Federal contract or subcontract;
(B) Federal employment; or
(C) any other federally conducted program or activity;
(2) may require or encourage any Federal contractor or subcontractor to
intentionally discriminate against, or grant a preference to, any individual
or group based in whole or in part on race, color, national origin, or sex;
or
(3) may enter into a consent decree that requires, authorizes, or permits
any activity prohibited by paragraph (1) or (2).
As I suggested above, only a small portion of this section is, in fact, "operative" in
the sense that it alters the current state of federal law.
First, the anti-discrimination provisions in this section are nothing more than
"mere surplusage" that duplicate protections already granted all persons under the
Constitution, a myriad of civil rignts statutes previously enacted by Congress, and
a series of Presidential executive orders dating back thirty years.
Second, the Act's prohibition of race-based measures is also redundant of existing
law (except for the extraordinary new prohibition on race-based remedial measures
that respond to identifiable, unlawful discrimination) as established by Supreme
Court decisions dating back twenty years. As this Committee is well aware, begin-
ning with the 1978 Bakke case up to the Adarand decision handed down this year,
the Supreme Court has severely limited the constitutional uses of race by the fed-
eral government and the states.
Race-based programs justified solely on grounds that they "promoted diversity" or
"provided minority role models" were invalidated by the Supreme Court's ruling in
Regents of Univ. of California v. Bakke, 448 U.S. 265 (1978) and 1986 decision in
V/ygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986). Then, in 1989, the ability of
municipalizes to set aside a fixed percentage of city construction contracts for var-
ious historically disadvantaged groups was significantly curtailed in Croson.
Finally, the federal government's authority to use race-based remedial measures
was narrowed by the decision this year in Adarand Constructors, Inc. v. Pena, 1 15
35
S.Ct. 2097 (1995). "[FJederal racial classifications," the Court held, "like those of a
State, must serve a compelling governmental interest, and must be narrowly tai-
lored to further that interest." 115 S. Ct. at 2117.
Thus, the present state of constitutional law — as it applies to the governmental
use of race-based remedial measures in contracting — is that such measures can be
used only to remedy ongoing racial discrimination or its ongoing efTects by means
of a narrowly tailored measure. This strict standard presumably applies not just to
government contracting but to race-based government action in other areas. As As-
sistant Attorney (jeneral Bellinger recently wrote in a memorandum to all executive
agency general counsels: "Although Adarand involved government contacting, it is
c^ar from the Supreme Court's decision that the strict scrutiny standard of review
applies whenever the federal government voluntarily adopts a racial or ethnic classi-
fication as a basis for decisionmaking." The Supreme Court has effectively made un-
lawful any uses of race by the government, including the federal government, that
cannot meet the exacting requirements of strict scrutiny.
Let me be clear that I disagree with Adarand, Croson and other Supreme Court
decisions that have limited governments' ability to promote diversity, ensure mean-
ingful minority participation in the economy, and combat the lingering impact of
historical discrimination. As the distinguished law professor Charles stick nas so
strikingly put it:
[T]o see in the [Fourteenth Amendment's Equal Protection] Clause a ban-
ning— even a tainting — of all effective action to help black people as such
is to generate a great paradox of history of meaning, and makes of that part
of the Fourteenth Amendment a moral-suicide pact. Charles L. Black, Jr.,
"And Our Posterity," 102 Yale L.J. 1527, 1530 (1993).
Nonethdess, these decisions are the law of the land. Because of these decisions, this
bill cannot diminish the ability of the states or the federal government to remedy
the efTects of societal discrimination or to promote diversity. This bill can't do it be-
cause its already been done.
II.
While the Supreme Court has significantly constrained government's use of be-
nign, racial classifications, it has never held that the government cannot consider
race-based measures when responding to identifiable discrimination. As the Court
stated in Adarand:
The unhappy persistence of both the practice and the lingering effects of
racial discrimination against minority groups in this country is an unfortu-
nate reality, and government is not disqualified from acting in response to
it. As recently as 1987, for example, every Justice of this Court agreed that
the Alabama Department of Public Safety's pervasive, systematic, and ob-
stinate discriminatory conduct justified a narrowly tailored race-based rem-
edy. When race-based action is necessary to further a compelling interest,
such action is within constitutional constraints if it satisfies the narrow tai-
loring test this Court has set out in previous cases. 115 S.Ct. at 2117 (inter-
nal citations and quotations omitted).
Even Justice Scalia has acknowledged that the federal government has never been
forbidden from utilizing "race -conscious remedies when confronted with egregious
and persistent unlawfufdiscrimination." Croson, 488 U.S. at 521.
The rationale for allowing race-based remedies is that "the nature and scope of
the remedy are to be determined by the violation." Missouri v. Jenkins, 115 S.Ct.
2038, 2049 (1995) (opinion of Rehnquist, O'Connor, Scalia, Kennedy and Thomas).
But the Dole-Canady bill turns this fundamental principle — that the range of rem-
edies should remain available until the violation is established — on its head. It in-
sists that there can be no race-conscious remedy regardless of the egregiousness of
the race-based violation. Thus, the bill's impact will be almost exclusively to allow
some identifiable racism to continue unchecked.
CONCLUSION
I would like to conclude with a brief comment on the state of race relations today.
There is no doubt that there has been progress over the last thirty years or so.
Clearly, racial discrimination that was once lawful and often required by law, is now
prohibited. Voting rights, public accommodations, equal employment laws, edu-
cational opportunities, civil rights enforcement — these and other areas have seen
dramatic improvement. But we must not mistake progress for victory, or anything
even close to victory. Clearly we as a country greatly misjudged the persistence and
36
virulence of racism in our society. Earlier this week I heard former Attorney Gen-
eral Katzenbach talking about the state of race relations today and ycsterdav. In
his phrase, race relations in this country remain "shameful ana intractable." What
is needed now is a renewed commitment to direct the efforts of the federal govern-
ment toward the elimination of racial discrimination and its continuing effects. H.R.
2128 would instead give up the fight and actually, and incredibly, prohibit the fed-
eral government from seeking any remedy for the most egregious instances of racial
discrimination.
Mr. Canady. Thank you, Mr. Payton.
Mr. Bolick.
STATEMENT OF CLINT BOLICK, VICE PRESIDENT AND
DIRECTOR OF LITIGATION, INSTITUTE FOR JUSTICE
Mr. Bolick, Mr. Chairman, it is an honor to be here today. I
bring with me expressions of support from more than 40 organiza-
tions around the country, civil rights organizations and grassroots
organizations, that applaud the principles set forth in your excel-
lent legislation. That Hst is growing every day.
As you noted in my introduction, Mr. Chairman, I am a litigator.
I often like to express my views through the stories of the people
I have been able to represent. I would like to mention, begin this
morning by telling you the story of a little boy named Matthew
who we represent in Texas.
Matthew is black. He was born infected with syphilis and ad-
dicted to crack. He was taken into a foster home by a white parent
and a native-American parent. They bonded. The Mullins took care
of this little boy, nursed him back to health. When he was 2 years
old, they expressed a desire to adopt him, whereupon they were in-
formed that they would not be able to adopt this little boy who con-
sidered them his parents because he was black and they are not.
This is a Jim Crow story that is happening in 1995. Tne laws of
the State of Texas seem to preclude race discrimination in adop-
tions, but they leave that little tiny exception. What history has
shown us is that any time there is an exception to the absolute rule
of nondiscrimination, that exception will be pried open wide enough
to drive a mack truck through. That is what has happened to little
Matthew. We filed a lawsuit. The State capitulated and allowed his
adoption, but it goes on, because these practices exist in all 50
States in the United States in 1995.
But the story for Matthew is not going to stop there. He has been
adopted by loving parents. He has overcome racial barriers. But for
little Matthew and for millions of other children, white, black,
Asian, Hispanic, mixed race, they will encounter discrimination by
their Government against them on the basis of their ethnicity and
skin color in a variety of respects. They will encounter discrimina-
tion as to where they are assigned or permitted to attend school,
in terms of admission to college, in terms of eligibility for scholar-
ships, in terms of their opportunity to compete for Federal con-
tracts and employment or grant programs, and often times in
where they will be assigned to vote in their congressional districts,
on the basis in whole or in part of their skin color and their eth-
nicity.
In all these things, Americans are treated not as individuals, but
as members of racial groups. What a bleak future we are painting
for little Matthew and for the other children in this country.
37
Now the response of the defenders of the status quo is that
American society continues to have racism. Of that, I am quite cer-
tain. Of that, I think we must continue our strong and dihgent en-
forcement of the Nation's civil rights laws. But I will tell you this,
Mr. Chairman. One thing is for absolute certain. We will never
overcome racism in our society so long as our Government is al-
lowed to classify individuals and treat them differently on the basis
of their skin color. This has gone on long enough. Our history is
quite emphatic on that point.
That is why this bill is so important. It completes the central
goal of the traditional civil rights movement in this country which
started with the movement to abolish slavery. That is, it deprives
the Federal Government once and for all the power to discriminate
on the basis of race. That is a cause for celebration.
Now this bill does not alter any civil rights law. In fact, this task
seemed to have been accomplished in 1964. As Mr. Payton ob-
served, it has not been accomplished. Government continues to dis-
criminate. What this bill does simply is to forbid discrimination by
the Federal Government and to curb the power of the Federal Grov-
ernment to coerce others to discriminate.
Its provisions are very simple. It adheres the Federal Govern-
ment to the rule of nondiscrimination. It forbids the use of goals
and timetables, which too often are a euphemism are an incentive
to engage in discrimination. Goals and timetables should exist. The
goal should be nondiscrimination. The timetable should be now.
The bill expressly permits affirmative recruitment and outreach
programs. It leaves in tact Federal programs that assist or purport
to assist people who are socially and economically disadvantaged.
A number of Federal statutes do that. Every single one of them
that I know of instead is applied as a racial and/or gender pref-
erence. Most of them not by Congress, but by the administrative
agencies charged with the enforcement responsibilities. This bill
would strip away the racial preferences and for the first time ever,
those programs would be designed in fact to assist socially and eco-
nomically disadvantaged individuals. No more Chicago Tribune. No
more Quincy Jones. Maybe the people of Anacostia, finally.
It does not forbid truly voluntary private sector affirmative ac-
tion. But as I noted, it does forbid the Federal Government to co-
erce that action. And it does not extend its provisions to recipients
of Federal funds, though I do think that that is an issue that this
committee probably ought to take under advisement, to enlarge the
provisions of the bill.
Now I have reviewed the testimony that will be presented later
by Assistant Attorney General Deval Patrick. I can see, Mr. Chair-
man, what you and your colleagues are going to be up against
when you champion a bill that simply abolishes discrimination by
Government. You are going to be subjected to repeated distortions
of the provisions of these laws.
This is not surprising, unfortunately, in the context of this ad-
ministration, which came into office decrying, and I am using their
terms not mine, bean counters and quota games. But this adminis-
tration has relentlessly pursued precisely those policies.
Mr. Patrick purports to be involved in a review of 187 or more
Federal preference programs under the Supreme Court's Adarand
38
decision. Of course this administration opposed the Supreme
Court's decision in Adarand, and in fact, has been on the losing
side of most if not all civil rights cases that it has fought before
the U.S. Supreme Court.
Mr. Chairman, the Adarand standard is a very, very stringent
standard. In fact, under the standard of strict scrutiny, I am not
aware of a single Supreme Court decision in 50 years since the
shameful Korematsu decision in 1944, which upheld Japanese in-
ternment camps, that has upheld any racial program under strict
scrutiny. Yet this administration thus far in its review of 187 or
so preference programs has thus far found a whopping one program
that it does not feel today meets those standards.
Mr. Chairman, none of these programs, not a single one that I
know of, fulfills these requirements. They should not have to be
litigated one by one. The preference programs were supposed to be
temporary. They were supposed to be narrow. Instead, as the crisis
hopefiilly begins to recede as Mr. Payton has said, the apparatus
of preferences expands inexorably.
Mr. Patrick contends that this eliminates remedies. It does not
eliminate any civil rights remedies except racial preferences. If Mr.
Patrick can not figure out how to enforce the civil rights laws with-
out the use of racial preferences, I think there are plenty of people
who can take that job and do a darn good job of it.
He says that it will eliminate statutes and programs that have
affirmative outreach and recruitment if those programs use goals
and timetables. That is ridiculous. It is a flat out distortion. It
points to the military, which admirably uses aggressive outreach
and recruitment and training programs. That is what affirmative
action ought to be about.
Can they use goals and timetables under this bill? No. But the
substantive programs that really expand the pool of people who can
compete for employment opportunities, they not only will be in tact,
but perhaps once we get rid of these preference programs, we will
begin to get more serious about really helping people more effec-
tively compete rather than simply redistributing opportunities on
the basis of race and gender.
He goes on at the end of his testimony to list a parade of
horribles. My advice to Mr. Patrick is go get them. Go out and
prosecute these cases. Every single one of these cases can and
should be prosecuted without the use of racial preferences.
Mr. Chairman, many people here seem to think that you have
the burden of proving why your bill is necessary. It seems to me
that the burden should always be on those who seek to defend dis-
crimination. I don't believe that the case can effectively be made.
This is a very important bill. It is a bill that will finally allow us
to begin healing the racial divide and get on with the very impor-
tant business of solving the underlying problems in our society that
include racism, but are not limited to racism, that produce racial
disparities in our society. I am so proud to be here to support this
enterprise.
[The prepared statement of Mr. Bolick follows:]
39
Prepared Statement of Clint Bolick, Vice President and Director of
Litigation, Institute for Justice
Chairman Canady and members of the Committee, it is an honor to testify on the
proposed Equal Opportunity Act. I appear on behalf of the Institute for Justice,
which has helped lead the fight to eradicate racial classifications. I am also pleased
to deliver to you an expression of support from more than 40 civil rights and grass-
roots organizations from across the nation. Together they have joined in the follow-
ing statement:
We support the principle of nondiscrimination embodied in the proposed
Equal Opportunity Act. The bill advances civil rights by bringing to an end
the federal government's power to discriminate on the basis of race and
gender. The vast apparatus of race and gender preferences does not pro-
mote equal opportunity. Civil ridits are individual rights, not group rights;
and the purpose of the civil rights laws is to expand opportunities, not to
redistribute them. Instead of preserving failed policies that classify and di-
vide Americans, our nation should work toward racial harmony and the re-
moval of arbitrary barriers that separate individuals from opportunities.
(The statement and list of signatories is attached to this testimony.)
Mr. Chairman, this statement underscores the vital importance of the proposed
legislation you have introduced. When enacted, it will vindicate at last the core
tenet underlying the American civil rights vision: that our government may no
longer discriminate on the basis of race or color, and that every person shall be
treated equally under law.
It is fitting that these hearings take place on Pearl Harbor Day. The national re-
action to that calamitous event took many noble forms, but it also led to one of the
darkest chapters of American history: the interment of Japanese-Americans. Shame-
fully, the internment order was sustained by the United States Supreme Court in
Korematsu v. United States, 323 U.S. 214 (1944). Justice Robert Jackson's eloquent
dissent informs our present deliberations:
[A] judicial construction . . . that will sustain this order is a far more
subtle blow to liberty than the promulgation of the order itself. . . .
Once a judicial construction rationalizes the Constitution to show that [it]
sanctions such an order, the Court for all time has validated the principle
of racial discrimination. . . . The principle then lies about like a loaded
weapon ready for the hand of any authority that can bring forward a plau-
sible claim of an urgent need.
Justice Jackson had it right: our history demonstrates that any exception to the
principle of nondiscrimination destroys the rule, and that the power of government
to classify individuals by race is never benign. The proposed Equal Opportunity Act
embraces this understanding and is extremely well-crafted to make the principle of
nondiscrimination the law oithe land, once and for all.
No only is the bill consistent with the American civil rights vision, it reflects a
broad and continuing societal consensus that bridges the racial divide. Polls consist-
ently show that an overwhelming majority of Americans, including both whites and
blacks, opposes discriminatory policies by government. A smaller majority also sup-
ports "affirmative action," so long as it does not involve preferential treatment. This
bill outlaws preferences while allowing efforts to extend a helping hand to people
outside the economic mainstream — refiecting precisely the American consensus.
Because the principles and objectives of this bill enjoy strong public support, the
defenders of the status quo can defeat the bill only by distorting it. In the remainder
of my testimony, I address specific attributes of the proposed legislation.
First and foremost, it is important to stress that this oill does not repeal or modify
any other civil rights law. Defenders of the status quo often seek to confuse the de-
bate by eauating race and gender preferences with the federal equal opportunity
laws, and oy suggesting that outlawing preferences means in some manner dimin-
ishing those civil rights laws. That is utterly false. The civil rights laws do not re-
quire, and indeed were not intended to require race or gender preferences. To the
contrary, they reauire nondiscrimination. The proposed Equal Opportunity Act
would bring federal policies into conformity with the intent of the federal civil rights
laws. But it will do nothing whatsoever to diminish those antidiscrimination laws
or the remedies available to enforce them.
What the legislation will do is to erase the vast array of race and gender pref-
erences that permeate federal employment, contracts, and policies. Many of these
were identified in a report prepared earlier this year by the Congressional Research
Service for Senate Majority Leader Bob Dole. Most were created by federal agency
40
regulations, and others were enacted as part of non-civil rights status. Of the statu-
tory preferences, moat purport to assist 'socially and economically disadvantaged in-
dividuals," but in fact have been implemented by federal agencies as racial and gen-
der preferences.
The objection has been raised that this bill goes beyond the Supreme Court's deci-
sion earlier this year in Adarand Constructors, Inc. v. Pena, which applied a "strict
scrutiny^ standard to race preference programs by the federal government. Any dif-
ference in reality is a technical one: the last time the Supreme Court upheld a racial
classification under strict scrutiny was the same Korematsu decision a half-century
ago that I mentioned earlier. Under a proper application of strict scrutiny, one of
the federal preference programs could survive because (1) they lack a compelling in-
terest in remedying past discrimination demonstrated by competent findings, and/
or (2) they are not narrowly tailored to that objective since they are neither tem-
porary nor the least harmful alternative.
The Clinton Administration takes a narrower view of the Supreme Court's deci-
sion. Even as it repeals some of the federal preferences, most will remain intact.
I urge you to exanune Assistant Attorney General Deval Patrick closely on several
points in this regard:
On what oasis can any of the current federal preference programs be justi-
fied?
On what basis does Mr. Patrick assert, as the Justice Department has in the
Piscataway case, that "diversity" represents a compelling governmental inter-
est?
On what basis can the "goals and timetables" requirements of the Office of
Federal Contract Compliance Programs, enforced against a substantial number
of private employers, be exempted from the administration's review of pref-
erence programs?
I believe you will find that Mr. Patrick's answers to these questions will reveal
a less-than-enthusiastic commitment to seriously reviewing discriminatory federal
policies and practices.
Moreover, experience at the state and local levels — whose preference programs
have been subject to strict scrutiny for the past decade — demonstrate that tnese pro-
grams continue to proliferate. Dealing with these policies on a case-by-case basis,
often through expensive and protracted litigation, will not curb the federal racial
classification apparatus. Just as the Supreme Court ruled in 1954 that "separate
but ecrual" was unconstitutional across the board — and just as Congress in 1964 leg-
islatea that racial discrimination in employment and public accommodations was
unlawful, period — so should Congress act in a clear and principled manner to outlaw
race and gender classifications by the federal government. Anything less will leave
us mired in conOict for years to come.
For this reason, arguments that this bill goes too far are invalid. This bill estab-
lishes a complete prohibition against discrimination by the federal government. To
do anything less — to leave loopholes no matter how narrow they appear — would
mean accomplishing nothing.
As this bill recognizes, to effectively proscribe racial classifications requires prohi-
bition against the use or imposition of "goals and timetables." In some instances,
statistics are useful in identifying discriminatory practices, and this bill would not
preclude their use in a manner consistent with federal law. But the concept of "goals
and timetables" connotes outcomes rather than opportunities. To express a "goal"
in numerical terms — and to induce compliance through timetables — institutionalizes
the very types of race and gender measures that the antidiscrimination laws were
designed to eliminate. Too often "goals and timetables" are a euphemism for pref-
erences; and too often private employers adopt preferences to fulfill the require-
ments of goals and timetables. The civil rights laws require that every decision must
be made on a nondiscriminatory basis, and goals and timetables — the statistical
"bottom line" — are no substitute for that guarantee. The assurance that the federal
government will not require or encourage private entities from engaging in discrimi-
natory practices will be ineffective so long as the government is allowed to insist
on goals and timetables.
Tne bill limits only the federal government's power to discriminate or to require
or encourage private entities to do so. In other words, it does not displace truly vol-
untary private sector "affirmative action" efforts that are otherwise consistent with
federal law. Some have criticized the bill for leaving such practices intact. I do not
share that criticism, for two reasons. First, it is not clear the extent to which such
programs are truly voluntary or coerced by government regulations and enforcement
actions. Once government coercion is removed, presumably only those programs that
are truly voluntaiy will remain. Second, private enterprises are regulatea primarily
by the competitive marketplace, while tne federal government is governed by the
41
Constitution. The market will constrain practices that diminish efficiency. The Con-
stitution requires a far higher standard of nondiscrimination through its guarantee
of equal protection under law. A distinction between government action and private
action is proper.
While eradicating discriminatory government policies and practices, the bill per-
mits nondiscriminatory affirmative action. As I mentioned earlier, some federal stat-
utes (such as the Small Business Administration §8(a) set-aside program) direct as-
sistance toward socially and economically disadvantaged individuals; but in practice
these statutes are administered to confer race and preferences regardless whether
the beneficiaries are in fact disadvantaged. When this bill is enacted, the adminis-
trative agencies will no longer be permitted to implement these programs as race
or gender preferences. But unless further congressional action is taken, the underly-
ing programs will remain intact; and, for the first, the benefits will have to be tar-
geted to individuals who are in fact disadvantaged.
Moreover, the bill expressly provides for nondiscriminatory outreach and recruit-
ment efforts. In other words, the bill would allow efforts to enlarge the pool of quali-
fied individuals, from which nondiscriminatory choices are made. Truly affirmative
action is not about redistributing opportunities on the basis of race; it is about ex-
panding the number of people who can compete on the basis of merit.
This issue is near and dear to the Institute for Justice. The people we represent
in litigation around the country are mainly low-income and minority individuals.
They encounter in their daily an array of barriers to opportunity — inferior schools,
welfare dependency, regulations that impede entrepreneurship, unsafe streets — bar-
riers that lead to huge statistical disparities because they render people unable to
compete effectively for jobs, college admissions, and business opportunities. Race-
based affirmative action has absolutely no relevance whatsoever to people who are
outside the economic mainstream. In fact, it harms them because it sweeps these
serious social problems under the carpet of racial preferences. We need to turn our
attention away from redistribution policies toward removing barriers to opportunity.
Mr. Chairman, I hope that you and the other members of this Committee take
appropriate pride in the historic enterprise in which you are engaged. Our nation's
claim is staked in its doctrinal commitment to equal opportunity. For 200 years, the
central aim of the civil rights movement was to curb government's power to classify
individuals on the basis of race. With this bill, we are finally on the threshold of
making good our nation's most cherished promise. We will all benefit from your re-
solve and from your success.
Institute for Justtice
statement on the equal opportunity act
The undersigned endorse the following statement:
We support the principle of nondiscrimination embodied in the proposed Equal
Opportunity Act. The bill advances civil rights by bringing to an end the federal
government's power to discriminate on the basis of race ana gender. The vast appa-
ratus of race and gender preferences does not promote equal opportunity. Civil
rights are individual rights; and the purpose of the civil rights laws is to expand
opportunities, not to redistribute them. Instead of preserving failed polices that clas-
sify and divide Americans, our nation should work toward racial harmony and the
removal of arbitrary barriers that separate individuals from opportunities.
Alabama Family Alliance, American Legislative Exchange Council, Americans for
Tax Reform, Arizona Institute, Association of Concerned Taxpayers, Beacon Hill In-
stitute, California Civil Rights Initiative, Campaign for a Color-Blind America, Cas-
cade Policy Institute, Center for Equal Opportunity, Center for Individual Rights,
Center for New Black Leadership, Center for the Study of Popular Culture, Com-
monwealth Foundation, Evergreen Freedom Foundation, Family Research Council,
Free Congress Foundation, Georgia Public Policy Foundation, Goldwater Institute,
Independence Institute, Independent Womens' Forum, Institute for Justice, Indiana
Policy Review Foundation, James Madison Institute, Jewish Policy Center, John
Locke Foundation, Mackinac Center for Public Policy, Midwest Center for Constitu-
tional Action, Minnesota Family Council, National Center for Public Policy Re-
search, Nevada Policy Research Institute, Oklahoma Family Policy Council, Pioneer
Institute for Public Policy Research, Project 21, Small business Survival Committee,
South Carolina Policy Council, Southeastern Legal Foundation, Texas Justice Foun-
dation, Traditional Values Coalition, Washington Institute for Policy Studies, Wom-
en's Freedom Network, and Yankee Institute for Public Policy Studies.
Mr. Canady. Thank you, Mr. Bolick.
42
Ms. Greenberger.
STATEMENT OF MARCIA D. GREENBERGER, CO-PRESmENT,
NATIONAL WOMEN'S LAW CENTER
Ms. Greenberger. Mr. Chairman and members of the sub-
committee. I am Marcia Greenberger, co-president of the National
Women's Law Center. I appreciate the invitation to appear before
you today. With me is Judith Appelbaum, senior counsel and direc-
tor of legal programs at the center. I would ask that our written
statement be submitted for the record, and I'll summarize it here
today.
The center is a nonprofit organization that has been working
since 1972 to address the needs of women and their families in
major areas of such importance to them as employment, education,
and income security, with particular attention paid to the concerns
of low-income women.
It is because affirmative action is so critical to women that we
are pleased to have this opportunity to express our grave concerns
about H.R. 2128 directly to you today, because we firmly believe
that it would turn back the clock on decades of hard won gains and
eliminate basic affirmative action programs which form the comer-
stone of protection against discrimination for women.
Affirmative action does not give group preference. It makes sure
that the historic preference against women and minorities won't
continue to operate. We are not here trying to defend preference,
although the supporters of this legislation seek to characterize the
debate in those terms. Nor are we here to claim that we are after
vindictiveness in arguing that because women or minorities have
been discriminated against in the past, now it's time to discrimi-
nate against white males. Of course that is wrong.
We are here to say that discrimination continues against women
and minorities. Affirmative action is an essential remedy to make
sure that merit prevails in the end, that the automatic preferences
that have hurt women and minorities end. That is what affirmative
action is all about. When a bill that is called the Equal Opportunity
Act dismantles affirmative action in such an extreme way as this
bill does, it pulls out from under women and minorities one of the
most important tools that we have to make sure that discrimina-
tion does not continue right this minute.
I also want to say, although the supporters of this legislation
have basically supported all of it, they have talked primarily about
race discrimination, if not exclusively. It is of course an essential
bill that is devastating to the efforts to fight racial discrimination.
No question about it. But this bill also seriously hurts women, not
only in the area of affirmative action, but it also weakens our cur-
rent antidiscrimination laws against women. I will, when I go
through the provisions of the bill, refer to specific new loopholes
that I have never seen or heard before in any Federal legislation,
that allow new defenses to intentional discrimination against
women that has nothing to do with affirmative action. That, need-
less to say, is of extreme concern to me as well.
A number of people have said of course we recognize that dis-
crimination continues. This year we are celebrating only the 75th
43
anniversary of women's suffrage, a reminder that for the first 150
years of our country's history, women could not even vote.
I also want to remind us that in fact we have had a relatively
recent history of eliminating purposeful legal discrimination
against women. Employment discrimination was not illegal until
1964. Discrimination against women in education not illegal until
1972. When I graduated from school and began to look for a job,
although my children may think of me as very aged, I am still in
the work force, the newspapers had segregated want ads. Jobs for
women, jobs for men. When I was looking for college opportunities,
there were many colleges closed to me because of my gender. When
I started in the work place, employers legally said women with
young children need not apply.
I could read a mile of statistics showing the barriers that these
recent policies still have allowed to remain in place today. Some of
those statistics have been discussed earlier. But I want to, instead
of taking my time to talk about the statistics, say where that leads
us in the bottom line.
Women earn on average still only a little over 70 cents for every
dollar earned by men when they go to work every day and work
just as hard. Women need a salary to support themselves and their
children now more than ever, as we all know. We now see today
65 percent of the 62 million working women in the United States
earn less than $20,000 annually. Thirty-eight percent earn less
than $10,000 annually. This is not only an issue of morals and
principles, which Lord knows it is. This is an issue of basic eco-
nomic survival for women and their kids in this country. That is
why we feel so passionately about the harms and the dangers of
this very extreme legislation.
A study cited in the Glass Ceiling Commission report found that
women in senior management work the same number of hours per
week as their male counterparts. Women with the same number of
years in medical school faculties work the same hours, have the
same credentials as men. Yet in each of these areas, they are earn-
ing less. Imagine, when we are not talking about the same kind of
privileged women, the kind of discrimination that women are still
facing today. These women, they are working just as hard. They
are working the same hours. They are advancing less slowly, and
they are earning less.
Well, let me tell my own few examples. Matthew currently had
the law on his side. He won his case under the law right this
minute. Let me tell you about some of the women today who are
still trying to fight under the laws.
There was a newspaper article that described the Olde Discount
Corp. with a headline, "Young White Men Only, Please." A com-
plaint filed with the EEOC against the brokerage firm, where ac-
cording to the chairman directed company mangers to recruit
young good looking "studly" males, and not to hire 'TDroads." Each
regional manager was told in private not to hire blacks or women.
This was not a company covered by the Executive order program
that we have been talking about, that this legislation would gut.
And, as a result, there were no Government reports that identified
the kind of discrimination going on in this country today.
44
There have been success stories because of the laws, too, includ-
ing this Executive order proCTam. Harris Bank, one of the biggest
banks in Chicago, was recalcitrant in its refusal to promote and
pay women and minorities. After an Executive order enforcement
action which we were proud to participate in, Harris Bank paid
over $14 million in back pay and began a serious affirmative action
effort in the late 1980's. Recently, in the New York Times and pa-
pers around the country, it bragged about the fact that it has one
of the most senior women in management that it just promoted in
the banking industry with great pride. And we're certainly proud
as well. The Executive order program is what opened these doors,
and it's the Executive order program that's at risk because of this
legislation.
Affirmative action programs force employers to reach out beyond
their friends, their neighbor's nephew to give fair consideration to
candidates who are qualified, but who don't fit their preconcep-
tions, and that helps white men as well as women and minorities.
The old patterns before affirmative action went into effective hurt
men who weren't well connected just like it hurt women and mi-
norities, and it simply isn't true to say affirmative action doesn't
work. Government studies show that women make greater gains in
employment at companies doing business with the Federal Govern-
ment under this Executive order program because of affirmative ac-
tion. And IBM and other major companies have bragged about how
important affirmative action has been to them. Why in the world
would we want to deny proven techniques that work to the Federal
Government in its employment opportunities that private business
has said time and time again have been so important to its suc-
cess?
Now I'd like to turn to some of the specifics of the legislation to
explain to you why I'm so concerned about it. We've talked about
its inconsistency with the Supreme Court in Adarand and its pure
approach of striking down any kind of race and, I will say, gender-
based programs, but in the name of preference it defines preference
in such a circular way and in such a vague way, and describes not
only quotas which the law has made illegal already, but, as we've
already discussed, goes on and then says it's not limited to that.
Who knows what it's limited to?
In a provision that says "but we can continue to recruit," that's
taken back, too, but we can't use any kind of numerical aspirations
even in recruitment. We're talking here about employment, about
education, about children, about the future of this country. This ex-
treme approach, I fear, hurts those kinds of opportunities in a very
dramatic way.
Finally, I do want to say — get to the specifics of why I'm so con-
cerned that this doesn't only attack affi.rmative action, but has ex-
ceptions to current law that weaken the antidiscrimination provi-
sions that women have fought so hard for. There is a whole series
of new exceptions that don't appear in our Federal laws now that
allow things like new privacy defenses that don't exist in employ-
ment discrimination law for women. We have no idea w?iat that
means. We have no idea how that would be applied. It's written in
very general terms. There's a list of these in national security and
other things. While this is styled and treated as if it's an aftirma-
45
tive action debate, and it certainly is, the sections of the bill that
add new exceptions to our antidiscrimination laws on the basis of
gender are very dangerous and a major step backward.
It's for those reasons that we're concerned about the bill. We
hope that vou take our concerns to heart and that we will be able
in the end to stand up and not have to apologize to our grand-
children that at this historic moment we took a step backward
when we needed to take a step forward.
Thank you.
[The prepared statement of Ms. Greenberger follows:]
Prepared Statement of Marcia D. Greenberger, Co-President, National
Women's Law Center
Mr. Chairman and members of the Subcommittee, I am Marcia Greenberger, Co-
President of the National Women's Law Center. Thank you for the invitation to ap-
pear before you today. With me is Judith Appelbaum, Senior Counsel and Director
of Legal Programs at the Center.
The Center is a non-profit organization that has been working since 1972 to ad-
vance and protect the legal rights of women across the country. The Center focuses
on major policy areas of importance to women and their families, including employ-
ment, education, and income security — with particular attention paid to the con-
cerns of low-income women.
We are pleased to have this opportunity to comment on H.R. 2128 and the impact
it would have on affirmative action, and specifically on affirmative action for
women. In the first part of my testimony, I will outline why afiirmative action pro-
grams are important to women as well as members of racial and ethnic minorities.
I will then turn to a detailed discussion of the impact that H.R. 2128 would have
on these programs, and on equal opportunity for women.
I. WHAT AFFIRMATIVE ACTION MEANS FOR WOMEN
Barriers to Advancement for Women Remain Pervasive
Much attention has been given recently, in this Subcommittee and elsewhere, to
afiirmative action in the context of race. It is important not to overlook, at the same
time, the critical role that affirmative action programs have played and continue to
play in opening up opportunities for women.
Discrimination against women is deeply rooted in our society. This year we com-
memorate the 75th anniversary of women's suffrage — reminding us that for the first
150 years of the Republic, American women lacked the most fundamental right of
citizenship, the right to vote. Throughout most of our history, laws that barred
women from engaging in certain occupations, from the practice of law to bartending,
were upheld. Many of the nation's premier colleges and universities were once com-
pletely closed to women. Not long ago, the "want ads" listed openings for women
and for men separately, and some employers told women (but not men) with young
children they need not apply at all. Sex discrimination in employment has been pro-
hibited by federal law only since enactment of the Civil Rights Act of 1964, and in
education only since the Education Amendments of 1972.
While much has changed in recent years, women are still second class citizens in
many ways. A few statistics make this clear:
According to the March 1995 report of the Glass Ceiling Commission, 95 to 97%
of the senior managers of Fortune 1000 industrial and Fortune 500 companies are
male. In the Fortune 2000 industrial and service companies, only 5% of senior man-
agers are women (and virtually all of these are white).^ [See footnotes at end of
statement.]
An earnings gap exists between women and men across a wide spectrum of occu-
pations. In 1991, lor example, women physicians earned 53.9% of the wages of male
physicians, and women in sales occupations earned only 59.5% of the wages of men
in equivalent positions.^ In 1993 women still earned, on average, only 71.5 cents for
every dollar earned by men.^
WnUe women are over half the adult population "* and nearly half the workforce
in this country,^ women remain disproportionately clustered in traditionally female
jobs with lower pay and fewer benefits.^ For example, in 1991 one in four working
women worked in an administrative support job,'' and 82% of administrative work-
ers in all industries are women.*
46
While the gender gap in higher education has narrowed, and women now earn
roughly half of all bachelor's and masters degrees, they still lag behind in many re-
spects. Women earn only about one-third of doctorate and first professional degrees,
and remain under represented in many areas not traditionally studied by women.
In 1992, women received only about 15.4% of undergraduate engineering degrees,
9.6% of doctorate degrees in engineering, and less than 22% of doctorate degrees in
mathematics and the physical sciences.^
Women remain severely under represented in most non-traditional professional
occupations as well as blue collar trades. For example, women are only 8.6% of all
engineers; 3.9% of airplane pilots and navigators; less than 1% of carpenters; 18.6%
of architects; and just over 20% of doctors and lawyers. Women are over 99.3% of
dental hygienists, but are only 10.5% of dentists.'"
65% of the 62 million working women in the United States earn less than $20,000
annually, and 38% earn less than $10,000."
Even where women have moved into occupations and professions in significant
numbers, they have not moved ye to the same degree. Women are 23% of lawyers,!^
but only 11% of partners in law firms. '^ Women are 48% of all journalists, but hold
only 6% of the top jobs in journalism. i'' Women are 72% of elementary school teach-
ers, but only 29% of school principals. '^
Minority women have lagged particularly far behind in both employment and edu-
cation. In 1993, for example. Black women earned a median income of $19,816, com-
pared to $22,023 for white women and $31,089 for white men. Hispanic women
earned a median income of $16,758. '^ Even in sectors where women have made in-
roads into management, minority women continue to be under represented. In the
banking industry, only 2.6% of executive, managerial and administrative jobs were
held by Black women, and 5% by Hispanic women, compared to 37.6% by white
women. In the hospital industry. Black and Hispanic women each held 4.6% of these
jobs, while white women held 50.2%.'' Minority women also earn fewer college de-
grees than white women. In 1992, white women made up 42.3% of college under-
graduates and 48.1% of graduate students; minority women were only 13.4% of un-
dergraduates and 8.4% of graduate students.'®
Although white men constitute a minority of both the total workforce (47%) '^ and
of college educated persons (48%) 2°, they dominate the top jobs in virtually every
field.21 Moreover, wnite males' median weekly earnings in 1993 were 33% higher
than those of any other group in America.22 The earnings of non-Hispanic white
men were 49% higher than those of any other group.^a
How, then, can these disparities be explained? The notion that women lag behind
because they want to — that is, because they would rather work less, or in lower-
paying jobs, or not at all — is simplistic and demonstrably wrong. While some
women, for a variety of reasons, may choose to devote themselves to family concerns
or to jobs with lower pay, such choices simply do not explain the disparities. A study
cited in the Glass Ceiling Commission report found that women in senior manage-
ment worked the same number of hours per week as their male counterparts.^-* An-
other recent study shows that after about 11 years on medical school faculties, 2396
of men but only 5% of women had achieved the rank of full professor — and the gap
persisted when the researchers held constant the numbers of hours worked f>er
week.2® Yet another study, of graduates of the University of Michigan Law School
from 1972 through 1975, revealed significant wage differentials between men and
women lawyers after 15 years of practice, even when hours of work, family respon-
sibilities, and other variables were held constant.^®
These studies show that women who make the same career choices as men and
work the same hours as men often still advance more slowly and earn less. The
clear inference to be drawn is that sac discrimination remains a major barrier to
the advancement of women. Indeed, there is abundant additional evidence that sex
discrimination, including sexual harassment, continues to be a fact of life in our so-
ciety. In 1993, 11,908 sex discrimination and sexual harassment charges were filed
with the EE0C.27 That number rose to 14,420 in 1994.28 a report issued by the
Merit Systems Protection Board just last month, based on questionnaires completed
by 8,(X)0 federal workers in 1994, found that nearly half the women who responded
said that they had experienced unwanted, uninvited sexual attention on the job in
the previous two years.29
In a 1994 survey by the Labor Department, 61% of women surveyed said they had
little or no likelihood of advancement; and 14% of white women and 26% of minority
women reported losing a job or promotion because of sex or race.^° The Glass Ceil-
ing Commission report cites another study finding that 25% of the women surveyed
feu. that "Tjeing a woman/sexism" was the biggest obstacle they had to overcome, and
59% said they nad personally experienced sexual harassment on the job.^'
47
Statistics tell a part of the stoiy, but individual cases also can be instructive. Here
are just a few very recent examples from our files.
An article in the newspaper a few months ago entitled "Young White Men Only,
Please" described a complamt filed with the EEOC against a brokerage firm called
Olde Discount Corporation, the third largest discount brokerage firm in the country.
According to the article, the complaint and former employees who were interviewed
allege that the chairman of Olae directed company managers to recruit "young,
good-looking, studly males" and not to hire "broads." Each regional manager was
told, in private, not to hire Blacks or women. African-Americans were referred to
by racial epithets such as "monkeys" and women were demeaned for having men-
strual cycles. One of the women who filed the complaint claims that she was de-
moted and stripped of most of her customer accounts — after becoming one of the
firm's top producers — because her boss said she needed to spend more time with her
daughter.^^
Another recent article describes a case in California in which a woman employed
as a marketing representative at IBM alleged that she was pressured by two male
supervisors to nave sex with a Defense Department procurement officer in order to
ennance IBM's influence with the Department. A jury found in her favor and award-
ed her damages for sexual harassment.^^
Yet another article reports that in August, Del Laboratories, a Long Island cos-
metics and pharmaceutical maker, agreed to settle for over $1 million an EEOC
complaint fifed on behalf of 15 female employees who claimed they were sexually
harassed by the company's chief executive officer. The executive was alleged to have
indulged for years in lewd and abusive behavior toward the women, mostly mem-
bers of a secretarial pool. His behavior reportedly included grabbing one woman's
breast and other crude acts. The secretaries also claimed that the company tried to
coerce them into lying about what they had experienced.^^
These stories are all too commonplace. Even in 1995, the sad fact is that women
continue to be sexually harassed on the job, passed over for jobs and promotions
based on stereotypes about what they can and cannot do or outright prejudice
against their advancement, paid less than men for equal work, and disadvantaged
in numerous other ways based not on their abilities or their qualifications but on
their gender.
How Does Affirmative Action Help Women ?
If it is clear that the playing field is not yet level for women, it is fair to ask:
how does affirmative action help? First, however, it is important to be clear about
what affirmative action is — and what it is not.
In employment, examples of affirmative action programs are recruitment and out-
reach eftorts to include qualified women in the talent pool when hiring decisions are
made; training programs to give all employees a fair chance at promotions; and in
some cases the use of flexible goals and timetables (not quotas) as benchmarks by
which to measure progress toward including qualified women in job categories from
which they have been excluded.
In education, affirmative action programs for women include grants and graduate
fellowship programs aimed at helping women move into fields where their participa-
tion has been discouraged, such as engineering, math and the physical sciences.
They also include outreach and education programs to ensure the participation of
women in apprenticeship training in the skilled trades.
For women business owners, affirmative action programs include laws that en-
courage government agencies and contractors to do business with qualified women-
owned companies, as well as programs providing financial, management and tech-
nical assistance to women business owners.
Affirmative action is not "quotas" or the substitution of numerical dictates for
merit based decisions. Some affirmative action plans include the management tools
of numerical goals or targets for representation of women or minorities, and time-
tables for meeting those objectives. But the courts have held that these goals and
timetables must be flexible and take into account such factors as the availability
of qualified candidates. They may not constitute "blind hiring by the numbers;" if
they do, they are unlawful.
A case decided by the Supreme Court in 1987, Johnson v. Transportation Agency
of Santa Clara County, 480 U.S. 616 (1987), is a good illustration of how an affirma-
tive action plan using flexible goals typically works in the employment context. The
employer, a county agency, employed no women — not one — in its 238 "skilled craft
worker" positions, which included road dispatchers. Under its affirmative action
f»lan, the agency set a target for increased employment of women in this category
and others from which they had been excluded). In its eflbrt to meet the goal it
took gender into account in deciding to promote a woman, rather than a man with
48
substantially equal qualifications, when a road dispatcher position opened up. Gen-
der was only one factor among many considered, and the woman who received the
promotion was fully qualified for the job. The Supreme Court ruled that this con-
stituted a reasonable approach to eliminating an obvious gender imbalance in the
work force.
The Johnson case illustrates not only how an affirmative action plan works, but
also why such plans are needed. The position that was open in that case, for road
dispatcher, was one that no woman had ever held. The initial interviews were con-
ducted by three white male supervisors, one of whom had previously derided the
woman applicant, Diane Joyce, as a "skirt-wearing person." Not surprisingly in
these circumstances, they recommended the male candidate. Had it not oeen for the
intercession of higher-ups in the agency and their application of the affirmative ac-
tion plan, Diane Joyce would have been passed over by men who assumed she
couldn't do the iob. As it turns out, Diane Joyce is still successfully performing her
duties as a roacl dispatcher for Santa Clara County.
What happened m the Johnson case before application of the affirmative action
plan is what happens all the time. Supervisors making hiring or promotion deci-
sions, procurement officers, and other decision-makers rarely engage in the purely
objective, scientific exercise that is sometimes imagined. They are human oeings
making subjective judgment calls, and these judgments are inevitably influenced by
the natural tendency we all have to feel most comfortable with people like ourselves.
The Glass Ceiling Commission's report is replete with illustrations of how feelings
of "kinship" or "chemistry" contribute to holding women and minorities back. It also
documents the myriad ways in which racial, gender, and ethnic stereotyping remain
pervasive in the corporate world. It found that women, for example, were variously
stereotyped as not wanting to work, unwilling or unable to make decisions, too emo-
tional, not aggressive enough, and too aggressive.^'^
Affirmative action programs work because they are an effective way to neutralize
these kinds of biases, stereotypes and prejudices. Affirmative action programs force
employers to reach out beyond the "old boys networks" to which they would natu-
rally gravitate, and to give fair consideration to candidates who are qualified but
who don't fit their preconceptions. In other words, they function as a preventive ap-
proach to discrimination — instead of forcing the victims of discrimination to take the
daunting and expensive route of going to court to challenge biased acts after they
occur, afiirmative action keeps discrimination from occurring in the first place.
Thus, affirmative action programs are slowly making an impact. A government
study showed that women made greater gains in employment at companies doing
business with the federal government, and therefore subject to federal affirmative
action requirements, than at other companies: female employment rose 15.2% at
federal contractors, and only 2.2% elsewhere. The same study showed that federal
contractors employed women at higher levels and in better paying jobs than other
firms.^®
Many individual companies that have adopted affirmative action plans have dem-
onstrated the impact on women. For example, after IBM set up its affirmative ac-
tion program, its number of female officials and managers more than tripled in less
than ten years.^''
Litigation against police and fire departments and the construction trades has re-
sulted in affirmative action plans that have produced dramatic increases in the em-
ployment of women (and minorities) in those fields as wel!.^^ In 1983, for example,
women made up 9.4% of the nation's police, and 1.0% of firefighters. By 1993,
women were 16% of police, and 3.7% of firefighters.^^
It is clear, then that affirmative action programs have made a real difference for
women, and remain critical today. It is important to note, in addition, that our
whole society stands to gain in numerous ways from programs that increase oppor-
tunities for women and minorities. For example:
Affirmative action programs that help women advance in the workplace are help-
ing their families to make ends meet. Most women, like men, work because of eco-
nomic need; indeed, many women are the sole source of support for their families.'"'
Replacing the "old boys network" with job postings, outreach and training ensures
that all workers — women and minorities, but white males, too — have a fair shot at
advancing in the workplace.
Affirmative action programs expand the talent pool for employers to draw on, and
many companies report that a diverse workforce has led to enhanced performance
and productivity. DuPont Co. set — and exceeded — higher goals than any affirmative
action regulations required, and the company reports that it has been rewarded by
the development of new ideas and markets."*^
Diversity in our colleges and universities improves the learning process for every-
one. As Justice Powell wrote in the Bakke case, "the 'nation's future depends upon
49
leaders trained through wide exposure' to the ideas and mores of students as diverse
as this Nation of many peoples. ^^
Enrollment and scholarship programs that promote diversity in professional
schools indirectly serve the public in dramatic ways. For example, it is surely no
accident that the advancement of women in fields of medical science has been ac-
companied by increased attention to women's health issues such as breast cancer
and expanded research in those areas.
Communities benefit from afiirmative action in myriad other ways. For example,
increased recruitment and training of women police officers, prosecutors, judges and
court personnel has been accompanied by an improvement in the handling of domes-
tic violence cases and the treatment of domestic violence like the crime that it is —
which benefits women, children and all other members of the family and the com-
munity who are affected by violence in the home.
With this background, I will now turn to an analysis of H.R. 2128.
II. H.R. 2128: "THE EQUAL OPPORTUNITY ACT OF 1995"
With all due respect, Mr. Chairman, we must express our profound concern that
enactment of H.R. 2128 would constitute a severe setback in the ongoing struggle
to eliminate sex and race discrimination and ensure equal opportunity for all. 'Tnis
biU, while called "The Equal Opportunity Act," actually would have exactly the op-
posite result. It is extreme in scope and effect. It would wipe out a broad range of
essential and effective programs aimed at opening the doors of opportunity for
women and minorities in employment, in education, and in contracting. To do this
would be, in our view, to slam the doors of opportunity shut for millions of Ameri-
cans, to deprive all of us of the talents and contributions of all of those we shut
out, and, finally, to send a signal to the American people that we are turning back
the clock and that equal opportunity no longer matters to policy makers in Washing-
ton. We submit that that is a course that is neither just nor wise.
Inconsistent With Adarand and Other Precedents
It is important to note, first, that this bill goes far beyond the principles enun-
ciated by the Supreme Court last June in Adarand Constructors v. Pena, 115 S. Ct.
2097 (1995). In Adarand, the Court made clear that while federal race-based classi-
fications must be subject to strict judicial scrutiny, this does mean that all such pro-
grams are automatically unlawful. Rather, Justice O'Connor wrote: "We wish to dis-
f>el the notion that strict scrutiny is 'strict in theory but fatal in fact.'" Id. at 2117
citation omitted). Justice O'Connor specifically noted that affirmative action pro-
grams can be sustained when they are narrowly tailored to achieve a compelling
government interest — for example, to eliminate past or continuing discrimination.
The unhappy persistence of both the practice and the lingering effects of racial dis-
crimination against minority groups in this country," she wrote, "is an unfortunate
reality, and government is not disqualified from acting in response to it." Id.
Under H.R. 2128, however, all federal affirmative action programs apparently
would be absolutely prohibited, rendered per se illegal. No matter how compelling
the justification for a given program, and no matter now precisely tailored it is, the
government would be disqualified from acting. This is an extreme approach, and
was soundly rejected by seven of the nine Justices of the Supreme Court in
Adarand.
Moreover, the legislation would eliminate not only afiirmative action programs for
racial minorities, but also affirmative action programs for women, which Adarand
did not even address. Under current case law, gender-based classifications — includ-
ing those discriminating against women — are upheld when they are substantially
related to an important government interest.''^ But under this legislation, it appears
that all federal afiirmative action programs designed to benefit or assist women
would be unlawful. This is a result that is hard to reconcile with logic or with sound
equal protection principles.
Sweeping in Scope
The legislation is particularly problematic because of its undefined, but appar-
ently sweeping, scope. It eliminates any program that "grant[s] a preference" based
on race, color, national origin or sex. (Sec. 2.) "Grant a preference" is defined in Sec.
8(2) as follows: "The term 'grant a preference' means use of any preferential treat-
ment and includes but is not limited to any use of a quota, set-aside, numerical goal,
timetable, or other numerical objective." (The term "preferential treatment" is no-
where defined.) Given the circularity of the language ("grant a preference" means
"preferential treatment") and its open-endedness ("includes but is not limited to .
. ."), it is impossible to know how, if at all, the range of activities and programs
it encompasses would be limited.
50
For example, would the bill's ban on "preferential treatment" mean that govern-
ment decisionmakers would be barred from ever taking race, national origin or gen-
der into account in any way, even as one factor among many? If so, the legislation
is inconsistent not only with Adarand, but also with a long line of precedents includ-
ing Jo/irison V. Transportation Agency and Regents of the University of California
v.Bakke. 438 U.S. 265, 318 (1978).
Would targeted recruitment be illegal? Could federal law enforcement agencies
make any kind of concerted effort to hire and promote more minorities and women?
Could a federal agency with few African-American attorneys on its staff make a spe-
cial effort to recruit at predominantly -African- American law schools, or an agency
with high-tech positions but few women recruit at a women's college? Or would
these practices be considered prohibited "preferential treatment'? Section 3(1),
which purports to create some sort of exception for recruitment, turns out, on in-
spection, to be of no help in answering this question. Section 3(1) allows recruitment
of qualified minorities or women into an applicant pool for federal employment, but
only if such recruitment "does not involve . . . granting a preference," a term
which, as I noted, is not defined or limited in any meaningful way.
Eliminates Aspirational Goals
One thing that is clear is that the bill would abolish any use by the federal gov-
ernment of numerical goals based on race, national origin or sex, since the definition
of "grant a preference" in Section 8(2) expressly includes goals, timetables, and
other numerical objectives. There is no justification for such a draconian measure.
Numerical goals, as I noted earlier, are not the same as "quotas." Numerical goals
are targets. They are aspirations. No sanctions are imposed for failure to meet
them. Goals and timetables function as benchmarks by which to measure our
progress toward a more inclusive society, one that is free of artificial barriers to
equality of opportunity.
If a numerical measure functions like a quota rather than a goal — if it is inflexi-
ble, or fails to take into account the availability of qualified applicants — it is already
unconstitutional under a series of Supreme Court cases. The Court has had no dif-
ficulty acknowledging and approving the distinction between goals and quotas. For
example, in Johnson v. Transportation Agency of Santa Clara County, discussed ear-
lier, tne Court noted, in upholding a public employer's hiring goals, that the employ-
er's affirmative action plan stated that the goals were to be used as "reasonable as-
pirations" and to take into account factors such as the availability of women and
minorities 'in the area workforce who possess the desired qualifications or potential
for placement." 480 U.S. at 635; see also id. at 654-57 (O'Connor, J. concurring);
United States v. Paradise, 480 U.S. 149 (1987); Lx)cal 28 of the Sheet Metal Workers
Int'l Ass'n v. EEOC, 478 U.S. 421 (1986). Indeed, in Paradise — a decision expressly
approved in Adarand — the Court recognized that without a goal, there would have
been no effective remedy in light of the defendant's longstanding recalcitrance.
The legislation before us, however, ignores these well established principles and
would flatly prohibit all numerical measures at the federal level.
One specific example of a federal goal H.R. 2128 would eliminate, of particular
interest to women, is a provision passed by Congress just last year without opposi-
tion, adopting a goal aimed at increasing federal procurement opportunities for
qualified women owned businesses. The Federal Acquisition Streamlining Act of
1994 amended Section 15 of the Small Business Act to set a federal government-
wide target for the award of federal contracts to small business concerns owned and
controlled by women; the goal is a modest five percent of the total value of all prime
contract and subcontract awards for each fiscal year."*^
Congress adopted this goal in recognition of the fact that women-owned busi-
nesses, despite oeing a large and growing force in our economy,"*^ have been vir-
tually shut out of government procurement activities, and in the hope that the goal
would result in greater contracting opportunities for them."*® Indeed, modest though
the five percent goal may seem, reaching it would constitute significant progress:
the latest data we have seen puts the share of federal procurement by women-
owned firms at a mere 1.6 percent.'" It would be a shame, to say the least, to elimi-
nate the new five percent goal before it has even had a chance to begin to make
an impact. And that is just one example of a numerical goal that would be nullified
by this legislation.
The Executive Order Program
One of our most serious concerns about H.R. 2128 is the destructive impact it
would have on the federal contract compliance program.
Executive Order 11246 and the federal contract compliance program establish and
implement the proposition that government funds — tax payer dollars — should not
51
support illegal discrimination against women and minorities. The program covers
over 25% of the U.S. workforce, helping to break down barriers to equal opportunity
for some 26 million Americans. It nas been supported by every Administration for
over three decades.
The Executive Order program achieves its objectives by requiring that a clause
be included in government contracts in which the contractors assure that they will
not discriminate against any employee on the basis of race, color, religion, sex, or
national origin. The Executive Order further requires that businesses and institu-
tions (over certain size thresh holds) that choose to contract with the federal govern-
ment develop and implement aflirmative action plans. As part of this requirement,
contractors must analyze their own workforces, identify job categories from which
qualified women and minorities have been excluded, set their own goals and time-
tables for improved hiring and promotion of qualified female and minority workers,
and make a good faith efiort to meet them. 4 1 C .F.R. Part 60-2.
The regulations implementing this program expressly state that "Gtoals may not
be rigid and inflexible quotas which must be met, but must be targets reasonably
attainable by means of applying eveiy good faith elTort to make all aspects of the
entire afiirmative action program work.' 41 C.F.R. §60-2. 12(e). Nor are federal con-
tractors subject to sanctions in any way for simple failure to meet their goals. 41
C.F.R. §60-2.15. All that is required is a good faith effort. The Director of the Office
of Federal Contract Compliance Programs (OFCCP), which administers the Execu-
tive Order program, issued a new directive just this summer reafBrming that goals
are not to be used as quotas, and that contractors are in compliance ii they make
a good faith effort, whetner or not they have met their goals.^*
Indeed, the contractor community itself has confirmed that the Executive Order
program does not require "preferential treatment" or "quotas" in employment deci-
sions. As the President of the Equal Employment Advisory Council has testified,
"Executive Order 11246, as . . . enforced by the Office of Federal Contract Com-
pliance Programs (OFCCP), does not require contractors to grant preferential treat-
ment to any employee or applicant on the basis of race, gender, or ethnic back-
ground."^^ This association oi some 300 major corporations that do business with
the federal government has stated, further, that the affirmative action requirements
of E.O. 11246 place no quotas or set asides on employers, nor do they require an
employer to place an unqualified person in a job.'° The EEAC concludes. We be-
lieve there is no place for reflexive changes in the program simply because some
people have misunderstood or mischaracterized its nature and effectiveness."^^
H.R. 2128, however, would cut the heart out of the federal contract compliance
program by eliminating its goals and timetables component. The legislation ex-
pressly provides that the federal government may not "require or encourage any
Federal contractor or subcontractor to . . . grant a preference" (Section 2(2)), and,
as noted earlier, "grant a preference" is defined to include "use of a . . . numerical
goal, timetable, or other numerical objective" (Section 8).
This evisceration of the Executive Order program would render it meaningless.
Goals and timetables were added to the program during the Nixon Administration
in 1970 precisely because they were shown to be necessary for the program to work.
The early years of the program demonstrated that passive nondiscrimination
clauses alone did not ensure equal opportunity for minorities (sex was not added
to the prohibited categories in the Order until 1967), so an affirmative action re-
quirement was added.'^^ j^ 1968, the Comptroller General ruled that the affirmative
action obligation was too vague to fulfill the requirement that minimum contract
standards be made clear to prospective bidders.'^^ Contractors urged the government
to define their obligations under the Order and to establish a standard to measure
their compliance with the affirmative action requirement. Use of such standards,
which in fact is all that goals and timetables are, is the way business operates in
all other spheres.
With its affirmative action component, the Executive Order program is an essen-
tial complement to the enforcement of Title VII's prohibition against discrimination
in employment. While the EEOC and individual victims of discrimination can bring
suit under Title VII once a violation has occurred, the contract compliance program
operates to prevent discrimination. By developing an aflirmative action plan, and
measuring its own progress toward meeting its goals, a federal contractor is taking
steps to ensure that discrimination and unfair barriers to advancement are eradi-
cated. The contract compliance program, in short, is indispensable as a systemic ap-
proach to rooting out discriminatory practices.
There is abundant evidence that tne Executive Order program works. I have al-
ready cited studies showing that women have made greater gains in employment
at companies doing business with the federal government than at other compa-
nies.'* The program has also changed entire industries. In 1978, the Office of Fed-
52
eral Contract Compliance Programs reviewed the employment practices of the five
lai^est banks in Cleveland, pursuant to its authority under Executive Order 11246.
Three years later, the percentage of women and managers at these institutions had
risen more than 20%. When OFCCP first looked at the coal mining industry in
1973, there were no women coal miners. By 1980, 8.7% were women.
One of the most successful enforcement efforts under Executive Order 11246 came
as a result of an administrative complaint against the Chicago-based Harris Bank,
filed by Women Employed. After years of conciliation efforts failed, OFCCP brought
an enforcement action, in which the National Women's Law Center represented
Women Employed. Two separate hearings yielded findings of serious sex and race
discrimination in the Bank. Ultimately, in 1989, OFCCP, the Bank and we agreed
to a settlement of $14 million in back pay — the largest award ever under the Execu-
tive Order — and the Bank revised its affirmative action plan, to include enhanced
training programs and career development opportunities. Just this year, in fact,
Harris Bank named its first woman vice chairman who is believed to be the highest-
ranking woman among the country's largest banks — and announced that it now has
15 women in positions representing 25% of senior vice president and above at the
bank. Clearly, the Executive Order program has made a difference.
It is also instructive, perhaps, to consider what can happen in the absence of this
program. The Olde brokerage firm, for example — the suDject of a discrimination
complaint I described earlier — is not covered by the Executive Order because it has
no federal contracts. Do we really want to destroy the Executive Order program and
eliminate the tools it provides to ensure that at least those companies who are bene-
fiting from federal, taxpayer-funded contracts do not behave as Olde reportedly has?
Undermines Enforcement of Civil Rights Laws
We are also deeply concerned about the harm H.R. 2128 would do to enforcement
by the federal government of all of our civil rights and anti-discrimination laws. Sec-
tion 2(3) of the bill would prohibit any federal agency from "enter[ing] into a consent
decree that requires, authorizes or permits" any of the activity prohibited in Section
2(1) or 2(2) — i.e., any use of numerical objectives or anything else that the bill labels
as "granting a preference." Under this provision, the ability of our civil rights en-
forcement agencies, such as the Justice Department and the EEOC, to enter into
any new consent decree that includes numerical remedies, would be severely lim-
ited. This prohibition would apply even though by definition a consent decree is en-
tered only when the defendant itself has agreed to the relief.
This means that no matter how egregious the discriminatory and unlawful con-
duct of a defendant, no matter how important it is to have an effective way to mon-
itor the defendant's future compliance with nondiscrimination requirements, no
matter how flexible and carefully drawn the proposed remedy, and no matter how
willing the defendant is to go along with it — the government would be prohibited
from entering into a consent decree that includes any kind of goal or timetable, or
anything else that might fall within the undefined reaches of tnis bill's prohibition
on "preferential treatment," when the prohibition applies.
While H.R. 2128 purports to cover only the executive and legislative branches of
the federal government (see definition of "federal government in Section 8(1)), it
thus indirectly constrains the courts too, by preventing any federal agency from en-
tering a court-approved consent decree. This is another example of tne radical na-
ture of this proposed legislation. It is astonishing, frankly, that it does not contain
any exception for court-approved consent decrees along with all other court orders.
Even the bill introduced by Senator Helms early in this Congress, S. 496 — an ex-
treme anti-affirmative action measure similar to H.R. 2128 in many respects — pro-
vides that nothing in it is to be interpreted as forbidding a court to order appro-
priate relief to redress past discrimination. Not so H.R. 2128.
Moreover, given the general and imprecise language of H.R. 2128, and the ab-
sence of clear definitions limiting its reach, there is room for confusion and future
challenges to federal agency enforcement authority that cannot even be catalogued
today. The federal government may be forced to spend precious enforcement re-
sources on defending its ability to carry out virtually any of its civil rights respon-
sibilities by those resisting compliance with our laws against discrimination.
New Limitations on Prohibitions Against Discrimination
Section 4(c) of the bill carves out a series of exceptions to the current protections
against intentional sex discrimination. For example, there is a wholly new exception
allowing women to be excluded from certain jobs altogether based on "privacy' con-
cerns. Not only is the term "privacy" undefined, but in addition Section 4(cX2) would
permit sex discrimination if it is merely "designed to" protect the privacy of individ-
uals— whether or not the practice at issue has that actual effect. That this legisla-
53
tion, while described as addressing aflirmative action, also introduces wholly new
and potentially wide-open loopholes that would strip women of many hard-won
gains, is especially dangerous and unwarranted.
CONCLUSION
Along with racial and ethnic minorities, women of all races and backgrounds are
still a long way from having an equal opportunity to compete on a level playing
field. Affirmative action programs make a huge difierence. Thus, by eliminating fed-
eral affirmative action programs across the board, H.R. 2128 would not only halt
the forward progress that women, as well as minorities, have been able to achieve;
it would mark a giant leap backward in this nation's journey toward equal oppor-
tunity for all. Until the day when we can say with confidence that we have truly
reached that goal, we simply cannot afford to throw away the means we have at
our disposal for getting there. Thank you.
FOOTNOTES
1. Federal Glass Ceiling Commission [FGCC], Good For Business: Making Full Use of the Na-
tion's Human Capital, iii-iv (1995).
2. U.S. Department of Labor, Women's Bureau, Women Workers: Trends and Issues 35 (1993).
3. National Committee on Pay Equity, 'The Wage Gap: 1993," citing U.S. Dept. of Commerce,
Census Bureau, "Current Population Imports," Series P-60.
4. U.S. Dept. of Commerce, Census Bureau, Statistical Abstract of the United States 13 (1994).
5. Id. at 396. See also, U.S. Dept. of Labor, Women's Bureau, "Working Women Count!" at
10 (1994).
6. Employee Benefits Research Institute, Sources of Health and Characteristics of the Unin-
sured, Analysis of the March 1993 Current Population Survey, Issue Brief No. 145, at 61 (Jan.
1994) (women are heavily concentrated in jobs fjaying under $20,000 where 82% of the unin-
sured workers are also located).
7. 9 to 5, "Profile of Working Women," at 1 (1992-93 edition) (data compiled from United
States Bureau of Labor and Census Bureau statistics).
8. Equal Employment Opportunity Commission [EEOC], Job Patterns for Minorities and
Women in Private Industry, table 1, at 1-36 (1993).
9. U.S. Department of Education, National Center for Education Statistics, "Digest of Edu-
cation Statistics," table 239 (1994).
10. U.S. Dept. of Commerce, supra note 4, at 407-409.
11. U.S. Bureau of the Census, Current Population Reports, "Money Income of Households,
Families, and Persons in the United States: 1992," Series P-60, No. 184, Table 31.
12. U.S. Dept. of Commerce, supra note 4, at 407.
13. Curan and Carson, American Bar Foundation, "The Lawyer Statistical Report" (1994).
14. "A Long Way To Go," Newsweek, April 24, 1989, at 74.
15. Commission on Professionals in Science and Technology, Professional Women and Minori-
ties: A Total Human Resource Data Compendium 142, Table 5-11 (1994).
16. Institute for Women's Policy and Research, 'The Wage Gap: Women's and Men's Earn-
ings," (1995) (citing unpublished data of the U.S. Bureau of the Census, Current Population Re-
ports).
17. FGCC, supra note 1, at 79.
18. U.S. Department of Education, supra note 9, at table 203.
19. Cheryl Russell & Margaret Ambry, American Incomes 155, 163 citing, Bureau of the Cen-
sus Current Population Rejxjrts, "Money Income of Households, Families, and Persons in the
United States: 1991," Series P-60, No. 180 (in 1991, 133,836,000 people over age 15 worked;
62,477,000, or 47%, of these were white men).
20. U.S. Bureau of the Census, Current Population Reports, "Poverty in the United States:
1991," Series P-60, No. 181, table 11 (of the 34,025,000 people aged 25 or older who completed
college, 16,578,000, or 48%, were white males).
21. FGCC, supra note 1, at iii-iv. See also,EEOC, supra note 8 (showing that women managers
are severely underrepresented in, among many other industries, the mining, construction, bank-
ing, hospital, and women's clothing industries).
22. U.S. Dept. of Commerce, supra note 4 at 429.
23. Id. (computed from Bureau of Labor Statistics, "Employment and Earnings," Jan. 1995,
at 207).
24. FCGG, supra note 1, at 151.
25. Teach, et al, "Promotion of Women Physicians in Academic Medicine," Journal of the
American Medical Association, April 5, 1995.
26. Wood, et al, "Pay Differentials Among the Highly Paid: The Male-Female Earnings Gap
in Lawyers' Salaries," Journal of Labor Economics, July 1993.
27. Unpublished computerized data compiled by EEOC field offices.
28. Id.
29. Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges, A
Report to the President and the Congress of the United States by the U.S. Merit Systems Pro-
tection Board, October 1995.
30. U.S. Dept. of Labor, Women's Bureau, supra note 5, at 7.
31. FGCC, supara note 1, at 148.
32. Susan Antilla, "Young White Men Only, Please," New York Times, April 26, 1995.
54
33. Benjamin A. Holden, "IBM Set Back in Sexual Harassment Case," Wall Street Journal,
July 18, 1995.
34. Carey Goldberg, "Company to Pay Record Amount in L.l. Sexual Harassment Case," New
York Times, August 13, 1995.
35. FGCC, supra note 1, at 148.
36. Citizen's Commission on Civil Rights, Affirmative Action to Open the Doors of Job Oppor-
tunity 123-129 (1984).
37. Id.
38. Id.
39. U.S. Dept. of commerce, supra note 4, at 409.
40. Department of Labor, Women's Bureau, supra note 2, at 11. See also Whirlpool Founda-
tion, "Women: The New I^roviders," a study prepared by the F'amilies and Work Institute with
Louis Harris and Associates, Inc. (May 1995).
41. Jonathan Glater & Martha Hamilton, "AfTirmative Action's Corporate Converts," Washing-
ton Post, March 19, 1995 at HI.
42. Regents of University of California v. Bakke. 438 U.S. 265, 313 (1978) (quoting Keyishian
V. Board of Regents. 385 LJ.S. 589, 603 (1967)).
43.See, e.g., J.E.B. v. Alabama. 1 14 S. Ct. 1419 (1994).
44. P.L. 103-355, 108 Stat. 3243, 3374 §7106 (1994).
45. Women-owned businesses have increased since 1982 by more than 57%. Today there are
some 7.7 million woman-owned businesses, employing more people than all of the Fortune 500
companies combined. National F'oundation for Women Business Owners, "Research Highlights"
(1995).
46. H.R. Conf Rep. No. 103-712, 103rd Cong., 2d Sess., reprinted in 1994 U.S.C.C.A.N. 2607,
2654.
47. "Adirmative Action Review: Report to the President," July 1995, table following p. 62.
48. U.S. Department of Labor, Office of Federal Contract Compliance Programs, Notice of
Transmittal No. 206, August 2, 1995.
49. Statement of Jeffrey A. Norris before the Employer- Employee Relations Subcommittee,
Economic and Educational Opportunities Committee, U.S. House of Representatives, June 21,
1995, at pp. 1-2; see also Equal Employment Advisory Council "Special Memorandum — Special
Issues In the Affirmative Action Debate: Executive order 11246," March 17, 1995.
50. EEAC Special Memorandum, supra note 49, at 2, 3, 25.
51. Id. at 25.
52. E.O. 10925, 26 Fed. Reg. 1977, 3 C.F.R. 1959-63 Comp. 448 (Mar. 6, 1961). E.O. 10925
was the precursor to E.O. 11246, which was signed by President Johnson in 1965.
53. 48 Comp. Gen. 326 (1968).
54. Citizens Commission on Civil Rights, supra note 36.
Mr. Canady. Thank you.
Professor Loury.
STATEMENT OF GLENN C. LOURY, PROFESSOR OF ECONOM-
ICS, BOSTON UNIVERSITY, AND VICE CHAIRMAN, CENTER
FOR NEW BLACK LEADERSHIP, WASHINGTON, DC
Mr. Loury. Thank you, Mr. Chairman. I'm Glenn Loury, profes-
sor of economics at Boston University, and it is, indeed, a pleas-
ure— well, sort of a pleasure — to be here. I think it's important that
I be here, Mr. Chairman. I have to tell you and members that I
don't take any pleasure as a black American in standing here and
speaking on behalf of this bill and against affirmative action. I do
it out of necessity. As I do so, I'm sure I will draw the wrath of
people in the neighborhood that I grew up in, in social circles that
I move in, the church that I go to; indeed, in my very own family.
I want to explain to you, though, as an economist and as a social
critic, as someone who for all of my professional life — that's a quar-
ter century — ^has been studying the problem of inequality, particu-
larly the problem of racial inequality in American society, why it
is that I am here. As has already been pointed out, there are
scores, over 100, programs in the Federal Government in just about
every agency in which the practice of treating people differently on
the basis of their race or sex is deeply engrained, in which the
practice of using preference, the common-sense, not legalistic use
of definition of that term, is deeply engrained. Now I am not an
absolutist about the use of race or sex by the Government. I'm not
making an ethical principle of inflexible colorblind theology here. I
55
am a pragmatist, a pragmatic student of the history of our society
in the last quarter century and, as such, I am convinced, Mr.
Chairman and members of this committee, that this deeply
engrained practice is not helpful in fostering the kind of race rela-
tions that we want to have.
The central problem at the core of all debate over affirmative ac-
tion is this: we have a history of discrimination against blacks and
women which necessitates some redress. However, the methods
employed to redress are such as to ensure that we will have a fu-
ture in which people looking at each other and dealing with each
other in terms of race and sex as an official matter, through the
instruments of their Government, become deeply and permanently
engrained. We simply have to get out. We have to walk out of this
business. I regard this legislation not as perfect, but as a plausible
starting point for what must be a protracted discussion by serious
people about the future of this country and the role that race and
sex will play in the future of this country, a discussion that I be-
lieve we need to have, that should move us out of this business of
dealing with people on the basis of not their essential qualities or
their character or their worth as human beings, but instead on the
basis of superficial characteristics, their race and their sex.
There are moral issues here, and I think it's important to get
them right. President Clinton in a speech last July on affirmative
action raised one of the moral issues. It's a serious matter that only
within the last 30 years have blacks emerged from the effects of
a deeply-entrenched racial caste system that goes back to slavery.
I don t need to go through the litany. Everybody knows that. That
is a moral issue. But there are other moral issues involved as well.
When Dr. Martin Luther King successfully helped the country to
understand the wrongs of segregation, the bedrock premise of his
argument was that it was morally inappropriate to deal with peo-
ple on the basis of what they looked like and not who they are.
That, too, is an important moral principle.
Now when formal discriminatory barriers against blacks and
women had only recently come down, I think a persuasive case
could be made that the temporary institution of programs such as
those under the review of this legislation might have been under-
taken. We are long since past that time. We are now well into the
second generation in which American voters, American students,
workers, and entrepreneurs have to submit to differential treat-
ment by their Government on the basis of their race. We're not
talking about impoverished people here. We're not talking about
dealing with the legacy of slavery. We're not talking about bringing
opportunity to those who are otherwise on the margin. We're talk-
ing about hard-nosed politics and rent-seeking in which certain
constituencies can make use of certain characteristics in order to
get benefits from their Government that they want. I'm talking
about often wealthy people, people who own businesses, people who
come fi-om upper middle class families, who seek to pursue profes-
sional careers through the study of law and medicine, and all the
rest. These are the people who are disproportionately and over-
whelmingly the beneficiaries of preferential treatment.
It is not a close call to me. It's not a hard case. The law says
that what those people may incur from the elimination of these
56
programs are small in comparison to the benefits that our society
will enjoy from the leadership that our Government needs to pro-
vide on our moving forward toward becoming a colorblind society.
Now there is economic deprivation in black America, and it is
profound. I believe that conservatives who oppose affirmative ac-
tion should also address themselves to this issue. I believe that the
political argument against affirmative action will be more credible
to the extent that it is connected with another argument, perhaps
in another committee room, perhaps with other pieces of legisla-
tion, but that clearly convey a commitment to deal with that eco-
nomic deprivation. Still, I have to emphasize that the problem of
that deprivation on the east side of Detroit or on the west side of
Chicago or in south central Los Angeles, or so many other places
that we could name, that problem is scarcely touched by pref-
erential policies. The evidence on this question is overwhelming.
It's, again, not even close. Those who fought against trickle-down
economics in the early 1980's surely understand this point. You
cannot help poor people by giving contracts to wealthy people; it
doesn't work.
Let me say this as well, Mr. Chairman and members: complaints
about reverse discrimination, long thought of by advocates of af-
firmative action as a mere annoyance, the expression of
reactionaries, were no such thing. They were manifestations of the
political cost to our polity — and 1 am a political economist, and an-
other reason I come to testify on behalf of this legislation and the
process that I hope that it initiates is that I look out at my country
and I see the political cost associated with the creation of these
classes of American citizens who have a stake in perpetuating dif-
ference on the basis of race and gender. The very composition of
the governing body of our Federal Government is dependent to
some degree upon fostering within the minds of the citizens a rec-
ognition of their differences, not their commonalities, not their com-
mon interest for jobs, not their sense of insecurity in the face of
crime which crosses racial lines, but their differences on the basis
of race. This is not good government, Mr. Chairman.
Furthermore, I must add this: at the core of the debate over ra-
cial preferences there is a paradox for black Americans, middle
class black Americans. I think of my children who are the bene-
ficiaries of having two parents with Ph.D.'s, who live very well in
a secure middle class community called Milton, MA, who are not
disadvantaged people. I don't want them labeled "disadvantaged."
I don't want my Government presuming, on the basis of the fact
that their great grandparents were slaves, that they are not fully
capable and shouldn't be expected fully to participate in and per-
form up to the standards of this society. What diminishment of peo-
ple do you engage in when you presume of them on the basis of
nothing more than the color of their skin that they shouldn't be
able to compete for contracts, for places of employment in their
Government, for admission to the most elite universities in the
country?
We can, indeed, compete, Mr. Chairman. There is a rhetoric out
there in the land that suggests that we cannot. It's a rhetoric that's
subscribed to by conservatives and by liberals. It's an ugly rhetoric.
We deserve to be given the opportunity to succeed or to fail, we
57
Americans who descend from people who have been discriminated
against in the past, on the basis of what it is that we do with our
lives and with our opportunities, not on the basis of who it is that
we are or who it is that we may have at one time been related to.
Finally, in conclusion, I want to say this: there is a question out
there now on the floor in the minas of many Americans about
whether or not — and I speak particularly here of blacks — whether
or not blacks are capable of gaining equal status in society. I'm not
talking about the underclass. I'm talking about people who are
gpraduates of Yale and Harvard, people wno compete for partner-
ships in New York law firms, people who seek residencies at the
best hospitals, people who want to be university professors at Bos-
ton University and similar institutions. There is a question sub-
liminally in the land about whether or not we're capable of achiev-
ing equal status in the society, given equal opportunity. Where ex-
actly did that question come from? No, affirmative action alone did
not create that question. That question is related to a deep history
of the role of race in American society, but I insist, I think really
quite plausibly, that affirmative action reinforces and underscores
that question to the detriment of the dignity of some of the citizens
which this body has been elected to protect and to serve.
I hope that you'll bear that in mind as you deliberate over this
legislation. Thank you.
[The prepared statement of Mr. Loury follows:]
Prepared Statement of Glenn C. Loury, Professor of Economics, Boston
University, and Vice Chairman, Center for New Black Leadership, Wash-
ington, DC
Mr. Chairman: I appreciate this opportunity to appear before your committee on
a matter of vital importance to our nation. For all oi my professional career I have
been a student of the problem of racial inequality in America. We now stand at a
crucial stage in our national deliberations on this problem. The legislative reforms
of affirmative action which Congress develops in the next months will significantly
effect the future of American race relations. I want to ofier some thoughts, based
on my academic knowledge of this subject and on years of experience in policy de-
bates on racial issues, which I believe can aid your consideration of this sensitive
and controversial question.
Having reviewed the draft legislation which is the subject of these hearings, I find
that it represents a sensible starting place for what will surely be a protracted dis-
cussion on the reform of federal affirmative action policies. The scope of the legisla-
tion is appropriately limited to the government's functions as employer, procurer of
goods and services, and regulator oi the private sector. It seeks to end the use of
race or sex preferences in these areas, without precluding recruitment and outreach
efforts intended to guarantee all Americans an equal opportunity to participate.
This is a noble and achievable objective.
A wide array of employment and contracting practices throughout the government
rely in one way or another on preferential treatment based on race and/or sex. It
is unlikely that these practices in the various agencies will be significantly altered,
absent a clear legislative mandate to do so. In my considered judgment, race rela-
tions in our country can be materially improved by diminishing the extent to which
federal agencies engage in racial discrimination, albeit on behalf of arguable worthy
objectives. I am not here asserting some unequivocal, "color-blind" ethical absolute;
mine is a prudential judgment, made in light of current political and economic cir-
cumstances. There may have been a time when some of the contract set-asides and
R referential eniployment practices which this legislation aims to eliminate could
ave been justified as reasonable federal policy. But that time has passed.
Permit me now to explain and to expand upon the foregoing remarks.
THE ECONOMIC AND POLITICAL CONTEXT
In any discussion of afTirmative action policies there are several points which, as
a political economist, I would want to stress:
58
(1) Substantial economic difTerences exist between various groups of Americans,
and discrimination against women and minorities continues to occur in the economy.
But, there is no scientific basis for concluding that existing economic differences be-
tween groups are caused by, or reflect the extent of, discrimination. Groups differ
in ways which affect their aggregate incomes, but which are often not taken into
account when the groups are compared. On my review of the evidence, discrimina-
tion is not a major factor in explaining racial economic differences, and federal af-
firmative action policies over the past two decades have contributed only marginally
to the diminution of these differences.
(2) Though historic discrimination has severely impacted blacks in the past, a dra-
matic reduction in the extent of discrimination against blacks has occurred since the
passage of the Civil Rights Act of 1964. The general inyprovement in the overall sta-
tus of black Americans, which started well before the Civil Rights Act, is accounted
for by such fundamental economic factors as higher educational attainment, broad-
based economic growth, increased political power, and beneficial interregional mi-
gration, as well as by the diminished extent of employment discrimination. The rate
of improvement in the relative earnings of blacks has slowed in the last two dec-
ades, possibly due to a slowing of the overall rate of economic growth in the United
States, as well as to the failure for the quality of education available to black young-
sters in large urban areas to improve.
The workforce status of blacks has become similar to that of whites. For example,
labor force participation both groups in the period 1960 to 1989 has followed the
same pattern. Among persons age 16 and over, the percentage of the male popu-
lation either employed or looking for work declined for blacks and whites alike, from
83 to 77 percent for whites, and from 80 to 71 percent for blacks. At the same time,
f)articipation rates rose sharply for women in both groups, from 47 to 59 percent
or blacks, and from 36 to 57 percent for whites. Black workforce participation
among male high school graduates ages 25 to 64 is actually higher than that of com-
parable whites. Virtually all of the racial difTerence in labor force attachment can
De accounted for by the fact that blacks tend to have less schooling. Moreover, while
black unemployment rates have consistently been twice those of whites, black adults
in the U.S. currently experience lower unemployment than is to be observed in any
of the majored industrial economies of Europe.
There is now a huge black American middle class. A Census Bureau study based
on the March 1994 Current Population Survey estimated that about 21 percent of
black families are husband-wife units in which both spouses contribute to the fami-
ly's earnings. These 1.7 million households have a median income of $44,987, 88%
that of comparable white families. (Outside of the South, the median income for
black families of this kind is fully 96% that of comparable whites.) The same study
estimated that in 1993 there were about 400,000 college educated black men and
women working full time as executives, administrators or managers, with the men
earning nearly 90% as much as comparable whites, while the women enjoyed me-
dian earnings 10 percent higher than comparable white women. Indeed, about one
in ten female managerial, professional or technical workers in 1993 were black; for
men that ratio was about one in twenty. The situation of black women is especially
noteworthy when one considers that, as recently as 1960 fully one-third of working
black women were employed as domestic servants.
(3) Despite this long-term upward trend, profoundly troubling racial economic dif-
ferences remain, which warrant the attention of all Americans. The labor market
gains of individuals blacks have not been matched by comparable improvement in
the resources available to families, since the proportion of families headed by
women has risen dramatically among blacks even as individuals' earnings have im-
proved. According to the Census Bureau roughly one-half of all black families in
1994 were female-headed, with a median income just under $12,000 for the year.
Many fewer of white families were female-headed, (some 13 percent), and these
were much better-off (median income of nearly $22,000 per year.) The percentage
of black children residing in single-parent households has risen sharply over the last
generation; poverty rates among black children are disturbingly high.
(4) More generally, what some call an "urban underclass' has emerged in many
cities, where the problems of drugs, criminal violence, educational failure, homeless-
ness and family instability are manifest. Blacks are substantially over represented
in this population. The plight of the inner-city poor is what constitutes the "real"
racial inequality problem today. Although these people are not barely touched by af-
firmative action policies, their severe problems leaas many advocates to insist that
vigorous affirmative action is needed.
This illustrates an important political point. AfTirmative action policies have
sometimes advanced under the pretext of assisting disadvantaged persons when in
fact, by their very nature, their ability to help the genuinely poor is severely limited.
59
Indeed, affirmative action is often a symbolic policy, signalling the nation's commit-
ment to right historic wrongs endured by blacks and women, while remaining di-
vorced from the social and economic context of racial inequality as it actually exists
in our society, thus, when advocates of affirmative action declare that a roll-back
would mean an undoing of "the second Reconstruction," and would usher in an era
of abandonment and repression for its beneficiaries, they are making what seem to
me patently disingenuous claims.
WHAT DOING JUSTICE REQUIRES
Accordingly, a central task in this debate is to correctly identify the ethical im-
peratives facing our national government, given these conflicting claims. There is,
on the one hand, a real and disturbing gap in the average level of economic security
enjoyed by members of different racial groups in our society. On the other hand, the
idea that it is unjust for a government to practice racial discrimination against it
own citizens is also compelling.
Comparing President Clinton's speech on affirmative action last July with any
number of Republican presidential primary campaign statements, a partisan fight
for the moral nigh ground on this qruestion seems inevitable. As the president has
stressed, it is a matter of consideraole significance that only within the last three
decades have black Americans been liberated from the oppressive effects of a deeply
entrenched racial caste system. Seen in this light, affirmative action is but the con-
temporary expression of the same historic commitment to equality that finally ended
Jim Crow. Yet, as critics of affirmative action have observed, the successful attack
on racial segregation led by Martin Luther King, Jr., was rooted in a vision of uni-
versal brotherhood, and the equality of all Americans before God, that remains mor-
ally compelling and deeply relevant. A government which engages in the pref-
erential treatment of some of its citizens to the detriment of others, on the bacia
of race, risks behaving in a manner that is inconsistent with these ideals.
When formal discriminatory barriers against blacks and women were first re-
moved, many people argued, persuasively in my view (for a temporary departure
from the practice of race/sex neutrality, in the interest of "opening doors," and of
developing the competitive capacities of those who previously had been excluded.
However, what was to have been a "temporary" relaixation of principle is by now
affecting the lives and shaping the outlooks of a second generation of American col-
lege students, entrepreneurs, workers and voters. It has become commonplace for
our government to sort people into elaborate racial classifications for the purpose
of distributing public benefits. Some American citizens are presumed by their gov-
ernment to be "disadvantaged," on the basis of nothing more than their skin color.
Not only is there little sign that these practices will soon be abandoned; constitu-
encies have emerged with a strong financial interest in their perpetuation.
These are troubling developments. Due to the success of civil rights advocacy, to
the huge immigration flows from Asia and Latin America, and to the emergence of
an inner-city underclass, group inequality issues are now vastly more complex than
they had been thirty years ago. Racial fairness can never again be solely a matter
of black and white in America. Large numbers of minorities and women have en-
tered the mainstream and no longer require preferential policies, even as those
mired in the poor enclaves of large central cities remain beyond the reach of such
policies. Finally, it is clear from recent survey research findings that an increasing
number of white men perceived themselves to have been unfairly disadvantaged by
affirmative action. Race and sex preferences have thus promoted in the citizenry a
sense of group entitlement and competition, inducing Americans to see one another
not as individuals, but as representatives of this or that social collectivity. This cir-
cumstance, if allowed to persist, will rend the social fabric.
At the same time, economic deprivation in'«o much of black America is a profound
moral issue. Opponents of affirmative action should speak to this issues, concretely
and with conviction, even as they work to bring about the reform of affirmative ac-
tion. Still, it should be emphasized that this problem is scarcely touched by pref-
erential policies. Improving inner-city education, finding work for welfare recipients,
fighting crime, and countering racial discrimination are more crucial to the pursuit
racial justice than is balancing the complexions of those owning businesses which
win federal procurement contracts.
In my judgment, conservatives have a chance to wrest the moral high ground on
the race issue from liberals, but only if they proceed with patience, wisciom and a
spirit of generosity. 'The Negro lives on a lonely island of poverty in the midst of
a cast ocean of material prosperity," said Dr. King in his remarkable 1963 "I Have
a Dream" speech. This is still true, in far too great a measure, and political party
aspiring to lead our country should be allowed to forget it. However, preferential
60
contracting or hiring practices are in no way necessary to formulating an elTective
responses to this moral imp)erative.
HOW BLACKS CAN BENEFIT FROM REFORM
Indeed, as a close student of the social and political trends affecting minority
groups in our society, I am convinced that the long-term interests of African Ameri-
cans will be helped, nor harmed, by a rational reassessment of current preferential
f)olicies. Relying on affirmative action to remedy every instance of differential per-
ormance between racial groups risks undermining the attainment of genuine equal-
ity for blacks. This is particularly so when one considers that the most advantaged
blacks are the persons most often in a position to be helped by preference policies.
At the core of the debate over racial affirmative action lies a paradox: Middle class
blacks seeking equality of status with whites must call attention to their own lim-
ited achievements in order to establish the need for preferences. Meanwhile, elite
white with the power to grant or refuse black demands, by agreeing to employ pref-
erential standards for blacks, implicitly declare that, absent tneir patronage, the at-
tainment of racial diversity in the upper reaches of American society would be im-
possible. The paradox here is that although equality is the goal of the enterprise,
this manifestly is not an exchange among equals, and it never can be.
Middle class blacks who stress that without some special dispensation they cannot
compete with whites are actually flattering the power ol those whites while
confessing their own weakness. White elites who think that blacks' lack of achieve-
ment is due to societal wrongs for which they must make amends are exercising a
condescending noblesse oblige available only to the very powerful. This exchange be-
tween black weakness and white power has become one of the basic paradigms for
race relations in contemporary America. Blacks from privileged backgrounds now
routinely engage in a kind of political jujitsu, mournfully citing the higher success
rates of whites as they advocate on behalf of preferential treatment. That Asians
from models backgrounds often achieve even higher rates of success than more ad-
vantaged blacks is not mentioned; but the inability of these fortunate African-Amer-
icans to make inroads on their own can hardly go unnoticed.
Though it has been little remarked, economic disparities among blacks are actu-
ally greater than those among Americans as a whole. It is beyond serious dispute
that the principal beneficiaries of affirmative action among blacks are the relatively
well-off. Some programs, like the federal procurement contracts set-aside for "dis-
advantaged" businesses, or the preferential admissions policies at elite colleges and
professional schools, distribute their benefits almost exclusively to the richest sector
of black American society. Yet, it strains credulity to argue that the barriers of rac-
ism are now so great that the black son or daughter of two professional parents,
with a family income well above the national average, shoula not be expected to
compete on the merits in whatever venue he or she may choose.
It is also clear that affirmative action for middle class blacks sometimes engen-
ders doubt about the qualifications of the persons who benefit from it. If it is com-
mon knowledge that a lower standard is used to select black workers, then cus-
tomers, co-workers, and others will rationally anticipate a lower performance from
those they know to have been preferred in the process of selection. Moreover, affirm-
ative action sometimes leaves its beneficiaries uncertain about the basis of their
own accomplishments. Blacks promoted to positions of unusual responsibility in in-
stitutions which employ racial preferences often ask themselves whether they would
have been offered the position if they were not black.
The potentially insidious effect of*^ preferential policies is refiected in the fact that
some of the most talented members of beneficiary groups can be heard to declare
that, but for affirmative action, they would have achieved little. In order to defend
such programs in the political arena, it becomes necessary to argue that blacks can-
not succeed in America without the benefit of race-conscious policies. When exam-
ined closely, this entails the virtual admission that blacks are unable to perform up
to the white standard. Ultimately, this way of thinking can be destructive of black
self-esteem. Advocates think that, by exhibiting the lack of achievement among
blacks, the case for retaining this policy will be strengthened. As the current politi-
cal climate clearly demonstrates, this need not be so.
Finally, preferential treatment can lead to the "patronization" of black workers
and students, by which I mean setting a lower standard of expected accomplishment
for blacks than for whites, because of the belief that blacks are not as capable. Else-
where [see Steven Coate and Glenn Loury, "Will Affirmative Action Policies Elimi-
nate Negative Stereotypes," American Economic Review, December 1993J, I have
demonstrated that behavior like this can become a "self-fulfilling prophesy." That
is, performance among blacks may be lower precisely because they face lower stand-
61
ards, while this patronizing behavior in employment or admissions is undertaken
in order to meet affirmative action guidelines.
To illustrate, consider a population of students applying for admission to profes-
sional schools. The schools, due to a concern for diversity, are eager to admit a cer-
tain percentage of blacks. They believe that in order to do so they must accept black
applicants witn test scores and grades below those of some whites whom they reject.
If most of the better schools follow this policy, the message sent out to black stu-
dents is that the level of performance needed to gain admission (B average and 60th
percentile on admissions tests, say) is lower than that which white students know
they must attain (A-average and 90th percentile on admission test, for example.)
The result of this differential treatment of students could be that blacks and whites
adapt to the respective achievement levels required of them. In this way, the
schools' belief that difTerent admissions standards were necessary in the first place
has become a self-fulling prophecy.
What makes this example work is that the schools' desire to see greater black rep-
resentation is pursued by using different criteria for the admission of black and
white candidates, while the use of different criteria reduces the incentives which
blacks have for developing needed skills. This argument does not presume that
blacks are inherently less capable than whites; it is based on the fact that a person's
need to make use of his abilities is undermined when he is patronized by an em-
ployer, or an admissions committee.
tiiis problem could be avoided if, instead of using preferential criteria of selection,
the employers and schools in question sought to increase black participation through
a concerted effort to enhance the performance of black workers or students, while
maintaining common standards of evaluation. (This is a key feature of the success-
ful practice of affirmative action in the Army, as I understand it.) Such a targeted
effort at p>erformance enhancement presumes a direct concern about racial inequal-
ity and may involves creating programs which disproportionately benefit blacks.
Vmat distinguishes it from racial preferences, though, is that it takes the fact of ra-
cial performance disparity seriously, and seeks to reverse this disparity directly,
rather than to hide from it behind the use of difTerent standards wnen evaluating
the performance of blacks and whites.
WHY RACIAL INEQUALITY SHOULD BE A MATTER OF PUBUC CONCERN
Having argued that affirmative action has its problems, I want now to stress that
some kind of action, targeted to help the black poor, is essential to the attainment
of social justice. To reject preferential policies is not to adopt a "color-blind" posture,
in which inequality between racial groups as such is of no particular significance.
We must not forget that a history of slavery, and a post-slavery legacy of racial
caste, is what made group inequality a matter of public concern in America in the
first place. As a result, blacks have historically constituted a distinct, marginal seg-
ment of our society, and have suffered severe disadvantages in comparison to others
in the endowments of wealth, experience, culture and reputation so crucial to eco-
nomic success. Now, for as long as one can foresee, and without regard to legal pro-
hibitions against discrimination, we can be confident that discrimination in choice
of social aniliation will continue to occur partly along racial group lines. The pro-
found social isolation of the urban underclass clearly illustrates this. Yet, such social
discrimination guarantees continuing inequality of economic opportunity.
As people choose whom to befriend, whom to marry, where to live, with whom to
go into business, to which schools to send their children, and often (to the extent
they can exert influence on this decision) whom their children will wed, race is an
undeniably important factor affecting these judgments. Various groups of Americans
are tied together in numerous ways, by ethnicity, culture, class, geography, etc.
These networks influence the resources available to an individual to develop his pro-
ductive capacities. The cultural milieu in which a person grows-up shapes his atti-
tudes, values, and beliefs which are crucial for the development of economically rel-
evant skills. In short, one's position in the network of social affiliation has a sub-
stantial impact on one's lifetime economic prospects. To be born black and poor in
America often means to be born with a deficit of the nurturing affiliations which
are essential for creating meaningful opportunity in our society.
The meritocratic ideal— that in a free society individuals should be allowed to rise
to the level justified by their competence — conflicts with the simple observation that
no one travels that road alone. In a race-conscious society like our own, those with
whom one travels will often be drawn from one's own ethnic or racial group. Thus,
even as we work to assure nondiscrimination in formal economic transactions by the
extensive enforcement of civil rights laws, it remains the case that the economic
achievements of any individual only partly reflect his intrinsic capabilities. Given
23-805 0-96
62
our history, and in light of the continuing patterns of social identity that character-
ize American society at the end of the twentieth century, we must acknowledge that
race plays a crucial role. De jure color-blindness is not at all the same thing as de
facto color-blindness. With such an obvious legacy of past injustice, would it not fool-
hardy (and also immoral) to limit a reconsideration of the demands of racial justice
to enumerating the inadequacies of affirmative action?
For this reason, it is proper that a government would be especially concerned
about pronounced racial inequality of the sort we see in American cities. Such in-
equality is at least in part the product of an unjust history, propagated across the
generations in part by the segmented social structure of our race-conscious society.
Even after affirmative action policies have been drastically changed, there will re-
main a need for some policy whose principal aim is to narrow the racial economic
gap, as manifest by the over-representation of blacks at the lowest levels in our soci-
ety. The eventual attainment of meaningful equality of opportunity for all of our
citizens requires this, since the current disparity, among individuals and groups, af-
fects the opportunities available to future generations.
The foregoing may be reminiscent of tne familiar "legacy of slavery" argument
often made to justify affirmative action, but it is really quite different. The distinc-
tion is that between a concern with racial disparity, and an endorsement of pref-
erential hiring, admissions and contracting policies as remedy for that disparity. I
am convinced that direct efTorts, both private and public, aimed at breaking the
cycle of deprivation and the limited development oi human potential among the
black and other minority poor is the only serious method of addressing the racial
inequality problem in the long run. And while such intervention — to promote be-
tween education, housing and jobs in our cities — may disproportionately benefit
blacks, it would help all poor Americans. One thing is for sure, it is not what the
advocates mean when they call for "alBrmative action."
BLACK DIGNITY AND THE COMMON GOOD
Thus, while I believe that racial disparities on the scale now to be observed in
our cities are unjust and dangerous to the nation's political health, I am also con-
vinced that racial preferences in hiring, education and contracting do not provide
a solution for this problem. Affirmative action is a politically divisive policy no
longer able to secure public support when openly advocated. The evidence on this
Point is overwhelming. In their recent study The Scar of Race, survey researchers
aul Sniderman and Thomas Piazza found that "merely (mentioning) the issue of
affirmative action (to whites) increases significantly to the likelihood that they will
perceive blacks as irresponsible." White men voted in favor of Republican Congres-
sional candidates over Democrats by a margin of almost two-to-one. Among the
many explanations of this result, resentment of race and sex-based preferences
would have to figure prominently.
Complaints about reverse discrimination," long thought of by alTirmative action
advocates as an annoying, reactionary expressions of distaste for the noble goal of
civil ri^ts, can now be seen for what they really are — expressions of the cost to
American society of the reification of race. Ignored for a quarter-century by legisla-
tures and courts around the nation, these costs have now found their way into our
public, political discourse with unpredictable efTorts.
Consider, for example. The Bell Curve, the 1994 book in which Richard Herrnstein
and Charles Murray discuss, among other things, the large average difference in the
IQ scores of blacks and whites, suggesting that much of this difierence is fixed by
genetic factors. While these authors have been sharply criticized for making sucn
a big deal of this fact, they can claim with cause that they are merely responding
to the Zeitgeist by ofTering their statistics in terms of racial categories that have al-
ready been established by the advocates of social equity. They can say, in effect:
"Counting by race wasn't our idea; but now that you've mentioned it, let's take a
look at all of the numbers!"
Hence, the question now on the floor, in the minds of blacks as well as whites,
is whether blacks are capable of gaining equal status, given equality of opportunity.
It is a peculiar mind which fails, in light of American history, to fathom how poison-
ous a question this is for our democracy. While it is my uneauivocal belief that
blacks are, indeed, so capable, to assert this is to state a hypotnesis, or an axiom,
not a fact. Some conservatives are not above signalling their belief that blacks can
never pass this test; some liberals would seem to agree with this premise, arguing
in effect that blacks are doomed to lag behind whites without tne help of pref-
erential treatment. Both views are terribly destructive of the public dignity of black
Americans, and of the prosjxjct that blacks might achieve a genuine equality of citi-
zenship within this republic.
63
More than a century ago, Booker T. Washington spoke with considerable insight
about the fundamental challenge of "self-emancipation" facing black Americans
when he argues:
It is a mistake to assume that the Negro, who had been a slave for two
hundred and fifty years, gained his freedom by the signing, on a certain
date, of a certain paper by the President of the United States. It is a mis-
take to assume that one man can, in any true sense, give freedom to an-
other. Freedom, in the larger and higher sense every man must gain for
himself.
This observation has great relevance today. If it is true as I believe it to be, that
black under- representation in so many sectors of American society is mainly the re-
sult not of racial discrimination, or of inherent incapacity, but of the under-develop-
ment of the productive abilities of young black men and women, then we cannot ex-
pect affirmative action policies to solve tnis problem for us. To paraphrase Washing-
ton, equality in its larger and higher sense African Americans must gain for our-
selves.
Mr. Canady. Thank you, Mr. Loury.
I want to thank each of the members of this panel. I think all
of you submitted and have presented excellent testimony which
will be very helpful to the subcommittee in its deliberations on this
bill.
I would like to ask those of you who spoke in favor of the bill
if there are any specific suggestions that you would make for
changes in the bill, if there are any problem areas that you see,
ways that the bill could be refined or improved, any of those of you
who spoke in favor of it. Mr. Bolick, do you have any comments?
Mr. Bolick. I did mention that I thought that the committee
ought to examine whether the scope of this antidiscrimination law
should be extended as other antidiscrimination laws currently
apply to recipients of Federal funds. On my own personal wish list
I would love to see this committee invoke its enforcement authority
under the 14th amendment to extend its provisions to State and
local governments as well. But given that this is an ambitious bill
now as it is constituted, I think that you've done an awfully good
job in drafting it.
I would like to attach myself to Professor Loury's comments that
this is not a bill in isolation; this cannot be a bill in isolation, and
I'm glad that there are other efforts in other committees to address
many of the concerns that Professor Loury raises.
Mr. Canady. Professor Cohen.
Mr. Cohen. Mr. Canady, I have no wisdom in the framing of leg-
islation, but I would observe with interest — it's worthy of empha-
sis— that the bill as it stands does not use the phrase "affirmative
action," as, indeed, it ought not. Is there a way in which you can
in your wisdom make it clearer to those who act upon the bill that
we are not acting upon affirmative action, but upon preference
given by race or sex?
Ms. Greenberger, for example, makes it clear that she opposes
preference by sex, does not want preference by sex. Good for her
and her organization. I'm sure that she will support this bill when
she understands it fully. [Laughter.]
Ms. Greenberger. I think I understand it fully and I don't sup-
port the bill].
Mr. Canady. Well, Professor Cohen, I think you've put your fin-
ger on a major issue here, and this is about the way language is
used and misused, and we can have an honest debate about the ap-
64
propriate use of terms, but I found it very interesting the way dis-
crimination is described, and the concept of discrimination that is
utihzed by some folks in this debate is alien to my understanding
of discrimination as a concept that means we shouldn't treat people
differently because of their race or gender. It's pretty simple. I
mean, it's not a complicated concept, but we see all these things
being spun out about what discrimination is, and it's only — you're
only discriminating if the people that are the subject of the dis-
crimination are within a certain category or class. I think that's an
example of the way this debate has gone on, and we're going to
work to try to bring clarity.
I respect those who say that we must take race into account to
overcome racism or we must discriminate to overcome discrimina-
tion. I don't agree with them. I think that they are wrong in that,
but I respect the honesty of saying we must discriminate in order
to make up for discrimination. But, unfortunately, in this debate
we don't see much of that forthrightness in defense of the status
quo.
Mr. Cohen. Mr. Canady, may I also observe, the bill makes it
clear that it is not only quotas, but goals and timetables and the
like, that will be excluded. And may I urge you, sir, and members
of the committee, in your further deliberations upon the bill, not
to withdraw that extension of the concept of preference because, of
course, in practice, as every reasonable person knows from experi-
ence in universities and in agencies around the country, where
there are not quotas, but there are goals and preferences, there are
quotas in effect, and it is simply not true to say that, absent quotas
but with goals and timetables, there will be no preference. That is
not true to the reality of our circumstance. I'm sure you understand
that, and I would urge you not to back up on that point.
Mr. Canady. Thank you.
Professor Loury.
Mr. Loury. Yes, I just want to say one thing, and that's some-
what prompted by Professor Cohen because I don't think I entirely
agree with him on this point. I understand that this is a delicate
point, and it's something that I have thought about as an academic,
and I warn you in that respect, but I still think my reflection might
be worthwhile here.
Look, there's a problem in enforcing laws against discrimination
when you can't observe every single transaction and monitor every
single act by an employer interacting with the work force to see
whether or not the employer may be discriminating in this or that
case. This problem is in any law enforcement enterprise. It's a
problem in antitrust law. If I want to know whether or not the
Microsoft Corp. is conducting its affairs in such a way as to monop-
olize the industry, I can't solely rely upon the blatant instance of
catching them engaged with a memorandum
Mr. Canady. My time has expired. With unanimous consent, I'll
give myself 1 additional minute.
Mr. Loury. OK, thank you, because I'll be brief
Similarly here, the idea that one might monitor numerically the
employment of a work force and that an employer, recognizing his-
torically that there may have been some problems, might continue
65
that monitoring, is not in and of itself necessarily a preference. So
I agree with Mr. Payton on that.
However, there is this problem: once you open that window a lit-
tle bit — this is what Mr. Bolick was saying — a bureaucrat who is
bent on engaging in preference may exploit that loophole. So this
becomes a dilemma, but I just want to weigh in to a certain degree
that I believe is a matter of logic the existence of numbers that are
being monitored, and of an employer who looks at those numbers
and says, "Are we making progress?" — doesn't have to constitute a
preference, and may be necessary as a pragmatic matter to actually
enforcing laws against discrimination, in my judgment.
Mr. Canady. Trjank you. Thank you, Professor Loury.
Mr. Frank.
Mr. Frank. I'm sure, Mr. Payton and Ms. Greenberger, he would
have gotten to you if he had had 12 more minutes to ask.
Mr. Bolick, I noticed you said you would like this to cover States
and local governments as well, which confirms my view that the
preference for States' rights from some of my conservative friends
is a transitory kind of thing. But just to confirm, the adoption case
you mentioned, that's purely a State matter? It has no Federal
legal mandate there?
Mr. Bolick. I'm glad you raised that, Mr. Frank. The case actu-
ally is ongoing. The
Mr. Frank. No, no, just answer the question. We have-
Mr. Bolick. It is a case brought under Federal constitutional
law.
Mr. Frank. Right, but the policy involved is State policy?
Mr. Bolick. That's correct.
Mr. Frank. There was no Federal mandate that they do that?
Mr. Bolick. That's correct.
Mr. Frank. OK, thank you. So we ought to be very clear because
I think it's important to know — obviously, proponents of this bill
would like to come up with horror stories, and Mr. Bolick's horror
story is one that is unrelated to the statute. It was not driven by
Federal policy. It was a matter of Texas policy. Sometimes those
Texans get out of hand. [Laughter.]
There's not a lot I can do about it, but we should be clear that
nothing in that example was compelled by any Federal policy.
Professor Loury, let me turn to you because I appreciate your
talking about goals, and I think that's one of the critical things. I
mean, Adarand has clearly said, in my judgment, fixed quotas are
out, but the question is goals.
And Professor Cohen said, and as you've said and others have
said, well, if you have numbers in there, ill-intentioned bureaucrats
or perhaps mistakingly well-intentioned bureaucrats will overuse
them, but that's one of the reasons some of us want goals, because
we have the other problem. We've all acknowledged, every single
person in this room has acknowledged, that prejudice, sadly, is still
a factor in American life. And what some of us feel is that, since
it's hard to read people's minds and put that on the witness stand,
if you don't have some sophisticated enforcement tools, sophisti-
cated bigots can get away with things.
So let me ask you, because I also appreciate your point about the
upper middle class beneficiaries not being particularly worthy, but,
66
for instance, at the Federal level one of the most important areas
where we've had affirmative action, according to, for instance, Gen-
eral Powell, is in the military. Now I'm reading from the regula-
tions for the military which were promulgated in 1988 under Presi-
dent Reagan and continued, presided over by General Powell; Gen-
eral Powell has talked about them. Actually, there's one subsection
I won't ask you to comment on which says, "establish DOD SEP's
to the FWPH, EPH, IPA, EPA, EIP, and BEP." [Laughter.!
We'll get to that. That's in military talk. We'll get to that one
later. [Laughter.]
But let's talk about (a)(6) here: "insure that realistic goals that
provide for significant continuing increases in the percentages," et
cetera, are set. This legislation would outlaw that policy for the
military. Clearly, we're not talking about upper middle class people
being the beneficiaries. Would you want the law to go ahead with
that in there or should we try and alter it?
Mr. LouRY. Well, if I were persuaded that the military would not
be able to carry on its very exemplary efforts at bringing blacks
into not just the noncommissioned officers, but also into the officer
ranks up to the rank of general, they would not be able to, for ex-
ample, continue with their programs of development of the skills
of military personnel through the special skills training program
and activities that they engage in, I would be concerned. I think
that would be a matter that would warrant closer investigation,
but I don't have any reason to think that this legislation would pre-
clude that.
Mr. Frank. But it would preclude the use of goals. Let me say
the problem
Mr. LouRY. Well, the-
Mr. Frank. Let me finish; let me respond again to what you're
saying for this reason: my sense is that, if I'm in the military, I
am thinking — I know just because I say it, it doesn't mean it hap-
pens, and there are people who are prejudiced in various ways who
are in the military. There are people who aren't. There are people
who lean over backwards. I want to set goals because, if I don't set
goals — they're not quotas; nobody's going to get fired if they don't
make them, but if I don't have a way to measure, if I can't compare
this captain to that captain, this general to that general, I can't ef-
fectively implement my management strategy.
Mr. LouRY. Well, see, that's the question, and if — and I just,
frankly, don't know enough about what is implied in the legislation
because it's not written, as far as I can tell
Mr. Frank. Well, let me be very clear.
Mr. Loury. Well, just let me make this point.
Mr. Frank. No. I mean, to make your point, let me respond.
Have this in mind: the legislation makes that illegal. The legisla-
tion is not ambiguous on this point. The Federal (government could
not, any part of it, the military, ensure that realistic goals are set.
That would be explicitly made illegal.
Mr. Loury. OK, I'm going to answer your question from my point
of view. If what the Army wants to do, which is to say to two cap-
tains who are being evaluated for promotion, that give them an
equal opportunity measure as a part of their evaluation for per-
67
formance and rank, that being outlawed by this legislation, I think
that would be a problem, yes.
Mr. Frank. Yes, well, it clearly would be outlawed because that
would be a preference.
Ms. Greenberger, let me ask you — you had raised this with me
before. On page 5, when we talk about new — I would ask for the
same minute you got, Mr. Chairman, a minute and a half.
Mr. Canady. The gentleman will have a minute, a generous
minute.
Mr. Frank. Because he didn't put it on for 30 seconds.
On page 5, it adds to the exceptions against sex discrimination.
In other words, you've got privacy in combat, but then there's one
about national security. I'm wondering what you think, other than
privacy or in the military context what's the national security jus-
tification for sex discrimination?
Ms. Greenberger. I don't know, and it doesn't even say it has
to be required by national security or anything. It just says it has
to be close
Mr. Frank. In the interest of.
Ms. Greenberger. In the interest of. I don't have any idea what
"in the interest of means, let alone
Mr. Frank. Would you say
Ms. Greenberger [continuing]. What national security means in
an employment context or in an educational context.
Mr. Frank. Well, I don't know, maybe the CIA wants to hire fe-
male psychics instead of male psychics on the grounds that they
don't [Laughter.]
Ms. Greenberger. I don't — I've never seen a thing like this in
any piece of employment discrimination or education discrimina-
tion legislation. So it's just a brandnew
Mr. Frank. Well, we ought to be clear. This is not an
antiaffirmative action thing. This is a further carveout, I am cor-
rect, because you're an expert in sex discrimination law, this is a
new set of exceptions other than privacy and other than the mili-
tary, and it says — it's quite broad: "the occupancy of the position
for which any part of the duties of such position is performed or
is to be performed is subject to any requirement imposed in the in-
terest of the national security of the United States."
Ms. Greenberger. I don't have any idea. I don't know what "de-
sign to protect privacy of individuals" means. And I just want to
say real fast
Mr. Canady. Well, I'm sorry, the gentleman's time has expired,
and we'll come back to you.
Ms. Greenberger. OK.
Mr. Canady. We'll have plenty of time here.
Mr. Hyde.
Mr. Hyde. I have no questions.
Mr. Canady. Yes, the gentleman from North Carolina, Mr. Watt.
Mr. Watt. I'm almost tempted to follow Representative Hyde's,
Chairman Hyde's lead, but I find myself very fascinated. You prob-
ably saw my body language sit back on Mr. Cohen's testimony, on
Mr. Payton's testimony, on Mr. Bolick's testimony, on Ms.
Greenberger's testimony. I started sitting forward; I was fascinated
by this gentleman on tne end here, and I'm fascinated by your tes-
68
timony, and I guess I've been fascinated by other folks, too. Please
don't take this personally. I'm — it is not intended to be.
But I heard you say that you think we should walk ourselves out
of this over time. I think that — maybe I'm misquoting you.
Mr. LOURY. That's right.
Mr. Watt. You did say we should walk ourselves out of this over
time?
Mr. LouRY. That was my metaphor, yes.
Mr. Watt. I thought that's — I thought that's what I heard. This
doesn't have anything to do with this particular legislation, but I
assume if we took it as Mr. Bolick has suggested that he would like
to see us do and write it into something that extends beyond this —
this is a broader philosophical discussion that we're having here.
And I'm just — I want to carry this out, this process out, as to what
period oi time you would have us walk ourselves out of this. And
I want to apply it to the circumstance that I probably know the
most about, which is congressional redistricting.
In North Carolina we have 22 percent of the population that's
black. We also have 30 percent of the population, white population,
that when they are polled privately, will tell you that under no cir-
cumstances will they vote for a black individual for Congress or
any elective office, for that matter. And I got so fascinated because
we have this similar background. I mean, I'm a Yale Law School
graduate, and I consider myself capable, as you so adequately said,
but I tried to run this through in my head, this 30 percent of the
white population in North Carolina that says they won't vote for
me.
Now if I put myself in a majority white congressional district,
which is — what is that — 78-percent white and 22-percent black, the
percent of white folks who say under no circumstances will they
consider voting for me, regardless of how many Yale Law Schools
I went to, how qualified I am, whatever, and I take them into ac-
count, I've run the numbers and I'll be happy to share them with
you. In order for me to win an election to Congress, I must get at
least 60 percent of the remainder of the white population and I
must get about 98 percent of the black population to vote for me.
So just factor that 30 percent out, the ones that you say under
no circumstance will vote for me
Mr. LouRY. I didn't say that.
Mr. Watt. I mean, you know, I'm saying that. They say it. I
didn't say it. They said it.
At what point would you consider it appropriate to then take
race into account in the drawing of a congressional district
Mr. Canady. The gentleman's time
Mr. Watt [continuing]. Or would you
Mr. Canady. The gentleman's time has expired. The gentleman
will have an additional minute.
Mr. Watt [continuingl. Or would you just wait, walk with those
30 percent of the population? How long
Mr. LouRY. I appreciate the question, Congressman-
Mr. Watt [continuing]. Do you want me to walk with them?
Mr. LouRY. Let me answer it, please. I think what's wrong with
your question is that you
69
Mr. Watt. I don't want to know what's wrong with my question.
I want to know how long you want me to walk with these people.
Mr. LouRY. What I want to say in response, Congressman, is
that if you had asked black voters in Alabama in the late 1960's
would they vote for George Wallace, they would have said no, but,
in fact, a good number of them ended up voting for George Wallace,
and that's because
Mr. Watt. Mr. Loury
Mr. Loury [continuing]. That is because
Mr. Watt [continuing]. I appreciate — I appreciate your response.
Mr. Loury. That's because George Wallace
Mr. Watt. I'm not talking about Alabama. I'm talking about
North Carolina.
Mr. Loury [continuing]. Ran on a platform that appealed to their
interest.
Mr. Watt. And I want to know
Mr. Loury. And in a similar way
Mr. Watt [continuing]. How long you want me to walk with
these
Mr. Loury [continuing]. Harvey Gant came within a hair's
breadth of getting elected
Mr. Canady. I'm sorry, the gentleman's time has expired. Mr.
Inglis?
Mr. Inglis. I'd be very interested in having you continue your re-
sponse. Take a couple of minutes and
Mr. Loury. I appreciate the opportunity. I just wanted to say
this: look, Harvey Gant came very close
Mr. Watt. He lost, Mr. Loury. Get over it. He lost.
Mr. Loury [continuing]. To winning, and the reason
Mr. Canady. The gentleman — excuse me.
Mr. Loury [continuing]. Is an arguable case
Mr. Canady. Please, excuse me.
Mr. Loury. Yes.
Mr. Canady. The gentleman from North Carolina is out of order.
The time is controlled by the gentleman from South Carolina. So
I would appreciate the gentleman from
Mr. Watt. Would the gentleman from South Carolina yield to
me?
Mr. Canady. I think the gentleman from South Carolina has
yielded, has
Mr. Watt. Well, he's yielded time for him to answer my question,
and he's still not answering my question.
Mr. Canady. Well, the gentleman from North Carolina has had
his time, and the gentleman will suspend.
Mr. Watt. I thank the chairman. I apologize to the chairman. I
apologize to the gentleman from South Carolina. I apologize to Pro-
fessor Loury, and I ask unanimous consent the gentleman be given
an additional minute.
Mr. Canady. Without objection.
Mr. Loury. Well, yes, these are very sensitive matters, and, as
I said, I don't take any pleasure. This is not fun. If it looks like
I'm having a good time, I'm not.
But, look, can blacks and whites cooperate politically in this
country? If the answer to that is no, we're really in trouble.
70
In Boston we had a fight over busing. It was a terrible fight. I'm
not going to take a position on busing. I certainly want to observe
this: walk the streets of Boston. The people who live in Dorchester
and Roxbury are no different from the people who live in South
Boston. They've got the same problems. The economy is kicking
them in the butt. They're worried about how their kids are going
to get educated. These people have a lot in common. All right? Can
they be brought to see that their interests are in common? I'm not
sure what the answer is, but I know it's impossible when you di-
vide them by race and you create constituencies on the basis of
race; that makes it very difficult.
What I wanted to say was that I believe the development of an
Afi-ican-American political sensibility and expression which appeals
to whites is possible, and I believe there's plenty of evidence for it
at the State and local level, as well as at the Federal level; for ex-
ample, in the person of General Powell. I do not believe the an-
swers that people give to survey-takers about who they will or will
not vote for should be regarded as etched in stone, and I believe
there's plenty of historical evidence. I offered the case of George
Wallace as a case in point.
What kind of campaign are we going to run? What kind of allies
are we going to have? What kind of interests are we going to try
to appeal to? These things are themselves the product of the way
in which district lines are drawn and the way in which the ques-
tion is framed.
It's my view — that's why I'm here to testify, to give my view —
that our country is hurt to the extent that we lock ourselves in,
and that it is possible for us to get ourselves out of the strictly ra-
cially-based definition of our interest as citizens.
Thank you for the opportunity, Mr. Inglis.
Mr. Inglis. I thank you for that answer.
You might want to comment on this, too. I've got the same prob-
lem Mr. Watt has. There's 30 percent of the people in South Caro-
lina who won't for me under any circumstances. They happen to
be
Mr. Watt. But not because you're white.
Mr. Inglis. They happen to be Democrats.
Mr. Watt. But not because you're white.
Mr. Inglis. So — well, I don't know; it could be. It could be.
[Laughter.]
Thirty percent of South Carolina, if you took a poll right now
Mr. Watt. No
Mr. Inglis. Wait a minute. Wait a minute. Let me ask you
Mr. Watt. Will the gentleman yield just for a second?
Mr. Inglis. I may yield in a second, but I want to see if there's
any response down here.
There's 30 percent of South Carolinians who would say in a poll
right now they would not vote for Bob Inglis no matter what be-
cause he's a Republican.
Mr. Watt. Would the gentleman yield?
Mr. Inglis. Now if, without any — I think you can say statistically
that those people are Democrats.
Mr. Watt. Will the gentleman yield?
71
Mr. Inglis. They are people that vote Democrat no matter what.
So, therefore, I have the same problem you've got. I start with the
proposition that in order to win in a statewide situation, you have
to get exactly the numbers you just described. So now does that
mean that — I just wonder, and Professor Loury may want to ad-
dress this, is that
Mr. Watt. I'm happy to have him address it. I'd just like to clar-
ify the circumstances
Mr. Inglis. Wait a minute. Let me-
Mr. Watt [continuing]. Just for one little minor fact.
Mr. Inglis. I'll yield to the gentleman just briefly, 30 seconds, be-
cause I really would like to hear what Professor Loury has to say
about that.
Mr. Watt. Understand that the only reason I used myself is be-
cause I was trying to get into his example. This is not about me
and you. This is about black and white, and the question is not
whether they vote for Bob Inglis
Mr. Canady. The gentleman's time has expired. The gentleman
will have one additional minute.
Mr. Watt. I ask unanimous consent he be given whatever time
I'm taking from him. [Laughter.]
Mr. Canady. He has 1 additional minute. [Laughter.]
Mr. Inglis. I don't think I'm getting much more than 1 minute.
Mr. Watt. It's not about whether they'll vote for Mel Watt or
Bob Inglis; it's about whether they will vote for any black can-
didate, any white candidate. That's the question. It's not Bob
Inglis/Mel Watt.
Mr. Inglis. OK, then reclaiming my time, let me phrase it. We
could do a similar poll. We could find the answer that you're look-
ing for, and that is, will you vote for a Republican? Thirty percent
will say, no, under no circumstances.
Mr. Watt. It's not partisan. It's not partisan. I'm talking about
race.
Mr, Inglis. Yes, but what I'm telling you is
Mr. Watt. This hearing is about race. Bob.
Mr. Inglis. Yes, but, therefore — I don't have any time left, I
guess. I was going to ask the panel to see if they've got any re-
sponse about now we should draw, how we should take that into
account, that I am — that I should have some means of overcoming
that problem.
Mr. Frank. Would the gentleman yield?
Mr. Inglis. I think my time is up, Mr. Frank, but
Mr. Frank. Are you equating someone voting against you be-
cause of your ideology with someone voting against you because of
your race? That's what troubles us. You appear to be equating
those.
Mr. Watt. I can't change my race, unfortunately or fortu-
nately
Mr. Canady. I'm sorry, the gentleman's-
Mr. Watt [continuing]. Or whatever the-
Mr. Canady. The gentleman's time has expired. Mr. Conyers.
Mr. Conyers. Thank you.
Within 5 minutes I can't begin to deal with Professor Loury's
mistaken interpretation which he is free and was invited to come
72
here and present. I will leave Mr. Loury to the tender mercies, as
he called them, of his family, neighbors, people you grew up with,
and everybody else — [Laugnter] — and offer to meet with him in
some other forum.
I'm more interested in the other professor who lives closer to me,
a tenured professor at the University of Michigan, a philosopher
who is very dramatic, and very exciting. I presume that he teaches
the philosophy of racial preference. Do you?
Mr. Cohen. You assume that I teach what, sir? I didn't hear, sir.
Mr. CoNYERS. What do you teach at the University of Michigan?
Mr. Cohen. I teach ethics and moral philosophy, and political
philosophy at the University of Michigan.
Mr. CoNYERS. Political philosophy?
Mr. Cohen. Yes, sir.
Mr. Conyers. Arid that is what has led you into this subject mat-
ter on which you have written so extensively?
Mr. Cohen. Yes, sir, I
Mr. Conyers. Or is it?
Mr. Cohen. Yes, sir, I have done a good deal of work in the phi-
losophy of democracy and issues concerning equality and the like
which bear upon race in our society; yes, sir.
Mr. Conyers. Well, it's very interesting. I like the subject of phi-
losophy, and we've never had a philosophy professor expound on
this subject before. I tried to obtain your book, "Naked Racial Pref-
erence." The Library of Congress didn't have it available yet, but
it was reviewed and this is what I read "Professor Cohen accom-
panies his argument with the far more questionable proposition
that preferential affirmative action is nearly out of control. Cohen's
evidence for this assertion is purely anecdotal and highly suspect,
indeed." The reviewer goes on in great detail.
I suspect that this is right because, you deal with words and se-
mantics more than most of us, and although you claim not to be
legally inclined, you've analyzed more Supreme Court cases pub-
licly than most lawyers ever have, and you keep using the term
"racial preference" instead of "affirmative action." Do you see. Pro-
fessor Cohen, that there may be not as you referred to in the past,
but we've got some problems right now, serious problems, about ra-
cial discrimination which, while if we followed this newly-found
civil rights advocate that chairs the subcommittee admonition that
we just rip this root out of the Federal legislation, what do you on
earth propose to replace it with? How on earth do you propose to
deal with this massive, in some sense worsening, problem that
brings you here merely to tell us what to root out of the law as a
philosopher?
Mr. Cohen. Congressman Conyers, I'm sure you will not expect
me, as a witness on this occasion, to provide for you solutions to
the major problems of the Nation, but
Mr. Conyers. Well, if you don't have an answer to that, we'll go
on to something else.
Mr. Cohen. I do think that it is seriously possible for us to en-
gage in an active effort to be fair, to treat people equally.
Mr. Conyers. By what means? By what means, sir?
Mr. Cohen. I think that the time for equal treatment is now, and
I think we can do that.
73
Mr. CoNYERS. By what means, sir?
Mr. Cohen. I think we can ehminate — if I may answer your
question, sir? I think we can eliminate discriminatory practices
without giving preference by race or sex. It's only preference by
race or sex, naked racial preference
Mr. CoNYERS. But by what means, sir?
Mr. Cohen [continuing]. That we object to.
Mr. Conyers. I guess you're not hearing me. I understand; you
said that very well. You've written it very w^ll. But by what means
do we go about doing that?
Mr. Canady. The gentleman's time has expired. The gentleman
will have 1 additional minute.
Mr. Conyers. Do you propose that we merely articulate that we
should be good citizens and that we should move away from the
past? For God's sake, man, that's what we do all the time in the
country, the President, the Congressmen, you, citizens here. But
you need a little bit more than that. Of course, it's your right as
a witness to tell me you didn't come here to give me an answer
about my question, but you sure came a long way to give me an
answer about how we ought to change the Federal law on this sub-
ject. You thought long and hard about that one little part, but "the
answer to the problem. Congressman, of all this racism, that's your
job."
Thank you very much. I happen to know that, and I'll yield to
Mr. Payton, if he seeks recognition.
Mr. Payton. Can I have about 30 seconds here?
Mr. Canady. Yes. [Laughter.]
Mr. Payton. I would actually like to put this into context.
Mr. Canady. Thirty seconds.
Mr. Payton. Just 30 seconds.
Mr. Canady, Not much time for context. [Laughter.]
Mr. Payton. Well, the context really is that we are in a state of
flux right now because of what the Supreme Court did, and part
of this debate has proceeded as though today's status quo is 1 year
ago's status quo. It is not. Right now all of these programs that
you're talking about that people are objecting to are going to be
subjected to a new set of rules that the Supreme Court has set for-
ward, set forth. And that is a completely different context, and I
think it is dangerous to now have a discussion about something
that is now under review, and we don't know exactly what this
state of flux will yield.
Mr. Canady. Mr. Flanagan.
Mr. Flanagan. Thank you, Mr. Chairman.
Mr. Payton, let me say, first, this has been an enlightening
panel. This subcommittee has a tendency to bring in true experts
in any given field to expound profoundly on various subjects, and
it's easy, as Mr. Watt has done and as I have done in the past, to
leave tne subject and go to other things because of the assemblage
of the wisdom and, learning in front of us, but I will stay to the sub-
ject today.
Mr. Payton, you had a remarkable quote which I enjoyed im-
mensely about the danger of mistaking progress for victory. That's
a terrific and very catchy line. And what I would ask from you in
the context of the Crosen decision, the latest Supreme Court pro-
74
nouncement on this, which I read not as mandatory, but permissive
language insofar as numerically-based preferences: how can we get
to victory without the egregiousness — I'm basically asking Mr. Con-
yers' question, and I think it's a good one. How can we get to the
victory without the discriminatory numerical preferences that are
enshrined in the law that the Supreme Court says must be a last
resort, I believe only in a permissive way. If you're going to make
numerically-based preferences do it last. I believe that is what
they're saying in these decisions, not that you must have them. So,
how can we get there without having these numerically-based nu-
merical numbers, the numbers game that Ms. Greenberger, says
doesn't exist or should not exist or are illegal to exist?
Mr. Payton. I don't think Ms. Greenberger is saying that in
cases where we have ongoing discrimination, or the effects of dis-
crimination, egregious examples, that we shouldn't use race-based
measures that may have to take into account some racial or some
numerical criteria there. I don't think she's saying that. I'm not
saying that, and I would say that, if that's the category we're talk-
ing about, some of those instances cannot be capable — they're not
capable of remedy except by means of some race-based measure.
And you're right, the Court is not saying that the Federal Govern-
ment must do this, but the Court is saying quite explicitly that
there are instances where there is no other remedy. And what I'm
saying is that I believe it's the responsibility of the Federal Govern-
ment to be able to provide a remedy, to bring a lawsuit and to seek
to have a remedial injunction or consent decree that, in fact, pro-
vides a remedy for the violation that is there. I believe that Con-
gress ought to be able to do that when it makes similar findings,
and there is no other remedy. That's not all of these programs.
That's not everything.
Mr. Flanagan. Well, this legislation, in my opinion, is designed
to merely remove numerically race-based preferences. If it does
something more than that, I'd be very interested to hear that, and
I think Ms. Greenberger has some very definite opinions on that,
I am not a cosponsor to this legislation and my mind is very open
on this. I abhor numerically-based discriminatory behavior, and I
believe it is discriminatory, whatever good it seeks to provide, be-
cause I think two wrongs don't make a right. However, if this goes
further than that, I'd like to hear it.
That aside, and only because I have just 5 minutes, Ms.
Greenberger, I have one question for you. You have said in your
testimony I believe that where there are numerically-based pref-
erences, they are illegal and wrong. Could you explain my confu-
sion? And maybe it is just mine.
Ms. Greenberger. Yes. I think that Chairman Canady may
have put his finger on it to some degree. I may be reading the word
"preferences," and I think I am reading the word "preferences" very
differently than the author of this legislation. The definition of
"preferences," to the extent that it's in this legislation, and I think
it's a very vague definition, which is one of my major criticisms, is
very, very broad. I think by including goals and timetables and
calling that a preference, that that is going way beyond a pref-
erence. I don't think a goal and a time table is a preference
Mr. Flanagan. Well, I think
75
Ms. Greenberger [continuing]. And that may be part of what
the confusion is about my statement. I certainly agree with Mr.
Payton about what the law should be and what serious problems
there are because this legislation removes the possibilities even of
what the Supreme Court has allowed.
Mr. Canady. The gentleman's time has expired. The gentleman
will have 1 additional minute.
Mr. Flanagan. Thank you. I guess we'll go right in between
them, Mr. Bolick, and ask you very quickly — we have a philosophi-
cal agreement as we move across up and down as to whether it's
allowed or it's not allowed; I guess Ms. Greenberger has cleared
that up, but whether it is philosophically the correct answer to an
actual problem, not a perceived one, an actual problem. And, again,
we must not mistake progress for victory. I love that quote. I mean,
it's great.
Is this the right place to go? Mr. Payton thinks so; Ms.
Greenberger thinks so.
Mr. Bolick. Absolutely, Mr. Flanagan, and the reason that it is
is because we have gotten to the point of sweeping under the car-
pet of racial preferences very serious underlying social problems in
our society that we are not solving because we say we're going to
redistribute; we're going to apply these numerical, these outcome
measures; we're going to do what it takes to fill those, and the
dropout rates, the illiteracy rates, the crime rates, the welfare de-
pendency rates, we won't deal with those and the consequences
that they produce in our society; we're just going to cover it up with
these mechanisms.
Mr. Canady. I'm sorry, the gentleman's time has expired.
Again, I want to thank all the members of this panel for your
valuable testimony. We appreciate your participation in the hear-
ing. The
Mr. Frank. Mr. Chairman, I just would like to say, just semanti-
cally, it does seem to me around here we are in graver danger of
mistaking victory for progress than the vice versa.
Mr. Canady. The subcommittee will stand in recess until a quar-
ter until 1.
[Recess.]
Mr. Canady. The subcommittee will come to order.
I have a statement that I would like to make before we go to our
third panel. Briefly, section 113(b) of the Legislative Reorganiza-
tion Act of 1970 provides that each committee of the House of Rep-
resentatives shall, insofar as practicable, require all witnesses ap-
pearing before it to file in advance written statements of their pro-
posed testimony. The Judiciary Committee requires all witnesses
scheduled to testify before it to provide the committee with their
testimony at least 48 hours prior to the scheduled appearance of
the witness. This requirement allows members and staff adequate
time to prepare for the hearing. For this hearing, we were more
flexible than the committee's requirement, requiring that the testi-
mony be submitted 24 hours prior to the hearing. The failure of
witnesses to comply with this rule diminishes the subcommittee's
ability to conduct effective and meaningful hearings.
It is, therefore, unfortunate that the administration has failed to
comply with this requirement. The administration has known for
76
almost 1 month that Mr. Patrick would testify on H.R. 2128, and
yet we did not receive his testimony until late last night. Other
witnesses, likewise, did not submit their written testimony in a
timely fashion.
And I will point out that because the testimony was not received
until last night, I, for one — and I think all the other members of
the committee — probably did not have a chance to review the testi-
mony in advance of the hearing. Accordingly, I would remind mem-
bers and staff that, if the testimony is not submitted in compliance
with the committee's requirement, it is within the discretion of the
subcommittee to refuse to hear witnesses. We may need to invoke
this remedy in the future. I certainly hope we will not need to in-
voke this remedy. We have attempted to be flexible and it appears
that the process is being abused to the detriment of all the mem-
bers of the subcommittee and of our ability to carry out our con-
stitutionally-mandated duties.
We will now go to the third panel of today's hearing, and I'd like
to welcome to the hearing Deval Patrick. The sole witness for our
third panel is the Honorable Deval Patrick. Mr. Patrick is the As-
sistant Attorney General for the Civil Rights Division of the U.S.
Department of Justice. His agency is primarily responsible for en-
forcing those statutes and Executive orders that prohibit unlawful
discrimination.
Mr. Patrick, we very much appreciate your being with us here
today. We look forward to your testimony. I would ask that you
summarize your testimony in no more than 10 minutes, or at least
not much more than 10 minutes, and your full statement will be
made a part of the record, without objection.
Mr. Hyde. Mr. Chairman.
Mr. Canady. Mr. Hyde.
Mr. Hyde. May I be accorded just a brief moment?
Mr. Canady. Mr. Hyde.
Mr. Hyde. In defense of Mr. Patrick and other wayward wit-
nesses who didn't get their statements in early, that's been a prob-
lem since this building was erected [laughter], and it's because peo-
ple are sometimes very busy. And I wouldn't take too sharp a view
of that. It is helpful to have them, but Members particularly are
remiss when they testify; they don't get their statements in. Many
times you testify from notes, but it's helpful, and I agree with you,
because then we have some idea of how to question you or what's
interesting or what's important. But my heart is aligned with the
witness \mo under terrible time constraints with 82 things to do
doesn't get his statement in in time, and I think that's at most a
venal sin.
STATEMENT OF DEVAL L. PATRICK, ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE
Mr. Patrick. Well, Mr. Chairman and Congressman, I appreciate
both the admonition and the defense. [Laughter.]
Thank you very much. I hope it's clear to you, Mr. Chairman,
that if it would be helpful to the committee to come back at some
time to talk further about H.R. 2128 and the administration's
views on it, I would be more than happy to do so.
77
I understand that you and the members have been advised that
I have to leave this hearing by 1:45 in order to catch a plane from
Dulles, and I regret that the subcommittee couldn't make time to
see me earlier today. In order to make the most of the time that
I do have, I would like to summarize my written testimony, as you
suggested, and make a briefer oral statement, leaving a little time
for questions.
Before I came to Washington almost 2 years ago, I was warned
that in Washington people speak a different language. Sometimes
I was told they may even mean the polar opposite of what they say.
One of the most ironic, if not distressing, examples of this phe-
nomenon is the title you have chosen for H.R. 2128, the so-called
Equal Opportunity Act of 1995, because beneath its promising title
this bill does nothing to address the enormous problems that face
the overwhelming numbers of people who are denied equal oppor-
tunity every day. People who, because of discrimination on the
basis of race, ethnicity, or gender, are still denied opportunities to
obtain a decent education, compete equally for jobs, participate in
the political process, rent an apartment, or secure the credit nec-
essary to purchase a home, and, generally, both to partake of and
to contribute to the bounty of this magnificent Nation.
I want to be unmistakably clear about the relevant context in
which H.R. 2128 arises. Discrimination continues against minority
and women applicants for employment today. In one case in your
home State, Mr. Chairman, we found that a police department had
not hired a single black officer in 30 years. The police department
threw applications from African-Americans in the trash and was
led by a chief who routinely referred to African-Americans as "nig-
gers."
In another employment case, the Louisiana Corrections Center
required women to score 15 points higher than men on a written
job test and still preferred to hire a man who had a prior arrest
record, no high school diploma, and a score on the test 29 points
below a woman applicant.
Sexually hostile or harassing work environments are still too
prevalent. According to the Glass Ceiling Commission which was
created at the initiative of your cosponsor. Senator Dole, white
males hold nearly 97 percent of senior management positions in
Fortune 1000 industrial and Fortune 500 service industries. Mean-
while, African-Americans hold only 6/lOths of 1 percent; Hispanic-
Americans only 4/lOths of 1 percent, and Asian-Americans only 3/
lOths of 1 percent. Women hold less than 3 percent of such posi-
tions, and the profile of the Federal executive ranks is not much
better.
Over 50 percent of African-American children and 44 percent of
Hispanic children live in poverty today compared to 14 percent of
white children and over one-half of all African-Americans live in
inner-city neighborhoods where schools are starved for basic re-
sources. Two-thirds of all African-American children still attend
segregated schools, and yet in 1993, just 2 years ago, a cash-poor
district spent a million dollars to expand an all-white elementary
school rather than send white students to a predominantly black
school that was one-third empty and only 800 yards away.
78
In a recent case that we handled, schoolbuses were traveling
down the same roads, one bus picking up white children to take
them to the white school and one bus picking up black children and
taking them to the black school. These examples continue in hous-
ing, in education, and in law enforcement. The great rift that exists
between minority communities and law enforcement today in terms
of the trust and relations between the communities are serious.
Hate crimes are at an all-time high today, and the Department of
Justice, the Equal Employment Opportunity Commission, and
other agencies continue to groan under weight of these and other
problems. We don't have the resources we need to meet these chal-
lenges.
Meanwhile, Mr. Chairman, cab companies post notices openly in-
viting their drivers not to pick up black males, while a young black
man was forced in a store to take the shirt that he had nought
there the day before off his back and leave the store in his under-
shirt, until he could return with the receipt, and there is no Fed-
eral action we could take against these outrages even if we wanted
to.
So, Mr. Chairman, this is the grim environment into which H.R.
2128 comes. Mistreatment, hostility, and even violence against
Americans because of what they are, because of some happenstance
of birth or chance, remains a sad fact of American life. Instead of
taking up any of these challenges, instead of addressing the mass
suffering which is still the central focus of the civil rights struggle
and the civil rights enforcement program in the Justice Depart-
ment, this subcommittee has chosen to focus on a few very limited
remedies that the Congress and prior administrations, both Demo-
cratic and Republican, including this one, have tried to implement
to overcome this Nation's regrettable history and present reality of
exclusion based on race, ethnicity, and gender. By completely pro-
hibiting otherwise lawful and flexible affirmative action and cat-
egorically rejecting several decades of Supreme Court precedent im-
posing limits on affirmative action, this bill attacks remedies that
have evolved as a modest, but helpful response to the deep intran-
sigence of institutions which persist in viewing African-Americans,
Hispanic-Americans, Native-Americans, Asian-Americans, and
women as less deserving of jobs, business opportunities, and places
in universities.
When by every measure of social well-being members of racial
and ethnic minority groups and women lag far behind white males,
when experience shows that enforcement of the antidiscrimination
laws alone has not leveled the playing field between white males
and their fellow citizens, when affirmative action done the right
way has been shown to be a sensible, restrained tool available to
help our society achieve its goal of integration, this bill would set
us all back.
There is a tendency to speak of affirmative action as if it is a sin-
gle thing. So I want to start by getting our terms straight. Affirma-
tive action encompasses a range of remedies. At one end of the
spectrum are efforts to reach out to traditionally excluded individ-
uals, whether women or minorities, and to recruit talent broadly in
all American communities. This includes technical assistance in
training to enable women and minorities to take advantage of op-
79
portunities. Affirmative action in the military after the Vietnam
War, the very initiative that helped expose Gen. Colin Powell's
many talents, is an example of this sort of measure. Now hardly
anyone opposes efforts to cast a broad net and offer training, or so
I tn ought.
At the other end of the spectrum, masquerading as affirmative
action, lie quotas, hard-and-fast numbers of places in school or the
workplace specifically reserved for members of certain groups re-
gardless of qualifications. Nearly everyone opposes quotas, includ-
ing the President. Quotas are the enemy of merit. They belittle
achievement and individual worth. More importantly, the Federal
courts have pretty consistently rejected such measures.
Between these two end points, outreach and recruitment on the
one hand and hard-and-fast quotas on the other, lie activities that
I call affirmative consideration, where race, ethnicity, or gender
may be one factor considered among others in evaluating among
qualified candidates. Affirmative consideration does not guarantee
success. That is still up to individuals. Nor does it compromise
merit. Merit remains not only relevant, but determinative. Rather,
affirmative consideration emphasizes a full scope of qualifications,
and it is characterized by flexibility. This is the form of affirmative
action that has consistently received the support of Federal courts,
as well as Republicans and Democrats alike, for years.
With these definitions in mind, what does H.R. 2128 actually do?
My written testimony contains a section-by-section critique, but I
can summarize it this way: first, to the extent that your bill
purports to prohibit intentional discrimination based on gender,
race, and ethnicity, Mr. Chairman, it is totally redundant. The
Constitution, as interpreted by the Federal courts and numerous
Federal laws already prohibit intentional discrimination on these
bases. H.R. 2128 adds nothing new in this area.
Second, to the extent that it outlaws quotas, H.R. 2128 is again
redundant. Executive Order 11246 outlaws quotas. The 1991 Civil
Rights Act outlaws quotas. The Constitution of the United States,
as interpreted by the Supreme Court, outlaws quotas. The Presi-
dent, as a matter of public policy, has outlawed quotas.
These rules of law and policy are set out in full in our written
testimony. On the basis of all this, I have myself authorized litiga-
tion challenging a plan that we believe operates as a quota. We
have, as you know, suspended another plan for similar reasons. In
short, this bill adds nothing to current American law on the subject
of quotas. Quotas are already illegal.
May I go on a minute or more?
Mr. Canady. Yes.
Mr. Patrick. Thank you.
So what does this bill add? Setting aside various technical issues
that we address in the written testimony, the main contribution of
this bill is to prohibit the use of numerical goal and timetables of
any kind. This bill, frankly, reflects an almost hysterical aversion
to numbers. Goals and timetables need not frighten the American
public. Indeed, they do not frighten the American public in any
other context we can think of. Cxoals and timetables are used to
measure objectives and progress in sales and profitability in busi-
ness, in student enrollment and test scores in schools, in planting
80
and harvesting on farms, in individual and team performance on
baseball teams, in household budgets or personal financial plan-
ning. The Contract With America, 10 bills in the first 100 days:
that's a goal and timetable. Balancing the budget in 7 years: that
is a goal and timetable. Indeed, Senator Dole has supported goals
and timetables for most of his public life, and you, yourself, Mr.
Chairman, voted to support goals and timetables for minority and
women contracting throughout the Federal procurement system
just last year, as did 425 of your House colleagues, including every
member of this subcommittee in office at the time.
We use goals and timetables all over the world to measure any-
thing thats important. Goals and timetables are nothing new and
nothing to fear, and the reason we use goals and timetables is be-
cause we want accountability. Commitment and good intentions are
fine — in fact, they are vital — ^but it is not enougn in anything else
we deem important in this country. It is not enough in business;
it is not enough in the educational or sports context; it is not
enough in the Congress to leave anything viewed as important to
the vagaries of aspiration alone. When Americans believe some-
thing is important, our tradition is to face the facts, decide where
we have to go, plot a course for getting us there, and measure our
progress along the way. This is all that goals and timetables are
about.
In the context of affirmative action, they must be flexible; they
must be sensibly related to a demonstrable pool of qualified can-
didates, and they must be fair. Nothing about affirmative action or
the use of goals and timetables to measure affirmative action re-
quires the abrogation of common sense or simple fairness, but the
attack on goals and timetables in H.R. 2128 is disturbing because
I'm afraid that the real message of this bill, Mr. Chairman, is that
you and your cosponsors are ready to give up on our national objec-
tive of integration.
For 30 years now, most of my lifetime, in fact, this Nation has
had a commitment to integration, gradually, but determinately en-
abling citizens of different races and backgrounds and both genders
not just to find their way to opportunities on a fair and equal basis,
but to find their way to each other as human beings and fellow citi-
zens. In the main, this has not been a matter of law or legal man-
dates. No Federal law of any kind requires anyone to make deci-
sions on the sole basis of race, ethnicity, or gender. In the main,
this has been a matter of conscience. After centuries of struggle
and persistent exclusion, we as a society decided just a few decades
ago to go to work to build a unified, integrated American commu-
nity, to finally face up to the gulf between our reality and our
ideals, and choose ideals of equality, opportunity, and fair play for
everyone over habits of separatism, exclusion, and selfishness. We
understood for an instant really in relation to the long corridor of
American history that we all have a stake in each other's struggles,
in each other's dreams.
Affirmative action is not the answer to all the challenges that we
face — we accept that — not in minority communities and among
women, not in the American community as a whole. Our economy
must be rebuilt and expanded, so that there are more and better
opportunities for everyone. There is no substitute for that. Violent
81
crime and family breakdown are issues facing too many Americans
of all backgrounds and both genders, dragging us all down and
back, and we need to deal with the ways that public schools and
private health care fail poor children in particular every day.
Affirmative action is not the answer to all of this. I have often
said that affirmative action has a symbolic significance all out of
proportion to its practical impact, but it is still valuable because it
is perhaps the only tool we have by which this Nation on the whole
voluntarily, I repeat, has tried to move from where we were to
where we need to be. That doesn't mean it has always worked per-
fectly or even lawfully. We accept that some programs describing
themselves as affirmative action may have been too rigid or heavy-
handed or may even have compromised quality, but these are rare.
We fully accept that some changes will be required by Adarand
and the President's policy, and where problems exist we all have
to face them without flinching and correct them; but problems in
the management or design of this or that program should no more
compel us to abandon the principle of affirmative action than prob-
lems in defense procurement should compel the Air Force to stop
buying planes or the election of an undistinguished official
Mr. Canady. Mr. Patrick, you've gone over about 5 minutes or
more. If you could try to conclude
Mr. Watt. Mr. Chairman, might I grant him my time to finish
his statement?
Mr. Canady. Are you close to concluding? If he's close, it will
be
Mr. Watt. I'm happy to grant him my time.
Mr. Canady. Well, it won't be necessary.
Mr. Watt. I'm not planning to ask any questions anyway.
Mr. Patrick. I'm very close to being done.
As a matter of policy and law, the President has committed to
mend, but not end affirmative action. He has directed Federal
agencies to review programs and to reform or eliminate any pro-
gram that creates a quota, creates preferences for unqualified indi-
viduals, creates so-called reverse discrimination, or continues after
its equal opportunity purposes and objectives have been achieved.
He has also committed to root out fraud and abuse in Federal pro-
curement programs, such as where white-owned companies get mi-
nority or women-owned firms to front for them.
As you know, the Department of Justice, under the leadership of
Associate Attorney Greneral John Schmidt, is following up on the
President's commitment by deliberately reviewing Federal pro-
frams to insure that they comply both with the law and the Presi-
ent's policies. In our view, this approach is a far more responsible
way to proceed than to declare an end to any affirmative action ef-
fort whatsoever, as H.R. 2128 does, whether it is appropriate under
current law and policy or not. As Justice O'Connor stated just last
term in Adarand, writing for the Court, "The unhappy persistence
of both the practice and the lingering effects of racial discrimina-
tion against minority ^oups in this country is an unfortunate re-
ality, and government is not disqualified from acting in response to
it."
If an integrated society is still our common national objective, if
the American people are still true to their commitment to eradicate
82
and redress present-day discrimination and unfairness based on
race, ethnicity, and gender, and if the Federal Government, the
Congress as well as the executive branch, is still to show true lead-
ership on our long and common journey to freedom, H.R. 2128
would wreak a disastrous change practically, but also symbolically.
For these reasons, Mr. Chairman, this administration firmly and
unequivocally opposes H.R. 2128. Should it be presented to the
President for signature, the Attorney General will firmly rec-
ommend that he veto it.
Thank you.
[The prepared statement of Mr. Patrick follows:]
Prepared Statement of Deval L. Patrick, Assistant Attorney General, Civil
Rights Division, Department of Justice
Mr. Chairman and Members of the Subcommittee, I appreciate the opportunity
to appear today to present the views of the Administration regarding H.R. 2128, ti-
tled the "Equal Opportunity Act of 1995." While legislative titles are not generally
matters of great import, this one is ironic, if not distressing, because beneath its
promising title this bill does nothing to address the enormous problems that face
the overwhelming majority of people who are denied equal opportunity. It ignores
those who because of centuries of discrimination — discrimination that no reasonable
person denies persists today — have been denied opportunities to obtain a decent
education, compete equally for jobs, participate in the political process and generally
partake fairly of the bounty of this magnificent nation.
Instead, this bill would eliminate remedies that the Congress and prior Adminis-
trations, as well as this one, have tried to implement to overcome this nation's his-
tory of exclusion based on race, ethnicity and gender. By completely prohibiting oth-
erwise lawful and flexible affirmative action and categorically rejecting several dec-
ades of Supreme Court precedent imposing reasonable limits on affirmative action,
this bill attacks remedies that have evolved as a modest, helpful response to the
deep intransigence of institutions peopled by those who persist in viewing African
Americans, Hispanics, Native Americans, Asians and women as less deserving of
jobs, business opportunities and places in universities. When by every measure of
social well-being members of racial and ethnic minority groups and women lag far
behind white males, when study after study shows that enforcement of the anti-
discrimination laws alone has not leveled the playing field between dominant white
males and other citizens, when affirmative action — done the right way — represents
one sensible, restrained tool available to help our society achieve its goal of integra-
tion, this bill would set us all back. The Administration strongly opposes it.
There is a tendency to speak of affirmative action as if it is a single thing. I want
to make sure that my terms are understood. Afiirmative action encompasses a range
of remedies. At one end of the spectrum are efibrts to reach out to traditionally ex-
cluded Individuals — whether women or minorities — and to recruit talent broadly in
all American communities. This might include reaching out to minorities and
women and providing technical assistance to enable them to take advantage of op-
portunities. Affirmative action in the military after the Vietnam War — the very ini-
tiative that helf)ed expose Colin Powell's many talents — i.e. an example of this sort
of measure. Hardly anyone opposes efforts to cast a broad net, and ofi'er training —
or so I thought before H.R. 2128. For it would prohibit even outreach if its success
or value was in any respect measured against a numerical goal.
At the other end of tne spectrum, masouerading as afiirmative action, lie quotas:
hard and fast numbers of places in school or the workplace specifically reserved for
members of certain groups, regardless of qualifications. Nearly everyone opposes
quotas, including the President and me. Federal courts have rejected such measures
and Federal law — both in Executive Order 11246 and by statute make quotas un-
lawful. To the extent that H.R. 2128 purports to prohibit "quotas," it adds nothing
that does not already exist in Federal Law.
In the middle between these extremes lies a range of activities that might be
called "affirmative consideration," in which race, ethnicity or gender is one factor
that is considered among others in evaluating qualified candidates. This form of con-
sideration does not guarantee success based on race, ethnicity or gender. Rather, it
emphasizes a full range of qualifications and is characterized by fiexibilitv. This is
the form of affirmative action that was supported by early proponents and. has con-
sistently received the support of Republicans and Democrats. Indeed, no Federal law
83
of any kind mandates that anyone make decisions on the sole basis of race or gen-
der.
The law has consistently supported "afiirmative consideration." From its first ex-
amination of an affirmative action program on the merits, in Regents of the Univer-
sity of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court has consistently
permitted consideration of race as one factor among many in contrast to reliance
on race as the sole basis for a decision. See City of Richmond v. J A.. Croson Co.,
488 U.S. 469, 508 (contracting program failed strict scrutiny in part because it made
"the color of an applicants skin the sole relevant consideration"). The same has been
true with respect to gender. See Johnson v. Transportation Agency, 480 U.S. 616
(1987) (upholding an affirmative action plan in employment under which a state
agency considered the gender of applicants for promotion as one factor in the deci-
sion).
In Adarand Contractor, Inc. v. Pena, 115 S. Ct. 2097 (1995), the Court extended
strict judicial scrutiny under the Constitution to federal programs that use racial
or ethnic criteria as a basis for decisionmaking. It did not, however, invalidate alto-
gether such reliance. It simply held that consideration of race or ethnicity in deci-
sionmaking must be narrowly tailored to serve a compelling interest, imposing on
Federal initiatives the same exacting analysis the Court imposed on state and local
initiatives some years ago.
Courts have developed a series of inquiries by which to evaluate affirmative action
programs in order to ensure that consideration of race, ethnicity or gender is nar-
rowly tailored to achieve its purpose: (1) whether race-neutral measures were con-
sidered and would prove equally effective; (2) whether the program is properly lim-
ited in scope and flexible, as demonstrated, for example, by the existence oi a waiver
provision; (3) whether race is relied upon as a necessary factor in eligibility or
whether it is used as one factor among others in the eligibility determination; (4)
whether any numerical target is related to the number of qualified minorities in the
applicable pool; (5) whether the duration of the program is limited and whether the
program is subject to periodic review; and (6) whether the program burdens
nonbeneficiaries inappropriately.
In July, President Clinton spoke at the National Archives to reaffirm his commit-
ment to the eradication of invidious discrimination and its persistent effects. He re-
counted movingly the enormous changes that he has witnessed since his childhood
in Aritansas, but he concluded, as we all must, that the job is not close to comple-
tion. As the President stated, affirmative action was bom as a compromise — as a
middle course between simply declaring discrimination unlawful and proclaiming
victory (a course that would have accomplished little) and the imposition of draco-
nian penalties on employers and others for failure to achieve rigid and inflexible
quotas. Instead, we opted for a middle ground that permits affirmative action where
it is flexible, respects merit and does not unnecessarily burden the expectations of
nonbeneficiaries.
As a matter of policy and law, the President committed to mend, but not end af-
firmative action. He directed federal agencies to review programs and to reform or
eliminate any program that: (1) creates a quota; (2) creates preferences for unquali-
fied individuals; (3) creates reverse discrimination; or (4) continues after its equal
opportunity purposes have been achieved.
He also committed to root out fraud and abuse in Federal procurement programs,
such as where white-owned companies get minority-owned firms to front for them.
Since the President's address and the release of the White House's Affirmative Ac-
tion Review in July, the Department of Justice has been spearheading an effort to
review federal affirmative action programs to ensure their compliance both with the
law and the President's policies. Associate Attorney General John Schmidt testified
before a ioint hearing of this Subcommittee and its Senate counterpart in September
to describe those activities. That careful review continues. In our view, this delib-
erate, intensive focus on each federal afTirmative action program, during which the
actual operation and practical effects of the program can be assessed, is a far more
responsible way to proceed than to declare an end to any effort whatsoever, as H.R.
2128 does, whether it is legal under current law or not.
As you are aware, our review has resulted in the termination of one significant
program in the contracting area — the use of the so-called "Rule of 2" by the Depart-
ment of Defense. We will announce other changes as conclusions are reached. We
fully accept that some changes will be required by Adarand, and the President's pol-
icy. Where problems exist, we all have to face them without flinching and correct
them. But problems in the management or design of this or that program should
no more require us to abandon the principle of affirmative action than problems in
defense procurement should require the Air Force to stop buying airplanes. I would
have hoped that the committee would work more deliberately — together with the
84
Department of Justice — to root out the most serious inequities and inefficiencies in
specific affirmative action programs. Instead, H.R. 2128 would simply abrogate any
duty the Federal government ever had to build opportunity to those who have been
denied it for so long.
Turning to the legislation that is the immediate subject of this hearing, H.R. 2128
is not only misdirected as a matter of priorities, but it is such a blunt and extreme
measure that it would work substantial harm. It is inconsistent with principles de-
veloped over decades by the Supreme Court, would eliminate numerous federal stat-
utes and executive orders and curtail the battle against discrimination on the basis
of race, gender and ethnicity. It would do all of this without a deliberate and inten-
sive examination of afiirmative action programs.
OVERVIEW
H.R. 2128 seeks broadly to limit federal affirmative action programs. The bill's op-
erative provision states that "[njotwithstanding any other provision of law," no en-
tity of the federal government "may intentionally discriminate against, or may grant
a preference to, any individual or group based in whole or in part on race, color,
national origin, or sex, in connection with" federal contracting or subcontracting,
federal employment, or "any other federally conducted program or activity." The bill
also prohibits the federal government from "requir(ing] or encourag[ing] any Federal
contractor or subcontractor to intentionally discriminate against, or grant a pref-
erence to, any individual or group based in whole or in part on race, color, national
origin, or sex," id. at § 2(2), and it prohibits the federal executive branch from
"enter[ing] into a consent decree that requires, authorizes, or permits" any of those
forbidden activities. Id. at §2(3). Under the bill, "preferences" includes "use of any
preferential treatment and includes but is not limited to any use of a quota, set-
aside, numerical goal, timetable, or other numerical objective." Id. at 8(3).
The bill incorporates several specific exceptions to its broad provisions. Most nota-
bly, the bill exempts certain outreach and recruitment eflbrts. Specifically, the bill
does not purport "to prohibit or limit any effort by the Federal Government
* * * to recruit qualified women or qualified minorities into an applicant pool for
Federal employment or to encourage businesses owned by women or by minorities
to bid for federal contracts or subcontracts, if such recruitment or encouragement
does not involve using a numerical objective, or otherwise granting a preference,
based in whole or in part on race, color, national origin, or sex, in selecting any indi-
vidual or group for the relevant employment, contract or subcontract, benefit, oppor-
tunity, or program." H.R. 2128, section 3(1). A similar safe harbor allows the federal
government to encourage federal contractors or subcontractors to engage in the
same kinds of recruitment eflbrts. Id. § 3(2). However, this exemption does not apply
if a recruitment or outreach program uses any kind of numerical benchmark, even
for hortatory or tracking purposes; its value, therefore, is substantially limited.
The bill also includes three other exceptions under the rubric of "rules of construc-
tion." First, the bill does not purport "to prohibit or limit any act that is designed
to benefit an institution that is a historically Black college or university on the basis
that the institution is a historically Black college or university." Id. §4(a). Second,
the bill does not purport to limit action taken pursuant to Congress powers relating
to Indian tribes or pursuant to a treaty between the United States and an Indian
tribe. Id. §4(b). Third, the bill does not purport to limit any sex based classification
if sex is a bona fide occupational qualification, if the clarification "is designed to pro-
tect the privacy of individuals," or if the classification is dictated by national secu-
rity./d. §4(c).
As the above description indicates, the reach of H.R. 2128 is quite broad and
would work significant change. The bill's prohibitions would apply retrospectively;
they would invalidate any existing law or regulation that does not comply with the
bill's requirements. The substantive provisions of the bill would apply to any federal
contracting or subcontracting, federal employment, or "federally conducted
program[s] or activit[iesj.'' Because this last category does not appear elsewhere in
the law, its meaning and breadth are unclear.
On the other hand, the bill's prohibition against intentional discrimination, taken
at face value, is quite unnecessary and, in reality, potentially counterproductive.
Such discrimination is already prohibited by the Constitution and numerous federal
statutes. In addition, the bill explicitly cuts back on existing protections against sex
discrimination by introducing a series of new exceptions including a vague and
open-ended exception "to protect the privacy of individuals."
85
ANALYSIS
H.R. 2128*8 flat prohibition against affirmative action is a rejection of the compel-
ling need to remeay the effects of past and present discrimination. It is inconsistent
with principles developed by the Supreme Court and with numerous enactments of
Congress and executive branch orders.
Just last Term, in Adarand Constructors, Inc. v. Pena, supra, the Court recog-
nized the appropriateness of race-based affirmative action as a means of overcoming
our nation's continuing legacy of discrimination. As Justice O'Connor, writing for
the Court, stated: "The unhappy persistence of both the practice and the lingering
effects of racial discrimination against minority groups in this country is an unfortu-
nate reality, and government is not disqualified from acting in response to it." Id.
at 2117. The Court rejected a flat constitutional prohibition of the consideration of
race. Rather, the Court held that reliance on race would be subjected to strict judi-
cial scrutiny. That standard permits consideration of race where it is justified by
a compelling interest and is narrowly tailored to serve that interest. This bill would
prohibit all such action, even if it comports with strict scrutiny.
In short, H.R. 2128 goes well beyond the standards for affirmative action articu-
lated by Justice O'Connor for a majority of the Court in Adarand. It would be incon-
sistent with the principle recognized long ago by Justice Powell that government
has a "substantial interest that legitimately may be served by a properly devised
* * * program involving the competitive consideration of race and ethnic origin."
Regents of the University of California v. Bakke, 438 U.S. 265, 320 (1978). H.R. 2128
would severely disable government in its ability to address the practice and linger-
ing effects of racial discrimination.
Similarly, the Court has held that consideration of sex is appropriate if it "serves
an important governmental objective" and is "substantially related to the achieve-
ment of those Objectives." J.E.B. v. Alabama ex ret. T.B., 114 S. Ct. 1419 (1994);
Mississippi University for Women v. Hogan, 458 U.S. 718 (19B2). H.R. 2128 would
prohibit consideration of sex, regardless how important the governmental objective
in doing so might be. H.R. 2128 would curtail efTorts to address discrimination
against women.
The bill's assault on the use of numerical goals is an extreme reaction to an over-
stated r'anger. By defining "grant a preference" to include "any use of a * * * nu-
merical goal, timetable, or other numerical objective," the bill would reject principles
developed by the Supreme Court, eliminate federal statutes and overturn executive
Order 11246, none of which mandate decisionmaking on the basis of race or gender.
Goals and timetables have been used as measures to cure discrimination since the
Nixon Administration. Their use has been approved by the Supreme Court as a
g roper means of overcoming imbalances in traditionally segregated job categories,
ee Johnson v. Transportation Agency, 480 U.S. 616 (1987). They are indispensable
as measures of progress in eliminating discrimination and, contrary to the fears of
some, the use oigoals and timetables does not lead inexorably to quotas.
Indeed, the bill's prohibition against quotas, like its prohibition against inten-
tional discrimination, is superfluous. Rigid and inflexible measures that look only
to race or gender in disregard of qualifications are unlawful. They have been firmly
and repeatedly rejected by the President. Executive Order 11246 rejects the use of
quotas, as does the Civil Rights Act of 1991. Likewise, the case law does not tolerate
quotas. Consideration of race or ethnicity can survive court scrutiny only if it is
properly tailored. That tailoring includes consideration whether it is flexible and re-
spects qualifications. Indeed, even though the Supreme Court has approved strong
race-conscious relief, it has never approved relief tnat depended solely and inflexibly
on race. See United States v. Paradise, 480 U.S. 149 (1987) (upholding requirement
that Alabama Department of Public Safety promote one black state trooper for every
white trooper promoted, noting that the relief was flexible because it could be
waived in tne absence of qualified candidates).
Unlike quotas, goals and timetables represent a flexible and sensitive approach
to curing traditional exclusion. They leave discretion with the employer to select
means including outreach, recruitment, and, where appropriate, the competitive
consideration of race or gender as one factor. In all instances, they must be achieved
without unduly burdening others.
In many areas of life, we use numbers to measure progress toward success.
Whether it is in tracking sales, profits or success in batting a baseball, we look to
numbers to measure how well we are doing and to establish our aspirations. It
should be no different in measuring equal opportunity. Indeed, the use of goals and
timetables can be an important component in tailoring programs narrowly, as re-
quired by the Supreme Court. It is essential to use numerical measurements in de-
termining when tnere has been sufficient affirmative action and programs must end.
86
A principal example of the importance of goals and timetable in combating dis-
crimination is Executive Order 11246, which would be eliminated by H.R. 2128.
Under the Executive Order, federal contractors and subcontractors with contracts
of at least $50,000 must maintain a written affirmative action program. The con-
tractor's plan must include goals for the hiring of minorities and women if there is
a problem with the contractor's employment practices. The goals, however, must not
operate as quotas — indeed, the Executive Order expressly prohibits the use of
quotas — and contractors are not required to engage in any form of preferential hir-
ing. Contractors are required only to make a good faith effort to meet the goals, and
they can satisfy that requirement by a variety of strategies, including recruitment
and outreach. H.R. 2128 prohibits even this limited use of a "numerical objective"
as a way of measuring progress. It would, therefore, eliminate one of the most suc-
cessful measures ever adopted to promote equal opportunity in employment The use
of numerical goals in the Executive Order aates oack to the Nixon Administration
and has received bipartisan support ever since. Elimination of Executive Order
11246 would curtail the fight against discrimination and strike a devastating blow
to the achievement of equal opportunity.
The bill's fear of goals would also result in elimination of the afTirmative action
program that has proved successful in expanding employment and promotion oppor-
tunities in the military. Affirmative action in the military focuses on outreach, re-
cruitment and training. By directing its efforts at assuring that a qualified pool of
minority and female candidates for promotion exists, the military's program serves
the objective of equal opportunity. Although the services set numerical goals for pro-
motions, they do not set up those goals as rigid requirements, and they do not sac-
rifice merit criteria to meet those goals. As a result, minority and female promotion
rates often diverge considerably from the numerical objectives. But because H.R.
2128 treats any use of a numerical objective as a "preference," even the military's
merit-based affirmative action program would be invalidated.
Current law sets government-wide overall national goals for minority and female
participation in government procurement. Specifically, the law sets a goal of 5% for
small disadvantaged businesses and 5% for women-owned businesses. These goals
are flexible; they establish an objective or benchmark rather than a requirement.
Indeed, Mr. Chairman, you quite commendably voted to enact these goals just a
year ago in supporting tne Federal Acquisition Streamlining Act. H.R. 2128 would
eliminate these goals, because the bill eliminates any affirmative recruitment pro-
gram that contains a numerical objective, it would also invalidate any outreach pro-
gram tied to the government- wide procurement goals.
The bill would exempt "any act tnat is designed to benefit" Historically Black Col-
leges and Universities. Thus, the government-wide program of promoting coopera-
tion with these institutions (see Executive Order 12876) would appear not to be
eliminated by the bill. However, the exemption's limitation to "any act" designed to
benefit historically black colleges may prevent administrative initiatives to aid these
institutions; specific statutory authorization may be required.
The bill contains no similar exemption for minority-serving educational institu-
tions, which also are the focus of statutory and Executive Branch programs of sup-
port. See Executive Order 12900. At least 13 federal agencies currently administer
programs that target aid to these institutions. For example, the Department of Edu-
cation's program of Grants to Hispanic-Serving Institutions would not be exempted
from the bill's substantive provisions. Under this program, the Department provides
grants to schools with a certain percentage of disadvantaged Hispanic students. See
20 U.S.C. 1059c. because race is a factor in determining the beneficiaries of the "fed-
erally conducted" grant program — and not merely in determining what the bene-
ficiaries can do with the grant money — the Grants to Hispanic-Serving Institutions
would be eliminated by HTR. 2128.
Neither the judicial process, nor the antidiscrimination enforcement machinery es-
capes the sweep of H.R. 2128. It would prohibit the federal government from enter-
ing into a consent decree that "requires, authorize, or permits any activity prohib-
ited by" the substantive provisions of the first section of the bill. Thus, neither the
Civil Rights Division of the Department of Justice, nor the Equal Employment Op-
portunity Commission could sue a private employer who was a federal contractor
(presumably the suit would not have to relate to the contract) and enter into a con-
sent decree based on the contractor's discrimination (which must be approved by a
court) that would contain numerical relief — even if that relief were limited to a goal
in bringing excluded minorities or women into a pool from which applicants would
be selected without regard to race or gender. This provision would strip the federal
government of a significant tool for enforcing the laws that prohibit discrimination
on the basis of race, ethnicity and gender. It would also promote litigation by mak-
87
ing it necessary for the government to proceed to trial in order to obtain necessary
remedies.
This same provision would also promote litigation and curtail the enforcement of
antidiscrimination laws by prohibiting the federal government from entering con-
sent decrees containing numerical relief in suits filed against it. Unfortunate^, the
federal government occasionally finds itself in the position of a defendant and must
have the ability — when it recognizes its own errors — to settle litigation in a manner
that provides full relief for a class of victims. This bill would strip the federal gov-
ernment of that ability.
Many other beneficial statutes and programs would be eliminated by H.R. 2128's
blunderbuss approach to affirmative action. It is not our purpose to catalogue them.
Rather, the point is, that the approach of H.R. 2128 is flawed. There is no justifica-
tion for eliminating programs wholesale, particularly without knowing that many of
them do or how they do it. The Administration is in the midst of a very thorough,
searching examination of afiirmative action programs that has already shown re-
sults. That process should be allowed to run its course without interference.
More fundamentally, the impact of H.R. 2128 would be to devastate the federal
government's efforts to redress discrimination and promote inclusion of members of
excluded groups. The federal government, to which minorities and women have had
to turn for protection and redress, would no longer be the leader in promoting oppor-
tunities for its citizens. This bill represents a full-fledged retreat from our commit-
ment to achieve an integrated society. That would be a fundamental and disastrous
change. That has been a national commitment for only the latter half of my young
life: give us the tools and we will finish the job.
We all share the goal of ending discrimination, but it is not enough to profess op-
position to discrimination based on race, ethnicity or gender. These professions of
opposition to discrimination are important, but thev must be backed up by actions.
So, Mr. Chairman, I am encouraged that this Subcommittee has turned its atten-
tion to the subject of equal opportunity, but I challenge you to join in a partnership
with the Administration and with the American people to take on the full range of
issues that we face. Minorities and women in this country still face discriminatory-
barriers in securing housing or the credit necessary to purchase it, gaining employ-
ment, obtaining a decent education, or in dealing with tne daily indignities that mi-
nority citizens face in shopping malls, department stores or something as basic as
getting a taxi to stop and pick us up.
Mr. Chairman, let us move forward to tackle the difficult and more pressing prob-
lems that continue to deny equal opportunity to minorities and women in this coun-
try:
Minorities routinely suffer blatant discrimination in retail establishments and
in the provision of basic services. In a particularly blatant, recent incident, a
cab company in Springfield, Illinois, posted a notice advising drivers not to pick
up black males. There is no federal remedy for this outrage. Nor is there a fed-
eral prohibition that addresses the plight of the black youth who recently was
forced to take off the shirt that he had previously purchased at an Eddie Bauer
store and leave the store in his undershirt. Only when he returned to the store
with a receipt was he allowed to have his shirt.
Hate crimes continue to terrorize our citizenry. Recently, we obtained convic-
tions in our prosecution of three men in Texas who talked about how good life
would be witnout blacks and then drove into a predominantly black section of
town "hunting" African Americans with a sawed-off shotgun, eventually shoot-
ing three African Americans at point-blank range.
Unlawful segregation persists and minority children remain trapped in im-
poverished and segregated schools that deny them a decent chance in life. Mr.
Chairman, two-thirds of all African American children still attend segregated
schools. Over 50% of African American children and 44% of Hispanic children
live in poverty, compared to 14% of white children. And over one-half of all Afri-
can Americans live in inner-city neighborhoods where schools are starved for
basic resources. Any yet, in 1993, a cash-poor district spent a million dollars to
expand an all-white elementary school rather than send white students to a
predominantly black school that was one-third empty and only 800 yards away
from the white school. In a recent case that we handled, school buses were trav-
elling down the same roads, one bus picking up white children and taking them
to the white school and one bus picking up black children and taking them to
the black school.
The doors to housing continue to be slammed shut in the faces of minority
applicants across the country. Discrimination in housing continues to limit not
only housing opportunities for minorities, but suppressed job opportunities and
contributes to school segregation. In a recent investigation, we discovered that
88
a 300 unit apartment building in Ohio simply refused to rent to African Amer-
ican. In spite of numerous qualified applicants, no apartment had ever been
rented to an African American. In one recent case, we found that blacks were
being steered to the back of the building — to a section that was all black.
Discrimination continues against minority and women applicants for employ-
ment. In one case in your home state, Mr. Chairman, we found that a police
department had not hired a single black officer in 30 years. The police depart-
ment threw applications from African Americans in the trash and was led by
a chief who routinely referred to African American as "niggers." In a Louisiana
correction center, we found a policy that required women to score 15 points
higher on a written test to qualify for employment and a practice that resulted
in the hiring of a man who scored 29 points below a woman applicant and had
a prior arrest record and no high school diploma. The report of the Glass Ceil-
ing Commission, which was created at the initiative of Senator Dole, documents
the near exclusion of African Americans, Hispanics, Asians and women from ad-
vancement in many of the corporations of this nation. The Commission found
that white males hold nearly 97% of senior management positions in Fortune
1000 industrial and Fortune 500 service industries. African Americans hold only
0.6%, Hispanics hold 0.4% and Asians hold 0.3%. Women hold less than 3% of
such positions.
The manner in which justice is administered has created resentment and
alienation in too many jurisdictions. While we all owe a deep debt of gratitude
to the women and men who serve in law enforcement, recent incidents such as
the beating of Rodney King and the revelations regarding the racism of Mark
Fuhrman, highlight a deep seated problem in the way that many minority com-
munities and law enforcement officials relate to each other.
I ask you to give the Department of Justice, the Equal Employment Opportunity
Commission and other agencies the support they need to address these problems.
Join us in attacking these problems and we can transform our statements of opposi-
tion to discrimination and our commitment to equal opportunity into actions and re-
sults.
But H.R. 2128 adds nothing. Should it be presented to the President for signature,
the Attorney General would strongly recommend that he veto it. Thank you.
Mr. Canady. ok, thank you, Mr. Patrick.
Let me start off by saying that your observation of the symbolic
significance of affirmative action is out of proportion to its practical
impact I think is very interesting, and I think I might agree with
that statement. Where I would differ with you is in the significance
and the meaning of the symbolism. If I understand you correctly,
you see this system of affirmative action as a positive symbol of our
dedication to progress toward racial justice in this country. I see
the system, and many others see the system, including many who
are the intended beneficiaries of the system, as a symbol of division
in the country, as a symbol of racial thinking, as a symbol of gov-
ernment dividing people and treating them as members of groups
rather than as individuals.
So I think that that's really where the battle lines are drawn
here. And let me say this: I understand that there are some people
who oppose preferential policies out of bad motives. I know that
there is a certain amount of racism that manifests itself in opposi-
tion to these policies. I don't question that. But the implication that
some have made is that all of the opposition to these policies flows
from a lack of concern about racial justice or an insensitivity to the
history of discrimination in this country, I think is not true. I rec-
ognize that we have had a history of discrimination in this country.
The question is, how do we move beyond that? How do we move
toward a country where we do treat people as people and not a sys-
tem where we're categorizing people based on their relevant char-
acteristics?
89
I believe that treating people as people is the moral approach. I
believe that every person is created as a being in the image of God,
and to treat people because of their color or because of other char-
acteristics in one way or another is just not right; it is immoral.
And I believe that the majority of the American people believe that.
We still have racism, but I think it can be demonstrated that it has
diminished.
Now I do not — ^furthermore, some people have said that this sys-
tem of preferences is something that creates division. No, I don't
make the point. The divisions were there previously, but I believe
that the system that we have in place tends to reinforce those divi-
sions. And the question is, how do we go about moving forward
from that?
Now you've given — you've mentioned some cases, a case in Flor-
ida and a case in Louisiana, that trouble you. Now those cases, I
don't think those have anything to do with this bill. Now I believe
that there are remedies under existing law for those actions that
took place by those local goveinments.
You've further described situations that you think need a rem-
edy. Let me ask you this: Are there any specific civil rights meas-
ures that the administration has proposed to deal with any of the
problems that you have suggested, other than not repealing these —
the system of preferences?
Mr. Patrick. Some of the problems, although not all, can be
reached under existing Federal
Mr. Canady. Let me ask you: Are there any specific civil rights
proposals, proposed legislation, that the administration has submit-
ted to address any of the problems that you think exist?
Mr. Patrick. We certainly have worked up a number of propos-
als in the Division. Whether they have been on behalf of the ad-
ministration submitted to the Congress at this point, I, frankly,
don't know.
Mr. Canady. Well, if the administration — I mean, you're here
representing the administration. If the administration thinks there
are problems that need to be addressed — Mr. Frank has criticized
the committee for not having hearings on these subjects — well, I'd
like to know what the administration thinks we should do about
those problems.
Mr. Patrick. If I can take that back, Mr. Chairman, as a pledge
by you to convene this subcommittee for hearings on proactive civil
rights administration and initiatives, I will be happy to do so.
Mr. Canady. Well, you can take it as a commitment from me to
look seriously at any proposals that are forthcoming from the ad-
ministration. But what you're telling me, so far as you know, the
administration itself doesn't have any civil rights initiatives?
Mr. Patrick. I think we've been pretty busy trying to hold the
line.
Mr. Canady. OK. Laughter.]
I just wanted to — but do you think there are flaws in the existing
structure of the law and that there could be changes to the existing
structure of the law that the administration would support?
Mr, Patrick. With respect to civil rights laws?
Mr. Canady. Yes.
90
Mr. Patrick. On a selected basis, yes, there are certainly prob-
lems that I think I've alluded to that the civil rights laws don't
reach and ought to, other kinds of struggles and difficulties that
people are having for irrelevant reasons that
Mr. Canady. ok. Well, we'd be interested in
Mr. Patrick [continuing]. The Federal administration ought to
be
Mr. Canady. We'd be interested in seeing the details on that,
and I'll
Mr. Patrick. Great.
Mr. Canady. I'll get — without objection, I will take an additional
minute
Mr. Watt. Reserving the right to object, Mr. Chairman.
Mr. Canady. Certainly.
Mr. Watt. I thought the witness told us that he had to leave at
quarter 'til. I'm wondering if the chairman might allow everybody
else to take their 5 minutes and then do another round, if he has
time. I don't have any time, but I think it's unfair for you to get
another
Mr. Canady. Mr. Frank. I'll recognize Mr. Frank.
Mr. Frank. Mr. Patrick, first, I'm sorry that, because I said the
committee didn't have good enough hearings, the chairman said it
was your fault. I don't think it is. I don't think we need to wait
for the administration for this committee to act on, for instance,
patterns of unequal law enforcement by the Philadelphia police, by
Mark Fuhrman, and others. There's a serious problem out there,
apparently, at least alleged, and I keep asking that this committee
look into it. I don't think we have to get your permission.
I have a couple of questions about the legislation. With regard
to goals, we've had a lot of testimony about the military. Professor
Loury, in fact, said he thought that was a good program. As you're
familiar with the military's affirmative action program, if you are,
what would the effect of this statute be, if we passed it, on the af-
firmative action program that Gen. Colin Powell and others have
talked about?
Mr. Patrick. My understanding of the military affirmative ac-
tion program is that they set goals for the applicant pool, not goals
for results, but goals for the pool from which they will make judg-
ments, and they do that without compromising quality. In fact, the
emphasis is on quality and preparation and on training.
Mr. Frank. That's all the way up through promotions up to the
highest grades?
Mr. Patrick. That's right. If this bill is passed, my understand-
ing is that it would make the military's program unlawful as a
matter of Federal law.
Mr. Frank. The goal of the question I think is an essentially —
is the critical one here, because, as you point out, rigid quotas,
quotas are unconstitutional, according to Adarand, and not very
widespread in the Federal Government anyway, and people say
they're for recruitment, but you're in the business of enforcing the
civil rights laws. If, in fact, you can't count, if numbers are not rel-
evant, either — maybe — well, let me ask: Is there anything in this
bill that would cause you to have problems using numbers to prove
a case? Maybe there isn't.
91
Mr. Patrick. I don't think— I don't think so in this bill. I think
that the extent of the numbers goes to the ability of those who
challenge the discriminatory behaviors by the Federal Government.
Mr. fS^ank. Well, one of the things I thought we might want to
do, if we were going to do legislation at all, and I would assume
if people aren't intending to restrict the use of numerical evidence,
that that would be explicitly written into the bill. But then the re-
strictions here on your entering into consent decrees which use
goals of any kind, what effect would that have on your ability to
enforce now basic antidiscrimination laws, not talking about af-
firmative action situations?
Mr. Patrick. I would make a distinction. Congressman, between
what it is we can do within our authority in the Justice Depart-
ment and what complainants can do with respect to their rights
against the Federal Government. In the context of what we do in
the Civil Rights Division, provided that this bill does not set off
similar kinds of actions in other areas, we may still be able to ef-
fect reasonable and lawful goals and timetables in actions that we
take against State and local governments. Whether complainants,
class complainants or individual complainants, would be able to
cause the Federal Government, after demonstrating to a Federal
court that the Federal Government's own programs had violated
the law, would be able then to create programs that reasonably en-
able
Mr. Frank. But the problem is complainants would not be able
to use that against Federal contractors of any sort.
Mr. Patrick. That's it. That's right.
Mr. Frank. I mean, that — so that much of the
Mr. Patrick. That's right.
Mr. Frank. Much of the private sector litigation or lower level
governments would be invalidated
Mr. Patrick. That's exactly right.
Mr. Frank [continuing]. Because, through you, any of — they
could not use those methods. Now in litigation currently, is that a
common tool? I mean, would the loss of that tool be a problem in
terms of litigation where Federal contractors are involved, to the
extent that people use Federal law to try and compel local entities
or private entities to do things?
Mr. Patrick. When there has been a demonstration of discrimi-
nation, yes, there would be a serious impairment of what it is we're
authorized now to do and our ability to create genuine reforms in
companies or in institutions that have been found to have discrimi-
nated.
Mr. Frank. People who have been critics of affirmative action, I
just wonder if you'd check and see — I know you've gotten some crit-
icism. I wonder if you've also gotten any criticisms from them that
say that you have not been sufficiently enforcing the antidiscrimi-
nation statutes, because generally people preface their criticisms of
affirmative action with announcements of how strongly they feel
about the regular discrimination statutes. And I'd be interested if
you've gotten from them any
Mr. Canady. The gentleman's time has expired. Mr. Hyde.
Mr. Hyde. Thank you very much, Mr. Chairman.
92
Mr. Patrick, you had some fun with the fact that the 100 days
Contract was a timetable and a goal, and, of course, you're quite
right, but there are goals and there are timetables. Triere is dis-
crimination and there is discrimination. If you choose a red tie over
a green tie, you're being discriminating, but it's not invidious. So
I would hope a little more nuance in that analogy.
The Adarand case, I take it you don't feel that there was any un-
fairness— that's kind of a generic word — in awarding a contract to
the higher bidder because that bidder had more minorities working
for it than the low bidder? You don't see any unfairness to the low
bidder, any discrimination against Adarand; is that correct?
Mr. Patrick. Not exactly, but that's not what I understand
Adarand to have been about, if I may. Congressman.
Mr. Hyde. Sure.
Mr. Patrick. What I understood Adarand was about is the pro-
gram at the Transportation Department that gives a financial cred-
it to — and I'm using a term of art now — a small disadvantaged
business, to reflect tne higher cost of that business in doing busi-
ness, as a way of encouraging the development of minority-owned
enterprises, and that it was the application of that credit in that
circumstance that then enabled the winning contractor's bid to
come in below the challenging contractor.
Mr. Hyde. Sort of recycling Grovernment money? In other words,
the Government made an allowance if they had more minorities
than the other company?
Mr. Patrick. I don't think it was the number of minorities on the
payroll. It was the
Mr. Hyde. Ownership?
Mr. Patrick. It was the ownership of the business and its quali-
fication under the existing rules as a small, disadvantaged busi-
ness.
Mr. Hyde. You don't see that as a racially-invidious practice?
Mr. Patrick. Well, on its face, no. I think your point is very well
taken, Congressman, that there are goals and timetables and there
are goals and timetables, and some — but not every difference in
treatment between people is a blunt or unfair one. I guess I would
say. Congressman, that we have in the main had the courts deal
with those nuances, and the Supreme Court in the Adarand case
dealt with the nuance, at least in terms of the level of constitu-
tional scrutiny.
But I would go on to say that the Court majority did not even
invalidate the program at issue in the Adarand case. It announced
a new standard and sent it back to the lower court where appro-
f>riate factual determinations have to be made about whether, in
ight of the new standard, that's a program that should
Mr. Hyde. Well, I surely support that. I support remedial prac-
tices where discrimination, invidious discrimination, has occurred.
I don't know anybody who's against that. I think that's a good idea,
but it's group think. It is a classification because of color, not be-
cause of what has happened, or gender that I have trouble with.
Mr. Patrick. I understand.
Mr. Hyde. Let me ask you a philosophical question. I've been
troubled by the definition of racism, and I've listened to a lot of
people talk on the subject, and I've heard the opinion ventured by
93
prominent African- Americans that black racism is a contradiction
in terms, that you can't be racist if you lack power; the only racism
has to be white racism because they have the power to enforce
their prejudices and their prepossessions, whereas the black people
lack that power, and, therefore, they are — ^by definition cannot be
racist. Do you subscribe to that theory?
Mr. Patrick. No.
Mr. Hyde. Good. I'm glad to hear that. I don't, and I notice you
mention Rodney King and Mark Fuhrman, and there's so much to
be said about both of those people as symbols of racial bigotry and
the problems our society has that aren't getting better, and that's
the sad thing, in my judgment. You may think they are and you
may know more than I because you deal with it every day, but
what I see, it's not getting better, but I don't think — I think I
would have liked
Mr. Canady. The gentleman's time has expired.
Mr. Hyde. Yes, I understand. Let me finish the sentence.
I would have appreciated your statement more if you had men-
tioned some of the hatred and venomous, bigotry, from the other
side, too.
Mr. Patrick. Mr. Chairman, may I respond to
Mr. Canady. Mr. Watt, do you wish to be recognized?
Mr. Watt. Yes. I'll — how much time do I have, Mr. Chairman?
Mr. Canady. Just a little bit.
Mr. Watt. I didn't know how much I yielded to Mr. Patrick.
Mr. Canady. Maybe a minute's left. Mr. Patrick has to leave in
5 minutes. I think it's a minute.
Mr. Watt. I yielded Mr. Patrick some time to complete his state-
ment, and I was wondering if I had any time left.
Mr. Patrick. I just want to say 60 seconds' worth.
Mr. Canady. The gentleman is recognized for a minute.
Mr. Patrick. I think the point you make. Congressman, is a seri-
ous point and it relates back to a point the chairman was making.
I don't take the view, and the administration doesn't take the view,
that everybody who obiects to affirmative action is a racist. Some
are, as you've acknowledged, Mr. Chairman, but not everybody.
That's not the point.
And intolerance, racial intolerance, in my view, is as hurtful on
one side of the color line as it is on the other. There's no quar-
rel
Mr. Hyde. And one begets the other, too.
Mr. Patrick. I understand that. I understand that. And the
point that you made about others' view of who has what power,
and so forth, is a point that I also understand. I fully understand
that.
I am simply sa>'ing, and we in the administration are simply say-
ing, that sooner or later we are going to have to put action and ef-
fort and backbone behind our professed commitment in building an
integrated community, and affirmative action done the right way,
is a very modest and, frankly, light-handed way of helping to ac-
complish that. That is not to say that every affirmative action pro-
gram is right or is not susceptible to some objection.
Mr. Hyde. I'm going to ask unanimous consent for 30 more sec-
onds. Would you let me
23-805 0-96
94
Mr. Watt. I'm happy to yield you 30 seconds. It's my time.
Mr. Hyde. I appreciate that.
Mr. Watt. And I'll yield you 30 seconds, yes.
Mr. Hyde. I really — you re a very serious person and an accom-
plished person, and we re talking about where we go from here on
a volatile, explosive, shredding issue. I have a very idiosyncratic
view that all of the laws and all of the affirmative action and all
of the coerced integration and all of the busing, and all that good
stuff, all the preferences and all the goals don't amount to a hill
of beans until we get a little religion in our soul and until we un-
derstand we are brothers and sisters made in the image and like-
ness of God, and we owe each other civility and deference because
we have an eternal destiny. We're getting far away from that
Mr. Patrick. You and I may agree on more than you think.
[Laughter. 1
Mr. Hyde. Well, I hope so, because until that happens and the
secularists let it happen, this problem is going to get worse.
But I thank you.
Mr. Patrick. Thank you.
Mr. Hyde. Thank you.
Mr. Watt. Mr. Chairman, I yield whatever additional time I
have, if I have any, to Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. Thank you, Mr. Watt, and
I appreciate your yielding.
Let me ask a question about the Florida situation, since you used
that as an example, where you caught a police department clearly
discriminating, using racial epithets and trashing applications of
African-Americans. You have no problem proving that case.
Mr. Patrick. Right.
Mr. Scott. My question is, after they've paid the damages and
lost that case, how do you do — how do you enjoin discrimination in
the future without using goals and timetables?
Mr. Patrick. Well, about the most you could do in the absence
of goals and timetables is exact a promise from the authority that
they'll never do it again, and keep going back periodically to see
how they're doing and reproving the case over and over again.
Mr. Scott. And until the day comes that Mr. Hyde has referred
to, African-Americans would expect, without any goals, timetables,
accountability, or measure, could count on them continuing doing
the same thing, but in a more discreet manner?
Mr. Patrick. Well, there's certainly that risk; that's right.
Mr. Scott. What do you usually use to enforce discrimination or-
ders?
Mr. Patrick. Well, we have monitoring mechanisms and we try
to have ticklers in our system and report that are required of the
monitoring, so that we can look again from time to time over a rea-
sonable period of time to see whether the institution has under-
taken to eliminate those systems that cause the discriminatory be-
havior and exclusion of
Mr. Scott. And if you're in an area where the culture of dis-
crimination, where the good old boys' network is alive and well,
without formal measurements, goals, and timetables, there would
be nothing that you can do to combat that?
Mr. Patrick. It's not very serious
95
Mr. Canady. I'm sorry, the gentleman's time has now expired.
Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I welcome the Assist-
ant Attorney General as usual
Mr. Patrick. Thank you, Congressman.
Mr. Conyers [continuing]. And his thoughtful responses that at
least make us resort to getting more religion, even if we're not
doing anything.
This is the most empty-handed, constitutional subcommittee I've
ever served on. What we do is tear out, root and nail the one little,
tiny weapon you've got, and then we turn around and ask you —
you haven't sent us anything lately. You're working on 14 fronts to
defend against this nonsense, and the new civil rights leaders of
the Congress, led by the chairman of the full committee and the
subcommittee chairman, with the — oh, it's a beautiful set of names
here on 2128. The new civil rights leaders are going to start off by
trashing way beyond the constitutional limitations that the Court
may not have so thoughtfully imposed on it, but we're all caught
by that, but they sit here and ask you to come forward with some
new ideas. It's shameful. It's also a little disgusting.
But the fact of the matter is that we are having a discussion,
which is what we're here for and it is helpful. When we are block-
ing laws and trying to make bad ones, hopefully, the discussion ele-
vates this important issue in American history. But it's a little
hard for me to take all of this righteousness this afternoon when
you show up, and I only hope that you show up more, and that
maybe out of this dialog, where there are serious differences,
maybe you people leading the Congress in the 104th session will
do something. Is that asking too much?
I yield back the balance of my time.
Mr. Canady. Well, Mr. Patrick, we would do a second round, but
I understand you have to go.
Mr. Patrick. I'm sorry, I have a flight from Dulles.
Mr. Canady. OK. Well, we appreciate your being with us and
sure you'll be back for some future hearings.
Mr. Patrick. Thank you, Mr. Chairman and members of the
committee.
Mr. Canady. Thank you.
Mr. Patrick. Thank you.
Mr. Canady. I'd like to now ask the members of the next panel
to prepare to come forward and take your seats. There are three
members on our next panel. I'll introduce three of them and then
recognize them in turn.
Our first witness for this panel is Prof. Kingsley Browne. He is
a law professor at Wayne State University in Detroit, where he
specializes in employment discrimination law. Prior to joining the
faculty at Wayne State, Professor Browne practiced labor and em-
ployment law in San Francisco.
Next to testify will be Prof. Frank Wu. Professor Wu is an assist-
ant professor of law at Howard University, where he teaches the
clinical program and other courses. Prior to moving to Washington,
DC, Mr. Wu was an associate with the San Francisco law firm and
worked as a campaign organizer on Califomians Against — I'm
sorry, Califomians United Against Proposition 187.
96
We will also hear from Prof. Andrew Kull. He is a professor of
law at Emory University's Law School and author of the "Color-
blind Constitution," which analyzes the legal and historical basis
for a constitutional principle of colorblindness. And I would add
parenthetically that I commend to all the members of the sub-
committee Professor Kull's book. It's a very interesting history, pre-
sented in a very objective way, of this principle.
Again, I want to thank each of you for being with us today. We
appreciate your taking the time to participate in this hearing.
Professor Browne.
STATEMENT OF KINGSLEY R. BROWNE, ASSOCIATE
PROFESSOR, WAYNE STATE UNIVERSITY LAW SCHOOL
Mr. Browne. Thank you, Mr. Chairman.
Mr. Chairman and members of the subcommittee, I appreciate
very much the opportunity to address you concerning the Equal
Opportunity Act of 1995, which is an important step toward the
race- and sex-blind world of work that many of us would like to
see. The central purpose of the act is to prohibit the Federal Gov-
ernment from granting preferential treatment on the basis of race,
sex, or ethnicity and from requiring or encouraging the use of such
preferences by Federal contractors. The bill is a sensible, moderate,
and necessary means of achieving that end while at the same time
preserving the ability of the Federal Government to engage in vig-
orous outreach activities in employment and contracting practices
and to require the same of Government contractors.
I'd like to focus on two issues this afternoon: first, the way that
goals and timetables create pressure on decisionmakers to make
race-and sex-conscious decisions and, second, to address the dis-
tinction that some make between goals or mere preferences on the
one hand and quotas on the other.
One of the most difficult problems impeding productive discus-
sion of affirmative action is that parties to the debate often use the
same words to mean diff'erent things. The terms "quotas," "goals
and timetables," "affirmative action," "reverse discrimination," and
"preferences" seem to mean different things to different people.
However, substance is more important than labels. So the critical
question in considering this bill is, what kind of behaviors should
be encouraged and what kind should be discouraged?
Since all ag^ee that strict quotas are bad and all agree that out-
reach activities are good, the critical ground lies in the middle, as
Mr. Patrick himself stated. The central question addressed by this
bill is whether the Federal Government in its employment, con-
tracting, and regulatory practices should be permitted to engage in
or encourage race and sex preferences, whether in the form of plus
factors, set-asides, or quotas.
Some have argued that lumping goals and timetables with
quotas, preferences, and set-asides is inappropriate since goals do
not by themselves require race- or sex-conscious decisions, but in-
stead require only good-faith attempts to satisfy them. However,
numerical goals necessarily impose pressure to be race- and sex-
conscious. When qualifications indicate one course of action and
goals indicate another, the decisionmaker must make a choice:
whether to be glided by qualifications or by race or sex; which con-
97
trols? The Equal Opportunity of 1995 would eliminate that di-
lemma.
In one sense, but a trivial one, it is true that goals do not for-
mally require preferences. Groals are just the ends. They do not dic-
tate the means. It is easy to say that the employer never has to
hire a less-qualified person. However, the difficulty comes when the
employer is faced with the choice between goals and qualifications
at the same time that it's facing pressure to satisfy the goals.
For example, the OFCCP takes failure to satisfy goals as evi-
dence of discrimination and as justification for conducting a time-
consuming and expensive compliance review. Employers know that
bad numbers will lead to difficulties with the enforcement agencies.
As a result, they experience substantial pressures to satisfy their
goals.
Goals and preferences go hand in hand. While there is a formal
difference between the two, there is also a formal difference be-
tween quotas and preferences. Neither goals nor quotas by defini-
tion require preferences. Both might be satisfied without pref-
erences. Goals and quotas are the ends, and preferences are often
the necessary means to achieve those ends.
Some have argued that since goals are based upon availability
statistics, there's no pressure to engage in preferences. The argu-
ment is that since qualifications are equalized, race- and sex-blind
hiring will produce equal representation. But the fact is that as-
sumption is wrong. Availability statistics are simply not an accu-
rate measure of job qualifications. They're generally computed
based upon broad occupational categories, and they reflect at best
only minimum qualifications for the job.
It may be that employers could easily satisfy their goals if they
were seeking only a candidate with the minimum qualifications.
However, employers generally hire on the basis of relative quali-
fications, preferring to hire the most qualified candidate rather
than any qualified candidate. As long as qualifications and inter-
ests are not randomly distributed with respect to race and sex, se-
lection on the basis of qualifications and selection on the basis of
goals will yield different results.
This bill's rejection of goals and timetables is necessary if the
Eurpose is to reject preferences. Constantly keeping one eye on the
ottom line means that the other eye will always be on race and
sex. As long as employers are under pressure to achieve goals, pref-
erences will be part of the system.
Some people, rather than denying the existence of preferences,
contend that mere preferences, such as using race or sex as a plus
factor, should be permissible, but that rigid quotas should not be.
However, the strict dichotomy between preferences and quotas is il-
lusory.
First, the definition of the term "quota" that is used is often so
rigid, involving hiring of persons without regard to whether they're
even minimally qualified, that to disclaim quotas is to disclaim
something that never happens. Employers never hire blindly ac-
cording to the numbers, without regard to the existence of even
minimum qualifications.
More fundamental, however, is the issue of principle. As a matter
of principle, it is not clear why one should draw such a sharp line
98
between quotas and plus-factor preferences. As Justice Powell
noted in his opinion in Bakke, the semantic distinction between
goals and quotas is simply beside the point if there's a racial classi-
fication involved.
The American people also do not seem to draw much of a distinc-
tion between preferences and quotas. A recent Los Angeles Times
poll found that although a majority favored affirmative action for
women and minorities, only 22 percent favored preferences for
equally qualified minorities and only 25 percent favored pref-
erences for equally qualified women. Thus, by about a 3-to-l mar-
gin, Americans oppose the most moderate form of preference, the
tie-breaker.
Significantly, only slightly fewer Americans, 21 percent, favor af-
firmative action that uses quotas, suggesting that the American
people are not convinced that there is a moral difference between
preferences and quotas. They oppose both.
And it is not clear that there is a difference between the two.
Why is that most people object to quotas? Usually two reasons are
given, one focusing on the beneficiaries of the quota and one focus-
ing on the victims.
As to the group favored by the quota, it is often said, as Professor
Loury did this morning, that the quota stigmatizes. It implies that
members of the favored group cannot make it on their own or are
not to be judged by the same rigorous standards that other individ-
uals face. The very existence of the quota, therefore, is a badge of
inferiority. The persons most harmed, of course, are those members
of the group that could have made it on their own, for they are for-
ever subjected to the false, but well-founded, suspicion that they
did not do so. This kind of harm exists irrespective of whether
there was a flexible goal or a rigid quota. The fact that selections
are not made on a race- and sex-blind basis in either case means
that the stigma is present. Whether it was a thumb on the scale
or a fist, the badge of inferiority that comes with preferential treat-
ment will always be present.
The second perspective is the perspective of the direct victim,
typically a white man. From his perspective, the distinction be-
tween preferences and goals and quotas seems utterly irrelevant.
He did not get the job because of his sex or race; another candidate
got the job Decause of his or her sex or race. This man derives no
comfort from knowing that he was not the victim of a rigid quota,
but rather of a flexible goal. Whether the successful candidate was
slightly less qualified, only marginally qualified, or even unquali-
fied, the harm to the rejected victim is the same.
Some people express support for preferences when race or sex is
just one of many factors as opposed to being the sole factor. Mr.
Patrick expressed that view this afternoon. But this also is a dis-
tinction without a difference. Whenever a preference is granted,
race or sex is dispositive and the decision itself is in reality based
solely on race and sex.
The employer in Johnson v. Transportation Agency, for example,
would have selected the plaintiff on the merits, but solely because
of his sex it selected a woman instead. Sex was the dispositive fac-
tor. The only reason that he did not get the promotion was that he
was a man.
99
Some people simply deny the existence of these victims of affirm-
ative action. That was the thrust of the Blumrosen report prepared
for the Department of Labor which concluded that there are few
victims of reverse discrimination. However, it was not the rarity of
victims of preferences that led to that conclusion. Instead, it was
the general legality of preferences in the private sector under the
Supreme Court's permissive standards in Weber and Johnson. The
fact is that preferences are not victimless phenomena. Those who
support preferences must candidly acknowledge their cost.
Paul Johnson, the plaintiff in Santa Clara, was harmed by the
sex preference. He didn't get his promotion. Brian Weber, the
plaintiff in Steelworkers v. Weber, was harmed by the racial pref-
erence. He didn't get admitted into the training program. Sharon
Taxman, the plaintiff in Taxman v. Piscataway, was harmed by the
racial preference when she was selected for layoff on the basis of
race. These are but a few of the many flesh-and-blood victims of
race and sex preferences.
In conclusion, the notion that one can have a merit-based system
that is sex and race conscious is an illusion. Numerical objectives
create an inexorable pressure to engage in preferences. The
decisionmaker can make decisions based upon the goals or upon
race- or sex-neutral criteria. It simply cannot do both. Anyone who
opposes preferences should favor this bill. Its moderate approach
would eliminate Government-sponsored preferences, but at the
same time leave the Federal Government free to engage in and re-
quire efforts to increase the diversity of the applicant pool, as well
as leaving private contractors free within the limits of current law
to engage in voluntary affirmative action.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Browne follows:]
Prepared Statement of Kingsley R. Browne, Associate Professor, Wayne
State University Law School
Mr. Chairman and Members of the Subcommittee, my name is Kingsley Browne.
I am a law professor at Wayne State University in Detroit, where I specialize in
employment discrimination law. Prior to joining the faculty at Wayne State, I prac-
ticed labor and employment law in San Francisco.
I appreciate very much the opportunity to address you concerning the Equal Op-
portunity Act of 1995, which is an important step toward the race- and sex-blind
world of work that many want. You have heard much testimony concerning the pol-
icy arguments for and against certain forms of aflirmative action, and I will not
focus heavily on those issues. Instead, I would like to direct my remarks to some
slightly more technical aspects of current affirmative-action programs and attempt
to refine the focus of the debate.
As I set out more fully below, it is critically important to understand the way that
numerical objectives, such as those implemented by the OFCCP and used by the
federal government in its own employment, have shifted the focus of decision-mak-
ing from the relevant criterion of merit to the irrelevant criteria of race, sex, and
ethnicity. Whether or not that was the intention, it most assuredly has been the
consequence.
I. SUMMARY OF TE^IMONY
The central purpose of the Equal Opportunity Act of 1995 (H.R. 2128) is to pro-
hibit the Federal Government from granting preferential treatment on the basis of
race, sex, or ethnicity and from requiring or encouraging the use of such preferences
by federal contractors. The bill is a sensible, moderate, and necessary means of
achieving that end, while at the same time preserving the ability of the Federal
Government to engage in vigorous outreach activities in its employment and con-
tracting practices and to require the same of government contractors.
100
The debate over "afTirmative action" has been less productive than it might have
been, because partisans to the debate oflen talk past each other rather than with
each other, with one side using quite different definitions of terms than the other
side uses. Terms like "affirmative action," "goals and timetables," "reverse discrimi-
nation," and "quotas" are oflen used without a shared understanding of their mean-
ing. But substance is more important than labels, so the critical question in consid-
ering this bill is "what kinds of actions would be permitted and what kinds of ac-
tions would be prohibited"?
The core of H.R. 2128 is to prohibit "preferences," meaning the conscious use of
race or sex in making decisions, whether as "tie-breakers," "plus factors," or "rigid
quotas." The bill embodies the salutary principle that race- and sex-blind decisions
should be the norm.
H.R. 2128 goes no farther than necessary to eliminate preferences. By its terms,
it defines as a "preference" "any use of a quota, set-aside, numerical goal, timetable,
or other numerical objective." If preferences are to be eliminated, it is necessary to
eliminate all of the above-enumerated practices.
Some argue that while quotas and set-asides truly involve preferences, goals and
timetables do not; instead, they merely establish realistic targets for the employer's
work force and require only good-faith efforts at satisfaction. This is an unrealistic
view of the real-world effects of goals and timetables.
Numerical goals necessarily impose pressure to be race- and sex-conscious. The
notion that one can simultaneously attempt to satisfy a numerical goal and main-
tain a race- and sex-blind selection process is an illusion. In the cases that matter,
when the time comes, the decision -maker will be guided either by qualifications or
by race or sex. If both criteria point in the same direction, the goal has no effect;
qualifications are sufficient. Instead, goals have an impact primarily in those cir-
cumstances where qualifications indicate one course of action and the goals indicate
another. Which is to control? This bill would eliminate that dilemma.
Others argue that "mere preferences" should be permissible, but that "rigid
quotas" should not be. However, the dichotomy between preferences and quotas is
illusory. First, the meaning of the term "quota" is oflen so rigid — involving hiring
of persons without regard to whether they are even minim ally qualified — that to dis-
claim quotas is to disclaim something that never happens. Second, the effects of
preferences on both the favored group and the disfavored group are largely indistin-
guishable from the effects of quotas: both quotas and preferences stigmatize the fa-
vored group by implying that its members could not compete against others on an
equal footing, and both quotas and preferences exclude members of the disfavored
group from opportunities on the basis of race or sex.
Anyone who opposes preferences should favor this bill. Its moderate approach
would eliminate government-sponsored preferences but at the same time leave the
Federal Government free to engage in (and require) efforts to increase the diversity
of the applicant pool, as well as leaving private contractors free — within the limits
of current law — to engage in preferential policies.
II. HOW SHOULD THE RELEVANT TERMS BE DEFINED?
One of the most difficult problems impeding productive discussion of afHrmative
action is that — whether through inadvertence or design — parties to the debate oflen
use the same words to mean different things. The terms "quotas," "goals and time-
tables," "affirmative action," "reverse discrimination," and "preferences" seem to
mean different things to difTerent people. These labels and their sometimes shilling
meanings should not be allowed to obscure the fact that what is important at bot-
tom is what kind of behaviors are required or encouraged by current law and what
kinds of behaviors are forbidden or discouraged. ^
In order to situate the discussion, it would be instructive to define some of the
terms that are commonly used in this debate.
A. Quotas: The term "auota" is oflen defined by proponents of strong forms of af-
firmative action as something like:
a fixed number or percentage of persons of a particular race, color, reli-
gion, sex, or national origin which must be attained, or which cannot be ex-
ceeded, regardless of whether such persons meet necessary qualifications
for the job.
1 Because the area of my primary Bpecialization is employment, most of my specific c*)8erva-
tions are directed toward the employment implications of H.R. 2128. However, the principles
that I discuss are fully transferable to other areas, such as preferences in contracting.
101
Everyone is against quotas when defined this way, but that is largely academic,
since even the most aggressive affirmative-action program does not require the hir-
ing of the utterly unqualified.
However, there is a less extreme kind of plan that many would label as a "quota,"
though it does not fall within the above definition. In the seminal case of United
Steelworkers of America v. Weber, ^ for example, the Supreme Court upheld a train-
ing program in which 50 p>ercent of the slots were reserved for minorities.^ Brian
Weber sued because he was denied entry into the program. He had been excluded
from consideration for half the slots in the training program, slots that were filled
by minorities having less seniority than he had. llie minorities who were selected
for the training program did not lack the minimum qualifications for the program;
they simply had less seniority than Weber and other whites and did not have to
compete against whites for those slots. I would venture to say that most laymen
would view this as a "quota" — a racial entitlement to not less than 50% of the train-
ing-program slots — but the narrow definition of the term described above allows pro-
ponents of such plans to deny that quotas are involved.
B. Outreach: One form of affirmative action that just about everyone endorses is
"outreach": attempts by the employer to "cast a wider net" to increase the diversity
of the applicant pool. Outreach eflbrts may take the form of advertising in publica-
tions having a high female or minority readership, participation in job fairs, or other
practices to encourage applicants who would not be reached by more traditional
methods. Outreach efforts by themselves do not involve "preferences," since after ob-
taining the broader pool, the employer may make its selection in a race- or sex-blind
fashion.
C Preferences: The term "preferences" is at the heart of the proposed legislation,
because the operative provision prohibits the Federal Government from "grant[ing]
a preference," which is defined to mean "use of any preferential treatment and in
dudes but is not limited to any use of a quota, set-aside, numerical goal, timetable,
or other numerical objective."
I believe that what is meant by the words "preference" and "preferential treat-
ment" (and what most laymen would take these terms to mean) is race- or sex-con-
scious selection decisions that deviate from the employer's ordinary merit-based, or
at least race- and sex-neutral, selection criteria. The preference feay or may not
take the form of a "quota." There are two conceptually related forms of preferences:
"tie breakers" and "plus factors."
1. Use of Race or Sex as a "Tie Breaker": This is a form of preference in which
the employer uses sex or race after its traditional merit-based selection procedures
have produced multiple candidates who are equally qualified. This may be a com-
mon or uncommon form of preference, depending upon how closely the employer
scrutinizes qualifications. In circumstances in which the employer carefully exam-
ines the background, skills, abilities, and experience of candidates, it is relatively
uncommon for candidates to be judged exactly equal. On the other hand, if the em-
ployer merely looks for minimum qualifications and treats all applicants having the
minimum qualifications as equal, then tie-breakers would be frequently used. Ordi-
narily, employers do not use the latter form of selection, preferring instead to find
"the most qualified candidate" rather than "a qualified candidate." However, if pref-
erences are permitted to break ties, an employer that wishes to employ preferences
may declare candidates equally qualified to take advantage of its ability to use race
or sex as a tie-breaker.
An example of the use of sex as a tie-breaker is found in the case of United States
v. Board of Education of the Township of Piscataway.^ In that case, the school dis-
trict had to lay off a teacher in the high school's business department. There were
two teachers — one white and one black — who were deemed equally qualified and
who had equal seniority. The school district's normal practice in such circumstances
would be to flip a coin to decide which teacher would be laid ofi". However, the school
district — which had not engaged in prior discrimination and which already had a
higher percentage of black teachers than the availability in the local market — se-
lected the white teacher, Sharon Taxman, for layoff based upon a "diversity" ration-
2443 U.S. 193 (1979).
3 Although the current bill would not amend Title VII or alter the scope of permissible affirm-
ative-action programs, the facts of Title VII and Equal Protection cases are used for illustrative
purposes, because that is the context in which affirmative-action programs typically come to the
attention of the legal system.
<832 F. Supp. 836 (D.N.J. 1993).
102
ale. The Clinton administration supports the school district's right to lay Ms. Tax-
man ofT because she is white.''
2. Use of Race or Sex as a "Plus Factor": This is a broad category of preference
that also in dudes use of race or sex as a tie-breaker. When race or sex is used as
a tie breaker, it has only enough weight to tip scales that are in equipoise. However,
race or sex may be given more weight than that. The challenged action in Johnson
V. Transportation Agency^ would fall within this definition. In Johnson, the em-
f (lover passed over a male candidate for promotion in favor of a somewhat less quali-
ied female. Although the employer stated that the decision was based upon a com-
bination of qualifications and *<anirmative action matters," the district court found
that sex was the determining factor in the decision. Thus, here is a case in which
the person selected was dearly qualified for the job but nevertheless received the
job only because sex was a "plus factor" in the decision.
In Johnson, sex was given only a relatively small amount of wei^t, since the
woman selected was rated as almost as qualified as the man rejected. In other
cases, the employer may give it even more weight, resulting in the selection of em-
ployees who are substantially less qualified, but still at least "minimally qualified."
The Supreme Court in Johnson did not limit its approval of preferences to cir-
cumstances in which the candidates are equal or almost equal in qualifications.
D. Goals and Timetables: The OFCCP requires federal contractors to establish
"goals and timetables" for remedying "underutilization" of women and minorities.'^
The level of the goals should be "the results which could reasonably be expected
from [the contractor's] putting forth every good faith effort to make its overall af-
firmative action program world"* The regulations further provide that these goals
should not be "rigid and inflexible quotas which must be met."^
Gk)als do not necessarily and by definition involve "preferences," as defined above.
However, affirmative action programs may "in design and execution ... be race,
color, sex, or ethnic 'conscious.'"*" It thus appears that the enforcement agencies
do not themselves have a preference for preferences; they will be perfectly satisfied
if the goals can be satisfiea without preferences. For those who favor selection based
upon merit, rather than status, the concern with goals is not that they by definition
embody preferences, but that in operation they almost inevitably do. That is why
it is critically important that goals and timetables be included within the prohibited
practices under this bill. I will address this issue in Section IV, below.
E. Reverse Discrimination: This term, like the term "quotas" is largely a label ap-
plied to policies that the speaker does not like. For example. President Clinton de-
clared his support for "affirmative action" except when it turns into "reverse dis-
crimination."" The term "reverse discrimination" can be used in two ways. In its
narrow sense, it refers to "preferences" — as defined above — that are illegal. It is this
sense of the term that Professor Alfred Blumrosen used in the report on reverse dis-
crimination that he prepared for the Department of Labor. ^^ He concluded that re-
verse discrimination is rare based upon nis finding that few discrimination charges
are filed by white men complaining that they have been victimized by afTirmative
action and that lawsuits brought by such plaintiffs are generally found to lack legal
merit.^3 From this, he concluded that "reverse discrimination" is not a problem.
"The lawsuit was initially pursued on Ms. Taxman's behalf by the Justice Department, with
Ms. Taxman being a plaintilt-intervenor. After the Justice Department prevailed at trial, the
Department sought to switch sides and support the racial preference. The Third Circuit recently
rejected its eflbrts to do so, and in efTect ordered the Justice Department out of the case.
8480 U.S. 616 (1987).
^41 CFR 60-60.2.
841 CFR60-2.12(a).
»41 CFR 60-2.12(3).
10 41 CFR 60-3.17, 60-3.4.
11 In his statement on afTirmative action, President Clinton stated that he was in favor of af-
firmative action," but that he did not favor "the unjustified preference of the unqualified over
the qualified," "numerical quotas," or "rejection or selection of any employee . . . solely on the
basis of race or gender without regard to merit." Todd S. Purdum, President Shows Fervent Sup-
port for Goals of Affirmative Action, N.Y. TIMES, July 20, 1995, at A-1.
1^ Alfred W. Blumrosen, flow the Courts Are Handling Reverse Discrimination Claims (Draft
Report on Reverse Discrimination), reprinted in DAILY Lab. Rep. (BNA) No. 147, at D-43 (Aug.
1, 1995).
i^The conclusion that there are few meritorious claims seems somewhat inconsistent with the
data contained in the report. Of individual claims of discrimination, Blumrosen reported that
of 21 cases, in 6 (or 28%), the plaintiffs prevailed. Of cases challenging affirmative-action pro-
grams, 12 cases upheld them, while 6 invalidated or modified the plans, and in an additional
2 cases, the courts ruled that the programs had met their goals and should be dissolved. Thus,
in 40% of the cases, the affirmative action plans were in one way or another unjustified. I as-
sume that if one were to cull through all of the reported discrimination cases, there would be
103
Others (including, I would venture to ffuess, most laymen) use a far less restricted
definition of reverse discrimination. Under the broader view, a reverse discrimina-
tion" would be largely congruent with "preferences," as defined above: denying an
employment opportunity to a person because of race or sex in order to advantage
a member of an historically disfavored group. The "reverse" in reverse discrimina-
tion refers not to illegality but simply to the fact that the victim is a white or a
man, instead of a minority or a woman. Thus, when a white woman is denied a job
because she is white, that is reverse discrimination; when she is denied a job be-
cause she is a woman, that is "garden variety" discrimination.
Whether "reverse discrimination" is rare or common depends upon which of the
above definitions is adopted. Both Weber and Johnson involved reverse discrimina-
tion under the broader definition, a form of discrimination that is quite common.
On the other hand. Professor Blumrosen concluded that such discrimination is rare,
because his definition focused on illegality.^'* His report, and much of the use that
has been made of it, is extremely disingenuous. Despite the rhetorical use of his
study, it was not the rarity of victims oi preferences that led to his conclusion. In-
stead, what led to his conclusion was the general legality of preferences in the pri-
vate sector under the Supreme Court's permissive standards in Weber and Johnson.
Successful lawsuits alleging reverse discrimination are rare because race and sex
preferences that disadvantage white men are usually not illegal in the private sec-
tor, just as prior to 1965 successful lawsuits alleging racial discrimination were
rare, not because racial discrimination was rare, but because it was not illegal.
Despite the laxity of the standards set forth in Weber and Johnson, there is sub-
stantial question whether some affirmative-action plans under the Executive Order
are valid. In both Weber and Johnson, the Court held that preferences were permis-
sible to remedy "manifest imbalances" in "traditionally segregated job categories."
However, affirmative action plans are required under the Executive Order to rem-
edy "underutilization" in any job category, "underutilization" being defined as "hav-
ing fewer minorities or women in a particular job group than would reasonably be
expected by their availability." i'^ It is not clear that "underutilization" is as strict
a standard as "manifest imbalance." More significantly, under the Executive Order,
underutilization must be remedied in all job categories, not iust in "traditionally
segregated" ones. Moreover, underutilization must be remedied as to all racial
groups, not just ones that have been historically subjected to discrimination in the
particular industry.
In Johnson, Justice Brennan emphasized that the "traditionally segregated job
category" requirement is intended to have meaning:
The requirement that the "manifest imbalance" relate to a "traditionally
segregated job category" provides assurance . . . that race and sex will
be taken into account in a manner consistent with Title VII's purpose of
eliminating the effects of employment discrimination. . . A^
Thus, Johnson suggests that employers who attempt to "remedy" "underutilization"
without regard to whether the job category is a traditionally segregated one, violate
Title VII by doing so. Yet this Kind of activity is encouraged by the OFCCP rather
than prohibited.
F. Affirmative Action: Perhaps the most meaningless phrase in this entire discus-
sion is "affirmative action." Amrmative action can be racial quotas or outreach ac-
tivities or anything in between. The amorphousness of the phrase has contributed
a great deal to the misunderstanding (or obfuscation) of this debate. As a case in
point, pollster Louis Harris has criticized Republicans for attempting to cause the
American people to equate affirmative action (which most Americans favor) and
preferential treatment (which most Americans oppose).^'^ Harris presented a sample
with the following language from the California Civil Rights Initiative:
The state will not use race, sex, color, ethnicity or national origin as a
criterion for either discriminating against, or granting preferential treat-
little support for repealing Title VII on the finding that plaintiffs prevailed in only Va of their
cases.
"Most of the cases in which reverse-discrimination plaintiffe prevailed were brought against
governmental employers, which are governed by the stricter constitutional standards.
1^41 CFR60-2.il.
"480 U.S. at 632. See also United Steelworkers of America v. Vfeber, 443 U.S. at 212
(Blackmun, J., concurring) (noting that a job category is "'traditionally segregated' when there
has been a societal history of purposeful exclusion of blacks from the job category, resulting in
a persistent disparity between the proportion of blacks in the labor force and the proportion of
blacks among those who hold jobs within the category").
1' Louis Harris, Affirmative Action and the Voter, N.Y. TIMES, July 31, 1995, at A-13.
104
ment to, any individual or group in the operation of the state's system of
public employment? education, or public contracting.
Harris reported that about 80 f)ercent of respondents favored the proposition as
worded. He then asked respondents if they would vote for the proposition "if it out-
lawed all affirmative action programs for women and minority groups." He reports
that support for the initiative plummeted and that many peopfe interviewed were
angry after being told that the California Civil Rights Initiative would end all af-
firmative action. They felt that thev had been duped.
Before Harris told respxindents that the initiative would outlaw all affirmative ac-
tion, he asked respondents what "affirmative action" meant. Sixty-eight pxjrcent of
whites said it referred to "programs intended to help women and memoers of minor-
ity groups who had not had equal opportunities in education and employment."
It is hardly surprising that the resfxjndents felt duped. They were shown lan-
guage that would outlaw discrimination and preferential treatment, and they were
tnen told that the initiative would "really" eliminate "all programs intended to help
women and members of minority groups." The respondents were indeed duped, but
it was Harris, not the sponsors of the initiative, who duped them.
Public support for affirmative action seems to be limited to kinds of afTirmative
action that do not amount to preferences. Polls that ask whether respondents sup-
port affirmative action or whetner they favor measures to aid women and minorities
generally show high levels of support (a result that calls into question the frequent
assertion that our society is pervaded with sexism and racism). However, when re-
spondents are asked more specific questions, which go to the issue of exactly what
kinds of affirmative action they favor, polls consistently show that they do not think
that employers should take race or sex into account in making individual employ-
ment decisions. For example, a 1991 New York Times/CBS News poll askea re-
spondents, "Do you believe that where there has been job discrimination against
blacks in the past, preference in hiring or promotion should be given to blacks
today?" Sixty-one percent of respondents answered "no," while only 24% said
"yes."^^ A Washington Post/ABC News poll produced similar results, with 80% of
all respondents opposed to racial preferences in jobs even when "there are no rigid
quotas. "1^ A recent Los Angeles Times poll found that although a majority favored
"affirmative action" for women and minorities, only 22% believed that "qualified mi-
norities should receive preference over equally qualified whites" and only 25% be-
lieved that "qualified women should receive preference over equally qualified
men."2° Thus by about a 3:1 margin, Americans oppose the most moderate form of
preference — the tie breaker. Only slightly fewer Americans (21%) favor affirmative
action that uses quotas, suggesting that the American people are not convinced that
there is much difierence between "preferences" and "quotas."
III. THE FOCUS SHOULD BE ON WHAT BEHAVIORS ARE INVOLVED, NOT THE LABEL THAT
IS PLACED ON THEM
Because of the shifting definitions of the relevant terms, debate should focus more
clearly on what behaviors are permissible, rather than on what labels are used. For
ease of discussion, I will use the term "afTirmative action" to include all conscious
eflbrts made by an employer to increase the racial, ethnic, or sexual diversity of its
applicant pool or work force, whether or not the means chosen involve "preferences"
and whether or not they are legal. Using this definition, all parties agree that some
afiirmative action should be permitted and some should be forbidden.
The real question here is what kinds of behaviors are the federal government as
employer and the OFCCP as enforcer permitted to engage in or encourage. Since
all agree that strict quotas are bad, and all agree that outreach activities are good,
the critical ground lies in the middle. The central issue is whether the federal govern-
ment in its employment, contracting, and regulatory practices is permitted to engage
in or encourage race- and sex-conscious preferences, whether in the nature of "plus
factors," as in Johnson, or racial set-asides, as in Weber.
Some believe that the Federal Government should not — and private employers
should not be forced or encouraged to — grant preferences on the basis of race or sex.
Nonetheless, they believe that employers should be encouraged to attempt to in-
crease their work-force diversity through non -preferential means. H.R. 2128 is a bal-
^* Robin Toner, Symbolic Justice; Capturing an Era's Racial Conflicts and Ironies, N.Y. TIMES,
July 7, 1991.at §4,p. 1.
i»Tom Kenworthy & Thomas B. Edsall, Whites See Jobs on Line in Debate; Some Chicagoans
Fear Reverse Bias, WASH. POST, June 4, 1991, at Al.
***Cathleen Decker, The Times Poll: Most Back Anti-Bias Policy but Spurn Racial Preferences,
L.A. Times, Mar. 30, 1995, at A-1.
105
anced attempt to respond to both of those policy preferences, because it prohibits
quotas and set-asides while at the same time preserving outreach activities. How-
ever, the question remains whether this bill goes beyond discouraging preferences
by its elimination of goals and timetables and other numerical objectives. For rea-
sons set forth below, I do not believe that it is possible to retain goals and time-
tables and eliminate preferences. Therefore, one who is opposed to preferences
should also oppose goals and timetables.
On the other hand, others believe that preferences that do not involve quotas
should be permissible, even though quotas should not be. This raises the question
whether there is a principled distinction between the two. As set forth below, I
think that they raise largely the same issues, and that a principled stand against
quotas leads to a rejection of preferences.
IV. GOALS AND PREFERENCES
A. If "goals and timetables" do not necessarily and by definition involve "preferences,"
why should someone who opposes preferences oppose goals and timetables?
Put another way, why do goals and timetables lead almost inevitably to "pref-
erences"?
The OFCCP maintains that preferences are radically different phenomena from
goals and timetables. In a July 26, 1995, statement, Shirley Wilcher, Deputy Assist-
ant Secretary for Contract Compliance, explained: "Unlike preferences and quotas,
numerical goals recognize that persons are to be judged on individual ability, and
are, therefore, consistent with the principles of merit hiring and promotion." ^^ Ac-
cording to this statement, in order to achieve its goals, an employer "is never re-
quired to . . . hire a less qualified person in preference to a more qualified per-
son." Furthermore, "[a] contractor's compliance is measured by whether it has made
good faith efforts to meet its goals" and "[f]ailure to meet goals is not a violation
of the Executive Order." According to Secretary of Labor Robert Reich, the purpose
of most affirmative action laws is simply to get employers to "cast a wider net" to
find qualified applicants.^
In one sense — but a trivial one — it is true that neither the Executive Order nor
the OFCCP formally imposes a requirement that employers engage in preferential
hiring. Rather, employers are to establish goals and devote their utmost efibrt to
achieving them. How they achieve these goals is up to them. The OFCCP would pre-
sumably be just as happy if the employer could achieve its goals through race- and
sex-blind hiring.
But what about those many circumstances where the employer cannot achieve its
goal without giving preference to women or minorities? The formal position of the
OFCCP is that failure to satisfy goals is not by itself a violation of the regulations
and that as long as the employer is making good-faith efforts to achieve the goals,
the employer is in compliance.
But what about the reality? What are the practical consequences of failure to
achieve numerical goals? In order to understand those consequences, one must com-
pare the situation of an employer who satisfies its goals and one that does not.
In determining whether and how extensively to conduct a compliance review of
a contractor, the OFCCP examines the extent to which the contractor is achieving
its goals. Contractors with "good numbers" are often given a relatively cursory ex-
amination if they are reviewed at all. However, contractors who are not making fast
enough progress toward their goals are given a much more extensive review, a re-
view that can last months or years. Because failure to satisfy goals is taken to be
evidence of discrimination, much of the compliance review involves requiring the
employer to justify its hiring, promotion, and compensation of white men, with the
agency in many cases substituting its own judgments of qualifications for the em-
ployer's. The pressure is enhanced by the fact that the OFCCP measures its own
success by how many "victims" of discrimination it finds and how much money it
recovers for them.^^
How does an employer avoid a lengthy compliance review, the imposition of sanc-
tions by the OFCCP, and the attendant bad publicity? By achieving its affirmative
21 Shirley J. Wilcher, Numerical Goals under Executive Order 11246 (July 26, 1995).
^ After 10 Years, Debate Resurfaces over Merits of Affirmative Action, DAILY LAB. Rep. (BNA)
No. 147, at D-26 (Aug. 1, 1995).
"See OFCCP Obtained Record Settlements in Fiscal Year 1994, Wilcher Says, DAILY LAB.
REP. (BNA) No. 212, at D6 (Nov. 4, 1994).
106
action goals, since failure to meet goals is taken as evidence that the employer's ef-
forts were not in good faith. ^
The de facto pressure to satisfy numerical goals is analogous to a hypothetical IRS
enforcement strategy. Suppose tne IRS had an enforcement policy unoer which any-
one who claimed deductions that brought their tax below a particular percentage
(X) of their gross income would be subjected to a thorough and time-consuming "liie-
style" audit, similar to the kind of audit that the Service was recently contemplat-
ing.25 It would require the taxpayer to justify every jot and title on his return, pro-
ducing marriage licenses, prof)erty deeds, etc. Any deduction that could not be sup-
ported with extensive documentation would be disallowed and the government
would routinely assess interest and penalties in these cases. Although under the
code, paying at below the targeted percentage is completely legal, the IRS justifies
its policy on the ground that anyone who has that many deductions must be cheat-
ing.
Now, one could say that the government in the above scenario does not sanction
taxpayers for paving less than a% of their gross income in taxes; instead, it sanc-
tions them only for claiming deductions that they cannot support. However, the pre-
dictable effect of the enforcement policy is going to be that many taxpayers will 'Vol-
untarily" forego claiming deductions that would reduce their taxes below the critical
threshold. Just as the OFCCP says that it does not find violations simply because
of failure to satisfy goals, the ERS would say that it does not impose penalties sim-
ply for paying less tnan X% in taxes. Nonetheless, in both cases, the enforcement
policies impose substantial pressure for the regulated individuals to alter their be-
navior to conform to the numerical expectations of government.
The entire OFCCP enforcement system is oriented toward ensuring that employ-
ers make race- and sex-conscious decisions. Although the OFCCP insists that most
of what it does is ensure that employers "cast a wide net," very little of its enforce-
ment effort goes into reviewing outreach and development programs.^^ If the
OFCCP were truly primarily interested in the breadth of the employer's net, that
is what it would locus on in compliance reviews; instead, it focuses on the employ-
er's "numbers."
It is true that goals and preferences are formally different. Under this reasoning,
however, quotas and preferences are formally different also. Just as a goal does not
formally require preferences, neither does a quota; both might be satisfied without
preferences. Goals and quotas are the ends; preferences are often a necessary means
to achieve those ends.
B. If goals are keyed to "availability," how can they pressure employers to engage in
preferences?
One of the arguments for why goals do not lead to preferences is that since goals
are based upon "availability," there is no pressure to reduce standards. That is, if
the goal is equal to the proportion of qualified women and minorities in the labor
pool, then there is no reason that the employer would have to reduce its standards
in order to hire the appropriate number of women and minorities. This is the posi-
tion of the OFCCP, which has explicitly argued that satisfaction of goals does not
lead to preferences because "numerical benchmarks are realistically established
based on the availability of Qualified applicants in the job market or qualified can-
didates in the employer's work force." ^''
That reasoning is flawed, because its factual premise is wrong. The assumption
that within the labor pool, however defined, productivity-related traits are randxjmly
distributed with respect to race and sex is quite often simply not correct. As Profes-
sor Douglas Lay cock has observed, the assumption that but for discrimination the
^* In other contexts, the pressure may come from elsewhere. For example, even in the absence
of external enforcement, if an employer sets goals and then ties managers' compensation to how
well the manager furthers the company's affirmative-action goals, as the Glass Ceiling Commis-
sion has recommended, the same pressure for the manager to engage in race- or sex-conscious
decisions would exist.
2«See David Day Johnston, IRS Retreats; The Tax Audit from Hell is Sent Packing. N.Y.
Times, Oct. 29, 1995, at §4, p. 2 (describing the Service's reversal of its plan to engage in de-
tailed random audits); Alex Pham, Auditing Lifestyles of not so Rich or Famous; IRS Randomly
Targeting 4,000 in Mass., BOSTON GLOBE, Apr. 15, 1995, at 1 (describing audit under which ran-
domly selected taxpayers will be "asked about their hobbies, their cultural backgrounds, the
types of cars they drive, where they went on vacation, the neighborhoods they live in and a
whole host of other personal information right down to the type of furniture they own").
^As the regulations pwint out, "[a]n affirmative-action program is a set of specific and result-
oriented procedures to which a contractor commits itself to apply every good faith effort." 41
CFR 60-2.10. Thus, despite what some might say, the focus of the compliance program is not
on process but on results.
2'' See Statement of Shirley J. Wilcher, supra.
107
employer's work force would mirror the composition of the labor force from which
it is hired:
is a powerful and implausible assumption: the two populations are as-
sumed to be substantially the same in their distribution of skills, aptitudes,
and job preferences. Two hundred and fifty years of slavery, nearfy a cen-
tury of Jim Crow, and a generation of less virulent discrimination are as-
sumed to have had no effect: the black and white populations are assumed
to be substantially the same. All the differential socialization of little jgirls
that feminists justifiably complain about is assumed to have had no enect;
the male and female populations are assumed to be substantially the
same.'^
The fact that such traits are not randomly distributed underlies the business ne-
cessity defense under the disparate-impact theory. If these traits were randomly dis-
tributed, valid employment requirements would never have a disparate impact;
therefore, a disparate impact by itself would be proof that the requirement was not
valid. Instead, however, employment requirements with a disparate impact are often
valid.^^
Availability statistics are not an accurate measure of job qualifications. They are
generally computed based upon broad occupational categories, and they reflect at
best only mimmum qualifications for the jolb and more commonly merely aggrega-
tions of jobs that have some superficial similarity but that are in fact quite dinerent.
They in no sense reflect a homogeneous pool of equally qualified (or equally inter-
ested) persons.^o
It should be noted that if productivity-related traits were randomly distributed
with respect to race within the available pool, goals and timetables would not in-
crease the representation of under represented groups in the occupational category.
Instead, they would only reshuffle them among employers. It is the fact that minori-
ties, and to a lesser extent women, have less of tnese traits than white men that
Sfoals and timetables have the effect of drawing women and minorities up to higher
evels of employment than they would achieve without race- and sex-conscious hir-
ing. One who truly believes that qualifications are equal within the pool should op-
pose goals and timetables as unnecessary and insist on a simple policy of non-
discrimination.
It might be instructive to consider an example of the effect of lack of homogeneity
of the applicant pool. To take an easy example, assume that a corporation is seeking
to hire a number of recent law graduates for its legal department, and it wants to
hire the best possible candidates. On what basis is availability of minorities cal-
culated? It would probably be based upon either the proportion of recent law grad-
uates who are minorities or the proportion of practicing lawyers who are minorities.
Assume, for purposes of discussion, that availability is calculated based upon recent
law graduates, which would yield a higher availability figure than the pool of prac-
ticing lawyers because increasing numbers of minorities are attending law scnool.
Assume also that market conditions are such that the employer can be quite selec-
tive in its hiring decisions.
What will be the effect of race-blind selection? In selecting among applicants, the
employer would generally place a very high emphasis on academic record, including
botn the reputation of the law school and the grades of the applicant. Keying the
goal to the availability figures assumes that the racial composition of the top group
of students is the same as the racial composition of the remainder of the pool — that
is, that qualifications within the entire pool of recent law graduates are randomly
^ Douglas A. Laycock, Statistical Proof and Theories of Discrimination, 49 LAW & CONTEMP.
Probs. 97 (Autumn 1986).
''That was the basis for the turmoil over "race norming" of scores on the General Aptitude
Test Battery (GATB), that resulted in the outlawing of that practice in the Civil Rights Act of
1991. The GATB yielded gross racial disparities, yet, according to a National Academy of
Sciences study, was a valid predictor of job performance.
^See, e.g., Catlett v. Missouri Highway & Transportation Commission, 828 F.2d 1260 (8th
Cir. 1987), cert, denied, 485 U.S. 1021 (1988). In Catlett, which involved allegations of a pattem-
or-practice of sex discrimination in hiring of highway maintenance workers, the court used two
alternative availability pools: (1) "that group of persons . . . who are in the civilian labor force
. . . in the job categories of sales, blue collar, farm, service and clerical but excluding manage-
rial, technical and professional workers, and who are between the ages of eighteen and seventy
years and who have a driver's license and an eighth-grade education"; or (2) "that group of per-
sons . . . who are in the civilian labor force ... in all job categories except managerial,
technical, professional and clerical workers and who are between the ages of eignteen and sev-
enty years and who have a driver's license and an eighth-grade education." There is no sense
in which members of these highly disparate groups would likely be equal in either qualifications
or interest.
108
distributed with respect to race. This would clearly be an incorrect assumption. In-
stead, it is quite predictable, as described below, that the top portion of the pool
would be disproportionately white. Therefore, race-blind selection — that is, selection
based purely on measures that predict productivity and without regard to race — will
produce a group of hires that aoes not have as many minorities as the goal would
call for.
Why will the top portion of the pool be disproportionately white? Because edu-
cational achievements of blacks and whites are not equal, as Secretary William
Coleman pointed out in his testimony before this Subcommittee in October. Sec-
retary Coleman acknowledged that, without race consciousness, parity in outcomes
will not occur anytime soon:
It would taike the skill of one who could reproduce Beethoven's Ninth
Symphony on the head of a pin to devise a system which would eliminate
the effects of centuries of racial and gender oiscrimination without taking
race and sex into account in the process.^^
While people of good will can — and should — debate whether race-conscious programs
are good policy, there is simply no room for argument that in the absence of race
conscious policies all non-discriminating employers would achieve goals based upon
"availability." This fact demonstrates the error of two related assumptions: (1) tnat
tying goals to availability eliminates pressure to engage in preferences; and (2) that
failure to satisfy goals is suggestive oi discrimination.
Educational achievements of applicants for our hypothetical corporate law position
are likely not to be equal. One primary reason is that because oi affirmative action
in law school admissions, minority law students must compete against students
whose educational background is stronger than their own. At the University of
Texas, for example, the Law School set targets for black (5%) and Mexican-Amer-
ican (10%) students in the entering class that were consistent with the percentages
of black and Mexican-American college graduates.^^ This jjercentage was considered
the "availability pool."
If within the pool of "black and Mexican-American college graduates" credentials
were randomly distributed with respect to race and ethnicity, there would have been
no need to set a target. Instead, mere nondiscrimination would have been sufficient,
since race-blind admissions would yield an appropriately diverse student body. How-
ever, credentials are not randomly distributed. In fact, had the Law School decided
solely on the basis of Law School Admissions Test (L3AT) score and grade-point av-
erage (GPA), the entering class would have included, at most, 9 blacks and 18 Mexi-
can-Americans; instead, 41 blacks and 55 Mexican-Americans were admitted.^^
Since LSAT scores and GPAs do in fact predict law school performance — that is,
after all, the reason that law schools use them ^ — it is predictable that minority law
students admitted under affirmative-action programs will not perform as well as
students admitted solely on the basis of their credentials. Indeed, that seems to be
the experience of many law schools.
In sum, our corporate employer has a choice when making hiring decisions. It can
hire in a race-blind fashion, in which case it will not meet its goals. Or it can devi-
ate from its merit-based system by using race -conscious selection criteria and meet
its goals. It cannot simultaneously be race blind and satisfy its goals.
C Is there any way of separating goals and preferences? Can we retain goals but
disapprove preferences?
One resjjonse to the entwining of goals and preferences is to make clear that goals
are not to lead to preferences. That is, employers could be told that they should at-
tempt to satisfy their goals but that they are not permitted to employ preferences
to achieve them. In fact, this seems to be what the OFCCP implies is their policy.
For example, in its July 26, 1995, memorandum, the OFCCP stated that "[t]he nu-
merical goals component of affirmative action programs is not designed to be, nor
^^See Testimony of William T. Coleman, Jr., Before the Subcommittee on the Constitution,
Committee on the Judiciary (October 25, 1995).
32 See Hopwood v. State of Texas, 861 F. Supp. 551, 571, 574 (W.D. Tex. 1994).
33 Although in discussions of the Hopwood case it is often asserted that without affirmative
action, those extra minority students would not have been able to go to law school, that is prob-
ably not the case. The University of Texas is one of the nation's premier law schools. Even
though many of the minority students would not have gotten into Texas if admissions decisions
were race blind, they still would probably have gotten into a lower-tier law school on the
strength of their objective qualifications.
3* The court in Hopwood noted that use of LSAT and GPA had not been speciftcally validated
for black Students at the Texas Law School, but it is generally a valid predictor of academic
success.
109
may it properly or lawfully be interpreted as, permitting unlawful preferential treat-
ment and quotas"^^ and that its regulations a specifically prohibit discrimination
and the use of goals as quotas." The OFCCP states that it will take "quick action"
"whenever evidence is revealed to OFCCP that a contractor has implemented a quota
or unlawful preference . . .in the same manner as if the contractor has violated
the Executive Order in a different way."^^
The word a "unlawful" is the critical term. Under Weber and Johnson, many pref-
erences are legal, at least in the private sector. Thus, although the general thrust
of the statement is to deny the existence of preferences, in reality it merely denies
the iniposition of illegal ones. Moreover, it should be noted that the statement of
the OFCCP says that it will take action against illegal preferences and quotas
"whenever evidence is revealed to" it; it does not say that it affirmatively looks for
such evidence. In fact, while the OFCCP commonly requires employers to justify the
hiring of white men, it almost never requires them to justify the hiring of women
or minorities.
In her testimony before the Senate Labor and Human Resources Committee, Ms.
Wilcher went beyond denjdng that the OFCCP will not tolerate "unlawful" pref-
erences. Rather, she stated that "[t]he numerical goals approach ... is not based
on racial or gender preferences" and that under OFCCP regulations, "selections for
employment or promotion must be made without regard to race or gender." ^"^ With
all due respect, this is simply not true. It was not true in Weber, for example, when
Kaiser set aside 50% of the slots in a training program for minorities under pres-
sure from the Office of Federal Contract Compliance.^ It does not seem to be the
gosition of the Justice Department, which has supported the right of the Piscataway
chool District to select Sharon Taxman for layofi because she is white. It does not
seem to be the position of Assistant Attorney General Deval Patrick, who is on
record as supporting race and sex-conscious decisions at he calls "'affirmative con-
sideration' wnere race, ethnicity, or gender is a factor, but is not necessarily disposi-
tive in evaluating qualified candidates." ^^ There is simply no evidence that the
OFCCP or any other enforcement agency ever challenges the use of plus-factor type
preferences.
In fact, employers know that the OFCCP expects them to grant preferences and
that it will not take action against them if they do. For example, Honeywell Space
Systems Group in Clearwater, Florida, is a government contractor that was faced
with the need to lay off part of its workforce."*" The manager of training, develop-
ment, and affirmative action described its performance-based layoff system as fol-
lows:
We considered first the skills we needed to do the work, the level of per-
formance refiected in the (individual's) personnel file, and then length of
service. So it was not a seniority based process. It was a performance-based
process with length of service as the tie-oreaker.
However, sometimes the performance-based process did not provide the a "right"
numbers. In those cases, according to the manager, "We'd massage the numbers to
make sure there wasn't a disproportionate representation of females and minorities
in the bottom of the relative ranking." It should be noted that this is not a disgrun-
tled manager complaining about granting preferences. She made these statements
with pride, stating that "fwjhen you have a diverse work force, the potential is end-
less."
In sum, it is not practically possible to retain "goals and timetables" but jettison
"preferences." Constantly keeping one eye on the "bottom line" means that the other
eye will always be on race and sex. As long as employers are under pressure to
achieve goals, preferences will be a part of the system.
** (Emphasis added.)
^(Emphasis added.)
^''Statement of Shirley J. Wilcher, Deputy Assistant Secretary for Federal Contract Compliance
Before the Senate Labor and Human Resources Committee (June 15, 1995). Although Ms.
Wilcher then went on to note that this was "consistent with Title VII of the Civil Rights Act,"
she did not say that "selections for employment or promotion must be made without regard to
race or gender unless it would be legal under the Civil Rights Act to grant preferences."
38 See We6er v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216,226 (5th Cir. 1977) (noting
that "the district court found that the 1974 collective bargaining agreement reflected less of a
desire on Kaiser's part to train black craft workers than a self-interest in satisfying the OFCC
in order to retain lucrative government contracts").
^Patrick Defends Affirmative Action in American Bar Association Address, DAILY LAB. REP.
(BNA) No. 152, at D19 (Aug. 8, 1995).
*°See Honeywell Group Keeps Commitment to Affirmative Action Plan, DAILY Lab. Rep. (BNA)
No. 147, at D-35 (Aug. 1, 1995).
110
V. PREFERENCES VERSUS QUOTAS
Is there a principled difference between the use of race or sex as "plus factor" and
their use as 'quotas"?
Some people distinguish between using "goals" or "plus factors" and using quotas.
That seems to be what Assistant Attorney General Deval Patrick was referring to
when he said that he supported using race or sex as a factor but not one that is
"necessarily dispositive in evaluating qualified candidates."
There are two primary reasons why this dichotomy is meaningless: (1) under the
strict definition of "quota," no such animal exists in nature; it is just a straw man;
and (2) the perceived evils of quotas are present in non-quota preferences.
As described above, quotas in the narrow sense — hiring blindly according to the —
numbers and without regard to the existence of even minimal qualifications — simply
do not exist. These are the quotas that are typically described as being illegal, but
being against quotas in this sense has as much real-world effect as being against
goblins. Quotas in the broader sense, such as the set-aside in Weber, do not seem
to be included in the usual condemnation of auotas. Thus, the Weber preference
seems to fall onto the "non-quota preference" side of the line, even though it clearly
set aside a certain number of positions for blacks, just as the University of Califor-
nia had done in its affirmative action plan that was struck down in Bakke.
More fundamental, however, is the issue of principle. As a matter of principle, it
is not clear why one should draw such a sharp line between quotas and plus-factor"
preferences. As Justice Powell noted in his opinion in Bakke, the "semantic distinc-
tion [between 'goals' and 'quotas'] is beside the point [because] the special admis-
sions program is undeniably a classification based on race and ethnic back-
grouna."*'^ Judging from the poll results described above, the American f)eople simi-
larly do not seem to draw much distinction between quotas and preferences.
In thinking about whether the "quota/preference" distinction is meaningful, one
should consider carefully just why it is that racial quotas are wrong. Usually, two
reasons are given: one focusing on the beneficiaries of the quota and one focusing
on the victim.
As to the group benefited by the quota, it is often said with some justification that
the quota stigmatizes. It implies that members of the favored group cannot make
it on their own and are not to be judged by the same rigorous standards that other
individuals face. The very existence oT the quota, therefore, is a badge of inferiority.
The persons most harmed, of course, are those members of the group that could
have made it on their own, for they are forever subjected to the false, but well-
founded, suspicion that they did not do so.
This kind of harm exists irrespective of whether there was a "flexible goal" or a
"rigid quota." The fact that selections are not made on a race- and sex-blind basis
in either case means that the stigma is present. Whether it was a thumb on the
scale or a fist, the badge of inferiority that comes with preferential treatment will
always be present.'*^
From the perspective of the direct victim of the quota — typically a white man —
the distinction between "preferences" and "goals" and "quotas ' seems utterly irrele-
vant. He did not get the job because of his sex and/or race; another candidate got
the job because oT his or her sex and/or race. This man derives no comfort from
knowing that he was not the victim of a "rigid quota" but rather of a "flexible goal."
Whether the successful candidate was slightly less qualified, only marginally quali-
fied, or even unqualified, the harm to the rejected victim is the same. Indeed, the
economic injury he suffers is no different from that suffered by a black or a woman
who has been discriminated against.
Some people express support for preferences when race or sex is just "one of
many^' factors as opposed to being tne "sole factor," but this also is a distinction
without a difference. President Clinton thus objected to rejection or selection "solely
on the basis of race or gender" and Assistant Attorney General Patrick supported
use or sex when it is "a factor, but is not necessarily dispositive." However, when-
ever a preference is granted, race or sex is dispositive and the decision itself is in
reality cased solely on race or sex. The employer in Johnson, for example, would
have selected Johnson on the merits, but solely because of sex, it selected a woman
■•1 438 U.S. at 289.
*2 It is sometimes argued that other people have gotten various kinds of preferences without
any badge of inferiority being associated with it. An example that is sometimes given is nepo-
tism, the practice of favoring kin for positions. One should not blithely assume that there is no
associated badge of inferiority. One of the frequently recurring figures in books and movies is
the son, or perhaps more commonly the nephew, of the business owner who lacked qualifications
for the job but obtained a position of authority because of his relationship. This person is gen-
erally portrayed as a figure of ridicule.
Ill
instead. Sex was the "dispositive factor"; the only reason that Johnson did not get
the promotion was that he was a man.
Some people simply deny the existence of these victims of affirmative action. That
was the thrust of the Blumrosen report, but, of course, that report went only to the
existence of victims of illegal affirmative action. In some sense, of course, all afTirm-
ative action, even the most benign, can harm the nonbeneficiaries. If the employer
had not cast a wide net, A would have been hired, but because the net was wider,
B was in the pool and he was more qualified than A. Therefore, when the employer
relied on merit in selecting from the wider pool, B got the job and A did not. Al-
though such a decision would be "because" of aflirmative action in some sense, few
people are troubled by this kind of process. After all, A and B were competing on
equal terms, and B was more qualified than A.
Preferences are a different matter. If A and B are in the pool together, and A is
more qualified (whether because of educational qualifications, prior experience, job
performance, seniority, etc.) yet B is hired or promoted because of race, A is quite
clearly a victim of a racial preference. Most hiring and promotion decisions are zero-
sum; you cannot provide the job to B without at the same time denying it to A. A
is harmed; A is a victim of racial preferences. To say that this kind of intentional
harm is permissible because the underlying motivation is not to harm A but to help
B makes little more sense than it would to mitigate the wrong of the crazed tennis
fan who attacked Monica Seles on the ground that he was motivated not by a desire
to harm Ms. Seles but rather by a desire to help Stefii Graf.
Preferences are not victimless phenomena. Paul Johnson was harmed by the sex
preference: he did not get his promotion. Brian Weber was harmed by the racial
preference: he did not get admitted into the training program. Sharon Taxman was
harmed by the racial preference: she got laid off instead of having the opportunity
to have the layoff decision be determined by chance; actuarially, she lost only half
a job, but she lost nonetheless.'" Johnson, Weber, and Taxman are all flesh-and-
blood victims.
VI. CONCLUSION
The notion that one can have a merit-based system that is sex- and race-conscious
is an illusion. Groals and timetables (or other numerical obiectives) create an inex-
orable pressure to engage in preferences. The decision-maker can make decisions
based upon the goals or uf)on race- and sex-neutral criteria; it simply cannot do
both. H.K. 2128 is a sensible step toward a system of race- and sex-neutral decision-
making.
If the ideal is to move toward a system in which individuals are judged according
to their own distinctive qualities, it is time to move beyond the currently preference
ridden system. Some believe that Justice Blackmun's statement in Bakke that "[i]n
order to get beyond racism, we must first take account of race" and that "in order
to treat some persons equally, we must treat them differently" is profound. Their
belief is only naif right; Justice Blackmun's statement is profoundly wrong. H.R.
2128 is an important step toward recognition of that fact.
Mr. Canady. Thank you, Professor Browne.
Professor Wu.
STATEMENT OF FRANK H. WU, ASSISTANT PROFESSOR,
HOWARD UNIVERSITY SCHOOL OF LAW
Mr. Wu. Thank you, Mr. Chairman. It's my pleasure to be here
to talk about H.R. 2128.
I'd like to begin my observations with a comment that race is no
longer literally a black-and-white matter in this country. It never
has been, but the time has come when increasingly it is appro-
priate to recognize Asian-Americans, Latinos, and others who have
been characterized as outsiders by their fellow citizens.
By saying this, however, I want to make clear that it's important
to include Asian-Americans, along with all other Americans, in the
*3A8 the Supreme Court observed in Northeastern Florida Contractors v. Jacksonville, 113
S.Ct. 2297, 2303 (1993), "the Injury in fact' in an equal protection case . . . is the denial of
equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain
the benefit."
112
debate in a manner which is not divisive, in a manner which does
not, for example, pit Asian-Americans against African-Americans
or create conflicts among people of color.
With that initial comment then, I would like to take this oppor-
tunity to address three points. The first is the myth that Asian-
Americans are a model minority which is hurt by affirmative ac-
tion. The second is the myth that Asian-Americans oppose affirma-
tive action, and the third is the idea that Asian-Americans or, for
that matter, any Americans would benefit by the passage of ex-
treme measures such as H.R. 2128.
Let me begin then by looking at the model minority myth. This
is a myth which has been used increasingly as the debate over af-
firmative action has become more contentious. It has been used by,
among others, for example, with all due respect, California Gov.
Pete Wilson, House Speaker Newt Gingrich, and the organizers of
the California CCRI ballot initiative. They point to Asian-Ameri-
cans in the familiar stereotype to suggest that Asian-Americans are
champion entrepreneurs and collegiate whiz kids, that they have
done so well that they demonstrate that there is no longer racial
prejudice, and that, in fact, they have done so well that they are
now being harmed as the new innocent victims of reverse discrimi-
nation. To the contrary, this is nothing more than a flimsy stereo-
type, as demonstrated not just by facts and figures of contemporary
society, but also by the history of the model minority myth.
Asian -Americans, who number about 7 million and 3 percent of
the population and who have grown by more than 400 percent in
numbers in the past generation, are a diverse bunch. If you take
even the most familiar stereotype, Asian-Americans as engineers or
scientists, if you look at studies of Asian-Americans compared to
white engineers, controlling for language ability, controlling for im-
migrant status, what you find is that Asian-Americans are more
likely, even if they are native-bom U.S. citizens, to hold lower pay-
ing, lower prestige jobs within the engineering field than equally
qualified whites; indeed, than equally qualified foreign-bom whites.
Therefore, what you find is that even where the model minority
myth has portrayed Asian-Americans as having their greatest suc-
cess in engineering, science, and technical fields, that, nonetheless,
they lag significantly behind white Americans. Those same findings
were borne by the Glass Ceiling Commission, which found, among
other things, that, again, comparing equally educated, equally
qualified people and taking into account such issues as immigra-
tion and citizenship status, that Asian-Americans holding high
school degrees earn 25 percent less than comparable whites; Asian-
Americans with college degrees earn more than 10 percent less
than comparable whites. These same end qualities persist through-
out all levels of education and income. So what you find then is
that the model minority myth as a simple matter of fact is wrong.
Asian-Americans are not a superminority, have not succeeded as
much as many would have you believe.
Moreover, the comparison of Asian-Americans to African-Ameri-
cans is unfair for historical reasons, is unfair because the situation
of Asian-Americans, many of whom came to this country already
holding advanced degrees, is not comparable. Even today, Asian-
Americans do not face the same stereotyping or discrimination.
113
True, they do face significant discrimination, but in areas such as
housing segregation or employment discrimination. It is not at the
level of seventy of African-Americans. Therefore, the comparison
that is frequently made rhetorically to use Asian-Americans as the
model minority, to suggest that they have done well, to then say
to denigrade African- Americans based on that comparison is unfair
because of these historical differences which are ignored.
Finally, it is important to understand that Asian-Americans have
benefited from the civil rights movement and from the legal re-
forms that are a result of that. So once we see that Asian-Ameri-
cans are not a model minority, I think it's important to turn to the
next argument that's frequently heard; indeed, heard more and
more often in the attacks on afBrmative action. That argument is
that Asian- Americans somehow are hurt by affirmative action, that
they are especially hurt by it, and, therefore, that shows why the
program should be discontinued.
To the contrary, if you take a look at the best documented exam-
ple, the college admissions controversy of the 1980's in which
equally qualified Asian-American candidates were denied admis-
sion to the most prestigious universities in this country, including
ivy league schools, the University of California system, Stanford,
and other top institutions, where equally qualified Asian-Ameri-
cans were turned down while whites were accepted, the Depart-
ment of Education investigation into this matter at a time when
some would have blamed affirmative action for African- Americans
found that the cause, the cause of the maximum quotas on Asian-
Americans were preferences given to alumni children, to legacies.
That group was overwhelmingly not only white, but privileged.
That is well-to-do children of well-to-do parents who had the for-
tune of attending those very same Ivy League institutions 20, 30,
40, or 50 years ago when they were exclusively white and male.
Therefore, Mr. Chairman, I would suggest that, as people who
argue against affirmative action look to Asian-Americans, that they
not look to Asian -Americans as pawns to be used to attack affirma-
tive action because what the evidence documents is that, in fact,
any discrimination against Asian-Americans in these fields is the
result of preferences, either overt or covert, granted to whites.
Let me then turn, finally, to the proposed legislation, and let me
begin by saying, as many of the other witnesses have said, that I
personally am ambivalent about current affirmative action pro-
?'ams. I believe Asian -Americans, like all Americans, are as well,
et, one can, while being ambivalent about affirmative action as it
currently exists and encouraging moderate reforms, still be ap-
palled by the extreme measures being proposed today, extreme
measures such as the one that we're discussing.
This measure is extreme and not only would it not benefit Asian-
Americans or other Americans, but if you take a look at the Asian-
American example, you can see how it supports the use of mod-
erate goals and timetables which do involve numbers. Let me give
you two specific examples where the enforcement of current dis-
crimination laws are not enough to overcome past and present ra-
cial prejudice, and remember that is all that we are talking about.
The only cases that this bill would affect are those in which the
Federal Government or contractors have been found or can be prov-
114
en to have and to continue to discriminate on the basis of race and
gender under the highest level of review established by the Su-
preme Court, the level of review known as strict scrutiny. So we're
only talking about those limited cases in which there is demon-
strably still racial discrimination or sex discrimination.
Let me take a look at two cases in which Asian-Americans can
benefit from affirmative action, but would be harmed by this legis-
lation. The first is in hiring at police and fire departments. In a
number of class actions, Asian-Americans, along with other racial
minorities, have challenged the hiring practices of, for example, the
Los Angeles Police Department, the San Francisco Fire Depart-
ment. They have demonstrated, in particular, that height and
weight requirements, seemingly neutral on their face and not ra-
cially discriminatory, nonetheless, have a racially disproportionate
impact. They tend to exclude Asian -Americans; they tend to ex-
clude women. Yet, upon deeper consideration of the question of
merit, and merit is so often mentioned here as if there is a single
standard by which everyone can be measured and judged, what the
police and fire departments realize is they aren't really interested
in policemen or firefighters of a particular height or weight; they're
interested in applicants who can perform certain tasks. Now those
tasks happen in some instances to correlate roughly to being a cer-
tain height or weight, but not always. Therefore, some taller and
heavier applicants couldn't do those tasks while many shorter and
lighter applicants could very well perform those tasks, and those
applicants were disproportionately, again, Asian-American and
women, and they were rejected for not meeting what were formerly
seen as neutral merit-acquired standards. But because of affirma-
tive action, because of the challenges that were brought, these
standards were seen as now unconsciously biased, and we then
looked to a definition that focused on the actual skills required for
the job. That is one example of why this legislation would be inap-
propriate.
[The prepared statement of Mr. Wu follows:]
Prepared Statement of Frank H. Wu, Assistant Professor, Howard
University School of Law
Thank you for the honor of testifying before the House Judiciary Committee, Con-
stitution Subcommittee. It is a testament to the strength of the American democracy
that the son of Asian immigrants can be called upon to contribute to one of the im-
portant political debates of the day. It is also appropriate as the twenty-first century
approaches and our society becomes increasingly multi-racial and multi-cultural,
that the many Asian Americans, Arab Americans, Latinos, and others — who have
always been here — are finally recognized and take part in the processes of govern-
ment.
Race is no longer literally a black and white matter. Given the rapid demographic
changes occurring in this country, if we are to make progress on the American di-
lemma, we must see that we share a future and that we should work together.
With the hope that I can contribute modestly in the public debate over affirmative
action, I will take this opportunity to testify on three related subjects. First, I offer
a personal note of background that explains where I am coming from and shows the
vantage point from which many of us view race even if we are unaware of it. Sec-
ond, I argue that the many Asian American experiences support affirmative action,
contrary to the "model minority" image used by some politicians to suggest that
Asian Americans somehow are the example that defeats the much-needed programs.
Third, I conclude as a legal scholar that H.R. 2128 is unnecessary and unwise.
115
BACKGROUND
As an initial matter, being an assistant professor of law at Howard University in
Washington, D.C., I am reminded of the importance of race every morning when I
arrive at work. While I have the privilege ot being the first Asian American on the
faculty at the school of law, it has been for more than a century the leading institu-
tion in the United States for the education of black lawyers.
Since becoming a member of the academy, I often have been asked what it is like
to be a minority at an historically black university and whether my decision to come
here serves as some sort of ideological statement. The people who ask about being
an Asian American at Howard are almost all of them sincere and well-meaning. De-
spite their common curiosity, they are of diverse racial backgrounds. Most are white,
some are black, and a few are Asian American.
After awhile, though, their inquiries started me thinking. More than might be
meant by the people asking the questions, I believe that the inquiries reflect and
reveal the invisible but powerful influence of race on our perceptions.
When I was considering where I should begin my teaching career, nobody thought
to ask, "Well, what will it be like to be the only Asian American at a white school?"
Of course, that would have been true at every law school with which I had inter-
viewed. The majority of the 175 law schools in this country have never had an Asian
American professor. The few Asians they have hired have been foreign nationals
teaching foreign subjects. And after they hire an Asian American, who knows how
long it will be until tney hire another.
Yet I wonder if many people who are white — or for that matter Asian American —
look at a law school that has a student body that is predominantly white and a fac-
ulty that is almost exclusively white and see it as a "white" law school. Indeed, I
doubt that anybody would believe that joining the faculty at such a "white" law
school represented as much a political choice as a politic one.
My conclusion is that many of us have become afflicted with a type of partial
color-blindness. With this partial color-blindness, it is as if being an Asian American
among African Americans is regarded as unusual but being an Asian American
among whites is accepted as normal. Perhaps we all have an unconscious bias to-
ward assuming that white society is not only the culture of the majority but also
the culture that is ideal. The ambitious Asian American, like the ambitious African
American, is exp>ected to pass into white culture.
Ironically, institutions that are perceived as black can be more integrated than
institutions that form the mainstream. When I look out at the classroom, I see a
half dozen white faces among the fifty students; when I attend faculty meetings, I
also see that many whites among my two dozen or so colleagues. These nunSers
of whites are equal to if not greater than the numbers of blacks found at most law
schools.
However, I don't believe that the black and white schools are exact mirror images.
They have differed from their very origins. Historically black institutions came into
existence because blacks basically were denied an opportunity for education else-
where. The same cannot be said of white institutions, many of which were seg-
regated either by law or in practice.
Because of the unique role of historically black institutions, I am convinced that
there is a value to having a place where African Americans can be in the majority
rather than the minority in numerical terms as well as leadership positions. If ev-
erything were integrated, individual African Americans (not to mention Asian Amer-
icans) would be perpetually alone among a group of whites. The eflect is so over-
whelming that only from the outside — or when roles are reversed — is the identity
of the whites as a community even noticeable.
The white who finds himself thrust into the experience of being a racial minority
likely takes little comfort in being told that color-blindness is the rule being en-
forced for his benefit. He also may notice that the neutral norms taken for granted
by everyone else around him are in fact subtlety and not so subtlety designed by
and for the majority — not him.
I should say so as not to be misunderstood that I value integration. My personal
opinions on race have evolved only when I have sought out new experiences such
as being at Howard.
As I finish my first semester teaching, I realize that I have learned as much as
I have taught. I also have realized that we all have much more to learn in race rela-
tions.
ASIAN AMERICANS AND AFFIRMATIVE ACTION
Next, I would like to share what it is that I have learned in my research on Asian
Americans and affirmative action. I would like to refute the notion that Asian Amer-
116
leans in particular are hurt by affirmative action for African Americans. Many peo-
ple see Asian Americans as a "model minority." The "model minority" is a myth. It
18 an important myth though. Thanks to the "model minority" myth, Asian Ameri-
cans have become crucial to the debate on affirmative action in an unfortunately
divisive manner.
Anyone who knows about Asian Americans knows about the model minority myth.
Since the arrival of Asian immigrants in the nineteenth century, and most notably
since the 1960s, this ubiquitous superminority image has suggested that Asian
American achieve economic success and gain societal acceptance through conserv-
ative values and hard work. No matter now frequently and thoroughly the model
minority image is debunked, it returns as a troublesome stereotype in race rela-
tions.
According to this popular portrayal of an entire race, Asian Americans have
achieved their famous up-by -the -bootstraps rendition of a Horatio Alger hero
through a combination of talent, hard work, and conservative values, ana not due
to government entitlements, by racial preferences, or with complaints of discrimina-
tion. Through the image, which can be seen everywhere from magazine articles to
popular movies, Asian Americans are depicted as champion entrepreneurs and colle-
giate whiz kids, the immigrant parents working as urban green grocers as their
American children win the annual Westinghouse science talent search.
Contrary to this simple perception, only some Asian Americans have made signifi-
cant strides in their socioeconomic status. The model minority image is a myth be-
cause Asian Americans have not achieved economic success except in a superficial
sense: comparing equally educated individuals in most professions, and even control-
ling for immigrant or native-bom status, whites earn more money than Asian Amer-
icans. Qualifications count less than race, in a pattern of regular discrimination, not
so-called "reverse" discrimination.
Overall, Asian Americans remain underrepresented in the many areas and also
continue to experience straightforward discrimination. Most often, Asian Americans
are treated as if they were all foreigners getting ahead by unfair competition, and
they face the "glass ceiling" that allows them to progress only up to a certain point.
Furthermore, opponents of affirmative action — including some Asian Americans
among them — forget that Asian Americans have benefited greatly from the civil
rights movement and the legal reforms it produced.
The discrimination which Asian Americans in fact face can be reinforced by the
exaggerations of the model minority myth. This occurs, for example, when non-
Asian Americans believe that Asian Americans should be subjected to maximum
quotas in college admissions because they have done too well and represent unfair
conipetition.
Moreover, the model minority myth is deployed in ways that expose the insincer-
ity of its goodwill. The myth is used to denigrate other racial minorities. It is used
to ask African Americans, rhetorically. "Well, the Asian Americans succeeded; why
can't you?" As the original New York Times article introducing the image during
the Civil Rights Era put it, Asian Americans stand in contrast to "problem minori-
ties."
Criticisms of the model minority myth based both on its empirical bases and polit-
ical uses have been made for more than a generation. The critique of the model mi-
nority myth presents a case study in the transition of ideas about race from aca-
demic circles to the popular press. By 1980. there was a sizable scholarly literature
disproving the model minority myth. By 1990, mass media articles had appeared,
initially opinion pieces, later news articles. Histories of Asian Americans by Ronald
Takaki, Sucheng Chan, and Roger Daniels added authority to the arguments.
The critique, disappointingly, also offers an example of the failure of rational ar-
gument against racial stereotyping. "Model minority myth" is a popular phrase, per-
haps because of the alliteration. But the "model minority" is still emphasized over
the "myth." The controversial book The Bell Curve, for example, places Asian Ameri-
cans nominally at the top of its racial hierarchy of intelligence quotient scores,
which it argues effectively determine socioeconomic status.
Even the most famous Asian American of late, Los Angeles Judge Lance Ito, who
presided over the O.J. Simpson in 1994 and 1995, could not escape racial stereo-
typing. Some commentators described Judge Ito as "neutral" in the racialized "trial
of the century." But Judge Ito — an American born in the internment camps, cul-
turally assimilated, English speaking, and married to a white woman who herself
is an important public figure — could not maintain his "neutral" place racially. De-
spite his judicial role and corresponding neutrality in the symbolism of the trial
process, and even though his racial status may have seemed irrelevant, it became
relevant to observers. One revealing episode was Senator Alfonse d'Amato's appear-
ance on a radio show mid-way througn the trial. In his remarks. Senator d'Amato
117
mocked Judge Ito as having a heavy Asian accent, later explaining that he was
using the racial reference simply as a means of criticizing the course of the trial.
Numerous other racial references to Judge Ito and Asian American witnesses oc-
curred within the trial itself and in the extensive media coverage, much of it with
racial identiflcation of an individual's Asian American background as a negative fea-
ture.
The model minority myth ought to self-destruct. After all, to be able to see Asian
Americans as a racial group, especially a racial group which can be contrasted with
other racial groups, requires a highW developed sense of color-consciousness. If soci-
ety were color-blind in the sense oi blotting out race and all references to race, it
would be impossible to point at Asian Americans, much less use them as an exam-
ple. Ironically, therefore, when Asian Americans are used to attack afiirmative ac-
tion, the case for evaluating the merit of individuals comes to focus on the supposed
success of a racial group.
Although the model minority myth and color-blindness are contradictor)^ some in-
dividuals nave used Asian Americans to argue against affirmative action. They have
done so by asserting that Asian American success demonstrates that racial minori-
ties no longer face discrimination. The Asian American experiences are neither so
simple nor should they be so simply used.
Asian Americans have been drawn into the debate over affirmative action only re-
cently. In the constitutional sphere, Asian Americans have had a minor presence in
Supreme Court case law on the subject until this past term.
The earliest case on afiirmative action to reacn the Supreme Court, DeFunis v.
Odegaard, went unresolved because of mootness problems but mentioned Asian
Americans by name. In a separate opinion. Justice William O. Douglas — an icono-
clastic liberal who had voted with the majority in the Japanese American intern-
ment case of Korematsu v. United States and defended his decision in a footnote in
DeFunis — argued that "there is no Western state which can claim that it has always
treated Japanese and Chinese in a fair and even-handed manner."
Subsequently, Asian Americans and other non-black racial minorities were rel-
egated to the footnotes. In the best known case on affirmative action, Bakke v. Re-
gents of the University of California, Justice Powell stated in footnote 45 that "the
inclusion oP Asians in the afiirmative action program "is especially curious in light
of the substantial numbers of Asians admitted through the regular admissions proc-
ess."
This year, the Supreme Court decided the historic case of Adarand Constructors,
Inc. V. Peha. There, the Court cast doubt on certain types of afiirmative action for
African Americans and other racial minorities. The Adarand opinion affects not only
so-called "reverse discrimination" but also straightforward regular discrimination. It
applies the highest standard of judicial review, "strict scrutiny," to all racial ref-
erences in the law, regardless of the underlying intent, impact or context of the law
at issue. "Strict scrutiny" has almost always resulted in the challenged govern-
mental action being struck down as unconstitutional.
Adarand appears more definitive than any of its predecessors. The plaintiff in the
suit, Adarana Constructors, Inc., sought to bid on federal government contracts, the
regulations for which included set-asides for socially and economically disadvan-
taged businesses. Racial minority status, which was defined as including African
Americans, Latinos, Asian Americans, Native Americans, and others, but of course
excluding whites, created a presumption of disadvantaged status for purposes of
benefiting from the set-aside.
In ruling in favor of Adarand, writing for five of the nine members of the court,
Justice Sandra Day O'Connor held that affirmative action would be treated like
other racial classifications and subjected to "strict scrutiny." Under the O'Connor
opinion, the case was remanded to the lower courts for a determination of whether
the set-aside could meet "strict scrutiny;" it was not struck down outright. The case
is likely to result in far fewer affirmative action programs being approved by the
lower courts.
Interestingly, in reaching its holding, the Adarand majority relied heavily on the
Korematsu case. As many will recall, Korematsu was an infamous decision uphold-
ing the constitutionality of the internment of Japanese Americans during World
War II. The people who were imprisoned were suspected wrongly of disloyalty as
a group because of their ancestry. There was no individual treatment even for na-
tive-bom United States citizens. In the fifty years since, the executive and legisla-
tive branches have acknowledged that the internment was motivated by racial prej-
udice.
The Court treats Korematsu as analytic support for its holding in Adarand as well
as a rhetorical example of the dangers of relying on race to prove other characteris-
tics. In two lengthy passages in Adarand, the Court discusses the Korematsu state-
118
ments as setting up the "strict scrutiny" test. The contemporary Court observes of
its wartime predecessor that "in spite of the 'most rigid scrutiny' standard it had
just set forth, the Court then inexplicably . . . conclude[d] that . . . the racially
discriminatory [internment] order was nonetheless within the Federal Government^
power." The Court reiterates that the internment was "motivated largely by racial
f>rejudice, wartime hysteria, and a failure of political leadership." In Adarand at
ast, the dissenting Justices in the Korematsu case are vindicated, for they chal-
lenged a law that 'jails into the ugly abyss of racism."
The Adarand Court continues with its powerful dicta on Korematsu, beyond dis-
approving of the earlier decision. Korematsu serves a purpose, as a warning against
judicial laxity in reviewing racial classifications. The Court states, "Korematsu dem-
onstrates vividly that even 'the most rigid scrutiny can sometimes fail to detect an
illegitimate racial classification." And furthermore, "any retreat from the most
searching judicial inquiry can only increase the risk of another such error occurring
in the future."
The use of the Korematsu decision in the Adarand opinions is troubling. It rep-
resents an advance for Asian Americans as it is a retreat for African Americans;
overall, possibly, it is a setback for society at large. It shows that Asian Americans,
who were unimportant when they faced racism, can become important when they
can be used to attack remedies for similar racism.
Worse than the mere use of the Korematsu opinion in the Adarand case are the
increasingly prominent reappearances of the model minority myth in the political
sphere. Asian Americans have emerged politically in the debate over affirmative ac-
tion, though often as pawns. House Speaker Newt Gingrich, California Governor
Pete Wilson, and leaders of the California CCRI anti-alTirmative action campaign
are among the many political leaders who point to Asian Americans and their sup-
posed success to assert that affirmative action is not needed.
As it has become less acceptable openly to compliment Asian Americans to con-
demn African Americans, it has become more acceptable to come to the defense of
Asian Americans as a means of casting doubt on the advances of the civil rights
movement.
Ironically, if Asian Americans are hurt by afTirmative action, they are hurt by af-
firmative action for whites — not for African Americans. In the 1 980s, Asian Amer-
ican high school students displayed increasing grades and test scores, but their rate
of admissions to prestigious universities hit a plateau and actually declined at some
institutions. Abusing the concept of meritocracy, admissions officials changed the
standards. They explained that Asian American applicants, despite their impressive
records, were too bookish and not well-rounded enough for the Ivy League and other
top schools.
The Department of Education investigations into the matter concluded that if
Asian Americans were constrained by quotas, it was only for the permissible reason
of ad mining more "legacies" — alumni children — a group that was predominantly
white. This form of racial preference, which whatever its justification is nonetheless
a deviation from meritocracy, faced surprisingly little organized opposition.
Due to the college admissions controversy, many Asian Americans themselves
have come to believe that any maximum quotas placed upon them at universities
or by employers must be the result of minimum quotas lor African Americans or
other groups.
The real risk to Asian Americans, however, is that they will be squeezed out to
reserve representation for whites, not African Americans. This has been the case,
for example, in the San Francisco school district, where Chinese American students
must score higher than white students to gain admission to the best public high
school in the city. Asian Americans and whites could be held to the same standard,
without eliminating affirmative action at the high school. Eliminating affirmative
action likely would eliminate almost all African American and Latino students from
the school.
Most importantly, the arguments against affirmative action are significantly
weakened when Asian Americans are acknowledged honestly. The objection to af-
firmative action is that it "discriminates" against whites and Asian Americans. But
if Asian Americans and whites compete against one another equally and fairly, even
if affirmative action hurts them it does so collectively and cannot be said to single
out either group in the sense meant by racism.
The attention paid to Asian Americans, moreover, is inflammatory. It pits Asian
Americans against African Americans, as if one could succeed only by the other fail-
ing. Asian Americans are encouraged to view African Americans, and programs for
them, as threats to their own upward mobility. African Americans are led to see
Asian Americans, many but not all of whom are immigrants, as another group that
has usurped what was meant for them.
119
Nevertheless, in the continuing debate over afllrmative action, Asian Americans
can play a positive role. Asian Americans, like all Americans, might be ambivalent
about affirmative action, but nonetheless ought to be appalled at the extreme pro-
posals being offered.
H.R. 2128
Finally, then, I would like to turn to H.R. 2128. This Bill is extreme. There are
more moderate courses that can and should be taken that would preserve equal pro-
tection in the law as well as equal opportunity in reality.^
H.R. 2128 is extreme because after the Adarand decision, there is no doubt that
quotas are unconstitutional. The Clinton Administration has agreed and is conduct-
ing a thorough review of all affirmative action programs. The only type of affirma-
tive action that can be practiced today is the best type: recruiting and hiring and
retaining and promoting qualified racial minorities and women, people who would
stand as likely a chance as white men of being selected but for the prejudice that
still remains in society.
In contrast, H.R. 2128 would eliminate everything except for recruiting in the vast
and influential sphere of federal government contracting. As a result, perversely,
minorities would oe told about opportunities to participate, but not given them. In-
deed, given the wording of the bill, it is even unclear that recruiting would be per-
missible.
In other words, about all that the Bill would accomplish is eliminating the few
programs that can be established where there is evidence of discrimination. All that
would be affected are cases where there is no doubt that there is discrimination,
and its existence is proven by rigorous statistical data. This point must be empha-
sized: the Supreme Court has indicated quite clearly that the government can use
affirmative action only where and when it proves that there is racism and sexism.
Furthermore, the government bears the burden of proof in this respect. Accordingly,
if even that tiny remnant of affirmative action is destroyed, there is absolutely noth-
ing worthwhile left. Again, even if there is racism and sexism, ongoing and system-
atic, the government would have no ability whatsoever actually to remedy it if H.R.
2128 became the law.
Thus, the attacks on affirmative action are symbolic. A victory for the proponents
of H.R. 2128 would produce very little for white males, because there are more gen-
eral problems that are causing our economic difficulties, but it would be devastating
to racial minorities and women. For almost no gain to white men there would be
an almost complete loss to racial minorities and women.
The rhetoric directed against so-called "reverse discrimination" would be persua-
sive if it were deployed against regular discrimination now and again. While no
doubt "reverse discrimination — against whites occurs occasionally, regular discrimi-
nation against African Americans remains much more prevalent and vigorous,
whether measured by statistics on employment discrimination and housing segrega-
tion, or episodes such as the Rodney King beating. The Glass Ceiling Commission,
an independent body composed primarily of business leaders, concluded that aside
from the gross under representation of racial minorities and women in top corporate
positions, even comparing blacks and whites who were equally qualified and holding
similar jobs the blacks were paid significantly less. The comparison of regular dis-
crimination and reverse discrimination verges on the absurd.
In apparent opposition to affirmative action, meritocracy is repeated like a
mantra. The concept of meritocracy is attractive, even beguiling. As its promoters
put it, meritocracy means opportunities offered on the basis of a combination of abil-
ity and effort, with no extraneous factors considered.
Despite the difficulties of doing so, our society has always been obsessed with
classifying and measuring people. More than ever before, we have persuaded our-
selves that can be scientific as well as just. Real meritocracy would have much to
overcome, though, because the best indication of an individual's future economic suc-
cess is their parents' economic status, not any form of intelligence testing.
There are so many deviations from meritocracy that it is difficult to keep count.
In college admissions, for example, virtually every state university grants pref-
erences to state residents, sometimes by setting strict quotas. Applicants whose par-
ents attended the institutions and athletes on scholarship also are admitted even
if they are underqualified. Taxpayers, alumni, and football fans would hardly have
it any other way.
1 While I appreciate the exemption of historically black colleges and universities, it is curious
that similar Latino institutions do not receive the same protection.
120
At the workplace, everyone who has been an employee knows that their super-
visors can set standards tnat are at best subjective. Likewise, people who have eval-
uated the work of others know that it is dimcult to explain how decisions were
made.
The most popular metaphor for meritocracy is the world of sports, with its team
standings and individual rankings. Despite win-loss records and statistics, even ath-
letic competitions are imperfect meritocracies. Teams have diverse needs to fill in
drafts and make choices based on their own particular criteria and under salary
constraints; players in different positions must perform different tasks; and every-
one has bad days. Sporting events are apt for revealing the artificial nature of many
standards. As one law professor who likes to play basketball has argued, the defini-
tion of merit changes dramatically if the basket is lowered six inches.
Again, Asian Americans know well that merit can be manipulated. Good grade
and high test scores can be turned into a disadvantage, a sign that an individual
or a whole group is nerdy and lacks people skills.
Sometimes surprisingly, all of us potentially can benefit from an expansive view
of what constitutes merit. In the best known Supreme Court decision on affirmative
action, Allen Bakke claimed that he was rejected by a medical school because he
was white. The record of the case, however, suggests that Bakke may have been de-
nied admission because he was considered too old. Unless they are abolished, the
best affirmative action programs operating today would weigh even Bakke's life ex-
perience as a positive factor.
Affirmative action, in the end, is only a means. Oppxjsition to affirmative action
is not necessarily support for racism, but it can be. Tne appropriate response to op-
ponents of affirmative action is the query, real rather than rhetorical, of how they
might propose to achieve racial justice by other means.
There are so many things we should be doing to advance racial justice. Affirma-
tive action can be only one part of an overall plan. But it is an important part, be-
cause its loss would represent a loss of our sense of community and our faith.
Mr. Canady. ok, thank you, Professor Wu.
The subcommittee will need to stand in recess because there is
a vote. We will return immediately after the vote and hear from
Professor Kull.
[Recess.]
Mr. Canady. The subcommittee will be in order.
I apologize to our witnesses for the interruption. I think that we
have had the last vote of the day. So we should be able to proceed
without further interruption.
So now I'd like to recognize Professor Kull.
STATEMENT OF ANDREW KULL, PROFESSOR OF LAW, EMORY
UNIVERSITY SCHOOL OF LAW
Mr. Kull. Thank you. Chairman Canady, members of the com-
mittee, my name is Andrew Kull. I am a professor of law at Emory
University. I'd like to thank the committee for the invitation to ap-
pear today.
My object in these remarks is to place this important measure
in its historical context. Historical context matters here. H.R. 2128
proposes to abolish Federal Government preferences on the basis of
race, among other things, but in 1995 the claim that the Govern-
ment should deal with all citizens without regard to race is at-
tacked as an attempt to turn back the clock in the struggle for civil
•rights and racial equality. We have a long way to go before racial
equality becomes a reality in this country. So the charge that this
bill takes us in the wrong direction is one that people of goodwill
must take seriously.
The American political tradition associated with the term "civil
rights" has pursued two related objectives. Its most distinctive
legal claim has been for a principle of nondiscrimination; above all.
121
a demand for nondiscriminatory treatment at the hands of govern-
ment. The second objective of "civil rights," of course, has been to
improve the poHtical, social, and economic condition of black Ameri-
cans.
So long as the racial classifications actually employed by govern-
ment operated uniformly to the disadvantage of racial minorities,
these related objectives could not be usefully distinguished. A gen-
eration ago, an unprecedented shift in policy produced something
new: racial classifications that were intended to work to the advan-
tage of racial minorities rather than to their disadvantage. To the
extent the new policies of preference appeared to serve the long-
term goal of racial equality, Americans who had been comfortable
supporters of civil rights could no longer have it both ways. They
had to choose between the hope of greater equality that preferences
held out and the old ideal that the Government should take no ac-
count of a person's race.
Whether or not H.R. 2128 turns back the clock on civil rights de-
pends, first, on which strand of the civil rights tradition we are
talking about. If we mean the fight for racial equality, the effect
of prohibiting racial preferences depends on a judgment about the
cost and benefits of preference policies in light of what is now a
quarter century's actual experience. The choice involves a political
judgment about the best means to an end. Because the objective is
one that most people share, the achievement of meaningful racial
equality in this country, the history of the civil rights tradition will
not be of much help in making the choice.
If v/e consider the other strand within civil rights, the ideal of
nondiscrimination, the lesson of history is much clearer. Seen from
this perspective, a bill that requires the Federal Grovernment to
deal with citizens without regard to race represents a historic vic-
tory. It establishes a legal standard that was the central and
unvarying objective of civil rights activists for more than 125 years.
Its enactment into law would mark the partial realization of one
of the perennial goals of the American civil rights movement, the
ideal of a government that would be blind to color.
The idea of a colorblind Constitution is naturally associated with
Justice John Marshall Harlan and his dissenting opinion in Plessy
v. Ferguson in 1896 when he declared that, "Our Constitution is
colorblind and neither knows nor tolerates classes among citizens."
But the tradition of colorblindness as a civil rights objective is both
older and more recent than Harlan's opinion in Plessy. It originated
among the abolitionist followers of William Lloyd Garrison in and
around Boston during the 1840's. The earliest clear statement that
I was able to find came in a petition circulated in 1839 by the
Women's Anti-Slavery Society of Lynn — the women of Lynn had
their own abolitionist organization which was more radical than
the men's — asking the Massachusetts Legislature "immediately to
repeal all laws in this State which make any distinction among its
inhabitants on account of color."
The colorblind arguments of New England abolitionists emerged
at the national level in the debates over the framing of the 14th
amendment after the Civil War. You are, no doubt, aware that a
joint committee of Congress in 1866 followed a long and tortuous
path before it ultimately devised the constitutional guarantees of
122
section 1 as we know it, forbidding any State to abridge the privi-
leges or immunities of U.S. citizenship or to deny due process or
the equal protection of the laws. You may not be aware of the alter-
native 14th amendment that the joint committee rejected as being
too radical. This was an amendment chiefly devised by Wendell
Phillips, another Boston abolitionist, who had been advocating it
for years in speeches all over the country. It was introduced in the
House of Representatives by Thaddeus Stevens himself, the radical
leader of the House Republicans and chairman of the Joint Com-
mittee on Reconstruction. If Phillips and Stevens had had their
way, the 14th amendment to the Constitution would now read like
this:
"All national and State laws shall be equally applicable to every
citizen, and no discrimination shall be made on account of race and
color."
A colorblind 14th amendment was too radical for Congress in
1866 because most Members thought there were some forms of ra-
cial classification, like school segregation, that were obviously de-
sirable. They wanted to prohibit undesirable forms of racial dis-
crimination while retaining what they thought were the desirable
ones. The essential choice in 1866 was thus between a per se rule,
a flat prohibition on the Government's use of race as a means of
classifying people, and a rule that racial distinctions could be a
proper tool of government policy so long as they were employed for
the right ends. The argument was the same in 1896, when Plessy
was decided, and it is the same constitutional choice we have faced
ever since.
By the 1940's, when the modem civil rights movement was be-
ginning to take shape, the idea that any racial classification was
presumptively improper had become an accepted liberal premise.
Thus, we hear Chief Justice Harlan Fiske Stone in one of the cases
about the internment of Japanese-American citizens during World
War II declare that, "Distinctions between citizens solely because
of their ancestry are by their very nature odious to a fi-ee people
whose institutions are founded upon the doctrine of equality."
We hear Thurgood Marshall, not yet a Supreme Court Justice,
but as head of the NAACP Legal Defense Fund, arguing in 1948
that, "classifications and distinctions based on race or color have no
moral or legal validity in our society." This assertion by Marshall
was not an isolated remark. In 1949, Marshall and his colleagues
were arguing that "racial criteria are irrational, irrelevant to our
way of life, and specifically proscribed under the 14th amendment."
In their briefs before the Supreme Court leading up to Brown v.
Board of Education, the Nation's leading civil rights lawyers ar-
gued that "distinctions imposed . . . upon race and color alone
. . . [are] patently arbitrary and capricious," that "a racial cri-
terion is a constitutional irrelevance," that "all governmentally im-
posed race distinctions are so odious that a State bound to affirm
equal protection of the laws must not impose them."
The Legal Defense Fund lawyers argued that race is "an irra-
tional basis for government action under our Constitution." They
referred to the law's "abhorrence of race as a premise for govern-
mental action." They argued for the premise that, "as a matter of
law, race is not an allowable basis of differentiation in govern-
123
mental action." The LDF lawyers concluded in 1954 "that the Con-
stitution is colorblind is our dedicated belief."
Colorblind government remained an explicit goal of the organized
civil rights movement for approximately 10 years after Brown. As
a moral and political principle, the nondiscrimination ideal prob-
ably reached its high water mark in August 1963, when Dr. Martin
Luther King expressed the hope that his children might someday
"live in a nation where they will not be judged by the color of their
skin, but by the content of their character." Crucial political vic-
tories quickly followed with the passage of the Civil Rights Act of
1964 and the Voting Rights Act of 1965.
By the end of the decade, however, the nondiscrimination theme
within the civil rights program was already receding from view.
Advocates of the new race-conscious policies initially defended their
departure from principle as the way to reach the ultimate goal of
colorblindness, suggesting that "in order to get beyond racism, we
must first take account of race," as Justice Blackmun put it. But
with the renewed proliferation of racial classifications in law and
government regulation, the argument that they marked a stage on
the road to a colorblind society has gradually ceased to be heard.
Surely most of us would agree that the experience of the last quar-
ter centry has left American society not less race-conscious, but
more so.
So far as the principle of nondiscrimination is concerned, a law
that requires the Government to deal with citizens without regard
to race does not "turn back the clock"; on the contrary, it vindicates
one \jf the central principles of the liberal civil rights tradition. The
abandonment of that principle a generation ago by our Federal
Government, which leads so importantly by example in this area,
has to be counted as one of the most serious costs to American soci-
ety of modem preference policies. Its reaffirmation at this point
would present a new opportunity and a new challenge.
If we consider the relation of this bill to the civil rights tradition
as a whole, the picture is more complex. The idea that racial pref-
erences could form part of the civil rights program in this country
would have been startling to most observers as late as 1965. Tac-
tical compromises were made by civil rights advocates a generation
ago. Clearly, it is appropriate to reconsider now the political
choices that were made at the time in light of their results. But if
preferences are to be abolished, the country will ask what is pro-
posed in their place.
There is no inherent contradiction between strict racial neutral-
ity and government policies designed to promote racial equality.
Leading civil rights advocated who confronted racial inequality in
the 1960's had no intention of surrendering the principle of
colorblindness. Their program for dealing with inequality involved
jobs, housing, and education, provided not on the basis of race, but
on the basis of need. Such policies are not only colorblind, but they
direct their benefits to the people with the strongest claim to gov-
ernment intervention.
By contrast, the preference policies our Government adopted,
with their bureaucratic roots in the Nixon administration, serve
very different goals. Their results can be tabulated. Most of their
costs stay off the Federal budget. The new policies imposed racial
124
preferences, not because they were necessarily the best means to
advance racial equality, but because they offered a relatively cheap
and easy way to appear to be doing something, even if that some-
thing was not what most needed doing.
Ironically, one consequence of Federal preference policies, and of
the controversy that occasionally surrounds them, has been to cre-
ate the impression that the Federal Government is doing more to
address the problem of persistent racial inequality than has actu-
ally been the case. The resulting statistics are familiar: many black
Americans are increasingly well off, but the most disadvantaged
segment of the black population now lives in conditions that are
dramatically worse than anything described by the Kerner Com-
mission in 1968. Preference policies were never designed to benefit
American citizens at the bottom of the ladder, and naturally they
have not done so. But it would require an extraordinarily pessimis-
tic view of American society, and of our national future, to conclude
from this experience that nothing can or should be done.
Thank you.
[The prepared statement of Mr. Kull follows:]
Prepared Statement of Andrew Kull, Prop^essor of Law, Emory University
School of Law
Chairman Canady, Members of the Committee, my name is Andrew Kull; I am
a FVofessor of Law at Emory University. I wish to thank the Committee for its invi-
tation to appear this morning. My object in these remarks will be to place this im-
portant measure in its historical context.
Historical context matters here. H.R. 2128 proposes to abolish federal government
preferences on the basis of race. But in 1995, the claim that the government should
deal with all citizens without regard to race is attacked as an attempt to "turn back
the clock" in the struggle for civil rights and racial equality. We still have a long
way to go before racial equality becomes a reality in this country, so the charge that
this bill takes us in the wrong direction is one that p)eople of good will must take
seriously.
The American political tradition associated with the term "civil rights" has pur-
sued two related objectives. Its most distinctive legal claim has been for a principle
of nondiscrimination: above all, a demand for nondiscriminatory treatment at the
hands of government. The second objective of "civil rights," of course, has been to
improve the political, social, and economic condition of black Americans. So long as
the racial classifications actually employed by government operated uniformly to the
disadvantage of racial minorities, these related objectives could not be usefully dis-
tinguished.
A generation ago, an unprecedented shift in policy produced something new: racial
classifications that were intended to work to the advantage of racial minorities,
rather than to their disadvantage. To the extent the new policies of preference ap-
peared to serve the long-term goal of racial equality, Americans who had been com-
lortable supporters of 'civil rights" could no longer have it both ways: they had to
choose between the hope of greater equality that preferences held out, ana the old
ideal that the government should take no account of a person's race.
Whether or not H.R. 2128 "turns back the clock" on civil rights depends, first, on
which strand of this civil rights tradition we are talking about. If we mean the fight
for racial equality, the effect of prohibiting racial preferences depends on a judgment
about the costs and benefits of preference policies, in light of what is now a quarter-
century's actual experience. The choice involves a political judgment about the best
means to an end. Because the objective is one that most people share — the achieve-
ment of meaningful racial equality in this country — the history of the civil rights
tradition will not be of much help in making the choice.
If we consider the other strand within "civil rights," the ideal of nondiscrimina-
tion, the lesson of history is much clearer. Seen from this perspective, a bill that
requires the federal government to deal with citizens without regard to race rep-
resents a historic victory. It establishes a legal standard that was the central and
unvarying objective of civil rights activists for more than a hundred twenty-five
years. Its enactment into law would mark the partial realization of one of the peren-
125
nial goals of the American civil rights movement, the ideal of a government that
would "be blind to color."
The ideal of a color-blind Constitution is naturally associated with Justice John
Marshall Harlan and his dissenting opinion in Plessy v. Ferguson in 1896, when he
declared that "Our Constitution is color-blind, and neither knows nor tolerates class-
es among citizens." But the tradition of color blindness as a civil rights objective is
both older and more recent than Harlan's opinion in Plessy. It originated among the
abolitionist followers of William Lloyd Garrison in an around Boston during the
1840s: the earliest clear statement I was able to find came in a petition cirailated
in 1839 by the Women's Anti-Slavery Society of Lynn (the women of Lynn had their
own abolitionist organization which was more radical than the men's), asking the
Massachusetts le^slature "immediately" to repeal all laws in this State, which
make any distinction among its inhabitants, on account of color."
The color-blind arguments of New England abolitionists emerged at the national
level in the debates over the framing of the Fourteenth Amendment after the Civil
War. You are not doubt aware that a Joint Committee of Congress in 1866 followed
a long and tortuous path before it ultimately devised the constitutional guarantees
of Section 1 as we know it, forbidding any State to abridge the privileges or immuni-
ties of United States citizenship, or to deny due process or the equal protection of
the laws. You may not be aware of the alternative fourteenth amendment that the
Joint Committee rejected as being too radical. This was an amendment chiefly de-
vised by Wendell Friillips, another Boston abolitionist, who had been advocating it
for years in speeches all over the country; it was introduced in the House Repub-
licans and the chairman of the Joint Committee on Reconstruction. If Phillips and
Stevens had had their way, the Fourteenth Amendment to the Constitution would
not read like this:
All national and State laws shall be equally applicable to every citizen,
and no discrimination shall be made on account of race and color.
A color-blind Fourteenth Amendment was too radical for Congress in 1866, be-
cause most members thought there were some forms of racial classification (like
school segregation) that were obviously desirable. They wanted to prohibit undesir-
able forms oT racial discrimination while retaining what they thought were the de-
sirable ones. The essential choice inl866 was thus between a per se rule — a flat pro-
hibition on the government's use of race as a means of classifying people — and a
rule that racial distinctions could be a proper tool of government policy so long as
they were employed for the right ends. The argument was the same in 1896, when
Plessy was decided, and it is the same constitutional choice we have faced ever
since.
By the 1940s, when the modem civil rights movement was beginning to take
shape, the idea that any racial classification was presumptively improper had be-
come an accepted liberal premise. Thus we hear chief Justice Harlan Fiske Stone,
in a case about the internment of Japanese-American citizens during World War II,
declare that "Distinctions between citizens solely because of their ancestry are by
their very nature odious to a free people whose institutions are founded upon the
doctrine of equality." We hear Thurgood Marshall — not yet a Supreme Court Jus-
tice, but as head of the NAACP Legal Defense Fund — arguing in 1948 that "Classi-
fications and distinctions based on race or color have no moral or legal validity in
our society."
This assertion by Marshall was not an isolated remark. In 1949, Marshall and
his colleagues were arguing "that racial criteria are irrational, irrelevant to our way
of life and specifically proscribed under the Fourteenth Amendment." In their briefs
before the Supreme Court leading up to Brown v. Board of Education, the nation's
leading civil rights lawyers argued that "distinctions imposed . . . upon race and
color alone . . . [are] patently [arbitrary and capricious]"; that "a racial criterion
is a constitutional irrelevance"; that "all govemmentally imposed race distinctions
are so odious that a state, bound to aflbrd equal protection of the laws, must not
impose them." The Legal Defense Fund argued that "race is an irrational basis for
governmental action under our Constitution"; they referred to the law's "abhorrence
of race as a premise for governmental action"; they argued for the "premise that,
as a matter of law, race is not an allowable basis oi differentiation in governmental
action." The LDF lawyers concluded in 1954: "That the Constitution is color-blind
is our dedicated belief."
Color-blind government remained an explicit goal of a organized civil rights move-
ment for approximately ten years after Brown. As a moral and political principal,
the nondiscrimination ideal probably reached its high-water mark in August 1963,
when Dr. Martin Luther King expressed the hope that his children might some day
"live in a nation where they will not be judged oy the color of their skin but by the
23-805 0-96
126
content of their character." Crucial political victories quickly followed, with the pas-
sage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
By the end of the decade, however, the nondiscrimination theme within the civil
rights program was already receding from view. Advocates of the new race -conscious
policies initially defended their departure from principle as the way to reach the ul-
timate goal of color blindness, suggesting that "in order to get beyond racism, we
must first take account of race," as Justice Blackmun put it. But with the renewed
proliferation of racial classifications in law and government regulation, the argu-
ment that they marked a stage on the road to a color-blind society has gradually
ceased to be heard. Surely most of us would agree that the experience oi the last
quarter-century has left American society not less race-conscious, but more so.
So far as the principle of nondiscrimination is concerned, a law that requires the
government to deal with citizens without regard to race does not "turn back the
clock": on the contrary, it vindicates one of the central principles of the liberal civil
rights tradition. The abandonment of that principle a generation ago by our federal
government — which leads so importantly by example in this area — has to be counted
as one of the most serious costs to American society of modem preference policies.
Its reaffirmation at this point would present a new opportunity and a new chal-
lenge.
If we consider the relation of this bill to the civil rights tradition as a whole, the
picture is more complex. The idea that racial preferences could form part of the civil
rights program in this country should have been startling to most observers as late
as 1965. Tactical compromises were made by civil rights advocates a generation ago;
clearly it is appropriate to reconsider now the political choices that were made at
the time, in light of their results. But if preferences are to be abolished, the country
will ask what is proposed in their place.
There is no inherent contradiction between strict racial neutrality and govern-
ment policies designed to promote racial equality. Leading civil rights advocates who
confronted racial inequality in the 1960's had no intention of surrendering the prin-
ciple of color blindness: their program for dealing with inequality involved jobs,
housing, and education, provided not on the basis of race but on the basis of need.
Such policies are not only color-blind, but they direct their benefits to the people
with the strongest claim to government intervention.
By contrast, the preference policies our government adopted — with their bureau-
cratic roots in the Nixon administration — serve very different goals. Their results
can be tabulated. Most of their costs stay off the federal budget The new policies
imposed racial preferences, not because they were necessarily the best means to ad-
vance racial equality, but because they offered a relatively cheap and easy way to
appear to be doing something, even if that something was not what most needed
doing.
Ironically, one consequence of federal preference policies, and of the controversy
that occasionally surrounds them, has been to create the impression that the federal
government is doing more to address the problem of persistent racial inequalitv
uian has actually been the case. The resulting statistics are familiar: many black
Americans are increasingly well off, but the most disadvantaged segment of the
black population now lives in conditions that are dramatically worse than anything
described by the Kerner Commission in 1968. Preference policies were never de-
signed to benefit American citizens at the bottom of the ladder, and naturally they
have not done so. But it would require an extraordinary pessimistic view of Amer-
ican society, and of our national future, to conclude from this experience that noth-
ing can or should be done.
Thank you.
Mr. Canady. Thank you, Professor. Again, I want to thank the
members of this panel for your patience with us as we've been in-
terrupted and your important contribution to today's hearing.
Professor Wu, let me ask you a question. In your written testi-
mony, you state that strict scrutiny has almost always resulted in
the challenged governmental action being struck down as unconsti-
tutional. Then you go on to talk about the Adarand case, and you
say the case is likely to result in far fewer affirmative action pro-
grams being approved by the lower courts.
What programs do you think would survive the Adarand test,
but would not survive scrutiny under this legislation? What cat-
egory are we talking about that this would actually affect?
127
Mr. Wu. A very large number of beneficial programs, in my opin-
ion. Let me give you
Mr. Canady. well, let me — when you say that, now that puzzles
me because in your written testimony you say, "Furthermore, the
Government bears the burden of proof in this respect," in meeting
the Adarand's test, and you say, "Accordingly, if even that tiny
remnant of affirmative action is destroyed, there is absolutely noth-
ing worthwhile left." When you wrote "that tiny remnant of affirm-
ative action," what did you mean?
Mr. Wu. If you
Mr. Canady. The large group of programs you're just about to de-
scribe?
Mr, Wu. If you'll read further in the testimony, you'll see that
I explain that it depends on your perspective; that the benefit to
white males who believe themselves to be victims of affirmative ac-
tion will, indeed, be tiny. They will benefit very little from passage
of this bill, but the devastating symbolic impact of the bill would
be to send a signal that this Congress does not care about advanc-
ing racial justice because, for all the rhetoric that's been heard
today, there are not accompanying bills that go with this or provi-
sions in this bill that would increase antidiscrimination enforce-
ment, but rather, as other witnesses have pointed out, would dra-
matically cut back in certain areas on antidiscrimination laws al-
ready in place.
If I may give an example
Mr. Canady. Well, let me ask you about that. What in this bill
cuts back on antidiscrimination, other antidiscrimination laws? I
just don't see that in the bill.
Mr. Wu. The examples raised by earlier witnesses with regard to
gender, for example, which permit gender discrimination that today
would not be permitted, if the bill passed, gender discrimination for
vague reasons of national security or for privacy, for example
Mr. Canady. Let me direct you to the language of the bill, which
is sometimes helpful to consult. The provisions that you're talking
about are contained in the section that begins with the following
language: "Nothing in this act shall be construed to prohibit or
limit any classification based on sex if . . . ." So if you read
those exceptions in the context here, it's clear that this won't affect
other civil rights laws in any way. This is just a provision about
how this law is going to be construed. So I think that point just
doesn't stand up to an analysis — ^based on an analysis of the text
of the bill.
Mr. Wu. May I be permitted to explain?
Mr. Canady. Sure.
Mr. Wu. Because the bill, however, affects significantly the rem-
edies that can be imposed by courts, including consent decrees, in
cases where discrimination has been proven, it will have an im-
pact
Mr. Canady. Let me point out that the bill does not do that, ei-
ther. The bill only affects — excuse me a minute. Excuse me. We're
done with business on the floor.
The bill does not affect the remedies that are available under the
civil rights laws. It does have a provision relating to consent de-
crees that may be entered into with respect to these particular ac-
128
tivities of the Federal Government, but insofar as there are consent
decrees that are entered into pursuant to other provisions of the
civil rights laws, this bill has no impact that I can see. Now it
might be proposed to do that, but that is not in this bill.
Mr. Wu. To the contrary, what the bill does is, by affecting con-
sent decrees, affects the very means by which antidiscrimination
laws are enforced. Without consent decrees that are used by the
courts to enforce those antidiscrimination laws, they would have no
meaning.
Now let me also suggest that one of the modifications that the
bill imposes, a distinction the bill fails to draw, but which the
court, which Congress, and which private employers have always
been able to draw, is the distinction between strict numerical
quotas, which again are unconstitutional, and goals and timetables
which provide for opt-outs and more flexible means of ensuring
that qualified
Mr. Canady. Let me go back to my original question. What do
you believe would survive the strict scrutiny of Adarand, which you
seem to think is very devastating, but would not survive this bill?
Mr. Wu. Exactly the programs I just proposed, not quota pro-
grams because those are clearly unconstitutional, and nobody here
has been heard to support those.
Mr. Canady. I'm sorry, my time has expired. The gentleman
from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
It's amazing, in the course of a long afternoon we tend to forget
what everybody's been saying. Here the author of the bill can now
ask you, well, what's the dif^rence, forgetting that we've only had
the witnesses that preceded all you professors. Professor Browne,
emphasizing strongly the goals and timetables have got to go. Well,
they're already gone in this bill, but Professor Browne, not
unsubtle in his presentation before us today, makes it very, very
clear — and I admire his candor — that goals and timetables are
what he's after. I guess I'm the only one who remembers what the
woman representing the woman's organization was saying about
the harm this legislation would cause to women. That's all forgot-
ten. Gret the record; study it next month, and this hearing will be
over, and we will have a chairman professing that the bill doesn't
do any harm to the existing affirmative action remedies.
And so I applaud you. Professor Browne, for laying it on the
table for us. That's characteristic of your style around Wayne Uni-
versity and you bring it here to the hearing.
But now, Professor Kull, wait until Andy Young hears what you
told me: it wasn't until as late as 1965 that anybody was talking
about using race in the civil rights movement, of dealing with it.
That is so erroneous, to be gentle with you, that it blows my mind.
As one of the younger older Members of the Congress, I happen
to have been around the civil rights movement in 1965, and the
discussion about these remedies didn't start as late as 1965; it
started way, way before then.
But on another point — it's very interesting how you separate this
dichotomy between a colorblind civil rights movement and no color
being involved. The colorblind advocates, such as Thaddeus Ste-
vens in the 19th century, were considered the radicals. Now we
129
have our neo-civil rights leaders sitting at the table with us leading
the battle for colorblind. They relate to Thaddeus quite well, I'm
sure.
Mr. Canady. My middle initial is "T."
Mr. CoNYERS. That may help you a little bit, too, in this.
But the whole thing is really such a distorted way for you to go
back and review history, to think now at the present moment — ig-
noring everything the Attorney General, Assistant Attorney Gen-
eral said, and you were in the room. Mr. Patrick just laid out all
the minimal progress we have made, and you say there's been none
made and the problem is the affirmative action programs because
they use color as a consideration. How dare you. If I didn't what
King and Young did, if I hadn't been there in 1963, just being with
you this afternoon, sir, would have given me enough evidence to
make the case against this presentation. Now I understand why
your book was so heavily recommended by the chairman, which in
some circles will not increase its sale.
I would yield to you for any response you might choose to make.
Mr. KULL. Well, Mr. Congressman, most of the remarks you have
just been criticizing I don't recognize as having made.
Mr. CoNYERS. Well, then, that's wonderful because then that
puts us a lot closer together.
Mr. KuLL. Well, let me say one thing that will bring us even clos-
er together still.
Mr. CoNYERS. OK
Mr, KuLL. One of the points that I tried to make in these re-
marks, is precisely the suggestion that you have just made: the
idea that the Government should make policy without
Mr. Canady. The gentleman's time has expired. If there is no ob-
jection, the gentleman will have an additional minute.
Mr. CoNYERS. Thank you, sir.
Let me just say this quickly. I wrote down as late as 1965. Don't
tell me you didn't say that. I was reading it as you read it.
Mr. KuLL. The statement I made was that, as late as 1965, the
suggestion that racial preferences would be part of a civil rights
program would have surprised most observers. I think that is true.
Mr. CoNYERS. Andy Young wouldn't think it's true.
Mr. KuLL. If the question is, what is the earliest date on which
you can find a civil rights leader speaking about racial preferences,
I would sav it's 1963, so far as my research is concerned. If it's ear-
lier than that, you can correct me. That's not the point I was trying
to make.
Mr. CoNYERS, It is the point you were trying to make, sir. I'll
read it to you again, but, if that's a way out of it, beautiful; it was
1963 and not 1965. I disagree with that, and I think the people
that were around in the civil rights movement would, too, but
that's convenient to your presentation.
Mr. Canady. The gentleman's time has expired. Mr. Hyde.
Mr. Hyde. Well, thank you, Mr. Chairman.
I regret that I was not here to hear Professor Kull's testimony,
but — and I'm going to yield to him for whatever time I have to re-
spond to the critique of the gentleman from Michigan, but just sit-
ting here I just want to say that I am unhappy, not that it matters
to anybody but me, at the ad hominem tone taken toward wit-
130
nesses. Whenever you say to a witness, "How dare you," those are
emotional words. In other words, I so disagree with what you have
to say that you have — you're beyond the pale. I don't think wit-
nesses should be treated that way. I don't think — I don't like to be
called a neo-civil rights — I don't like the personalizing of ideas
which we're here to discuss. Even if we don't like the ideas,
everybody's entitled to civility and deference and respect, and I
don't think we've had it, even though the gentleman feels very
strongly, and I feel strongly, too, but I would hope for less ad
hominem criticism.
Professor Kull, for what time I have left, you may respond to the
gentleman's critique.
Mr. Kull. Well, thank you. I really wanted to make one other
point in response. What I was starting to sav was that the propo-
sition that our Grovernment should deal witn its citizens without
respect to their race was a radical one in 1866; it was a radical one
in 1896; I believe it is a radical one in 1995. At every point in our
Nation's history, except possibly for a brief period in the early
1960's, the reasonable consensus of most people in government was
that race is a useful, helpful way of classifying citizens. That
makes it a good tool of policy, so that the only argument about a
race-based policy is the same argument that we have about every
other policy, an argument about costs and benefits. And throughout
history, except perhaps for a very brief and transitory period in the
early 1960's, classifications in the Supreme Court has been that ra-
cial classifications are all right so long as they are used for pur-
poses of which the Supreme Court approves.
The argument that the Federal Government should be blind to
the race of its citizens has, therefore, always been a radical one.
It was for 125 years the declared objective of what was for most
of that time a radical minority, the American civil rights move-
ment. The proposition is a radical one today because racial classi-
fications in American law and policy are as prevalent today as they
ever have been, admittedly in a new form and for different pur-
poses.
The suggestion contained in this bill is, I believe, the one that
we heard Professor Loury speaking of this morning. We have
enough experience with the use of racial classifications in govern-
ment to have learned finally that they do more harm than good.
The time to stop using them is now.
Thank you.
Mr. Hyde. Thank you. Professor Kull.
I yield back.
Mr. Canady. Mr. Watt.
Mr. Watt. I yield Mr. Conyers 1 minute.
Mr. Conyers. Thank you very much.
I always appreciate the lectures from my chairman. Henry Hyde
and I work together very closely as two people with very different
philosophies. I appreciate his calm and conciliatory tone today.
Mr. Hyde. Thank you.
Mr. Conyers. It has nothing to do with what his tone and stri-
dent manner can be when he is ticked off, though
Mr. Hyde. Seldom, seldom.
131
Mr. CoNYERS. Perhaps seldom, but still noteworthy to those of us
in the House of Representatives when he wants to blast off, and
it's far more than ad hominem. In that spirit. Chairman Hyde, I
will lower my tone; I will not dare anybody in the witness chair to
insult my set of principles, but this one Member remembers when
you have hit the ceiling on the floor of the House.
Mr. Canady, The Members should not engage in personal charac-
terizations of the motives of other Members.
Mr. Hyde. Well, Mr. Chairman, I think
Mr. Canady. And I don't believe Mr. Hyde engaged in character-
izing anyone's motives. Let's focus on the issues here.
Mr. Hyde. I think this is being done in a spirit of friendship and
camaraderie, and I hear the gentleman and I have been known to
raise my voice. It's just that I don't think I've ever gone after a wit-
ness and
Mr. CoNYERS. Well, it's much easier to go after Members than
witnesses, I agree, but I guess there's a big distinction there. I
thank the gentleman and his friendly tone. I wasn't trying to per-
sonalize this discussion, but how could I not bring it up?
Mr. Hyde. Well, that's a — we'll have a hearing on that. [Laugh-
ter.]
Mr. Watt. OK, I guess I can reclaim my time now. [Laughter.]
Mr. Canady. The time is controlled by the gentleman from North
Carolina.
Mr. Watt. I just wanted to apologize to the witnesses for not
being able to be here to hear any of their testimony, but I will as-
sure them I will try to read it and understand where they're com-
ing from. Unfortunately, I had to go deal with a real world issue
related to the subject that we are here dealing with today in a
more theoretical way, one having to do with my district.
So I'll yield back the balance of my time. I don't have any ques-
tions of these witnesses.
Mr. Canady. Again, let me thank the members of this panel for
your contribution to today's hearing.
And now I would ask that the members of the final panel of the
day come forward to take their seats. For our fifth and final panel
today, we have with us Mr. Jorge Amselle, the communications di-
rector of the Center for Equal Opportunity in Washington, DC. Mr.
Amselle specializes in affirmative action and bilingual education.
Next to testify will be Ms. Barbara Herman. She is a national
board member of the National Council of Jewish Women.
Also testifying before us today is Mr. Luis Pelayo, president and
founder of the Hispanic Council. Mr. Pelayo serves as executive di-
rector for the council in Chairman Hyde's district in Illinois.
Arthur Baer, our final witness, is an attorney with the Puerto
Rican Legal Defense and Education Fund in New York City.
I want to thank each of you for being with us today. Given the
lateness of the hour and our previous understanding, we would ask
that each of you confine your remarks to no more than 5 minutes,
and your full written statements will be included in the record,
without objection.
Mr. Amselle.
132
STATEMENT OF JORGE AMSELLE, COMMUNICATIONS
DIRECTOR, CENTER FOR EQUAL OPPORTUNITY
Mr. Amselle. I'm Jorge Amselle, the communications director for
the Center for Equal Opportunity, as Congressman Canady stated.
I am here today to discuss whether the Federal Government will
continue to provide preferential treatment to people for no other
reason than their race, ethnicity, or gender.
Treating people differently because of the color of their skin used
to be called "discrimination;" today it's called "affirmative action."
Racial discrimination is abhorrent when practiced by the private
sector, but when it becomes the official practice of government, it
becomes more than just repugnant; it becomes dangerous. As a
multicultural, multiethnic, and multiregional society, we cannot af-
ford to become divided. Yet, this is exactly what current affirmative
action policy does.
When society has preferred groups, those who are not in the pre-
ferred category will become iustifiably bitter. Group entity is bad
enough, but is made worse by our Government preserving it and
reinforcing it. By establishing racial and ethnic group categories for
the purposes oi disparate treatment, the Government is making
discrimination publicly acceptable. The combined result of racial
enmity and the acceptance of official discrimination will inevitably
turn to the favor of the majority and against the minority with
drastic consequences. Being in the minority, I find this a frighten-
ing and unacceptable prospect. My own Jewish grandfather nar-
rowly avoided the logical and end product of racial preference pro-
grams when he escaped from Nazi-occupied France.
The arguments in favor of racial and ethnic preferences are two-
fold. First, racial preferences are intended to make up for the past
discrimination, some of it also Government-sponsored, suffered by
minorities. This argument of historical reparation is applicable al-
most exclusively to blacks only. It also ignores the reality that not
all blacks are still suffering from the effects of America's shameful
past. The other problem with this argument is that it does not
apply to other minority groups and nonblack women.
The second argument in favor of racial preferences is more inclu-
sive. It says that antidiscrimination laws have proven insufficient
in fighting current discrimination, as is evidenced by the lack of
proportional representation of minorities and women in all aspects
of American society. By this argument, everyone is presumed guilty
of discrimination, and Grovernment-mandated racial, ethnic, and
gender preferences are required to insure that employers do not
discriminate. This second argument makes it possible for immi-
grants to receive preference in hiring and Government contracts
over American citizens by Government mandate. The result of this
policy is clear. A 1993 survey of 1,200 Republican primary voters
in California found that the use of racial preference programs by
Latinos significantly raised concerns over immigration and in-
creased support for proposition 187 and other unwise anti-immigra-
tion legislation.
The other problem with this argument is that it relies entirely
on seriously flawed disparity studies that deliberately ignore any
factor other than racism in their analysis. The purpose of these dis-
parity studies is not to find out why women and minorities are
133
underrepresented in a particular market sector, but to simply
blame racism and sexism as the culprits without any substantive
evidence. If antidiscrimination laws are not stopping those in-
stances where individuals are discriminated against because of
their race, the solution lies not in giving up on the idea of fighting
discrimination, but in better enforcement of our laws.
Some in the affirmative action establishment have decided that
the way to fight what they perceive as institutionalized discrimina-
tion in favor of white men and against minorities and women is by
having the Government institutionalize discrimination in favor of
them and, consequently, against white men. These programs only
serve to provide an excuse to question the accomplishments of all
minorities and women, whether they benefit from affirmative ac-
tion or not. These preferences, which are intended to benefit mi-
norities, are only serving to divide society by race and ethnicity, to
the detriment of minorities.
Proof of the harm done to society by racial preferences can be
seen in a survey by Prof Paul Sniderman of Stanford and Thomas
Piazza of Berkeley. They found that whites were more likely to
identify blacks as being lazy and irresponsible if they were first
asked a question about affirmative action. The authors concluded
that many whites dislike the unfairness of racial preferences so
much that they came to dislike blacks as a consequence. If we are
to salvage our dream of a colorblind society, we need to put an end
to racial preferences. Those who claim that as long as society is not
colorblind government cannot afford to be colorblind are wrong. We
will never nave a race-neutral society as long as government con-
tinues to categorize people by race for the purposes of disparate
treatment.
We should not wait on the judiciary to eliminate racial pref-
erences, either. Despite some promising rulings from the Supreme
Court limiting the use of preferences, the Court stopped short of
eliminating them altogether. According to the Congressional Re-
search Service, there are over 160 Federal racial preference pro-
grams. At the administration's current rate of mending affirmative
action, it will require a separate lawsuit to stop each and every one
of these unjust programs.
Mr. Canady. Mr. Amselle, if you could conclude as soon as pos-
sible?
Mr. Amselle. I'm concluding.
Mr. Canady. OK. Thank you very much.
[The prepared statement of Mr. Amselle follows:]
Prepared Statement of Jorge Amselle, Communications Director, Center
FOR Equal Opportunity
Mr. Chairman, I am Jorge Amselle, Communications Director for the Center for
Equal Opportunity, a non-profit research and education project specializing in issues
related to race, ethnicity and assimilation. It is an honor to be with you today to
testify on affirmative action, an issue of profound importance in the current national
policy debate on race and the role of government.
We are here today to discuss whether the federal government will continue to pro-
vide preferential treatment to people for no reason other than their race, ethnicity,
or gender. Treating people differently because of the color of their skin used to be
called discrimination, but today it is called affirmative action. Racial discrimination
is abhorrent when practiced by the private sector, but when it becomes the official
practice of government it becomes more than just repugnant, it becomes dangerous.
134
As a multicultural, multiethnic, and multiracial society we cannot afford to be-
come divided. Yet, this is exactly what current affirmative action policy does. When
society has preferred groups, those who are not in the preferred category will be-
come justifiably bitter. Group enmity is bad enough, but it is made worse by our
government preserving and reinforcing it.
By establishing racial and ethnic group categories for the purposes of disparate
treatment, the government is making discrimination publicly acceptable. The com-
bined result of racial enmity and the acceptance of official discrimination will inevi-
tably turn to the favor of tne majority and against the minority, with drastic con-
sequences. Being in the minority, I find this a frightening and unacceptable pros-
pect. My own Jewish grandfather narrowly avoidedthe logical end product of racial
preference programs when he escaped from Nazi occupied France.
The arguments in favor of racial and ethnic preferences are twofold. First, racial
preferences are intended to make up for the past discrimination, some of it also gov-
ernment sponsored, sufTered by minorities. This argument of historical reparations
is applicable almost exclusively to Blacks only. It also ignores the reality that not
all Blacks are still suffering from the efTects of America's shameful past. The other
problem with this argument is that it does not apply to other minority groups and
non-Black women.
The second argument in favor of racial preferences is more inclusive. It says that
anti-discrimination laws have proven insufficient in fighting current discrimination,
as is evidenced by the lack of proportional representation of minorities and women
in all aspects of American society. By this argument, everyone is presumed guilty
of discrimination, and government mandated racial, ethnic, and gender preferences
are required to ensure that employers do not discriminate.
This second argument makes it possible for immigrants to receive preference in
hiring, government contracts and college admissions over American citizens by gov-
ernment mandate. The result of this policy is clear. A 1993 survey of 1200 Repub-
lican primary voters in California found that the use of racial preference programs
by Latinos significantly raised concerns over immigrations,^ and increased support
for Proposition 187 and other unwise anti-immigration legislation.
These programs only serve to provide an excuse to question the accomplishments
of all minorities and women, whether they benefited from afiirmative action or not.
These preferences, which are intended to benefit minorities, are only serving to di-
vide society by race and ethnicity to the detriment of minorities.
Proof of the harm done to society by racial preferences can be seen in a survey
by Professors Paul Sniderman of Stanford ana Thomas Piazza of Berkeley.^ They
found that whites were more likely to identify Blacks as being "lazy" and "irrespon-
sible" if they were first asked a question about affirmative action. The authors con-
cluded that many whites dislike the unfairness of racial preferences so much that
they came to dislike blacks as a consequence.
It is time to stop classifying every woman and every minority as socially and eco-
nomically disadvantaged simply because of race or gender. Someone may be more
likely to face discrimination due to their race, but all minorities do not face the
same problems. A minority of means, such as Bill Cosby, is less socially disadvan-
taged than a poor white person. What determines disadvantage is wealth not race.
The lunacy of racial preferences reaches its zenith when it comes to the question
of racial classifications. In order to have a racial preference program, one needs to
divide people into racial categories. In order to avoid fraud, a system of verifying
a person's race and ethnicity is essential. With so many Americans of mixed racial
and ethnic backgrounds, a complex system of racial categorization has already been
implemented. The Ofiice of Management and Budget policy directive No. 15. outlines
this procedure.
What is the next step? Are we going to assign individuals preference points ac-
cording to the percentage of Black blood in their veins? It is time that we realized
that aU racial classifications are wrong. Just because some feel that society classifies
people by race and treats them differently, there is no excuse to accept this situation
or, much less, to cement it into public policy.
We can and should help those who are truly disadvantaged, but not by holding
them to a lower standard. We must provide them with the tools necessary to com-
pete on an equal basis and insure that they are not held to a different standard.
We can improve our schools and make our neighborhoods safer. There are programs
that help tne economically disadvantaged without regard to race.
The National Council of Contractors Association (NCCA) in Austin, TX, runs a
race-neutral program for small businesses that has put millions of dollars into the
iRon K. Unz. Policy Review, Fall 1994. No. 70. Pg. 38.
2 Paul M. Sniderman and Thomas Piazza, The Scar of Race. (Belknap Press 1993).) Pg. 8.
135
hands of minority-owned companies. One of the biggest barriers new companies face
when they want to bid for public contracts is obtaining surety bonding. It is this
difficulty in getting bonded that prevents most small, minority and non-minority
contractors from bidding on, or receiving public contracts.
The NCCA program helps them clear this hurdle — without resorting to pref-
erences or set-asides. It provides small businesses with training and supervision,
subsidizes visits with accountants and lawyers, and offers other kinds of profes-
sional advice. Most important, it actually issues bonds to its participants — with the
help of the Standard Group of Companies, a national surety bond underwriter. Even
though the program is race, and gender-neutral, 85 percent of the participants are
either minorities or women.
Since 1994, NCCA has assisted 83 smadl contractors in Austin, it has issued 171
bonds worth over $31 million, and has not suffered a single default. NCCA helped
its participants receive $6.3 million in public works contracts, and small company
participation in municipal contracts has shot up 600 percent. By contrast, the city
government abandoned its racial set-aside program after issuing only one bond to
a minority-owned small business in 1993.
In addition, the NCCA program actually saves tax dollars. By making small com-
panies eligible to bid for public contracts, instead of guaranteeing them contracts
on a set-aside basis, NCCA increases competitiveness instead of decreasing it. When
a participant wins a contract — based entirely on offering the lowest bid— the dif-
ference in cost between that bid and the next lowest is a nard dollar savings. Since
its inception less than two years ago, NCCA has saved the Austin community over
$1 million.
This one program is proof that affirmative action can be used for positive efforts
to increase minority participation without dividing people by race. There need not
be a backlash against minorities. Recent polls show that it is not too late to stop
the harm that has been done by racial preferences.
An NBC NewsAVall Street Journal poll, from January, found that 61 percent of
people want to eliminate race as a factor in employment, university admissions, and
public contracting decisions. Yet, a CNN/USA Today poll conducted last September
showed that 49 percent of Americans supported stronger affirmative action laws.
Similarly, a Los Angeles Times poll this past January showed that 55 percent of
the public is either satisfied witn current afiirmative action laws or wants them
strengthened.
The reason for the opposing viewpoints in these polls becomes clear when we real-
ize that the definition oi affirmative action is unclear. The good news is that a CNN/
USA Today poll found that 56 percent of whites would support race-neutral, need-
based aflirmative action programs.
If we are to salvage our dream of a color blind society, we need more of these
types of programs and an end to racial preferences. Yet, some would argue that as
long as race continues to matter in America, we must have public policy that recog-
nizes that fact and uses race-based solutions. These people claim that as long as
society is not color-blind, government cannot afford to be color-blind either. They are
wrong. We will never have a race-neutral society as long as government continues
to categorize people by race for the purpose of disparate treatment.
We should not wait on the judiciary to eliminate racial preferences either. Despite
some promising rulings from the Supreme Court limiting the use of preferences, the
Court stopped short of eliminating them altogether. According to the Congressional
Research Service there are over 160 federal racial preference programs. At the Ad-
ministration's current rate of "mending" afiirmative action, it will require a separate
lawsuit to stop each and every one of these unjust programs. Congress and the Ex-
ecutive created the problem of preferences, and it is going to take action from both
to eliminate them.
Ms. Herman.
STATEMENT OF BARBARA HERMAN, BOARD MEMBER,
NATIONAL COUNCIL OF JEWISH WOMEN
Ms. Herman. Mr. Chairman and members of the subcommittee,
thank you for the opportunity to testify today. My name is Barbara
Herman, and I'm from New Orleans, LA. As a member of the board
of directors of the National Council of Jewish Women, NCJW, I am
here on behalf of our organization to speak in opposition to H.R.
2128 and in support of maintaining and enforcing strong affirma-
tive action programs.
136
NCJW is the oldest major Jewish women's organization in Amer-
ica. Tens of thousands of NCJW volunteers work through a pro-
gram of research, education, advocacy, and community service to
improve the quality of life for women, children and families, and
strive to ensure individual rights and freedoms for all. Since 1975,
NCJW has had a resolution expressly supporting affirmative action
programs which insure equal opportunity for all. As a women's or-
ganization, we are especially cognizant of the opportunities that
such programs have afforded women in this country.
We have come a long way, but studies, including findings re-
leased in March of this year by the U.S. Department of Labor's
Glass Ceiling Commission, consistently show that we still have a
long way to go. The Commission study, focusing primarily on
women and minorities in management and supervisory roles, dis-
covered that 95 percent of upper level management jobs are filled
by white men; only 5 percent of upper level jobs are filled by
women and people of color. This clearly points to the continuing
need for vigorously-enforced affirmative action programs.
Given the growing participation of women in the work force of
this country, we are extremely dismayed that they continue to be
shamefully underrepresented in the critical decisionmaking man-
agement level in U.S. firms. Certainly, the Glass Ceiling Commis-
sion findings, among others, point up the need to continue and en-
hance affirmative action programs, not dismantle them, as we be-
lieve H.R. 2128 would do.
NCJW is very concerned that, rather than ensure equal oppor-
tunity, as the title suggests, this legislation would eliminate what
may well be the greatest guarantee of equal opportunity, affirma-
tive action programs. In addition to its longstanding support for af-
firmative action, NCJW has been opposed to quota systems. We re-
pudiate false claims that affirmative action and quotas are one and
the same. Both quotas and preferential treatment are illegal under
Federal affirmative action programs. In fact, the Executive order
program which outlaws quotas serves as a model for most affirma-
tive action programs in this country.
The final report of the Glass Ceiling Commission, released last
month, recommends that corporate America use affirmative action
as a tool ensuring that all qualified individuals have equal access
and opportunity to compete based on ability and merit. H.R. 2128
would sound the death knell for the Executive order program and
would destroy a key tool for achieving equal opportunity.
Affirmative action is not about quotas or preferences. It is about
access and equal opportunity. It is about creating a climate in
which merit can truly prevail. The National Council of Jewish
Women urges the subcommittee to reject H.R. 2128.
Thank you for your attention.
[The prepared statement of Ms. Herman follows:]
Prepared Statement of Barbara Herman, Board Member, National Council
OF Jewish Women
Thank you for the opportunity to testify today. My name is Barbara Herman, and
I am from New Orleans, Louisiana. As a Member of the Board of Directors of the
National Council of Jewish Women (NCJW), I am here on behalf of the organization
to speak; in opposition to H.R. 2128 and in support of maintaining and enforcing
strong affirmative action programs.
137
NCJW is the oldest major Jewish women's organization in America. Tens of thou-
sands of NCJW volunteers work through a program of research, education, advocacy
and community service to improve the quality of life for women, children and fami-
lies and strive to ensure individual rights and freedoms for all.
Since 1975, NCJW has had a resolution expressly supporting affirmative action
programs which ensure equal opportunity for ail. As a woman's organization, we are
especially cognizant of the opportunities that such programs have afforded women
in this country. We have come a long way, but stuoies, including findings released
in March of this year by the U.S. Department of Labor's Glass Ceiling Commission,
consistently show that we still have a long way to go. The Commission's study focus-
ing primarily on women and minorities in management and supervisory roles, dis-
covered that 95% of upf>er level management jobs are filled by wnite men. Only five
percent of upper level jobs are filled by women and people of color. This clearly
points to the continuing need for vigorously enforced affirmative action programs.
Given the growing participation of women in the work force of this country, we are
extremely dismayed that they continue to be shamefully under represented at the
critical decisionmaking, management level in U.S. firms. Certainly, the Glass Ceil-
ing Commission findings, among others, point up the need to continue and enhance
afnrmative action programs not dismantle them as we believe H.R. 2128 would do.
NCJW is very concerned that rather than ensure "equal opportunity" as its title
suggests, this legislation would eliminate what may well be tne greatest guarantee
of equal opportunity — affirmative action programs.
In addition to its long-standing support for affirmative action, the National Coun-
cil of Jewish Women has been opposed to quota systems. We repudiate false claims
that affirmative action and quotas are one and the same. Both quotas and pref-
erential treatment are illegal under federal afiirmative action programs. In fact, the
Executive Order program which outlaws quotas serves as a model for most affirma-
tive action programs in this country.
The final report of the Glass Ceiling Commission, released last month rec-
ommends that corporate America use afnrmative action as a tool ensuring that all
qualified individuals have equal access and opportunity to compete based on ability
and merit." H.R. 2128 would sound the death knell for the Executive Order program
and would destroy a key tool for achieving equal opportunity.
Affirmative action is not about quotas or preferences. It is about access and equal
opportunity. It is about creating a climate in which merit can truly prevail. The Na-
tional Council of Jewish Women urges the Subcommittee to reject H.R. 2128. Thank
you for your attention.
Mr. Canady. Thank you, Ms. Herman.
Mr. Pelayo.
STATEMENT OF LUIS E. PELAYO, EXECUTIVE DIRECTOR,
fflSPANIC COUNCIL
Mr. Pelayo. Thank you. Mr. Chairman, gentlemen, before any-
thing else, I really want to appreciate the opportunity that you
have allowed me to come here and speak to you.
I've heard a number of things today waiting for my testimony to
come up, and, actually, I'm not here to make a case as to whether
affirmative action is good or bad or whether you should abolish it
or increase it. The purpose of me being here is to — nor do I have
these major credentials that all my fellow witnesses came bearing.
I'm the director of a community organization, poor, underfunded,
that has to work with the masses, those that are affected by the
legislation that is created in this precinct.
We came here with the premise that affirmative action is the es-
sence of justice on behalf of those whom the road to success is
somewhat trampled. Perhaps for those who in one way or the other
seem to think that minorities are not deserving, we wish to come
here and, based on some facts, enlighten you.
The basis and philosophy of affirmative action, when it was cre-
ated, had to do as much with racial equality as it has to do with
it today. The spectrum of challenges that as minorities are con-
138
fronting our daily lives have made us understand, sometimes cal-
lously, now long a way we have to go before our dreams and expec-
tations are fulfilled in a massive way as minorities.
After careful analysis, affirmative action programs have helped
minorities in the academia by providing them an even terrain to
pursue a degree or the necessary education to succeed in today's so-
ciety. A great number of programs that have shaped today's leaders
have an affirmative action component in them, regardless of wheth-
er we want to acknowledge it or not.
Mr. Chairman, members of this subcommittee, of the 100 percent
of contracts awarded throughout the United States both in the pub-
lic and the private sector, only 13 percent of them were awarded
to companies considered to be minority. And out of that 13 percent
is included companies owned by Latinos, women, African-Ameri-
cans, and other ethnicities throughout the United States.
The fact is that only 3 percent of those contracts are awarded to
Latino businesses. The Latino population, specifically the Mexican-
American community, has almost reached 22 million, and we are
pretty much a race that is known for being hard workers and not
for living off any system. Before coming to speak with you, I met
with a number of organizations. I met with chambers of commerce.
I met with the regular guy working hard to make ends meet and
provide their children with a decent education and a future. But
I never found a single person that has gotten a job because of a
quota or preferential treatment. I, myself, have never been bene-
fited from any quota system. The people that I suggested that they
would be eligible for a job or for a position under the basis of dis-
criminating on somebody else were even offended at the thought.
Affirmative action, in fact, does not enjoy clear or widely accept-
ed definition, and it is often confused and miscommunicated. Af-
firmative action and the quota system are two different things that
are tied together by the racial factor. The fact of it is that quota
systems are no good for anyone, while affirmative action, some of
the programs that help the minorities even the terrain are worth
keeping and are worth studying in order for us to maintain them
because that is what in some essence has helped us grow as mi-
norities and has afforded us an opportunity that otherwise we
would not have.
The primary justification for the use of race- and gender-con-
scious measures was to eradicate past discrimination and to ex-
pand equal opportunity through inclusion. For example, diversified
universities offer more in the way of education to students that
nondiversified universities, and police and fire departments are
more aware of the needs of the community they protect when they
have minority members in the force.
Mr. Canady. Mr. Pelayo, if you could try to come to the conclu-
sion
Mr. Pei^YO. Yes, sir. Yes, sir.
We want to propose perhaps the rules under which this original
version of affirmative action and all those programs were written
accommodated the times when they were created, but they no
longer do. Obviously, I will hate to be preferred over somebody else,
regardless of if the person is white, blue, green, or red. I don't want
to De preferred over anyone else.
139
I came here to urge you to do the right thing and get rid of those
quotas, but don't get rid of the affirmative action programs as a
whole, just based on the fact, on the assumption that the quotas
are affirmative action as a whole. By the same token, not all of us
live off affirmative action or a welfare system just because we are
minorities. We want an opportunity afforded. Again, I didn't come
here to tell you what's right and what's wrong; I just wanted to
give you my point of view.
Thank you.
[The prepared statement of Mr. Pelayo follows:]
Prepared Sfatement of Luis E. Pelayo, Executive Director, Hispanic Council
t Of tlM ouocfldifiifCtos on tfto ConotiluBon
«• eofiw bo#ef« yaw anrf apook on bohoif of tho maooao ttM(
Wo eamo horo wMi tha prwniaa tfu* Aitliiiiatiw Aictioti ■■ ttw — ■nr« of juvticv
bohoif oC tfiooo w^tom ^mie rood to ouecaoo » ■oowiwhot ftromplod. Porhopofor
wtioini, In ono woy oc nio oOioTf ooom to vilnii oiot ninonVoo on no€ ooooo^nQ.
wnon to eonw noro ono, oooao upon qm focte. onliQliton you wioi Omo knowioaoo '.
ino boolo OOQ pMiooopliy ov Aninnoilyo Actton, lonon n two o^mobq, hod to oo
ao much t»Mi raeiai oqurty oo it hoo to do wMh it tedoy. Tho opoctrum of challongas
ttioi uo iiiiiuilUoo confront in our doily Hvoo hovo mod* uo umiwlond. ■owdwwm in a
eoroful onolyalo, Afftomotioo Actfon progrowo hovo holpod mimwitioo in
by ptowtdbttf on ovon torroin to purauo o doyi or iho nor— Ty
toouecoid. A gfot numbof of piuyioiiw tfiot ho¥o ohipod todo/o loodorm
it cc ffioC Hofo M ItM ractor
Oriho 100% of eomraetB avnrdod tfwoughout ttio Unitod !
ond Vio prtvoto ooctoc, only t^^v tn Otom woco owofvod
I to bo fionoflly md tttol 13% IttcHidoo oompoMoo ownod by I
wwnon, Afrtcon Amorteano and otftar ■thrwcWaa Owougheut tho Unitod Statoa.
Aiwttior pravon tact is Oiot only 3% of tho conWBBti aro owoi^od to Latino buaincso.
140
Th* LaMn* papulalion haa aimat rvachad 22 miWao and w« are a race ttiat la
Rnawn foe ItainQ nacd woffcara and not 'ot living on any ayatant. Bafoca coning to
apaati wMt jrou I mat aMi a numbor of of^anicattona. I mat wrMfi Chamtoora of
Conanarea, I mat wWi fha ragular guys woldwg hard to maka anda maat and prowda
IfMlr litiddran with a dacant adueadon and a fiAire. Bui I Kava nmvr found i tingi*
pawan thai haa potcan a job hwetjia of ■ f|uat& or preforondal Uaabnairt. and
avaryawa I ainipaatail thia ^uoation wao ^fandad at ttia thougM of it.
Afllnnodwo Action, in fact, dooa not anfcv a door or w<dahi occiitid doAnitioo
and ft la ^Man oontuaoa and mlaoonvnumoaaad- N^^athanaoa, via goal of any
AflhiiiMfwo />cdan pioyiani muat ba to pronwCa aquaf oppotvjnrty for an, ragardiaoa of
your atfwlclty and as a n^ivul way av QM Antanaart aooiaty amoa oWanny ayocyoo^ a
fair ehaneo to achtovo aurroaa io a control tanat of oiM conodludenal and poMicoi
cidbMO. Tlw piiniaiy juadficsdon for ttto uao of raoa and gmn^»r conacioua maoauras
wa to afdicjaa pool dianiiiibioduii and to aiyand miiai opporttawty itirough
induaion. For oxamplo, dhfaraMad unf<»araidaa offar mora in tfio way of odoeaOen to
abidanto sian non divo^aiflod unn^BnHtftoo and poooo ono hro dapor^man^ arc mtrc
■ware Of Iha naoda of ItM convtwnNy tttay protect If via dapa^Bnanta are divwficd.
^affiopa dia ndaa undar addali dda ortginal varalon av Aflvmadva Acdon wora
written aecommodacad tha daaaa adiare it waa writton but not nowadaya. VV« nood no
^uaaaOf wa naod VaiMnQ for Ina ^OMaanda of Innor city youngatar inat aro baggmQ
you to got Ifiom out ov tlia^B, natofld av condanwunQ oiam to a ara of povorty, anjQ
and waHara aa you aay.
WPa afofit to I
M piuynHto to dto raiMdaa af taday. Wftwre knawnadQa a€ taefinofogy (a
: to gairrtui amptoymanL Tp ftoto dia maana ayMlabli to all of ua Amartcana.
I af our color, to go to ooAaga and maka that an atlatnabio droam and not a
lifalbiia dabt to mfy parento adSl a dai^i imiityigi on tha famdy homo.
ff Affinnadva Aretton wore worlung wo*dd wm
in jaH 7 If Afflrmattvo Acbon ware worlung
to laaaiiralliiiia eampa in tha United Stetea 7 W
giare bo diatrimlnatinn againot gay and Iwbian
141
Mr. Canady. Thank you, sir.
Mr. Baer.
STATEMENT OF ARTHUR A- BAER, ASSOCIATE COUNSEL,
PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC.
Mr. Baer. I wanted tx) thank the Subcommittee on the Constitu-
tion on behalf of myself and the Puerto Rican Legal Defense and
Education Fund, for this opportunity to present our view on H.R.
2128.
Since its inception in 1972, the Puerto Rican Legal Defense Fund
has sought to protect the equal rights of Latinos. In our view, the
enactment of H.R. 2128 into law would be a great step backward
in ensuring equal opportunity in Federal agencies and federally-
funded contracts.
We're now facing the greatest retrenchment of fairness measures
and social welfare supports in our history since Reconstruction.
Latinos in America today are not enjoying either equality of oppor-
tunity or equality of circumstance. Latinos are disproportionately
poor, disproportionately holders of low wage jobs, disproportion-
ately underrepresented as graduates of high schools and colleges,
as well as in other areas. In 1992, the poverty rate for Latino mar-
ried couple families was more than three times the similarly com-
posed of non-Latino families. From 1979 to 1992, Latinos experi-
enced a growth in poverty about three times the rate of non-
Latinos. The income gap between whites and Latinos is widening,
not narrowing. The median Latino household income in 1980 was
about 73 percent the median of white households; by 1992, the
Latino household income was 70.5 percent the median income of
white households. Less than half of Latino adults ages 25 and over
are high school graduates. Only 7.5 percent received a B.A. or B.S.
degree while 2.7 percent have an advanced degree.
Not only has there been inequality of circumstances, there has
been, and continues to be, discrimination against Latinos because
of their ethnicity. A 1989 Urban Institute study based on 360 hir-
ing audits conducted in San Diego and Chicago found evidence of
significant levels of national origin discrimination in employment.
Comparing Latinos and white job applicants that were as closely
matched as possible with regards to credentials, the study showed
that white applicants received 33 percent more interviews and 52
percent more job offers than Latino applicants.
Using similar techniques, the Fair Employment Council of Great-
er Wasnington has documented Latinos have more than a l-in-5
chance of encountering discrimination when applying for a job.
Moreover, a GAO study, after the passage of the Immigrant Reform
and Control Act of 1986, indicated a substantial increase, again, of
discrimination based on being foreign -looking or having foreign-
sounding language. And, according to a National Council of La
Raza study, concerning the disparity of income earnings between
Latinos and whites between 1980 and 1990, the percentage of the
income gap between Latino males and white males, which is attrib-
utable to employment discrimination, falls within the 10- to 18-per-
cent range. Moreover, the National Council of La Raza conserv-
atively estimates the cost to the Latino community attributable to
employment discrimination is $11.7 billion in lost income annually.
142
I want to mention one other thing that I think is very critical
given the short time. I think all too often aflfirmative action pro-
grams, programs concerned with civil rights and programs for im-
migrants have been scapegoated, and scapegoated not because
they're remedial measures, but because there's a great deal of eco-
nomic harm and economic suffering in this country due to struc-
tural changes in the economy caused by globalization. From 1973
to 1990, there has been for 80 percent of the population — the bot-
tom 80 percent of the population — either a decline in real income
or there has been stagnant income. This decline has created a pred-
icate of economic suffering in this country, a predicate which has
created the conditions for those of a mina to do so, to scapegoat
programs which will have at best marginal impacts on the eco-
nomic structures of this country. These structured, I believe, should
be best remedied by other programs and not attacks on affirmative
action and other fairness measures.
Thank you.
[The prepared statement of Mr. Baer follows:]
Prepared Statement of Arthur A. Baer, Associate Counsel, Puerto Rican
Legal Defense and Education Fund, Inc.
I want to thank the Subcommittee on the Constitution on behalf of myself and
the Puerto Rican Legal Defense and Education Fund, Inc., for this opportunity to
present our views on H.R. 2128.
Since its inception in 1972, the Puerto Rican Legal Defense and Education Fund,
Inc., has sought to protect the equal rights of Latinos. In our view the enactment
of H.R. 2128 mto law would be a great step backward in ensuring equal opportunity
in federal agencies and in awarding federally funded contracts.
We are now facing the greatest retrenchment in fairness measures and social wel-
fare supports since shortly after reconstruction. Latinos in America today do not
enjoy either equality of opportunity or equality of socio-economic circumstance.
Latinos are disproportionately poor, disproportionally holders of low wage jobs, and
disproportionately under represented as graduates of high school and college, as
well as other areas.
INCOME inequality AND POVERTY
Latino poverty is growing even though there has been no decline in the work ef-
fort of Latino men (78.6% of Latinos are participating in the labor force, compared
to 73.9% for non-Latinos), the increased participation of Latin as, an increased pro-
Eortion of families with more than one wage-earner, and the continued tendency of
atinos to live in extended families. i
In 1992, the poverty rate for Latino married families (18.5%) was more than three
times that of similarly composed non-Latino families (5.3%).2
From 1979 to 1992, Latinos experienced growth in poverty about three times the
rate of non-Latinos.^
The income gap between Latinos and whites is widening not narrowing. The me-
dian Latino household income ($22,591) in 1980 was about 73% that of the median
white household income ($30,921). By 1992, the median Latino household income
($22,828) was only 70.5% of the median white household income ($40,780)."
LOW EDUCATIONAL ATTAINMENT
Less than half (48%) of the Latino adults ages 25 and over are high school grad-
uates. Only 7.5% have received a B.A. or B.S. degree, while 2.7% have an advanced
degree. In contrast, 76.4% of white adults ages 25 and over are high school grad-
1 National Council of La Raza, State of Hispanic America: An Overview, Washington, D.C.;
NCLR, 1992 at p.5.
'Maria E. Echautegiu, Policy Implications of Latino Poverty, Washington, D.C., The Urban
Institute, 1995, at p.8.
3/d. at p. 9.
* Louis L. Homer, ed., Hispanic Americans: A Statistical Sourcebook. Palo Alto; Information
Publications, 1995 at p. 147.
143
uates. Almost one in five (19.3%) whites have a B.A. or B.S. degree, and 6.6% are
advanced degree holders.^
As of 1989, about 37.7% of Latinos aged 18-24 years were high school dropouts,
compared to 14.1% of whites.®
Moreover, Latinos have been and continue to be the subject of discrimination be-
cause of their ethnicity.
LANGUAGE AND IMMIGRATION STATUS DISCRIMINATION
"A 1989 Urban Institute study, based on 360 Tiiring audits' conducted in San
Diego and Chicago, found evidence of significant levels of national origin discrimina-
tion in employment. Pairing Latino and white job applicants that were as closely
matched as possible with regard to credentials, the study showed that white appli-
cants received 33% more interviews and 52% more job oners than the Latino appli-
cants. It also found that 31% of the Latino applicants encountered unfavorable
treatment in the hiring process, compared to 11% of the white applicants."''
"Using similar techniques, the Fair Employment Council of Greater Washington
has documented that Latinos have more than a one-in-five chance of encountering
discrimination when applying for a job."®
"Considerable employment discrimination has resulted from the implementation
of employer sanctions provisions of the Immigrant Reform and Control Act of 1986
(IRCA). . . . According to a 1990 study by the General Accounting Ofiice involv-
ing a survey of 4,362 employers, an estimated 10% of employers reported discrimi-
nation against employees or job applicants solely on the basis of national origin
characteristic; an estimated 5% had begun a practice of refusing to hire 'foreign-
looking" and ib reign-sounding" persons based on their asserted attempts to comply
with IRCA's employment verification requirements. . . ."^
PAY INEQUITY
Individuals with similar credentials and productive potential receive markedly dif-
ferent access to employment or job rewards, including both pay rates and opportuni-
ties for training, experience and pay increase. According to data from the 1990 Bu-
reau of the Census, when comparing Latino and white mean wage income by age
and education, whites generally fair significantly better than their similarly situated
Latino counterparts. For example, after aggregating the mean wage income in the
"professional" industry. Latinos with "some college ' education earned 88 cents to
each dollar of their white counterparts. Latinos with a "college" education earned
less than 83% of what their equally credentialed white coequals received.^"
According to National Council of La Raza (NCLR) research, an analysis of the re-
sults of three studies concerning the disparity in earnings and income among
Latinos and whites between 1982 and 1990 suggests that:
'The percentage of the income gap between [Latino males and whites males]
which is attributable to employment discrimination falls within 10%-18% range;
and
'The percentage of the [Latino female and white male] income gap that is attrib-
utable to employment discrimination falls within an 30%^0% range."
Moreover, "NCLR conservatively estimates that the cost to the Latino community
attributable to employment discrimination is $11.7 billion in lost income annu-
ally." ^^ [See Appendix A attached hereto for NCLR fact sheet].
H.R. 2128 will eliminate measures which sought to remedy these injustices. It
would, inter alia:
Effectively eliminate necessary affirmative action, including programs of goals and
timetables.
Prevent federal agencies from entering into consent decrees that utilize goals and
timetables and other race conscious remedies, even if strong evidence would warrant
such relief and even if such relief was narrowly tailored. This consequently will re-
quire federally agencies to litigate even in circumstances where liability is clearly
evident.
^Policy Implications of Latino Poverty, at p. 27-29.
^ State of Hispanic America 1991, at p. 8.
''State of Hispanic America 1991: An Overview, at p. 26.
^National Council of La Raza, Fact Sheet on Affirmative Action and Latinos, Washington, D.C.
(1995).
»Id. at p. 27.
1° 1990 Bureau of the Census, Public Use Micro-data, compiled by the Thomas Rivera Re-
search StafT.
^^ State of Hispanic America 1991, at p. 27.
144
Eliminate certain assistance to Hispanic serving colleges and universities. See, 20
U.S.C. 1058.
Unfortunately, affirmative action programs have all to often become a scapegoat
for the increasing economic pain ana hardship felt by most Americans. Without ad-
dressing the predominant cause of these economic concerns, i.e. — the globalization
of the economy — some have turned their disappointment and anger over lack of eco-
nomic opportunity against affirmative action. Their focus, instead, should be on the
massive structural cnanges in the world economy and the decisions of corporations
to move jobs opportunities overseas and downsize their operations- which have been
the predominant causes of reduced economic opportunity.
Over the past approximately 20 years there has been substantial growth in our
national economy. The increase in wealth that accompanied that growth has enured
overwhelmingly to the top 20% of our population, the remaining 80% of our popu-
lation has had either declining or stagnant real income. ^^
In certain sectors of our economy, such as manufacturing there has been a sub-
stantial loss of jobs (estimated to be 2.5 million since 1980).^^
There has also been a decline in the size of the middle class. i"*
The jobs that have been created have been inadequate. From 1979 to 1988, 17
million new jobs were created; sligh'.ly more than one half paid below poverty
wages; only 12% paid wages over $46,000.1''
As a consequence, those of a mind to do so have scapegoated programs such as
affirmative actions, which have, at best, only the most marginal of impacts on eco-
nomic opportunity. The structural changes caused by global economic restructuring
and capital fight overseas what some have termed the "race to the bottom" — must
be addressed with real solutions, such as reinvestment in disinvested sectors of our
economy and education (human development), not through scapegoating programs,
such as affirmative action. Thank you.i^
"See Wallace C. Petson, The Silent Depression. W.W. Norton & Co, New York (1994) at p.
99; Robert Reich, 'The Choice Ahead", at p. 2 (1995).
13 The Silent Depression, at p. 190.
i*/d. Chapters.
">7dat p. 193.
1* I want to acknowledge that portions of this statement were previously developed for use
in a policy paper at the Puerto Rican Legal Defense and Education Fund, Inc., by a group of
perBons who also included, Edward Rodriguez and Ann Filloramo.
145
Appendix A
NQR
KatioailOfrux
nin5lhSiie«,N.V.,SuittlOOO
Wubingion,DC 20036
Phone: (202) 78$-l670
Fa:(2Q2)78;-0£51
f(ATIONALCOUNmOFURAZA
RauIYzagulrrc P«sdcm fgjjj g|^ggj ^jp
Affirmative Action and Latinos
Affumative Action To Address Past And Present Discrimination Against Hispanics is
Necessary
*:• Current Studies Demonstrate High Rates of Employment Discrimination Against
Utinos.
Despite the fact that Latino men have the highest labor force participation rate of any group, the
Hispanic unemployment rate Is twice that of Whites, and Hispanic median Incomes are only about
65% ofthat of Whites.'
At least five Independent labor market studies over the 1982-1990 period have found that, after
controlling for factors known to affect employment and earnings, a significant proportion of the
"earnings gap" between Hispanics and Anglos is attributable to employment discrimination, One
study found that, (or many Hispanics, discrimination has actually Increased over the past 20 years.'
Using a new technique known as a hiring audit, researchers from the Urban Institute found that
White Job applicants recerved 33% more interviews and 52% more job offers than equally qualified
Hispanics. Using similar techniques, the Fair Employment Council of Greater Washington has docu-
mented that Latinos have more than a one-in-five chance of encountering discrimination when ap-
plying for a job.^
Recent government studies clearly demonstrate that, even when Hispanics are hired, they are pro-
moted and compensated at significantly lower levels than their equally qualified White counter-
parts.*
The cost to the Hispanic community attributable to employment disalmlnatlon. in terms of unem-
ployment and lost wages, has been estimated to be nearly S 1 1 .7 billion annually.' Viewed another
way, nearly 90.000 poor Hispanic households would be lifted above the poverty level if employ-
ment disCTimination were eliminated.*
*:* Hispanic Children Experience Substantial Discrimination in the Educational
System.
Nearly one-half of Latinos are high school dropouts, compared to about less than one-fifth of non-
Hispanics. Less than one in ten Hispanics is a college graduate, compared to nearly one-quarter of
non-Hlspanlcs.'
Recent studies by the University of Chicago show that Hispanic elementary and secondao' school
students have been Increasingly segregated during the past decade. Latino students now experi-
ence the highest rates of school segregation of any minority group.*
146
Despite progress In recent years. Hispanics remain severely underrepresented in higher education
compared to their proportion In the population. In addition, although enrollment rates have in-
aeased. graduation rates for Latinos remain disproportionately low.'
<» LAtinos Remain Severely Underrepresented as Business Owners.
National data demonstrate that Hispanics are signlRcantly underrepresented as business owners,
and latino business ownership Is particularly scarce in high-growth, high-profit Industries."
Studies conducted for state and local governments following the Supreme Court Ooson decision
demonstrate that Hispanic-owned firms continue to experience substantial disadvantages. In Texas,
the legislatively mandated study on "Historically Underutilized Businesses" found 'Irrefutable' evi-
dence of large-scale maricetplace discrimination against minority- and women-owned firms."
Although Affinnative Action Has Facilitated Some Progress for Hispanics, Much More
Needs to be Done
•:• studies Demonstrate that Affirmative Action Is an Effective Tool in Addressing
Discrimination.
Studies by the Office of Federal Qjntraa Compliance (OFCCP), the U.S. Commission on Civil Rights,
the atizens Commission on Gvil Rights, and others show that affirmative action is an effective tool
for inaeasing the diversity of the public and private worlc force, For example, an OFCCP study of
77,000 companies with more than 20 million employees showed that minority employment in-
creased by 20%, and female employment by 15%. after the Implementation of affirmative action
plans."
Similar studies show that affirmative action is effective in Improving the representation of minorities
In higher education and In promoting the more equitable distribution of government contracts to
minority- and women-owned businesses."
*:* Willie Latinos Have Yet to Fully Benefit from ttie Policy, Affirmative Action Can
Help to Address Dlscriminadon.
There Is substantial evidence that In areas In which affirmative action offers the greatest potential.
Hispanics are still significantly underrepresented. For example, Ijtinos are severely underrepresented
in the federal, state, and local governments."
There is little reason to believe that, absent affirmative action, Hispanic employment, access to.
higher education, or participation in government contracting would be higher than today. However,
there is substantial evidence that the situation of Latinos would be worse without affirmative action:
the University of California at Bericeley (UCB), for example, estimates that the percentage of Latino
and African American students at UCB would drop from 22% to 8% if affirmative action were elimi-
nated.'*
There are, moreover, a number of case studies which demonstrate that, properly implemented,
affirmative action results in substantial gains for Hispanics. According to data compiled by Equal
Rights Advoc;<tes in San Francisco, an affirmative aaion consent decree in that city's fire department
i
147
has substantially Increased employment of women and minorities, including Latinos. In 1985, for
example, the San Francisco Fire Department (SFFD) included 79 African Americans, 24 Asians, and
88 Hispanics; currently there are 141 African Americans, 152 Asians, and 158 Latinos.
Although there are widespread myths and a fiew anecdotal incidents suggesting that affirmative
action has "gone too far.' or results in 'reverse discrimination,' or that It benefits unqualified or
undeserving persons, these arguments are not supported by research. For example, there Is simply
no reliable statistical evidence which demonstrates that so-calied 'reverse discrimination' Is any-
thing more tJun a trivial problem." Similarly, reviews of the academic or job performance of pur-
portedly "unqualified' beneficiaries of affinnative action strongly suggest that affirmative action
recipients perform as well as or better than their supposedly 'more qualified' counterparts, other
things being equal."
Thus, the elimination of affirmative action In employment, education, and contracting would mean
that Latinos — who now constitute about 10% of the U.S. population and work force — would be
asked to continue to suffer the consequences of disaimination without any proactive government
protections.
For more Information on NCLR's activities or positions on civil rights issues including affirmative action,
please contact Charles Kamasakl or Lisa Navarreteat (202) 785-1670.
Endnotes
1 . Emily G. McKay, ed.. Sfafe of Hispanic America 1991: An Overview, Washington, D.C: National Council of
La Raza. February 1992, pp. 4-5. For more recent data, see U.S. Bureau of the Census. Currenf Populition
Survey. March 1 994, and other reports in this series.
2. These studies are described in detail in Qaire Gonzales. TTie £mpfy Promise: The HOC and Hispanics.
Washington, D.C National Council of La Raza. December 1993, pp. 3-5.
3. ated In 77ie fmpfy Promise, op. dt, pp. 6-7. The hiring audit tests for differential treatment in hiring by
having closely matched pains of testers, one from a minority group and another from the majority group.
Inquire about or apply for the same job. Since the technique controls for differences in |ob qualifications —
In each case the minority appliant has equal or greater qualifications — significant differences in treatnient
can dearly be identified as discrimination. The Urban Institute study Is reported In Immigration Refomti
Employer SAfiaions and the Question of Disaimination. Washington, D.C: U.S. General Accounting Office,
March 1 990; the Fair Employment Council study is reported In Marc Bendick, et. al.. Discrimination Against
Latino Job Applicants: A Controlled Experiment. Washington. D.C: Fair Employment Council of Greater
Washington. April 1 992.
4. Federal Glass Ceiling Commission. Good For Business: Making Full Use of the Nation's Human Capital,
Washington, D.C, March 1994.
5. The Empty i -omlse, op. at., p. 5.
148
6. Sonia Perez and Deirdre Martlnei. State of Hispanic America: Toward a Utino Anti-Poverty Agenda, Wash-
ington. D.Ci National Coundl of La Raza. ]uly 1 993, p. 34,
7. State of Hispanic Amend 1991. op. df., pp. S-9.
8. Studies dted In StJte of Hispanic America, op. dt,. p. 10. See also. Report of the Harvard Project on Sdiool
Desegregation, The Growth of Segregation in American Schoolsi Changing Patterns of Separation and
Poverty Since 1968," Washington. D.C.i National Sdiool Boards Assodation, December 1993.
9. American Gjundl on Education, Twelfth Annual Status Report on Mnorfries In Higher Education. Washing-
ton. D.Ci February 1994.
10. See, for example, Emily G. McKay, Hispanic Business Ownership: A Profile. Washington, D.C.: July 1987.
See also, footnote 1 1 .
1 1 . Cited In Rodolfb de la Garza, "Entrepreneurial initiatives and Wealth Creation Among Latinos: What Polides
Make a Difference,' Austin. TX: Tomas Rivera Center, forthcoming, 1995. De la Garza also presents and
arvalyzes natiorul data In some detail.
12. See. for example, U.S. Commssion on Civil Rights. Affirmative Action in the 1980s: Dlsmantilngti:e Process
of Discrimination, Washington. D.C: January 1 981 ; Qtlzens Commission on Civil Rights, Affirmative Action
to Open Doors of Job Opportunity, A Polity of Fairness and Compassion That Has Worked, Washington,
D.C: lune 1984.
] 3. See, for example, "Entrepreneurial Initiatives and Wealth Creation Among Latinos,* op. dt., for data related
to business-related programs. See also, American Coundl on Education. tAlnorities In Higher Education,
Washington. D.C (annual reports). For example, the 1994 American Coundl on Education Report notes
that, between 1987 and 1992. the enroHed-in-college rate gap between Hispanics and Whites decreased
by seven and four percenuge points, respectively. The report desaibes programs and activities that ap-
pear to have accounted for these Improvements; In virtually every case, affirmative action is an essential
element of these successful recruitment and retention strategies.
14. See. for example, Charles Kamasakl and Raul Yzagulrre. "Black-Hispanic Tensions: One Perspective." Paper
presented at the 1991 Annual Meeting of the American Political Sdence Assodation, Washingion, D.C-
August 1991.
15. Equal Rights Advocates. Memorandum on Affirmative Action, January 12. 1995.
16. Discrimination Against Latino Job Applicants, op. at. If "reverse disaimlnation" were taking place, one
would expect a substantial number of employers to prefer minority over White job applicants in controlled
studies; In practice, hiring audits demonstrate that this is rarely the case.
1 7. See. AKrmatlve Action in the 1 980s. op. dt.. and Affirmative Action to Open the Doors of Job Opportunity,
op. dt. For a thoughtful, highly personal discussion of this issue, see also, Keynote Address of Hugh Price,
President of the National Urban League, before the Commonwealth Oub in San Francisco. CA. February 10.
1995.
149
Mr. Canady. Thank you again. I want to thank each of the mem-
bers of this panel for being with us today, and I'd yield to Mr.
Hyde.
Mr. Hyde. Well, thank you, Mr. Chairman.
I want to congratulate you on really an excellent day of testi-
mony and of marvelously diverse group of witnesses who are strong
proponents for their particular point of view. We've heard a variety
of people, all informed and all passionately committed to their
point of view, and it can only help but be instructive to us as we
struggle with this very difficult issue.
I particularly want to welcome Mr. Pelayo because he comes —
he's my neighbor. He's from Bensenville, and I lived in Bensenville
for a long time up until last year when I moved to Wooddale, which
is just two stones' throws away from Bensenville. So we're neigh-
bors, and he's my constituent, and is the founder, as well as the
president, of the Hispanic Council, a very important organization
in our community that is civic-minded. And Mr. Pelayo has been
to see me with other members of his organization and explained
how important affirmative action, properly understood, not as
quotas but as outreach and opportunity, how important it has been
to him and to his organization, and he's made that point very well
today.
So I welcome you here. You're in every sense of the word per-
forming an act of great citizenship, and I wish you good luck.
Thank you. And the same to all. Pardon me for not stroking all of
you, but he's my constituent. [Laughter.]
Mr. Canady. Well, again, I will thank all of you. We appreciate
your participation and appreciate your patience.
This hearing is adjourned.
[Whereupon, at 3:30 p.m., the subcommittee adjourned.]
APPENDIX
Material Submitted for the Hearings
Federal Communications Commission *" ^ "^^^
Washington, DC. 20554
December 15, 1995
William McGrath, Majority Counsel
Subcommittee on the Constitution
Committee on the Judiciary
U.S. House of Representatives
HI -806 O'Neil House Office Building
Washington, DC 20515
Dear Mr. McGrath:
In December 7, 1995 testimony before the Subcommittee on the Constitution
regarding the Equal Opportunity Act of 1995 (H.R. 2128). Congresswoman Susan Molinari
characterized the Federal Communications Commission's Personal Communications Services
(PCS) auction rules as affording minority- and women-owned businesses a 25 percent
discount plus tax and financing breaks in acquiring a PCS license. Congresswoman
Molinari 's testimony also identified three bidders as having received licenses based on those
preferences.
As set forth in the enclosed letter dated today from our office to Congresswoman
Molinari, the Commission has eliminated all race- and gender-based provisions from u-.
upcoming C block auction rules as a result of the Supreme Court's decision in Adarand
Constructors v. Pena. 115 S. Ct. 2097 (1995). While none of the individuals identificJ in
Congresswoman Molinari's testimony has yet been awarded a PCS license, each is a liiember
of a qualified small business bidder group expected to participate in the C block auction when
it commences on December 18, 1995. Consistent with the Commission's action revising its --
auction rules, neither those individuals nor any other bidder will receive a race- or gender-
based bidding preference. Economic size is the only determinant for bidding credits and
installment financing in this auction.
Based on the foregoing, I respectfully request that the enclosed letter be made pan of
the permanent record of the Subcommittee's December 7, 1995 hearing on H.R. 2128, and
that the letter be included as part of the official hearing transcript. I hope that this clarifies
(151)
152
William McGralh, Majority Counsel
the current status of the Commission's PCS rules. Please let me know if you have any
questions.
Sincerely,
Judith L. Harris, Director
Office of Legislative
and Intergovernmental Affairs
Enclosure
cc:
Robert Rabin, Minority Counsel
Subcommittee on the Constitution
153
8A ***
Houston Chronicle
Monday, Dec. 4, 1995
Ex-IRS auditor leaves
$22 million to school
NEW YORK (AP) - So you
think auditors for the Internal
Revenue Service don't have a
heart? Anne Scheiber did, and
gave $22 mil-
lion to a univer-
sity that never
heard of her.
Scheiber re-
tired in 1944 af-
ter a 23 -year
career at the
tax agency, and
invested her
$5,000 savings
in the stock
market. When
she died in Jan-
uary at age 101, her holdings
stood at $22 million in a portfolio
that included Coca-Cola,
Paramount and Schering-
Plough.
Scheiber, ^Ni\o lived alone, be-
queathed virtually all of her for-
tune to Yeshiva University, locat-
ed in Manhattan, to support
scholarships for Jewish female
students.
"Elation would be an under-
statement" Yeshiva's president,
Norman Lamm, said Sunday. "At
first I didn't believe it."
Lamm said the bequest would
Scheiber
go to aid needy students at Stem
College, Yeshiva's women's col-
lege, or female students at the
university's Albert Einstein Col-
lege of Medicine. Stem has about
900 of the university's 6.000 stu
d^
eiber wanted the money
used to help other women over-
come job discrimination, which
she endured at the IRS, said her
attorney, Benjamin Clark. While
working at the tax agency, she
never eamed more than $4,000 a
year and never received a promo-
tion, despite having a law degree,
he said.
"She felt she was discriminated
against because she was a fe-
male. This grew on her year after
year." Clark said. "She was very
much embittered while employed
at the IRS."
' tlai IL Wll/i had kiiowti Scheiber
since the mid-1950s, said she led
a solitary life, devoting her time
to followmg the stock market.
She lived frugally in the same
studio apartment on Manhat-
tan s West Side for decades, nev-
er even changmg the furniture,
he said.
"She was the loneliest person. I
never saw her smile. " Clark said.
1-
r- I
23-805 (160)
BOSTON PUBLIC .,BRAR
,'"111111,,,
3 9999 05984 023 9
ISBN 0-16-052786-4
780160"527869
90000
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