New USCCR Report Called "Back-Door" Approach to Weaken Affirmative Action Programs
Feature Story by civilrights.org staff - 8/22/2005
Recommendations from a new report from the U.S. Commission on Civil Rights (USSCR) "seem to indicate the Commission's intent to eliminate equal opportunity and affirmative action programs," Americans for a Fair Chance (AFC), a project of the Leadership Conference on Civil Rights Education Fund, said in a critical rebuttal to the USCCR's findings.USCCR's report, "Federal Procurement After Adarand," purports to recommend methods by which federal procurement agencies can enforce laws in a manner consistent with the 1995 Adarand Constructors Inc v. Pena Supreme Court decision.
Americans for a Fair Chance's rebuttal pointed out that the USCCR's recommendations significantly and unfairly raise the threshold for legally acceptable race conscious programs.
Citing the "minimal" data supporting the report, AFC called it more "ideological than thoughtful."
"USCCR's report takes excessive liberties with the facts and with the law," said Wade Henderson, executive director of the Leadership Conference on Civil Rights (LCCR) and counselor to LCCREF, LCCR's public education arm, in a statement.
"This Commission is going to great lengths to undercut the very mission it's designed to uphold - overseeing the enforcement of our civil rights laws. Commissioner Michael Yaki has said that this report not only ignores the well-established history of discrimination in contracting, it undermines attempts to correct it," Henderson said.
According to AFC, USCCR has attempted "to define the level of review [of contracting strategies] in a much more stringent fashion and at a level of scrutiny never contemplated in Adarand and Grutter," two recent Supreme Court decisions on affirmative action.
In Adarand v. Pena, the Supreme Court applied strict scrutiny, the highest standard of judicial review, to "racial classifications."
Grutter v. Bollinger held that student body diversity constituted a compelling governmental interest, to which government programs must be narrowly tailored.
Moreover, "The Commission is recommending that agencies take extraordinarily burdensome steps both to implement and measure race-neutral programs and to justify race-conscious ones," AFC said.
For example, AFC noted, the annual or biennial reviews of race-conscious programs recommended by USCCR would be unduly burdensome, given the size and scope of federal procurement programs.
AFC's rebuttal also asserts that the Commission's definition of "race-conscious" may be too broad.
"In essence, the Commission's report is a 'back door' approach to re-legislating and possibly weakening affirmative action programs that that have been lawfully enacted by Congress," AFC said.
AFC also questioned the process through which the report was issued, citing concerns that the draft of the report voted on by conference call on July 22, 2005 was not the same draft that was provided to the affected agencies for comment earlier in the year.
