The Leadership Conference on Civil and Human Rights

August 1985: Volume 1, Number 1

The Justice Department's War On Affirmative Action

The Justice Department continues its assault against affirmative action remedies in employment and education. Here are some recent developments.

DOJ Efforts to Overturn Employment Consent Decrees

In January 1985, the Department of Justice began sending letters to 51 jurisdictions notifying them that existing consent decrees in employment discrimination cases required modification to comply with the Supreme Court decision in the Memphis firefighters' case, Firefighters Local Union No. 1784 v. Stotts (104 S.Ct. 2576 (1984)). The letters indicated that the DOJ wanted to modify the consent decrees, previously negotiated by the Justice Department, because the Stotts decision "precludes persons who are not actual victims of discrimination from receiving preferential treatment as a part of any remedial measures designed to overcome the effects of past discriminatory policies." The consent decrees were to be modified to remove all reference to numerical goals and timetables in the hiring of minorities and women - to eliminate the "race conscious" aspects of the affirmative action plans. The responses of the jurisdictions have been overwhelmingly in favor of retaining the affirmative action requirements. In response to the Department's request the state of Arkansas wrote:

We feel we have a fair and workable hiring procedure in place at this point, and we see no reason to alter it. The State Police has worked hard to eliminate any vestige of discrimination and will continue to work toward that end.

The city of Syracuse responded:

The Consent Decree currently in force protects the legitimate interests of local minority and female citizens with the least possible adverse impact on the interest and expectations of white male citizens. In doing so, it is legally permissible.

The state of Florida reported that it had exceeded the consent decree's hiring goals in the past two years and that "academic quality and grades of the applicants have not suffered." The Department of Justice has sued the city of Indianapolis to require it to modify its consent decree. The city is fighting this effort and its brief before the district court states "there is a legitimate government concern that there be a minority and female representation in the Public Safety Department. Richard Hudnut, the conservative Republican Mayor of Indianapolis, has stated that the Department's "decision to turn back the clock on Affirmative Action and Equality of Opportunity is wrong constitutionally, it's wrong morally, and it's wrong politically."

Opponents of DOJ's actions say that the Department's actions are based on a faulty interpretation of the Stotts decision. They point out that the Supreme Court only addressed the issue of layoffs in Stotts, not whether race consciousness is permissible in hirings and promotions. The Court merely held that a bona-fide seniority system takes precedence over an affirmative action plan which does not address the issue of layoffs. Thus, civil rights advocates maintain that Stotts is limited to court-imposed affirmative action plans that do not take into consideration rights held under a legitimate seniority system.

Further, it is claimed that DOJ's interpretation ignores the distinction between "make-whole" relief for the identified victims of discrimination and "prospective relief" designed to dismantle patterns of job discrimination and to insure that future employment opportunities are allocated on a nondiscriminatory basis. Courts of Appeals have unanimously recognized that in some cases the need to eradicate the effects of widespread discrimination calls for prospective race- or gender-conscious affirmative relief in hiring and promotion. The Supreme Court has also given its approval to such relief in Weber (443 U.S. 193 (1979)), Bakke (438 U.S. 265 (1978)), and Fullilove (448 U.S. 448 (1980)).

This view of civil rights lawyers has received support from the courts. Since Stotts, courts of appeals for seven federal circuits have rejected the Department's broad interpretation of the decision. For example, on June 5, 1985 a district court rejected the Department's effort to modify its consent decrees with the city of Buffalo's police and fire departments. The decision stated:

The difference between Stotts and the cases pending here are so great that there should be no serious questions concerning the impact of Stotts.

In addition to misreading the Supreme Court's decision in Stotts, civil rights groups have questioned DOJ's actions in this area because the reopening of settled employment discrimination cases has the potential to:

cause substantial expense for local governments rekindle emotional issues regarding, racial, ethnic, and gender discrimination

disrupt remedial programs which are working well

waste limited federal funds more appropriately used to address pending discrimination cases.

Further, Howard Friedman, President of the American Jewish Committee, which opposes quotas, has objected to the Department's efforts because such actions "will open old wounds, and will have the effect of increasing tensions and disrupting social peace in communities across the country."

Opponents of the Department's efforts asked Congress to place a rider on the Justice Department's authorization bill to limit the expenditure of funds to reopen judicial decrees to remove affirmative action provisions. The Department's authorization bill as reported by the House Committee on the Judiciary contains such a restriction.

DOJ's actions come at a time when affirmative action is receiving praise from many quarters. In a recent survey of 142 Chief Executive Officers, 122, or 85.9 percent, indicated that they intended to use numerical programs to track equal opportunity progress in their corporations regardless of government requirements (Memorandum re Final Results of CEO Survey on Numerical Measures, December 14, 1984). William E. McEwen, National Association of Manufacturers, in testimony before House Subcommittees on Civil and Constitutional Rights and Employment Opportunities stated that "affirmative action has been, and is, an effective way of ensuring equal opportunity for all people in the workplace ..." He further stated "Business ... sets goals and timetables for every aspect of its operations ... setting goals and timetables for minority and female participation is a way of measuring progress and focusing on potential discrimination." Further, a study by

Opponents of DOJ's actions say that the Department's actions are based on a faulty interpretation of the Stotts decision. They point out that the Supreme Court only addressed the issue of layoffs in Stotts, not whether race consciousness is permissible in hirings and promotions. The Court merely held that a bona-fide seniority system takes precedence over an affirmative action plan which does not address the issue of layoffs. Thus, civil rights advocates maintain that Stotts is limited to court-imposed affirmative action plans that do not take into consideration rights held under a legitimate seniority system.

Further, it is claimed that DOJ's interpretation ignores the distinction between "make-whole" relief for the identified victims of discrimination and "prospective relief" designed to dismantle patterns of job discrimination and to insure that future employment opportunities are allocated on a nondiscriminatory basis. Courts of Appeals have unanimously recognized that in some cases the need to eradicate the effects of widespread discrimination calls for prospective race- or gender-conscious affirmative relief in hiring and promotion. The Supreme Court has also given its approval to such relief in Weber (443 U.S. 193 (1979)), Bakke (438 U.S. 265 (1978)), and Fullilove (448 U.S. 448 (1980)).

This view of civil rights lawyers has received support from the courts. Since Stotts, courts of appeals for seven federal circuits have rejected the Department's broad interpretation of the decision. For example, on June 5, 1985 a district court rejected the Department's effort to modify its consent decrees with the city of Buffalo's police and fire departments. The decision stated:

The difference between Stotts and the cases pending here are so great that there should be no serious questions concerning the impact of Stotts.

In addition to misreading the Supreme Court's decision in Stotts, civil rights groups have questioned DOJ's actions in this area because the reopening of settled employment discrimination cases has the potential to:

cause substantial expense for local governments rekindle emotional issues regarding, racial, ethnic, and gender discrimination disrupt remedial programs which are working well waste limited federal funds more appropriately used to address pending discrimination cases.

Further, Howard Friedman, President of the American Jewish Committee, which opposes quotas, has objected to the Department's efforts because such actions "will open old wounds, and will have the effect of increasing tensions and disrupting social peace in communities across the country."

Opponents of the Department's efforts asked Congress to place a rider on the Justice Department's authorization bill to limit the expenditure of funds to reopen judicial decrees to remove affirmative action provisions. The Department's authorization bill as reported by the House Committee on the Judiciary contains such a restriction.

DOJ's actions come at a time when affirmative action is receiving praise from many quarters. In a recent survey of 142 Chief Executive Officers, 122, or 85.9 percent, indicated that they intended to use numerical programs to track equal opportunity progress in their corporations regardless of government requirements (Memorandum re Final Results of CEO Survey on Numerical Measures, December 14, 1984). William E. McEwen, National Association of Manufacturers, in testimony before House Subcommittees on Civil and Constitutional Rights and Employment Opportunities stated that "affirmative action has been, and is, an effective way of ensuring equal opportunity for all people in the workplace ..." He further stated "Business ... sets goals and timetables for every aspect of its operations ... setting goals and timetables for minority and female participation is a way of measuring progress and focusing on potential discrimination." Further, a study by

Jonathan S. Leonard, University of California, Berkeley, The Impact of Affirmative Action found that black employment increased more in companies subject to the federal government's affirmative action requirements than in companies not so subjected. The impact on white women in federal contractor establishments was greater in companies where their share of employment was small. Leonard's study also found that the relative productivity of females and minority males did not significantly decline as their employment share increased. Leonard's findings were distorted in the Administration's Special Analysis Civil Rights Activities (Budget of the United States Government Fiscal Year 1986). The Special Analysis J reported that Leonard's study was modeled on the assumption that affirmative action is a tax on the employment of white men. Leonard has rejected this interpretation of his research. A report from the Potomac Institute, A Decade of New Opportunity: Affirmative Action in the 1970's by Herbert Hammerman, found that affirmative action played a significant role in increasing the number of minorities and women in the workforce and also the quality of their jobs.

The NAACP, the NAACP Legal Defense and Educational Fund and the Lawyers' Committee for Civil Rights Under Law have been closely monitoring DOJ actions in this area. The Legal Defense Fund and the Lawyers' Committee have been providing information to the jurisdictions involved, encouraging their resistance to modification of the plans, and offering assistance in their efforts to maintain their programs, and the NAACP filed a suit against the DOJ. For further information, contact Barry L. Goldstein, NAACP Legal Defense Fund, 806 Fifteenth Street, N.W., Suite 940, Washington, D.C. 20005; Richard T. Seymour, Lawyers' Committee, 1400 "1" Street, N.W., Suite 400, Washington, D.C. 20005; or Grover G. Hankins, NAACP, 186 Remsen Street, Brooklyn, New York 11201.

DOJ Attacks Affirmative Action in Tennessee School Settlement

While pressing its efforts to dismantle affirmative action in employment, the DOJ has also launched an offensive on affirmative action in education. The Department is appealing a consent decree between officials of the State of Tennessee and lawyers for the black plaintiffs in the seventeen year old Tennessee higher education desegregation case (See Brief for the U.S. as Appellant, No. 84-6055 (6th Cir., filed 6/13/85)). The consent decree was approved by District Court Judge Thomas A. Wiseman in September 1984 in settlement of the case which addresses the State's obligation to eliminate its racially dual system of public higher education. At the time the suit was filed, the system was comprised of the University of Tennessee with five campuses and six other universities under the State Board of Education. Under the State's segregated system, only one institution, Tennessee State University (TSU) in Nashville, provided higher education for blacks. Over the years, numerous interim plans were instituted but proved unsatisfactory in dismantling the dual system. In 1981, statistics showed that black students and faculty were becoming more segregated at the historically black institution.

On September 25, 1984 the district court approved the consent decree over the objection of the Department of Justice. The consent decree includes a recommitment to achieve the desegregation objectives, and an agreement to achieve a 50 percent white student body at TSU by 1993. The provision in the decree to which the DOJ objects is a program to select 75 black sophomore college students, within State, for a pre-professional program of intensive course work in order to increase the number of black professional students and black professionals in Tennessee. Presently, less than 4 percent of the students in graduate and professional schools in Tennessee are black. Students who complete the special program will be guaranteed admission to the State's professional schools. The DOJ brief states that there is "no constitutionally permissible basis for ... requiring that students be selected for a special pre-professional school academic program on a racially preferred basis." Judge Wiseman in approving the consent decree last September stated that while the goal is a higher education system "in which race is irrelevant," color-conscious remedies are necessary "to overcome the residual effects of past color-based discrimination." Further, during a settlement negotiation session, Judge Wiseman sharply attacked the Administration's position, telling a Department lawyer:

You are an embarrassment to the United States Justice Department, or maybe it's that someone is telling you what to say.

Let's just shell the corn ... Your real problem is that President Ronald Reagan and Attorney General William French Smith are philosophically opposed to anything that smacks of goals or objectives or quotas. Isn't that right?

From The LCCR Task Forces...

The Education Task Force wrote to Representative William Ford (D-Mich.) urging the House Subcommittee on Postsecondary Education to pay particular attention to questions of access and equity throughout the process of reauthorizing the Higher Education Act of 1965, as amended. The subcommittee was requested to ask each witness at the reauthorization hearings to describe the impact of her/his recommendations on women, minorities, disabled and low income persons. The task force is developing recommendations on the Higher Education Act for submission to the subcommittee.

The Employment Task Force urged Secretary of Labor William E. Brock to issue a regulation prohibiting government contractors from paying or reimbursing employees for membership fees in discriminatory private clubs. Such a rule was issued in the closing days of the Carter administration but was stayed by the Reagan administration. The task force made a similar recommendation and submitted a draft regulation in October 1981. To date, the task force has not received a response to its proposal.

The Housing Task Force expressed its support for the Fair Housing Initiative Program to members of the House and Senate Banking and Urban Affairs Committees. The private enforcement component of the program would solicit the assistance of private, non-profit, organizations in enforcement by supporting testing and other investigative efforts, and establishing lawyers' revolving funds to meet legal expenses in fair housing litigation. Testing refers to the use of matched "pairs" - e.g. a black couple and a white couple - similar in all respects but race who pose as homeseekers or apartment seekers to "test" whether they are treated differently by the realtor or rental agent. The task force also expressed its concern about reports that the Office of Management and Budget had directed the Department of Housing and Urban Development to terminate the collection of race and sex data with respect to the programs it administers. The task force asserted that the dismantlement of these data sources would undermine HUD's obligation to desegregate public housing and assure equal access to all assisted housing. Further, such action would affect other agencies' commitments to collect race and sex data as well. HUD's authorization bill as approved by the House Banking Subcommittee requires HUD to continue collecting racial and ethnic data on beneficiaries of its housing programs.

The Women's Rights Task Force is comprised of three coalitions. The coalition on women and taxes submitted testimony on the tax simplification proposals to the House Ways and Means Committee and the Senate Finance Committee on June 7 and 19 respectively. For further information contact Maxine Forman, WEAL, 1250 "1" Street, N.W., Washington, D.C., 20005 or Duffy Campbell, NWLC, 1616 "P" Street, N.W., Washington, D.C. 20036. The insurance coalition is developing a state action kit to assist local volunteers working on health discrimination issues. The pension coalition is planning a "Pension Awareness Week" in March 1986. Activities, planned by coalition organizations, will inform the public about pension rights and encourage people to inquire about their pension protections. The American Association of Retired Persons in testimony before the Senate Special Committee on Aging, June 14, 1985, stated that "the ultimate goals of any change in the nation's retirement income systems must be the elimination of poverty among older Americans and the reasonable guarantee that older persons will be able to achieve and maintain an adequate retirement income." AARP further asserted "the current pension system is not meeting the needs of millions of Americans who have spent all or most of their adult lives in the labor force." Women, particularly minority women, are the most vulnerable with 17 percent of women over 65 living in poverty, and two-thirds of elderly black women who live alone living in poverty.