The Leadership Conference on Civil and Human Rights

Volume 8 no. 3

AFFIRMATIVE ACTION ADDRESSED BY ALL THREE BRANCHES OF THE FEDERAL GOVERNMENT IN 1995

OVERVIEW

On June 12, 1995, the U.S. Supreme Court issued a major decision on affirmative action, ruling for the first time that all federal laws that create racial classifications, whether meant to burden or benefit minorities, when challenged, must be tested by t he same stringent standard, i.e., strict scrutiny-that is, the government must show that the program was established to meet a compelling state interest and that it is narrowly tailored to achieve that purpose. Adarand v. Pena, No. 63-1841. On May 22, 1995, the Court without comment denied review of a Fourth Circuit Court of Appeals holding that the Benjamin Banneker scholarship program at the University of Maryland for high achieving African-American students violated the Fourteenth Amendment's E qual Protection Clause, Podberesky v. Kirwan, No. 93-2585.

During the 1st session of the 104th Congress, the House and Senate held a total of 12 hearings on affirmative action and related issues and Senate Majority Leader Robert Dole (R-KS) and Representative Charles Canady (R-FL), chair of the House Judiciary Co mmittee Subcommittee on the Constitution introduced legislation that would make unlawful almost all forms of federal affirmative action. There were also several votes in the House and Senate in which for the most part supporters of affirmative action pre vailed.

On July 19, President Clinton delivered a major speech expressing strong support for affirmative action, issued a review of the federal government's affirmative action programs and instructed all federal agency heads to ensure that their affirmative actio n programs did not create a quota, create preferences for unqualified individuals, create reverse discrimination or continue after their equal opportunity purpose had been achieved.

Thus, at the end of 1995, affirmative action remained a federal remedy for addressing discrimination against minorities and women, and for promoting equality of opportunity for all. However, there were clear signs that Republican opponents of affirmative were poised to launch a coordinated attack on federal affirmative action with the Dole-Canady bill as the vehicle.

THE SUPREME COURT

Below is a brief summary of the Supreme Court decision in Adarand v. Pena. Previous MONITORS have reported extensively on the case. For a summary of the background of the case and the oral argument before the Supreme Court see vol. 7, no. 6, and for a summary and analysis of the opinion see vol. 8, no 2.

The Adarand decision established that federal race-conscious programs will be reviewed by the courts under the due process requirement of the Fifth Amendment in the same manner that all local and state racial classifications have been reviewed unde r the Fourteenth Amendment since Croson v. City of Richmond (1989). Prior to Croson, the court tended to apply a more lenient standard to racial classifications that sought to benefit minorities.

In its Croson decision, the Court distinguished its earlier decision in Fullilove v. Klutznick (1980), in which the Court had upheld a congressional program requiring that 10 percent of certain federal construction grants be awarded to minor ity contractors, emphasizing that Congress had broader power to adopt such programs than do state and local governments. The Croson opinion stated that Congress has been given a "special constitutional mandate" to enforce the protections of the 14th Amendment, whereas section 1 of the 14th Amendment is an "explicit constraint on state power and the state must undertake any remedial efforts in accordance with that promise.... Correctly viewed sec. 5 [of the 14th Amendment] is a posit ive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the 14th Amendment."

In Adarand, however, the majority effectively overruled Fullilove and Metro Broadcasting (a 1990 case sustaining federal set-asides in broadcasting licenses) as these earlier decisions used a more lenient standard. It is worth noting that in Adarand seven of the nine justices upheld the use of federal racial classifications. Only Justices Scalia and Thomas expressed the view that government race-conscious programs can never survive constitutional muster.

In denying review of Podberesky v. Kirwan, the Court let stand a Fourth Circuit unanimous holding that the University of Maryland's Benjamin Banneker minority scholarship program was unconstitutional. The Fourth Circuit opinion had concluded:

"The issue in this case is whether the University of Maryland at College Park may maintain a separate merit scholarship that it voluntarily established for which only African-American students are eligible. Because we find that the district court er red in finding that the University had sufficient evidence of past discrimination to justify the program and in finding that the program is narrowly tailored to serve its objectives, we reverse the district court's grant of summary judgment to the Univers ity."

In response to the denial of review, the University of Maryland has combined its Benjamin Banneker program with its Francis Scott Key merit scholarship program, with one of the goals of the combined program being to maintain a diverse student body. For t he 1995-96 school year the University awarded 72 scholarships under the combined program, 19 of them going to African-American students. During the 1994-95 school year, a total of 69 scholarships were awarded through the two programs with 37 African Amer icans receiving Banneker scholarships.

Although the ruling technically applies only to states in the Fourth Circuit-Maryland, North Carolina, South Carolina, Virginia, and West Virginia-there are signs that other states are reexamining their minority scholarship programs in light of the Court' s denial of review. The state of Colorado recently announced that it was changing its criteria for awarding state scholarships from consideration of race to consideration of financial need.

For a thorough discussion of this case, see CIVIL RIGHTS MONITOR, vol. 8, no. 1, and vol. 7, nos. 6, 3, and 2.

THE ADMINISTRATION

On March 7, 1995, President Clinton directed a review of the Federal Government's affirmative action programs and put in charge of the review George Stephanopoulos, Senior Adviser to the President for Policy and Strategy, and Christopher Edley, Jr., Speci al Counsel to the President. The instructions from the President were to determine:

• what kinds of Federal programs and initiatives are now in place and how they are designed?
• what is known about their effects-benefits and costs, direct and indirect, intended and unintended-both to the specified beneficiaries and to others? In short, how are they run? Do they work? Are they fair?

Initially, a report on the review of affirmative action programs was expected within weeks of the President's directive. But the review stretched into months and on June 12, the Court issued the Adarand decision. In response to Adarand, on June 28, Walter Dellinger, Assistant Attorney General for the Office of Legal Counsel, issued a 38 page memorandum to the General Counsels of federal agencies setting forth "preliminary legal guidance on the implications of the [Adarand] deci sion."

That memorandum states that Adarand "federalizes" Croson with the caveat that "Congress may be entitled to some deference when it acts on the basis of race or ethnicity to remedy the effects of discrimination." The memor andum continues:

"The Court in Adarand hinted that at least where a federal affirmative action program is congressionally mandated, the Croson standards might apply somewhat more loosely. The Court concluded that it need not resolve whether and to what extent the judiciary should pay special deference to Congress in this area. The Court did, however, cite the opinions of various Justices in Fullilove, Croson, and Metro Broadcasting concerning the significance of Congress' express constitutional power to enforce the antidiscrimination guarantees of the Thirteenth and Fourteenth Amendments-under Section 2 of the former and Section 5 of the latter-and the extent to which courts should defer to exercises of that authority that entail the use of racial and ethnic classifications to remedy discrimination.... Some of those opinions indicate that even under strict scrutiny, Congress does not have to make findings of discrimination with the same degree of precision as a state or local gove rnment, and that Congress may be entitled to some latitude with respect to its selection of the means to the end of remedying discrimination."

The memorandum concludes:

"Adarand makes it necessary to evaluate federal programs that use race or ethnicity as a basis for decisionmaking to determine if they comport with the strict scrutiny standard. No affirmative action program should be suspended prior to such an evaluation. The information gathered by many agencies in connection with the President's recent review of federal affirmative action programs should prove helpful in this regard."

On July 19, President Clinton delivered a major speech on affirmative action and released the long awaited Affirmative Action Review of federal programs. The President spoke for nearly ninety minutes and reaffirmed his support for the goals of affirmativ e action. He said:

"The purpose of affirmative action is to give our nation a way to finally address the systemic exclusion of individuals of talent on the basis of their gender or race from opportunities to develop, perform, achieve, and contribute. Affirmative actio n is an effort to develop a systematic approach to open the doors of education, employment and business development opportunities to qualified individuals who happen to be members of groups that have experienced longstanding and persistent discrimination. ... When affirmative action is done right, it is flexible, it is fair, and it works."

The President called on Americans to meet a twofold challenge: "[F]irst, to restore the American dream of opportunity and the American value of responsibility; and second, to bring our country together amid all our diversity into a stronger community , so that we can find common ground and move forward as one." Mr. Clinton noted that in addition to opening doors of opportunity for individual Americans, affirmative action has helped strengthen the economy:

"Most economists who've studied [affirmative action] agree that affirmative action has also been an important part in closing gaps in economic opportunity in our society, thereby strengthening the entire economy."

Touting the benefits those choosing diversity and inclusiveness enjoy, the President pointed to the example of Atlanta, Georgia:

"In 1960, Atlanta, Georgia, in reaction to all the things that were going on all across the South, adopted the motto, 'The city too busy to hate.' And however imperfectly over the years, they tried to live by it. I am convinced that Atlanta's succe ss-it now is home to more foreign corporations than any other American city, and one year from today it will begin to host the Olympics-that success all began when people got too busy to hate."

Using the theme, "Mend it, but don't end it," the President said:

"Affirmative action has been good for America. Affirmative action has not always been perfect and affirmative action should not go on forever. It should be changed now to take care of those things that are wrong and it should be retired when its jo b is done. I am resolved that that day will come. But the evidence suggests, indeed, screams that that day has not come....We should reaffirm the principle of affirmative action and fix the practices."

President Clinton called on agency heads to continue their review of affirmative action programs consistent with the guidance in the Dellinger memorandum and said that any federal affirmative action program must be eliminated or reformed if it:

• creates a quota;
• creates preferences for unqualified individuals;
• creates reverse discrimination; or
• continues even after its equal opportunity purposes have been achieved.

The review of government programs continues and is being spearheaded by the Department of Justice.

Department of Education Guidance

On September 7, 1995, the Department of Education issued a memorandum to College and University Counsel stating that the "Department of Education's policy guidance on race-targeted student financial aid has not changed as a result of either the Supre me Court's recent decision not to hear the appeal requested by the University of Maryland in the Podberesky v. Kirwan case or the Supreme Court's decision in Adarand Constructors v. Pena." The memo concludes that "under governing standards, race-targeted student aid is legal in appropriate circumstances as a remedy for past discrimination or as a tool to achieve a diverse student body. Scholarships for these purposes are vital to the education of all students."

The Department issued its policy guidance on minority scholarships on February 17, 1994. The policy provides that "colleges can use financial aid to remedy past discrimination and to promote campus diversity without violating federal anti-discrimin ation laws."

Department of Defense Suspension

On October 23, the Department of Defense announced that as part of the government's review of affirmative action programs, it was suspending its "rule of two" set-aside contract program. Under this program, a Department of Defense prime contract is set-aside for Small Disadvantaged Businesses (SDBs) (most of which are minority) whenever two or more such businesses are qualified and available to perform the work. The bid is not acceptable if it is more than 10 percent above the fair market price .

In announcing the suspension, DOD officials stated that several cases had been filed challenging the constitutionality of the program, and that after consultation with the Department of Justice they concluded that the program did not meet the standards es tablished by the President and might be legally vulnerable.

The "rule of two" was a regulatory mandate, one tool that DOD used to implement section 1207 of the Defense Authorization Act of 1987 which established a five percent goal for awarding contracts and subcontracts to small disadvantaged businesses , Historically Black Colleges and Universities, and minority institutions. This program accounted for approximately 12 percent ($1 billion) of DOD's total contracting with disadvantaged businesses ($8.4 billion) and less than 1 percent of total DOD contr acting ($112 billion).

DOD officials said the suspension should not be viewed as a lack of commitment to minority contracting and that DOD would redouble its efforts to contract with SDBs. Under Secretary of Defense Paul G. Kaminski said:

"I have directed all DOD contracting activities to use their utmost skill and existing authorities to increase awards to SDBs. I have also personally called leaders in the defense industry to tell them of the impact of Adarand on DOD programs and to ask their assistance in substantially increasing subcontract support to SDBs. I have been gratified by the positive responses I have received."

CONGRESS

The 1st session of the 104th Congress ended with the House having held six hearings on affirmative action and related issues, the Senate five, and one hearing held jointly. House Subcommittee on Employer/Employee Relations of the Economic and Educational Opportunities Committee, Rep. Harris Fawell (R-IL), Chair

March 25, 1995: Economic and Educational Opportunities
May 2, 1995: Economic and Educational Opportunities

House Subcommittee on the Constitution of the Judiciary Committee, Rep. Charles Canady (R-FL), Chair

April 3, 1995: Group Preferences and the Law
July 1, 1995: (in San Diego), Group Preferences and the Law
September 22, 1995: Joint hearing with the Senate Subcommittee on the Constitution of the Judiciary Committee, Impact of Adarand v. Pena.
October 25, 1995: Economic and Social Impact of Race and Gender Preference Programs December 7, 1995: The Equal Opportunity Act of 1995

Senate Labor and Human Resources Committee, Nancy Kassenbaum (R-KS), Chair

May 23, 1995: Oversight of the Equal Employment Opportunity Commission
June 15, 1995: Affirmative Action and the Office of Federal Contract Compliance

Senate Small Business Committee, Christopher S. Bond (R-MO), Chair

April 4, 1995: Small Business Administration's 8(a) Minority Business Development Program
October 19, 1995: Revitalizing America's Rural and Urban Communities

Senate Judiciary Committee, Subcommittee on the Constitution, Federalism and Property Rights, Hank Brown (R-CO), Chair

September 7, 1995: An Overview of Affirmative Action
September 22, 1995: Joint Hearing with House Subcommittee, Impact of Adarand v. Pena

First Vote on Affirmative Action

In the 1st session, the 104th Congress ended a Federal Communications Commission program that sought to increase the number of minority owned television and radio stations and thus provide "a diversity of expression over the airwaves" by giving a tax break to companies that sell such businesses to minorities. Efforts to limit the tax break to transactions under $50 million failed. The savings from eliminating this tax break will go toward extending permanently a tax break that allows self-empl oyed persons to deduct 25 percent of the cost of their health insurance premiums from their taxable income. The provision passed the House on January 17, 1995 by a vote of 381-44 and the Senate on March 24 by voice vote. It was signed into law on April 11, 1995 as part of the Self-Employed Health Insurance Deduction Bill, p.L. 104-7.

Some members of the Congressional Black Caucus argued that the elimination of the FCC tax break was an opening attack on affirmative action. Supporters of eliminating the tax break argued that it allowed abuse and that minorities were sometimes used as & quot;fronts" for white owned businesses. In response, Rep. John Lewis (D-GA) said: "Each year we provide tremendous loopholes for large companies; we could have closed any one of those loopholes and paid for this."

Efforts to Attach Anti-Affirmative Action Riders to Appropriation Bills On July 20, 1995, the day after President Clinton delivered his speech on affirmative action, Senator Phil Gramm (R-TX), a candidate for the Republican Presidential nomination, offered on the floor of the Senate an amendment to the Appropriations Bill for the Legislative Branch to prohibit any money in the bill from being used to award federal contracts based on the race, color, national origin, or gender of the contractor.

On the Senate floor, there was limited debate on the merits of affirmative action, but Senators expressed bipartisan agreement that an amendment to an appropriations bill was not the best vehicle for considering an issue as important as affirmative action . Senator Arlen Specter (R-NY) said: "One of the difficulties...in considering a matter of this complexity within the confines of a two hour time limit is that it does not give near enough opportunity to go into depth on these very intricate issues. " Senator Pete Domenici (R-NM) added: "There is no question that this is an important issue-discrimination. And to come to the floor on an appropriation bill, no committee hearings that I am aware of, and to suggest that on each appropriations bill we are going to tailor some way to get rid of affirmative action in the United States, in my opinion, is as apt to miss the point as it is to solve anything....Frankly, I don't think this is the way we ought to handle a matter of this importance.&qu ot;

Senator Gramm asserted that now was the time for the Senate to act because for 25 years the Senate had legislated unfairness through affirmative action programs. In response, Senator William Cohen (R-ME) stated:

"The 25 years stood out in my mind because it tended to ignore that for 200 years we have tolerated and practiced unfairness. We said that all men are created equal. This is our defining document. Not all women are created equal. Not all blacks a re created equal. They were not even treated as human but only three-fifths human, as slaves, as pack mules. We broke up their families, and we humiliated them for years and years-not 25 years-but a couple of hundred years or more. And suddenly we come back and say. Well, it is all equal now. The field is completely level. We live in a color blind society. Does anyone really believe that, that we live in a color blind society."

In the end, Senator Gramm was the only senator to speak in support of his amendment. The amendment was defeated 36-61.

An alternative amendment offered by Senator Patty Murray (D-WA) passed 84-13. Senator Murray's amendment stated that none of the funds could be used for "any affirmative action program that results in quotas, reverse discrimination, or in the hiring of unqualified persons," and that such programs "must be completely consistent with the Supreme Court's recent decision in the Adarand case." However, the Murray amendment was deleted from the bill in conference committee as there was no similar language in the House bill.

In the House, Rep. Gary Franks (R-CT) was poised to offer an amendment similar to Senator Gramm's to the Appropriations Bill for the Department of Defense, but his efforts were rebuffed by the House leadership who decided that the time was not ripe for co nsidering the issue of affirmative action nor was an appropriations bill the appropriate vehicle. Newt Gingrich (R-GA), Speaker of the House, said: "There's no question we're going to do affirmative action in a very big way in this Congress...But th e truth is we don't have a very good, clear-cut positive [alternative]." Rep. Bob Livingston (R-LA), chair of the Appropriations Committee said: "I don't want one of my bills to be encumbered in three weeks of debate on affirmative action.&quo t;

Speaker Gingrich appointed Rep. J.C. Watts (R-OK) to chair a Minority Issues Task Force "to develop a legislative agenda to empower the nation's low-income communities so that the residents may solve their community's problems rather than rely on ine ffective government bureaucracies." The task force held a press conference to outline its empowerment agenda that calls for reducing taxes, increasing incentives for investments in the inner cities, reducing federal regulations, supporting the welfa re reform bill, improving crime fighting and education, and promoting the free market. The task force plans to hold hearings and "listening groups" around the country to hear from people working on poverty. Rep. Watts said the goal of the task force is to have a package of legislation to introduce in the Spring of 1996 to "revitalize our inner cities and restore hope to our nation's poor neighborhoods."

It is not clear whether the task force legislation will be presented as an alternative to affirmative action. In response to a question at the press conference, Rep. Watts said that he has been interested in this issue for a long time and had planned to introduce empowerment legislation long before affirmative action became an issue.

Equal Opportunity Act of 1995

On July 27, Senator Robert Dole (R-KS) and Rep. Charles Canady (R-FL) introduced the Equal Opportunity Act of 1995 "to prohibit discrimination and preferential treatment on the basis of race, color, national origin and sex with respect to Federal emp loyment, contracts, and programs and for other purposes." At a press conference marking the introduction of the legislation, Senator Dole asserted: "It's time to get the federal government out of the business of dividing Americans and into the b usiness of uniting Americans." Rep. Canady said: "When the government grants preferences based on race, and gender, it perpetuates the pernicious notion that these characteristics are permissible grounds for making decisions. They are not and our bill will prevent the government from sending this misguided message."

Civil rights advocates were swift in expressing their profound disappointment over Senate Majority Leader and Presidential Candidate Dole's sponsorship of the bill which they said would eliminate federal affirmative action programs for women and minoritie s. These advocates said Senator Dole's introduction of the bill was a stark reversal of his past support for affirmative action. In 1985, Senator Dole had been among 66 senators who urged President Reagan not to change the Executive Order on Affirmative Action which calls for the use of goals and timetables to expand job opportunities for women and minorities in the workforces of federal contractors. In 1991, Senator Dole introduced the Glass Ceiling Act that established the Glass Ceiling Commission to conduct a study and prepare recommendations on "eliminating artificial barriers to the advancement of women and minorities to management and decisionmaking positions in business."

Ralph G. Neas, Counsel to the Leadership Conference on Civil Rights (LCCR) on Affirmative Action and Richard Womack, LCCR Acting Executive Director, issued a statement expressing LCCR's strong opposition to the "misnamed" Equal Opportunity Act o f 1995. The statement reads:

"This dangerous and draconian measure would wipe out thirty years of bipartisan federal civil rights enforcement policies. If enacted, the bill would effectively overturn decades of Supreme Court decisions regarding affirmative action. Indeed, by e liminating race-conscious remedies entirely, it embraces a position rejected by seven of the nine Justices in the Court's recent Adarand decision."

An LCCR analysis of the bill states in part:

This is a radical, extreme measure. It goes beyond Adarand, in that it makes any race-based classification per se illegal....The Dole/Canady bill would not even permit affirmative action programs when...there is a solid record of past or co ntinuing discrimination and the remedy is precisely tailored to rectify it, without creating quotas or preferences for unqualified candidates."

In testimony before the House Judiciary Committee's Subcommittee on the Constitution, Deval L. Patrick, Assistant Attorney General for Civil Rights, expressed strong opposition to the legislation and said if it were presented to the President for his sign ature, the Attorney General would recommend a veto. Patrick testified:

"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 i n 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 Administrations, as well as this one, have tried to implement to overcome this nation's history of exclusion based on race, ethnicity, and gender. By completely prohibiting oth erwise lawful and flexible affirmative action and categorically rejecting several decades 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 i ntransigence 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 antidiscrimination 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 integration, this bill would set us all back. The Administration strongly opposes it."

On September 29, Senator and Presidential candidate Gramm tried again to attach anti-affirmative action riders to an appropriations bill, this time the Commerce, Justice, and State Appropriations bill. The first rider would have repealed section 8a of th e Small Business Administration which seeks to direct government business to small disadvantaged businesses many of which are minority-owned. The second rider sought in effect to enact the Dole/Canady bill and thus would have prohibited all federal affir mative action programs. Both riders were rejected by voice vote.