The Leadership Conference on Civil and Human Rights

Volume 8 no. 4

UPDATE ON AFFIRMATIVE ACTION

In the second session of the 104th Congress, Republicans have been pushing the Dole/Canady Equal Opportunity Act of 1995 which would end all federal affirmative action programs.

Congressional Activities

On March 7, 1996, the House Judiciary Subcommittee on the Constitution, chaired by Rep. Charles Canady (R-FL) voted out the Equal Opportunity Act of 1996 (H.R. 2128/S. 1085) on an 8-5 party line vote. The bill would prohibit affirmative action in all federal contracts and subcontracts, federal employment and any other federally conducted program or activity. The bill prohibits so-called racial preferences, and defines preference as "an advantage of any kind, and includes a quota, set-aside, numerical goal, timetable, or other numerical objective." Thus, the bill would outlaw goals and timetables established for the purpose of increasing the number of minority and female applicants.

In opening the mark-up session, Rep. Cannady said:

"In just six short pages, H.R. 2128 sets forth a simple yet profound proposition, that the Federal Government, in all of its activities, will treat all citizens equally and without regard to race or gender....

"We now have in place a sprawling regime of hundreds of Federal programs that treat citizens differently based on skin color and sex. All it takes to qualify is to possess the right skin color or gender. It matters not whether the beneficiaries of these programs were themselves ever subjected to discrimination in this country, much less by this Government. And immigrants who arrive on our shores today will, if they belong to the right groups, tomorrow be able to benefit from these preference programs.

"Meanwhile, Americans who are not members of these favored groups are told by their Federal Government that they must bear the burden of these profoundly un-American programs."

Rep. Jose Serrano (D-NY) in his opening comments challenged the Republicans' "strange" leadership on affirmative action:

"I am beginning to hear or have been hearing for the last year from the Majority party...a very strange kind of leadership. Leadership usually is when you take people and you alert them to certain needs and you try to bring a nation or a group of people along to a positive place in time and history, and with good thoughts about everyone, and sort of try to bring people together....

"I think the approach of the so-called leadership has been to go to the white community in this country and say, 'You know why you haven't been able to put together all of your dreams and aspirations up until now? Because this society is being overrun by minorities who are getting preference for jobs you should have had and all kinds of business opportunities you should have had'....

"But we [the minority party] will stand up and we will let you know that this is the wrong approach, [that] there is nothing wrong with...[affirmative action], that nothing has been done to harm anyone, that the only way to build a solid future for this country is to give everyone an opportunity, and not to pander to the fears of those who have not been able to achieve everything...they have wanted to achieve."

Rep. Pat Schroeder (D-CO) said:

"Let me go back to where we started when our chairman from Florida opened...He said something that made me almost come out of my seat and grab his microphone, because I have heard it so many times, it makes me terribly angry...he says [under] affirmative action...all it takes to qualify for a job is being in the right gender or race....That has been said so many times on talk radio, so many times to people, that people believe that, and that is not what the law of the land says."

The bill is expected to be marked up in full committee in May.

In the Senate, two additional affirmative action hearings were held on April 30, in the Judiciary Committee on the so-called California Civil Rights Initiative, an anti-affirmative action measure, and in the Labor and Human Resources Committee on the Dole/Canady bill, S. 1085. California Governor Pete Wilson in his testimony before the Judiciary Committee said:

"The bottom line is that...a system that confers preferences by race, ethnicity, or gender can't be defended today. It is by definition racial, ethnic or gender discrimination -- and that is indefensible....

"What Californians want to end are policies and practices that began with the best of intentions, but that today breed resentment. This is not an academic debate for Californians. Every day, they experience the unfairness of rejection that costs them or their children public jobs, public contracts, or admission to a public university. They do not lose a competition as individuals. They lose the job, contract, or place in the class because it is given by a government to a less qualified member of a preferred group....

"Mr. Chairman, the desire to end unfair racial, ethnic or gender preferences, to end quotas may have begun in California, but it will strike a sympathetic chord in all who demand fairness and equality all across the land. Those who oppose and challenge this double-standard are increasingly finding their view supported by the law....

"And I predict Californians will overwhelmingly approve the California Civil Rights Initiative this November."

In contrast, Audrey Rice Oliver, Chief Executive Officer, Integrated Business Solutions, Inc. testified that affirmative works and that when done rights, it does not result in quotas or giving unfair preferences to the unqualified. She said:

"Affirmative action simply means taking positive, concrete steps to end continuing discrimination by opening doors to equal opportunity for all. Affirmative action remains necessary today because discrimination continues to limit opportunities for women and minority business owners who are seeking to enter this country's economic mainstream.... Affirmative action works because it fosters competition and innovativeness by opening doors to a broad range of qualified companies. Creating opportunity for women and minority business owners is critical for the economic vitality of this country."

Testimony in support of affirmative was presented also by Erwin Chemerinsky, Legion Lex Professor of Law, University of Southern California Law Center. He said:

"I would like to make two major points. First, the proposed California Civil Rights Initiative (CCRI) would not only eliminate affirmative action of all forms, but it actually would increase legal authority for sex discrimination. Second, CCRI, and similar bills pending here in Congress, would eliminate a vast array of programs of many different types...CCRI...expressly permits the government to engage in more gender discrimination...Title VII and parallel state law provisions permit gender discrimination in employment if it is reasonably necessary to a bona fide occupational qualification. No law, federal or state, now allows gender discrimination in contracting or education if it is reasonably necessary to a bona fide qualification. In other words, CCRI...would permit gender discrimination that is not authorized under current law. Simply put, it would extend the exception where gender discrimination is now allowed to brand new areas where gender discrimination now is never allowed....

"My second major point is that CCRI, and similar pending federal legislation, would eliminate a vast array of programs designed to increase equality of opportunity for women and minorities. It is essential to realize that affirmative action is a broad category that describes a large number of different types of programs established for many different purposes. They include aggressive recruitment of women and minorities; outreach and targeting efforts; enrichment programs; goals and targets; and in very rare cases where there is no other way to remedy discrimination, set-asides. All of these would be abolished by CCRI and by similar proposed federal legislation."

Professor Chemerinsky also spoke about the importance of diversity to higher education saying its importance can not be over-emphasized and he continued:

"Colleges and universities never have measured 'merit' solely on the basis of grades and test scores. In fact, they always have recognized diversity as a key part of the admisssions process in accepting students who add geographic diversity, or who have outstanding athletic ability, or unusual skills, or differing backgrounds. Race obviously matters enormously in how people experience the world and thus racial diversity is crucial as part of the educational process. Also, it must be recognized that college and university admissions never have been completely merit based. There long have been preferences for children of alumni and for those of wealthy donors. Recent reports have indicated that these have been widespread in the University of California system."

In conclusion he said:

"It is often said that affirmative action programs stigmatize minorities. This argument, however, fails to account for the stigma that will exist for minorities if they are dramatically underrepresented at colleges and universities. The stigma argument gives enormous significance to what white students and faculty think. I question why their perceptions should matter so much, but if they do, having relatively few minority students probably would do more to perpetuate stereotypes and stigma than any affirmative action program. Besides, as my minority students repeatedly point out, people of color are better off with more opportunities even if there is some stigma."

The second hearing before the Senate Labor and Human Resources Committee, chaired by Senator Nancy Kassenbaum (R-KS) heard from a number of House members including Tom Campbell (R-CA) who said:

"I would like to focus my comments on the general proposition that S. 1085 addresses; namely, that it is morally wrong for the government to discriminate between its citizens on the basis of their race. Everything else is secondary. I can give you examples showing that affirmative action has been counterproductive, and the supporters of it can point to people they claim who have benefited from it. But if we never depart from the fundamental issue of whether it is right or wrong, we will have the guidance we need to answer this question.

"I had the exceptional honor to clerk for Justice Bryon White in 1987, the year California v. Bakke was decided. Because I was the only unmarried law clerk, I was given the task of reading the entire history of the 1964 Civil Rights Act. It took me over three months. Then I briefed the Justice on what I found. What I found was a commitment to the principle I have stated today -- that the government must not discriminate against its citizens on the basis of race. No one argued that you can use race provided, on balance, it did more good than harm in creating role models. No one said thay you can use race to distinguish among its citizens if it creates a diverse work place and mirrors the diversity of America. Hubert Humphrey, Senator Clifford Case, Congressman Morris Udall -- heroes of the civil rights movement to a person argued that it was morally wrong for the government to distinguish among citizens on the basis of race....

"I believe that S. 1085 successfully addresses this proposition by seeking to do away with preferences, set-asides and quotas of any kind in federal contracting. That is why I am happy to testify in favor of this bill today."

Testimony was also provided by Deval Patrick, Assistant Attorney General for Civil Rights who said:

"While legislative titles are not generally matters of great import, this one is quite troubling, because aside from 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 continues to persist today -- have been denied opportunities to obtain a decent education, to compete equally for jobs, to participate in the political process, to form businesses and generally partake fairly of the bounty of this magnificent nation.

"This Congress has yet to hold a hearing to address the serious problems discrimination causes daily in the lives of minorities and women. Rather, some in Congress propose to eliminate one of the few measures that has been utilized effectively to help eliminate discrimination and its effects and to create the level playing field that has been promised to all Americans but denied to many. While the issue of affirmative action has been debated in this Congress, it has yet to be considered in the context in which it was intended to perform; as a limited means to remedy the undeniable effects of decades of discrimination."

Mr. Patrick continued:

"Turning to the legislation that is the immediate subject of this hearing, S. 1085 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 priniciples developed over decades by the Supreme Court, would eliminate numerous federal statutes 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 intensice examination of affirmative action programs....

"S. 1085's flat prohibition against affirmative action is a rejection of the compelling need to remedy 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. Furthermore, it will turn back the clock to an era when the law denied women equal opportunities in employment....

"S. 1085 is a giant step in the wrong direction. Should it be presented to the President for signature, the Attorney General would strongly recommend that he veto it."

Marcia Greenberger, co-president of the National Women's Law Center, testified about the limitations the bill would place on prohibitions against sex discrimination:

"In addition to abolishing critical affirmative action programs, this legislation threatens to turn the clock back for women in another way as well...a series of provisions [in the bill] would permit discrimination against women in a wide variety of circumstances where such discrimination is now against the law....

For example, there is a wholly new exception allowing women to be excluded from certain jobs altogether based on 'privacy' concerns...permit[ing] sex discrimination if it is nerely 'designed to' protect someone's privacy -- even if the asserted need for privacy is unfounded or if there are ways to protect privacy without discriminating against women. Will we now see an employer argue that it can exclude women because, for example, its workplace has no locker rooms or other facilities for them?....

"The bill would...allow gender to be a 'bona fide occupational qualification' (BFOQ) which could exclude women from federal jobs or programs. This concept exists now in very limited form in Title VII, but would be significantly broadened if this bill is enacted. This is especially dangerous because, when sex is found to be a BFOQ, and employer can legally announce that no woman need apply regardless of her skills or abilities.

"[It] would permit the wholesale exclusion of women from any federal job or program that is subject to a 'national security' requirment, regardless of whether or not an individual woman candidate poses andy security risk. It is hard to imagine a rational for this.

"Finally, [it] would authorize the exclusion of women form whole classes of positions in the Armed Forces where women are now serving effectively and courageously."

The Administration

In February, the U.S. Department of Justice, Office of the Associate Attorney General John R. Schmidt issued a Memorandum to General Counsels providing Post-Adarand Guidance on Affirmative Action in Federal Employment. The memorandum expresses the federal government's commitment to fair employment practices that open opportunities to all Americans and draws on the full range of the nation's talent, and asserts that affirmative action efforts can advance those vital objectives.

The memo continues that while Adarand established strict scrutiny as the standard for evaluating such programs, Adarand: