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Volume 8 no. 5-6 AFFIRMATIVE ACTION UPDATE
Introduction
Affirmative action, which just months ago was touted by Republican strategists as the key to victory in California and the 1996 Presidential election, has been fading as a national issue as the November elections approach. Republican congressional leadership announced it would not bring up the Equal Opportunity Act which would eliminate all federal affirmative action programs and House Republicans instead are opting to curb affirmative action only in federal contracting. Rep. Jan Meyers (R-KS) has introduced legislation targeting the Small Business Administration's Section 8(a) program for elimination and the Clinton Administration pressed forward in reforming affirmative action by proposing in late May changes to federal procurement.
Meanwhile, California remains the only state where voters will vote on an anti-affirmative action initiative in November as every other state effort to eliminate or reform affirmative action has failed. The future of affirmative action in higher educatio n remains unknown as the Supreme Court refused to review a Fifth Circuit U.S. Appeals Court's decision that ruled race could never be used as a factor in a University's admissions process. Finally, the U.S. Third Circuit Court of Appeals ruled in Taxman v. Piscataway Board of Education that a school district facing layoffs should not have used race as a primary factor in determining who to dismiss.
The MONITOR provides an overview of all these issues with the following Affirmative Action Update. Congressional Update
The House Judiciary Committee was scheduled to mark-up the Equal Opportunity Act on two different occasions, but adjourned for the August recess before doing so. On each occasion, the Judiciary Committee had several other bills to mark-up and never made it to the Equal Opportunity Act. At the mark-ups, Rep. Charles Canady (R-FL) was poised to offer an amendment in the nature of a substitute (the Canady substitute) that would have made it illegal for the federal government to engage in efforts to increase minority and female participation in any program involving federal contracting or subcontracting if such efforts include the use of "set-asides, numerical goals, timetables or other numerical objectives." It is believed the Canady substitute will be offered when the Judiciary Committee marks-up the bill, which it is expected to do in early September.
The Canady substitute, while narrower in scope than the original bill, would require the dismantling of federal affirmative action contracting and subcontracting programs conducted by the Small Business Administration and other federal agencies that have programs to increase opportunities for women and minority owned businesses to compete for and perform federal contracts. In addition, the bill appears to extend beyond the award of federal contracts and subcontracts and to prohibit the federal government from requiring or encouraging affirmative action by federal contractors. This would eviscerate Executive Order 11246, the Executive Order program that requires federal contractors to analyze their workforce, set goals and timetables for hiring and promoting women and minorities, and make "good faith efforts" to meet them. Also, by eliminating all affirmative action programs regarding federal contracting, the bill overturns two decades of Supreme Court decisions on affirmative action that have held that federal programs involving race-conscious measures are legal as long as they are "narrowly tailored" to serve a "compelling" government interest.
Before leaving for the August recess, Rep. Jan Meyers (R-KS) introduced, H.R. 3994 "The Entrepreneur Development Program Act of 1996," that would eliminate the 8(a) program of the Small Business Administration (SBA). The 8(a) program is a business development program designed to help eligible small firms reach a point of self-sufficiency and competitive viability. To join the program, such firms must demonstrate a potential for success and must be owned (at least 51%) and operated by American citizens who are both socially and economically disadvantaged. By law, individuals who are members of certain groups (African Americans, Asian Americans, Hispanic Americans, and Native Americans) are presumed to be "socially disadvantaged." All applicants, however, must show they are "economically disadvantaged" in order to qualify for the 8(a) program -- no presumption is made with regard to economic disadvantage.
Recent studies indicate that the "socially disadvantaged" presumption is accurate. For example, preliminary results of an Urban Institute disparity study indicate that in each of the industry groups examined by researchers minority-owned contractors are underutilized by state and local governments. Disparity studies indicate the difference between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the government or by the government's prime contractors. The Supreme Court ruled its 1989 Croson decision that such disparities can give rise to an inference of discrimination that can serve as the foundation of race-conscious measures in procurement that meet the "strict scrutiny" standard.
Administration's Proposed Reforms to Affirmative Action in Federal Procurement
Over a year ago, President Clinton ordered the Department of Justice (DOJ) to launch a review of all federal affirmative action programs in the wake of the June, 1995 Adarand v. Pena decision, in which the Supreme Court ruled that all racially-conscious a ffirmative action programs were subject to the constitutional standard of strict scrutiny. Consistent with the President's "Mend it, Don't end it" approach outlined in a speech at the National Archives in July, 1995, the Department of Justice has begun t o make changes to the nation's federal affirmative action programs. Last October, a billion dollar Department of Defense program referred to as the "Rule of Two" was suspended indefinitely because, as one senior administration official put it, "Justice could not defend the program because no lawyer there thought it is defensible under Adarand." Under the rule, if at least two qualified small, disadvantaged businesses expressed interest in bidding for a contract, only disadvantaged businesses could compete for it. Most recently, on May 23rd of this year, the DOJ published in The Federal Register proposed reforms to affirmative action in the area of federal procurement and individuals had until July 22nd to send comments to the Department.
The proposed changes relate to the race-conscious affirmative action measures in federal procurement that target assistance to small minority-owned businesses, commonly referred to as Small Disadvantaged Businesses or SDB's. Included in the proposed refo rms are new certification and eligibility requirements as well as the establishment of benchmarks to ensure that race-conscious procurement is used only in areas where discrimination has deprived minority firms of the opportunity to compete for contracts.
Certification and Eligibility Reform
Applicants to SDB programs will be required to verify their eligibility by submitting a form to the procuring agency. The certification must come from a Small Business Administration (SBA)-approved organization and must verify that the individual claimi ng ownership and control of the company is socially and economically disadvantaged as defined by SBA regulations. Members of designated racial and ethnic groups presently are presumed by statute to be socially and economically disadvantaged. Rather than changing those presumptions, the DOJ proposal lowers the eligibility threshold for nonminority applicants. Whereas nonminority applicants previously had to meet a "clear and convincing" evidence standard, under the proposed reforms nonminority applicants would only have to meet a "preponderance" of the evidence standard. DOJ notes this change should open SDB participation to more women and nonminorities.
Benchmarks
In order to ensure that race-conscious procurement is used only in those federal contract areas where discrimination has prevented qualified minority firms from competing for contracts, DOJ has proposed the establishment of national and regional benchmark s for each industry in which the government contracts. These benchmarks would estimate the level of minority contractors that would exist absent the effects of racial discrimination and they would be determined by the availability of minority firms in the industry adjusted for discrimination when discriminati on has suppressed the supply of minority firms.
If it is established that minority participation falls below the benchmark for a given industry, price and/or evaluation credits would be authorized for the review of bids by SDB's and by prime contractors committed to subcontract with SDB's. Once SDB participation reaches the benchmark, the price and/or evaluation credits would end.
State Roundup
Over the past year and a half, nineteen state legislatures have considered various measures aimed at repealing or curbing affirmative action policies within the state. In addition, in seven states (California , Colorado, Florida, Illinois, Massachusetts, Oregon, and Washington) there have been moves to place anti-affirmative action initiatives on the November ballot. Despite these efforts, no state legislature has passed a bill eliminating or significantly scaling back affirmative action and Californian s will be the only voters to directly vote on the issue this November, as each of the other six initiatives failed to collect the requisite number of signatures. Call LCEF for a detailed state-by-state analysis of anti-affirmative action initiatives.
Judiciary Update
Supreme Court Denies Review of Hopwood Case
Before adjourning for their summer recess, the Supreme Court refused to grant review of Texas et al. v. Cheryl J. Hopwood et al., thereby leaving intact a Fifth Circuit U.S. Appeals Court panel's ruling that the University of Texas Law School's affirmativ e action admissions program amounted to unconstitutional discrimination against whites. Supporters of affirmative action noted that the Justices' denial of the case was not a judgment on the merits of affirmative action in higher education nor did it in any way signify that the Fifth Circuit's decision would become the law of the land.
The Supreme Court did not take the usual step of simply rejecting a petition without explanation. Justices Ginsburg and Souter issued an opinion explaining that the case did not present a live controversy because the Law School already had changed the pa rt of its admissions policy that had been contested and all parties involved in the case acknowledged that the challenged 1992 admissions policy was unconstitutional and would not be re-instated. In asking the Supreme Court to review the lower court's decision, the petitioners, therefore, were not asking the Justices to overrule the lower Court's decision, but rather the rationale that Court used in its opinion. As Just ice Ginsburg noted, "[T]his Court, however, reviews judgments, not opinions."
In handing down its decision, the Fifth Circuit had stated that race could never be considered a factor in a University's admissions process, even to serve the state's interest in diversity. The panel wrote:
"We agree with the plaintiffs that any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment....In short, there has been no indication from the Supreme Court, other than Justice Powell's lonely opinion in Bakke, that the state's interest in diversity constitutes a compelling justification for governmental race-conscious discrimination. Subsequent Supreme Court caselaw strongly suggests, in fact , that it is not.
"Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection. Diversity fosters, rather than minimizes the use of race. It trea ts minorites as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility."
This rationale would overturn the Supreme Court's 1978 decision in Regents of the University of California v. Bakke, 438 U.S.265, in which the Supreme Court ruled 5-4 that the use of race as a criterion in admissions decisions in higher education was cons titutionally permissible. With the Supreme Court's refusal to hear this case, the question whether or not Bakke will remain the law of the land remains unclear.
Civil rights advocates and higher education officials across the nation, particularly in the states covered by the Fifth Circuit, expressed their disapproval of the Court's (in)action. The decision leaves some institutions of higher learning between a roc k and a hard place. Louisiana State University Law School, for example, remains under a countervailing court order requiring them to take race into account to increase the enrollment of blacks at the school. Raymond Lamonica, Vice Chancellor at the Law School noted: "We will follow the court order until steps are taken, if ever, to change it."
Elaine Jones, Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., (LDF) made the following comments in a statement released to the press:
"I am greatly dismayed by the decision of a panel of three lower court judges striking down the affirmative action program of the University of Texas Law School, a program which was created by order of the United States Department of Health, Education, an d Welfare in order to remedy a history of discrimination against African Americans. Most disturbing is the fact that the three judges refused to follow the law of the land as established by the United States Supreme Court in the Bakke case. LDF and its clients strongly believe that the three judges erred in invalidating the flexible consideration of race as one factor in the admissions decision of a law school with a long tradition of exclusion of African American and Mexican American students and with current admissions policies that are not merit-based and that without affirmative action would severely perpetuate the effects of the State's regrettable past."
U.S. Appeals Court Strikes Down Affirmative Action in Piscataway
The United States Court of Appeals for the Third Circuit ruled that the Piscataway Board of Education focused too heavily upon race when faced with the difficult decision of having to cut one business teacher from its ranks. The decision on whom to let g o came down to a choice between two candidates, Sharon Taxman who is white and Debra Williams who is black. Beyond the color of their skin, the two instructors were assessed as being equally qualified, having equal seniority, and alike in ability and enthusiasm. Citing its policy seeking a diverse workforce, the school board decided to keep Mrs. Williams. Theodore Black, President of the Piscataway School Board said in a disposition, "I bel ieve by retaining Mrs. Williams it was sending a very clear message that our staff should be culturally diverse." [more from actual opinion]
  
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