Volume 9 Numbers 2-3UPDATE ON AFFIRMATIVE ACTION:
CONGRESSIONAL AND EXECUTIVE BRANCH ACTIVITIES
Affirmative action continues to be a hot-button issue across the nation. Following passage of Proposition 209, the anti-affirmative action ballot initiative narrowly approved by California voters in the 1996 elections, sweeping anti-affirmative action le gislation was re-introduced in the 105th Congress. Two hearings on the issue have been held in the House and a hearing on state-sanctioned discrimination was held in the Senate. In mid-July, a bill was reported out by the House Subcommittee on the Const itution. The MONITOR keeps you up-to-date with the following report.
On September 4, 1997, the U.S. Supreme Court refused to grant a stay of implementation of Proposition 209 while the Court considers whether to grant a review of a decision by the U.S. Court of Appeals for the Ninth Circuit that upheld the constitutiona lity of the Proposition. (For further discussion of Proposition 209, see CIVIL RIGHTS MONITOR, Vol. 9, No. 1)
November 5, 1996; Proposition 209 approved by voters 54 to 46 percent
December 1996; U.S. District Judge Thelton Henderson ruled Proposition 209 violated the U.S. Constitution and forbade its implementation.
April 8, 1997; Three judge federal panel of the Ninth Circuit overturned
the district court decision finding the Proposition constitutional
August 21, 1997; Ninth Circuit refuses to reconsider the panel's ruling
September 4, 1997; U.S. Supreme Court refuses to grant a stay of enforcement of Proposition 209 pending the Court's consideration of granting a review of the lower court order.
Anti-Affirmative Action Legislation Entitled, "Civil Rights Act of 1997," Introduced In 105th Congress
On June 17, 1997, just days after President Clinton's announced "Initiative on Race," Senator Mitch McConnell (R-KY) and Representative Charles Canady (R-FL) introduced "The Civil Rights Act of 1997." The bill, S. 950 and H.R. 1909 , is almost identical to the sweeping anti-affirmative action legislation introduced in the 104th Congress by then-Majority Leader Robert Dole (R-KS) and Rep. Canady. That legislation, referred to as "The Equal Opportunity Act of 1995" by its s upporters, never made it to the floor of the Senate or House for a vote before the 104th Congress adjourned.
At a press conference introducing the bill, Sen. McConnell expressed his contention that affirmative action "practices and programs serve to divide, rather than unite." He added, "There are no winners in a world of government-sponsored set-asides and quotas....The Civil Rights Act of 1997 is the next step in our nation's struggle to overcome discrimination and to achieve unity as a nation of individuals, not groups."
Rep. Canady stated, "President Clinton has called on Americans to transform the problem of prejudice into the promise of unity. He has spoken of our primary allegiance to the values America stands for, calling for us to build one America. The sy stem of race and gender preferences stands as a massive impediment to a united America in which all Americans are treated as individuals who are equal in the eyes of the law."
Affirmative Action in the House of Representatives
Oversight Hearing on Civil Rights Division of the Department of Justice
The first hearing addressing issues relating to affirmative action in the 105th Congress came on May 20, 197, prior to introduction of H.R. 1909, when the House Subcommittee on the Constitution held an oversight hearing on the Civil Rights Division of the Department of Justice. The House Subcommittee on the Constitution is chaired by Rep. Charles Canady (R-FL), the chief sponsor of anti-affirmative action legislation in the House. The Civil Rights Division is the agency within the Department of Justi ce responsible for enforcing federal civil rights laws. The Division covers a variety of issues ranging from hate crimes and voter registration to some educational issues and federal affirmative action programs.
The hearing heard testimony by three panels. Testimony was given both by witnesses who defended the Department of Justice on its protection of affirmative action policies in various institutions as well as witnesses who believe officials at the Depart ment of Justice are supporting discrimination by defending policies that grant "preferential treatment."
Testifying on the first panel was Isabelle Katz Pinzler, Acting Assistant Attorney General who heads the Civil Rights Division. Ms. Pinzler noted:
"While some may disagree about the wisdom of some of the particular provisions we enforce, or about the efficacy of some of the remedies courts have ordered to redress violations of these provisions, I believe that all will agree that discrimination ba sed on race, color, religion, sex, national origin, disability, familial status and other factors continues to be a serious problem in far too many areas of American life."
Speaking specifically about affirmative action, Ms. Pinzler said, "We defend those programs that are narrowly tailored to serve the government's compelling interest in redressing the effects of past or present discrimination in the federal workplace."< /P>
On the second panel, Michael A. Carvin, a former Reagan Administration official and attorney in the firm Cooper & Carvin, defended Proposition 209, the voter-based initiative that ended all affirmative action programs for women and people of color in the state of California. Mr. Carvin expressed his belief that the Justice Department's challenge of Proposition 209 in the Ninth Circuit represented a government agency practicing racial discrimination. He stated, "The Civil Rights Division thus seek s to erect a discriminatory, dual political regime, where "minority" groups have a right to veto state efforts at nondiscrimination and urge state-mandated discrim-ination against others, but non-minorities are deprived of a right to even urge an end to discrimi-nation against themselves."
On the third panel, Weldon H. Latham, attorney with the firm Shaw, Pittman, Potts & Trowbridge, defended affirmative action by talking about the extensive evidence of continued discrimination against women and people of color. In his testimony, Mr . Latham noted a study conducted by the Urban Institute of Washington, D.C. that identified at least two types of barriers faced by minority firms seeking to perform government contracts: (1) barriers to business formation, development and growth, and (2) barriers to participation in the government procurement process itself.
The study entitled, "Do Minority-Owned Businesses Get A Fair Share of Government Contracts?" found that women and minority-owned firms received only 29 cents and 57 cents, respectively, for every dollar they would have been expected to receive given their ability to perform the work. While the pattern of disparity across industries varies by racial and ethnic group, the median disparity figures calculated by the Urban Institute demonstrate significant disparities for all ethnic groups in every industry.
Hearing on Civil Rights Act of 1997
On June 26, 1997, the House Judiciary Subcommittee on the Constitution began hearings on the so-called "Civil Rights Act of 1997" (H.R. 1909). As noted above, the bill is similar to anti-affirmative action legislation introduced in the 104th Cong ress. If enacted, the bill would:
- effectively overturn three decades of Supreme Court decisions regarding affirmative action. Indeed, by eliminating affirmative action remedies entirely, it embraces a position rejected by seven of the nine justices in the 1995 Supreme Court Adaran d Constructors Inc., v. Pena decision.
- eliminate Executive Order 11246, which has been one of the most successful and effective civil rights programs. The Nixon Administration amended the Order to require federal government contractors to make "good faith efforts" to achieve mod est goals toward including workers of color in their workforces. The purpose of the Executive Order program, which was later expanded to include women workers, is to break down the "old boy network" and open the doors of opportunity to qualifie d workers who were previously excluded. Business leaders suggested the use of goals and timetables because they knew that management-by-objectives is effective and produces results.
- prevent federal agencies from entering into consent decrees employing race-conscious remedies even in instances of proven, intentional discrimination. These remedies were developed to address longstanding exclusionary practices by employers and union s which had not yielded to lesser measures.
In opening remarks, Rep. Canady, Chairman of the Subcommittee, said, "This legislation presents Congress with a stark and unavoidable choice in formulating public policy: either the federal government will treat people equally, without regard to race a nd gender, or it will treat them unequally, by granting preferential treatment to some."
In his opening remarks, Rep. Robert Scott (D-VA), Ranking Minority member on the Subcommittee, pointed out the chilling effect the elimination of affirmative action programs has had on institutions of higher learning in Texas and California, where affi rmative action programs already have been eliminated. He stated, "... we must ask the opponents of affirmative action if they have achieved their goals when only 10 African Americans are in this year's admitted class at the University of Texas Law School ; down from 65 last year? Are we surprised [at] reports that none of these ten applicants has expressed an interest in coming to the re-segregated University of Texas?"
The hearing heard from three panels. The first panel consisted of several Members of Congress who voiced their support of and opposition to the bill. Senator Mitch McConnell (R-KY), sponsor of the companion bill in the Senate (S.950), said, "Racial c lassifications and preferences pit Americans against each other -- African Americans against Hispanic Americans against Asian Americans against Caucasian Americans."
Congresswoman Eleanor Holmes Norton (D-DC) criticized the sponsors of H.R. 1909 for misrepresenting affirmative action programs as "quotas" and failing to recognize the positive effect affirmative action has had on the nation. She observed:
"The careless and undocumented assertion that quotas result from goals and timetables has no basis in fact. The bill's author has not even tried to meet the burden of demonstrating the extent of abuse. He cites no statistical evidence. The usua l anecdotal evidence is unpersuasive, especially when measured against the countless millions of instances of legitimate and systematic use of affirmative action in the workplace and the great strides women and minorities have made only as a result of str ong affirmative action."
Panel II consisted of testimony from several working women. Professor Gail Heroit from the University of San Diego School of Law testified against affirmative action, noting, "[t]he argument is made that preferences are beneficial because they bring " diversity" to campus. Yet I know of no more effective engine for conformity -- the very opposite of diversity -- than the group entitlement mentality that racial and gender preferences have led to on campus."
Karen Narasaki, Executive Director of the National Asian Pacific American Legal Consortium, responded to Professor Heroit's comments on diversity by saying, "[a]ffirmative action has improved the representation of all racial and ethnic groups in law en forcement and other social services which has led to better understanding and cooperation between minority communities and the police, better protection of the community at large, and less friction on all sides."
Professor Susan Prager, Dean and Arjay and Frances Fearing Miller Professor at the UCLA School of Law, testified against the Civil Rights Act of 1997 stating:
"There is...an unreality about creating a structure where we must pretend that the factor of race does not make a difference -- when we know, by our experience, by our regrettable experience, that race does continue to make a difference in our soc iety. Wishing that race does not matter will not make it so; legislating that race is irrelevant in our culture will not create the world of equal access that we all wish had arrived."
On July 9, 1997, the House Subcommittee on the Constitution met to report out the Civil Rights Act of 1997, (H.R. 1909). Participants Congressmen Robert Scott (D-VA), John Conyers (D-MI), Jerrold Nadler (D-NY), and Melvin Watt (D-NC), offered amendmen ts to H.R. 1909.
Among the amendments offered, Congressman Nadler sought to include findings in the bill indicating that inadequate funding for the Equal Employment Opportunity Commission, a federal agency responsible for enforcing some of the nation's anti-discriminat ion employment laws, has resulted in cutbacks in staffing during a period in which the Commission's enforcement responsibilities have increased substantially. An amendment by Congressman Scott would have changed the name of the act from " the Civil Rights Act of 1997" to "The Equal Opportunity Repeal Act." Each amendment was rejected by a 7-5 party-line vote.
On Monday, June 16, 1997 the Senate Committee on the Judiciary held a hearing on "State-Sanctioned Discrimination in America." Testifying were a variety of individuals who alleged they had been adversely affected by state-sanctioned discrimi nation.
One such witness was Randy Pech, general manager and co-founder of Adarand Constructors, Inc. Pech's company was the plaintiff in the Supreme Court's 1995 Adarand v. Pena decision that held federal race-conscious remedial programs target ing government contracts would be subject to "strict scrutiny." Under this standard of review, such programs are constitutional only if they serve a "compelling interest" and are "narrowly tailored" to suit the identified co mpelling interest.
Mr. Pech contended that the Disadvantaged Business Enterprise (DBE) program administered by the Department of Transportation amounts to state-sanctioned discrimination.
He observed, "I would like to see all government agencies start obeying the same laws that the citizens and businesses of the United States must follow. It is illegal and immoral to make decisions based on the race, color, and or gender of an ind ividual. It is time for the government to stop saying, "Do as I say, not as I do.""
Ms. Audrey Rice Oliver, founder and chief executive officer of Integrated Business Relations Inc. offered a different view on affirmative action programs. Her company specializes in computer systems integration and was awarded California's Best Small Business Supplier in 1992 and as California's Best Woman-Owned Business in 1995 by California Governor Pete Wilson.
As evidence of state-sanctioned discrimination, Ms. Oliver pointed to the fact that only 1 percent of the $200 billion dollars the Federal government awards each year in government contracts goes to women-owned firms and only 5.2 percent goes to minori ty-owned firms. Ms. Oliver argued that affirmative action programs were still needed to remedy this form of state-sanctioned discrimination. "Affirmative action tools remain necessary today, Ms. Oliver contended, "because discrimination contin ues to limit opportunities for women and minority business owners who are seeking to enter this country's economic mainstream....[t]he "old boys network" is alive and well; without affirmative action tools, many companies still would not give my company a fair chance to compete."
Senate hearings on the "Civil Rights Act," S. 950, and action on the bill in the full House Judiciary Committee are expected in the Fall.