SPEAKERS CONTENTS INSERTS Tables
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CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE
TUESDAY, MAY 20, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:05 p.m., in Room 2141, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Bob Inglis, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, John Conyers, Jr., and Melvin L. Watt.
Also present: Representative Sheila Jackson Lee.
Staff present: Kathryn Hazeem Lehman, chief counsel; Robert J. Corry, counsel; Brett Shogren, staff assistant; John Flannery, minority special counsel; and Stephanie Goodman, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. This subcommittee will be in order.
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On the outside of the United States Department of Justice building in Washington, it is engraved in stone that, ''The common law is the will of mankind issuing from the life of the people, framed through mutual confidence, sanctioned by the light of reason.''
This subcommittee holds this hearing today to explore whether these lofty sentiments etched in stone on the outside of the building are always harmonious with the activities of the Civil Rights Division housed within the building. This oversight hearing comes at a particularly appropriate time, given that the Ninth Circuit Court of Appeals last month issued a unanimous decision upholding the California civil rights initiative against constitutional attack.
The initiative provides that the State shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. The California civil rights initiative was adopted by the people of California and enshrined the fundamental principles of equal protection of the law into the California Constitution.
Our first witness today argued in Federal court on behalf of the United States of America that the California civil rights initiative violates the equal protection clause of the 14th amendment to the U.S. Constitution. With the California Civil Rights Initiative and other efforts, I believe that we as a people may be poised to move beyond governmental classifications based upon skin color.
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In endorsing the California civil rights initiative, Americans of all races stood together to vindicate the fundamental American truth that all people are entitled to the equal protection of the law.
In any great movement of ideas, there will sometimes be those who cling to the old ways. It is unfortunate that our own Nation's Civil Rights Division has opted to defend the indefensible, a system that denies our people the equal protection of the law to which they are entitled. Eventually, special governmental preferences based upon skin color will come to an end.
The great trend in American history flows toward the breaking down of governmental classifications based upon race. Years from now, I believe when we are looking back at this era, we will wonder why race preferences were allowed to survive as pervasively and as long as they did. We will also look back and wonder why the U.S. Department of Justice took a stand against equal protection of the law.
The work of the Civil Rights Division of the Department of Justice is of critical importance. The Division's task of enforcing the civil rights laws is important to all Americans. The Division deals with rights that are of fundamental significance. I am hopeful that in this hearing today and in subsequent oversight hearings which we intend to conduct, we will be able to play a role in helping ensure that the Division carries out its critical responsibilities in an appropriate manner.
Mr. Scott.
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Mr. SCOTT. Thank you, Mr. Chairman. Today, we have assembled to discuss the Civil Rights Division of the U.S. Justice Department. Many of our witnesses have had to cancel other and previous engagements in order to accommodate the subcommittee. I was hoping that we could reschedule the committee hearing so that they could be accommodated.
For example, Ms. Pinzler had to cancel her participation in an international civil rights conference in Czechoslovakia. It is unfortunate that she could not testify here and participate in that conference, and I am sure that Ms. Pinzler, your contributions will be especially missed, since the civil rights laws of the United States are the envy of the world.
We are the most diverse country on the planet and yet we are also, despite our history, relatively free from the ethnic strife that has paralyzed many other nations. Our success is not based upon any ''can we all just get along'' type of sentiment. Our success is due in large part to our realization that government has a moral and legal obligation to remedy discrimination.
Some of the good sounding things that have passed that look like they are remedying discrimination are actually some of the tools needed to remedy the discrimination. When you remove the tools that we have with some of the 209-type language, we can actually institutionalize discrimination, and I thought that was what we were trying to get away from.
The Civil Rights Division has no shortage of responsibilities. They are charged with protecting all of us from discrimination in housing, voting, employment and education. Despite the fact that a number of complaints in areas of responsibility have increased, the budget of the Civil Rights Division has remained stagnant and I look forward to hearing Ms. Pinzler speak to the issue of her resources.
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If we are going to fight discrimination, we are going to have provided this Division with ample resources to do its job. I hope we will have some additional hearings to help flesh out some of those particular issues.
The focus of today's hearing is on the Civil Rights Division's involvement in affirmative action. I hate to rain on someone's parade when we have the idea suggested that racism no longer lingers and envelops itself in many of our everyday decisions.
The honest truth and awful truth is that this monster still lives and breathes. One needs to look no further than the cases involving Texaco or Circuit City to realize race and gender discrimination still victimize many Americans. We have a simple choice: Remedy discrimination or don't remedy discrimination. It is my belief and hope that it is shared by all of my colleagues that discrimination is an ill that should be remedied.
I am pleased we will have the opportunity to hear from Weldon Latham, the general counsel of the National Coalition of Minority Businesses. He is charged with discussing the recently released Federal regulations on Adarand compliance. I hope, however, that he will also be able to shed some light on why it is that we even have to defend affirmative action.
I am amazed that when we discuss affirmative action in contracting, for example, we are usually talking about two-thirds of the American population requesting only 5 percent of the benefits. Minorities and women comprise about two-thirds of the population, yet their businesses get less than 5 percent of Federal contracting dollars. So when the opponents of affirmative action are arguing against these programs, their problem can best be described as an expression of their extreme disappointment that white males are only receiving 95 percent of Federal contracting dollars.
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We also will hear that testimony from the University of Virginia Law Prof. Pamala Karlan. She has submitted two briefs in the Proposition 209 case, and I will appreciate her explaining why the Department of Justice, in my opinion, has both a legal and moral obligation to challenge Proposition 209 on the basis that it prevents the State from remedying discrimination.
Actions taken in Texas as a result of the Hopwood decision and in California as a result of Proposition 209 give us a peek at what this country will be like without affirmative action. We must ask opponents of affirmative action if they have achieved their goals when only 10 African-Americans are in this year's admitted class to the University of Texas Law School, down from 65 last year. Did they get what they wanted because the UCLA Law School suffered an 80 percent drop in African-Americans included in this year's admitted class, the lowest number since 1970? How far do we have to turn the clock back to appease those who are disgruntled because discrimination is being remedied? I look forward to finding the answers to these questions, Mr. Chairman, and also look forward to the subcommittee holding additional hearings on housing discrimination, police brutality, employment discrimination, contracting discrimination, gender discrimination, and the many other societal problems that continue to prevent millions of Americans from enjoying the opportunities they deserve.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott. On our first panel we will hear from Isabelle Katz Pinzler. She will be representing the U.S. Department of Justice, where she is currently serving as Acting Assistant Attorney General of the United States for Civil Rights.
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Without objection, your testimony will be made part of the permanent record. I would ask that you do your best to summarize your testimony in 5 minutes, although we will not strictly enforce that request.
STATEMENT OF ISABELLE KATZ PINZLER, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Ms. PINZLER. Thank you. I appreciate that. I will do my very best.
Mr. Chairman, members of the subcommittee, thank you for inviting me to discuss the work of the Civil Rights Division and to present the Division's authorization request for fiscal year 1998.
Our Nation's commitment to civil rights is both a hallmark and a measure of our national character. I am deeply honored to lead the very talented, dedicated and hard-working employees of the Division as our Nation strives to live up to its highest ideals.
In recent years, Congress has asked the Division to take on substantial new enforcement responsibilities by enacting legislation to combat church arsons, protect providers of reproductive health services, and redress patterns of police misconduct. Yet our funding has remained essentially flat. We have maintained our effective law enforcement record in these lean times by minding our costs and by approaching our role in the enforcement of the Nation's civil rights laws in the most efficient manner possible.
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We have come a long way in this Nation in trying to bridge the gap between our ideals and the harsh reality of the daily experience of many of our citizens. But more than 40 years after Brown v. The Board, racial prejudice and the corrosive effects of discrimination are still with us. Justice O'Connor, writing for the Supreme Court, recognized the unhappy persistence of both the practice and lingering effects of discrimination.
Today, racial minorities, and in many cases women, still have a harder time renting an apartment, getting a job or obtaining a loan. The unemployment rate for black males is twice as high as it is for white males. College-educated Black, Hispanic and Asian men and women of every race and ethnic background are paid less than comparably educated and trained white men.
Some of the starkest evidence comes from the use of employment testers, where white males receive 50 percent more job offers than minorities with the same qualifications applying for the same jobs.
In the area of government contracting, there has been an extensive documentation of the discrimination faced by minority businesses, including discriminatory lending practices, bonding problems, old boy networks and discrimination by suppliers. Right here in the D.C. Metropolitan Area a study released this year by the Fair Housing Council of Greater Washington confirmed that unlawful discrimination pervades both the rental and home-buying segments of our housing market. Blacks and Latinos routinely encounter discrimination in their search for housing.
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Unfortunately, many places in the country are becoming more segregated, not less, and this is true in education as well, where a recent study documents that more children are being educated in segregated classrooms than two decades ago.
Every day the Civil Rights Division brings cases to redress the results of prejudice and discrimination. We bring our cases after thorough investigation and an examination of the facts in each case. Unfortunately, our cases are rife with examples of overt bigotry, what many of us hoped would be eliminated from our society by now.
Our case against the City of Torrence, CA, for discrimination in their police department, which I understand is a matter of interest to the committee, is a troubling example. I am somewhat constrained in discussing that case since much of the record is under protective order and appeal is pending, but I can talk about what is a matter of public record.
Our Torrance suit was about a police department that was infected by racism. Some white police officers used a code expression, NIT, which stands for ''nigger in Torrance'' to refer to black suspects. A business card soliciting Ku Klux Klan membership was posted on a bulletin board in the police locker room. One white field training officer told a black police training officer trainee that he simply didn't like black people.
Another white field training officer pointed out to a different black officer trainee the difference between ''street niggers'' and ''upstanding black citizens.'' Yet a third often referred to blacks as niggers.
The Department successfully settled this aspect of the claim against the city regarding a racially hostile work environment in the police department and obtained all of the relief sought on that claim.
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Given the discrimination that still exists in today's society, it is not a time to cut back on our efforts to combat it. We need to use all the tools at our disposal to eliminate discriminatory barriers faced by women and minorities and to ensure that every individual has an opportunity to compete on an equal footing. Affirmative action done right is one of those tools.
Much of the debate about affirmative action occurs out of context. We can't forget that it has been used by the courts as remedy to address invidious exclusion from economic, educational and other opportunities of large segments of our population.
Yesterday's Washington Post article describing the droping applications and admissions of minorities at public universities in Texas and California is a disturbing harbinger of what the wholesale elimination of affirmative action may entail. We need to move toward a more inclusive society and not in the opposite direction.
The evidence of discrimination that we see every day is a backdrop of the work we do and the positions we have taken. My written statement summarizes the work of the Division in some detail. Let me now just quickly review the highlights of the Division's work during the past year.
The prosecution of criminal civil rights violations continues to be one of the Division's highest priorities. In fiscal year 1996, the criminal section of the Civil Rights Division brought prosecutions for cross burnings, racial shootings, assaults and arsons and official misconduct such as police brutality among other alleged criminal civil rights violations.
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The Division has also been in the forefront of the Federal Government's extraordinary efforts to combat fires at black churches and other houses of worship across the country. Along with officials from the Department of Treasury, the Division's prosecutors have played leading roles within the National Church Arson Task Force and have directed the Government's efforts to investigate or prosecute those responsible for these heinous crimes.
Fair housing, the right to live where one wants within one's financial means, lies at the heart of the American dream. Yet far too long invidious discrimination in the housing market has prevented many Americans from turning that dream into a reality. We have focused the resources of our housing section on broad-based patterns of practice cases that address systemwide discrimination in the housing market.
Just last month, for example, we settled the last of a set of eight cases in Florida involving a total of more than 1,500 rental units in the Miami/Boca Raton area where we had developed strong evidence of discrimination against blacks and families with children.
One of the fundamental missions of the Civil Rights Division is to enforce the Voting Rights Act and to ensure that all Americans enjoy a full and effective right to vote free from discrimination. As part of that effort, we also vigorously are enforcing the National Voter Registration Act, which has resulted in the registration of millions of new voters.
The Civil Rights Division has made great strides in implementing the Americans With Disabilities Act. We have promoted voluntary compliance with the ADA by providing technical assistance regarding the act's requirements and engaging in extensive outreach efforts. We have also achieved many of our most important successes without having to resort to litigation. Since 1990, the Division has reached voluntary agreements with businesses and local governments in more than 500 matters.
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The Civil Rights Division is responsible for enforcement of Title VII of the Civil Rights Act of 1964 with respect to State and local governments. Title VII prohibits discrimination in employment. We have obtained relief totaling $14.25 million for approximately 1,400 victims of discrimination since the beginning of 1996.
The Civil Rights Division remains committed to eliminating vestiges of segregation in elementary and secondary education, as well as State institutions of higher education. We continue to challenge the discriminatory vestiges of separate higher education systems in Mississippi, Alabama, and Tennessee, and we continue to seek gender equality in cases involving VMI and the Citadel. We are very pleased that so many young women have applied to be admitted to these schools.
The Division enforces important rights under the Civil Rights of Institutionalized Persons Act. Recently, we have focused on nursing homes and juvenile correction institutions while continuing our efforts regarding prisons, jails and institutions for persons mentally retarded or mentally ill.
In 1994, the Congress gave us authority to bring litigation to remedy patterns or practices of police misconduct. We recently obtained court approval of our settlement with the City of Pittsburgh, PA, which establishes a comprehensive program for ensuring police integrity.
The Division has also participated in the review of the Federal Affirmative Action Program that has been conducted by the Office of the Associate Attorney General. This was a comprehensive review to ensure that those programs that take race into account in decisionmaking are supported by a compelling interest, and are narrowly tailored to serve that interest. In addition to the proposed regulations reforming Federal procurement programs, we proposed that regulations reforming Federal procurement programs were recently published for comment in the Federal Register.
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Also in the realm of affirmative action, the Division, as has been noted, filed in the ninth circuit an amicus brief in the litigation challenging the constitutionality of proposition 209 in California. In that brief, we argued that applicable Supreme Court precedent compelled the conclusion that proposition 209 violated the equal protection clause of the 14th amendment by improperly burdening the ability of minorities and women to obtain, through the political process, measures specifically designed to overcome the special condition of prejudice. While the panel of three judges upheld the constitutionality of that proposition, a petition for rehearing, which we have supported with an amicus brief, is pending.
Before I close, let me just clarify the record on police testing, which I know you also have some interest in.
Some people mistakenly believe that the Justice Department has developed a model test for police officer hiring that eliminates any measure of cognitive abilities and that we are going around the country forcing police departments to use this test.
None of this is true. In the Nassau County case, nationally recognized experts selected by the Department and the county developed a test jointly with the police department by examining those characteristics that make a good police officer as identified by the police department itself. This test includes a cognitive aspect testing reading comprehension, but it also tests other traits, such as flexibility, cooperation and teamwork, that are elements of good police work.
It turns out that by doing this, you can better predict job performance than by using a test with cognitive abilities alone, and you also significantly reduce, though unfortunately not eliminate, the adverse impact of the test on minorities.
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Mr. Chairman and members of the subcommittee, I hope this overview is helpful to your understanding of the work of the Civil Rights Division. I am pleased to answer any questions you may have.
[The prepared statement of Ms. Pinzler follows:]
PREPARED STATEMENT OF ISABELLE KATZ PINZLER, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE
Mr. Chairman and Members of the Subcommittee, thank you for giving me the opportunity to appear before you today to discuss the important work of the Civil Rights Division and to present the Division's authorization request for Fiscal Year 1998. As I am sure you will agree, our Nation's commitment to civil rights is both a hallmark and a measure of our democratic ideal.
The Civil Rights Division has requested $67,447,000 for Fiscal Year 1998. This request represents a modest increase over the Division's 1997 request. In recent years, as the Division's funding has remained essentially flat, Congress has enacted legislation that has expanded our enforcement responsibilities to include the investigation and prosecution of crimes related to church arsons, the protection of women and health care providers who seek access to reproductive health care facilities, and the redress of patterns and practices of police misconduct. Despite this statutory expansion of our responsibilities, we have maintained an effective enforcement program by minding our costs and by approaching our role in the enforcement of the Nation's civil rights laws in the most efficient manner possible.
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As you know, the Civil Rights Division is the primary agency within the federal government charged with the enforcement of federal civil rights laws. The Division's authority derives both from federal statutes and from formal delegations from the Attorney General. Many of the laws we enforce originated here in this Subcommittee. 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 based 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.
The Civil Rights Division will continue to enforce the Nation's civil rights laws as effectively as our resources permit. The Division will continue to speak out about discrimination in this country and to bring to the public's attention national concerns relating to race, gender and disability. The Division will continue to do all it can to advance equality, opportunity and fair play for all Americans.
Specifically, the Division's work will continue to focus on:
Prosecuting hate crimes that result in serious injury or death;
Investigating arsons at houses of worship and prosecuting those responsible;
Addressing the problem of police misconduct through education, cooperative initiatives and, where necessary, prosecutions and lawsuits;
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Ensuring the safety of patients and health care professionals who seek access to, or provide services in, women's reproductive health facilities;
Promoting compliance with the Americans with Disabilities Act by educating citizens, businesses, and state and local governments about its requirements and using the full range of the ADA's enforcement tools where voluntary compliance with those requirements cannot be achieved;
Ensuring that the right to vote is fully protected and that the National Voter Registration Act is fully implemented;
Evaluating—and, as necessary, modifying or suspending—federal affirmative action programs to ensure that they satisfy the Supreme Court's most recent interpretation of the Constitution's requirements, and defending programs that are consistent with the law but nevertheless come under challenge;
Enforcing fair housing and fair lending laws to ensure the equal access of all to housing and the means to obtain it;
Enforcing equal employment laws to ensure that state and local governments do not engage in unlawful employment discrimination; and
Working to ensure that all students receive equal educational opportunities without regard to race or gender.
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With this background, I would like to review some of the highlights of the Division's work during the past year.
CRIMINAL
The prosecution of criminal civil rights violations continues to be one of the Division's most active practice areas and one of its highest priorities. In Fiscal Year 1996 alone, the Criminal Section of the Civil Rights Division reviewed more than 11,000 complaints, and brought 79 new criminal cases, involving hate crimes, official misconduct such as police brutality, and other alleged criminal civil rights violations. In fiscal year 1995, we brought a record number of 83 new criminal civil rights cases.
Throughout FY 1996, and continuing to this day, the Civil Rights Division has been at the forefront of the federal government's extraordinary efforts to address the troubling number of fires that have occurred at black churches and other houses of worship across the country. Along with officials of the Department of the Treasury, the Division's prosecutors have played leading roles within the National Church Arson Task Force and have directed the government's efforts to investigate and prosecute those responsible for these heinous crimes.
The Attorney General has made it clear that she views hate crimes as one of the most important law enforcement challenges facing our Nation today. Working in collaboration with the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco and Firearms, and other federal, state and local law enforcement agencies, the Civil Rights Division will continue to lead the government's fight against these despicable crimes.
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HOUSING AND PUBLIC ACCOMMODATIONS
Fair housing—the right to live wherever one wants within one's financial means—lies at the heart of the American dream. Yet for far too long, invidious discrimination in the housing market has prevented many Americans from turning that dream into reality. With alarming frequency, unlawful discrimination pervades both the rental and the home-buying segments of the housing market. A study released this year documented the magnitude of this problem here in the metropolitan area surrounding our Nation's capital. The Fair Housing Council of Greater Washington issued a report—based on extensive testing, by which pairs of equally qualified applicants of different races or national origins apply for housing at the same location under similar circumstances—indicating that in 1997 blacks will encounter discrimination 44% of the time in their search for rental housing and 33% of the time in their attempts to purchase a home. According to the report, Latinos will encounter discrimination 37% of the time in their search for rental housing and 42% of the time in their attempts to purchase a home.
We have stretched the limited resources of our Housing Section by focusing the Section's energies on broad-based ''pattern and practice'' cases that address system-wide discrimination in the housing market. The Division has developed a significant number of precedent-setting pattern and practice cases through the use of its recently created testing program, which has enabled the Division to root out and prove countless examples of discriminatory housing practices that otherwise might have gone undetected or unpunished. Just last month, for example, we settled the last of a set of eight cases in Florida involving a total of more than 1500 rental units in the Miami/Boca Raton area. Our testing program developed strong evidence of discrimination against blacks and families with children and enabled us to achieve this important settlement.
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The Civil Rights Division also continues to confront unlawful discrimination in other fundamental areas of the housing market, such as lending and insurance. In January, we filed suit against a bank in New Mexico for discriminating against Latino applicants for mobile home purchase loans. In March, we settled a major lawsuit against a national insurance company in which we alleged that the company used discriminatory underwriting practices to limit the availability of homeowners insurance to residents of minority neighborhoods. The changes that the insurance company agreed to make will create new business opportunities and, thus, are fully consistent with sound business practices in the insurance industry.
VOTING RIGHTS
One of the most fundamental missions of the Civil Rights Division is to enforce the Voting Rights Act and to ensure that all Americans enjoy a full and effective right to vote, free from discrimination.
Today is election day in Mississippi. Across the state, voters are participating in runoff primaries in Mississippi's cities and towns, and our attorneys, together with federal observers appointed under the Voting Rights Act, are there to ensure that no one's right to vote is denied or abridged. Two weeks ago, at the first primary, we discovered that in some Mississippi municipalities, properly registered black voters were not permitted to vote, or were required to cast affidavit ballots, because their names were not transferred from the county voters list to the city list, as required by a 1987 federal court order. Altogether, in Fiscal Years 1996 and 1997, we have sent 796 federal observers to monitor voting in ten states in addition to Mississippi.
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Under Section 5 of the Voting Rights Act, the Division reviewed 4,727 submissions containing 19,432 changes of voting practices and procedures in FY 1996. Each proposed voting change received our individual attention, to make sure that discriminatory changes were not implemented. In a major decision, on March 31, the Supreme Court unanimously agreed with us that Mississippi's decision to limit National Voter Registration Act (NVRA) voters to participation in federal elections involves changes in voting practices and procedures subject to Section 5 review. Of all the states, Mississippi alone excludes NVRA voters from participation in state and local elections.
Last week, in a case involving a school board redistricting plan for a Louisiana parish, the Supreme Court clarified the legal standard under Section 5, rejecting the United States' argument and emphasizing that Section 5 was designed to block voting changes that would make minority voters worse off. The Court, however, agreed with us that evidence of the dilutive effects of a voting change is relevant to determining whether the change has a discriminatory purpose in violation of the Voting Rights Act.
The Division is vigorously enforcing the National Voter Registration Act (NVRA), which has resulted in the registration of millions of new voters. With the constitutionality of the act firmly established, our emphasis has shifted to ensuring that states fully comply with the law's requirements. Our litigation has brought six states into compliance (California, Illinois, Michigan, Pennsylvania, South Carolina, and Virginia). In addition, we have negotiated a consent decree with Vermont moving its date of compliance up from 1999 to 1996, and we have filed suit against the State of New York to remedy the state's failure consistently to offer voter registration opportunities required by the NVRA.
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Finally, under new standards enunciated by the Supreme Court, we are vigorously defending minorities' voting rights from unfair attacks regarding the use of racial factors in redistricting. Recently, a federal court in South Carolina found, as we had urged, that two majority-black state legislative districts were constitutional under the Supreme Court's most recent decisions. And a federal court in Louisiana upheld the constitutionality of a majority-black parish council district drawn to remedy a violation of Section 2 of the Voting Rights Act.
DISABILITY RIGHTS
The Civil Rights Division has made great strides in implementing the Americans with Disabilities Act (ADA), a comprehensive law that Congress enacted to protect the fundamental rights of persons with disabilities. The Division enforces the ADA's provisions prohibiting discrimination against people with disabilities in public employment, government services, and places of public accommodations. Enacted in 1991 with strong bipartisan support, the ADA affects 6 million businesses and non-profit agencies, 80,000 units of state and local government, and 49 million people with disabilities.
We have promoted voluntary compliance with the ADA by providing technical assistance regarding the Act's requirements and engaging in extensive outreach efforts. Major initiatives include the operation of a toll-free ADA Information Line through which we receive more than 75,000 calls per year, the opening of a new ADA website on the Internet, the placement of an ADA Information File in 15,000 local public libraries throughout the country, and the production of ADA public service announcements for radio and television featuring Attorney General Janet Reno.
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We have been extremely successful in our enforcement of the ADA, and we have achieved many of our most important successes without having to resort to costly litigation. Since 1990, the Division has reached voluntary agreements with businesses and local governments in more than 500 matters involving the rights of persons with disabilities. Some of our voluntary agreements have included the following important advances:
For the first time in the history of the Olympic Games, disabled spectators at the 1996 Games in Atlanta were able to sit with their families and friends in Olympic Stadium—the most accessible stadium in the world, and a model for all other newly constructed stadiums—and watch all of the action, even when fans in front of them stood up to cheer.
For the first time, people in Chicago, Los Angeles, and elsewhere in California who have speech and hearing impairments now are able to communicate effectively with 9–1–1 operators and to obtain emergency assistance, a service so essential that we aim to make it available to all people with disabilities throughout the country.
For the first time, grocery shoppers who use wheelchairs now are able to gain access to the stores of a major national supermarket chain.
And for the first time, disabled customers of a national movie theater chain are no longer required to sit in the back row because of unnecessary impediments to access.
All of these accomplishments have been achieved through voluntary agreements. All should serve as models that other businesses, local governments and places of public accommodations should strive to match.
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EMPLOYMENT DISCRIMINATION
The Civil Rights Division is responsible for enforcing Title VII of the Civil Rights Act of 1964 with respect to state and local governments. We have authority to bring lawsuits involving either individual acts of employment discrimination or patterns and practices of discrimination. Because we try to focus our limited resources on cases that will have the greatest systemic impact, we have sought to increase the number of ''pattern and practice'' cases in our caseload. Since January 20, 1993, we have brought 59 new lawsuits alleging employment discrimination. We have obtained relief totaling $14.25 million for approximately 1400 victims of discrimination since the beginning of 1996.
One of the Division's most significant recent achievements in this area was the resolution of a disparate treatment case against the Arkansas Department of Corrections by consent decree. As the result of our suit, the Department of Corrections has eliminated its policy of excluding women from most jobs in male inmate facilities. Under the terms of the decree, the Department of Corrections will establish a $7.2 million back pay fund for victims and will hire up to 400 of them with full seniority and pension benefits.
Other employment discrimination matters successfully concluded by the Division within the past year include a case involving a major state university's discriminatory denial of tenure to a female professor, several religious accommodation cases, and cases involving racial and sexual harassment in the workplace.
The Employment Litigation Section also has been involved recently in the defense of a variety of federal affirmative action programs. Consistent with the Supreme Court's decision in Adarand Constructors v. Peña, 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. Currently, the Administration is carefully reviewing all of the federal government's affirmative action programs to ensure that they remain warranted and that they are carefully tailored to satisfy their limited purposes. The Supreme Court expressly rejected the notion that the strict scrutiny required by Adarand is ''strict in theory, but fatal in fact,'' and it made clear that affirmative action still is warranted in certain circumstances to overcome the ''unfortunate reality'' of racial discrimination in our Nation.
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EDUCATIONAL OPPORTUNITIES
The Civil Rights Division continues to be committed to eliminating vestiges of segregation in elementary and secondary education as well as in state institutions of higher education.
The Division monitors cases involving approximately 500 school districts located in states that formerly had de jure segregation. During this past year, we considered many motions filed by school systems to be declared unitary and to have the cases against them dismissed. For example, we participated in a three-week hearing on the State of Missouri's request to have the St. Louis school desegregation case dismissed. A decision in that case is still pending. In other cases, such as the desegregation cases in St. Lucie, Florida, and Mobile, Alabama, we supported the districts' motions for dismissal.
In addition to our cases involving racial discrimination in educational opportunities, we have pursued several cases to enforce the rights of language minority students. The Division brings these cases to ensure that school districts are meeting their obligations to provide appropriate services to non-English speaking and limited–English speaking students.
We also continue to seek gender equity in cases involving VMI and The Citadel. We are pleased that with gender barriers now gone, many young women have applied and been admitted to these schools. Indeed, the case involving The Citadel has a hearing scheduled for this week regarding the way in which the school will assimilate women for the coming school year.
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SPECIAL LITIGATION
The Civil Rights Division, through our Special Litigation Section, continues to enforce the important rights protected by the Civil Rights of Institutionalized Persons Act (CRIPA). In addition, the Special Litigation Section has civil enforcement responsibilities for the Freedom of Access to Clinic Entrances Act, and for the prevention of patterns or practices of police misconduct.
We have used our CRIPA authority to remedy the most egregious conditions in our Nation's public institutions. Recently, we have focused on nursing homes and juvenile correctional institutions, while continuing our efforts regarding prisons, jails and institutions for persons who are mentally retarded or mentally ill. We work closely and cooperatively with states and localities. Our recent achievements include settlements on the remedies needed for mental retardation facilities in Tennessee, Virginia and Wisconsin, juvenile facilities in Kentucky, and the Montana State Prison. But where cooperative efforts fail, we have been obliged to file suit, and in recent months we have done so against both Arizona and Michigan to address sexual misconduct and other problems in their prisons for women.
Our efforts in correctional settings have been guided by the Prison Litigation Reform Act. We have defended challenges to the Act's constitutionality and have ensured that the relief we seek fits the Act's mandates. We also have reviewed our docket to ensure that court orders remain in place as long as necessary—but only as long as necessary. For example, we recently agreed with California that it was time to end long-standing court supervision in our case concerning a state prison medical facility because sufficient improvements had been made during the life of the consent decree.
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In 1994, Congress gave us authority to bring litigation to remedy patterns or practices of police misconduct. We have used that authority carefully to focus on serious, systemic problems in law enforcement. And when we have found problems we have worked closely to resolve them completely without impeding legitimate efforts to control crime. We recently obtained court approval for our settlement with the City of Pittsburgh, Pennsylvania, which establishes a comprehensive program for ensuring police integrity.
Our cases under the Freedom of Access to Clinics Act deal with physical obstructions and threats of force aimed at persons seeking to obtain or provide reproductive health services. The injunctions we obtain address the unlawful conduct without interfering with First Amendment rights.
COORDINATION AND REVIEW
The Civil Rights Division plays a lead role in coordinating the government's efforts to combat unlawful discrimination by recipients of federal funds. Federal law prohibits programs funded by federal tax dollars to allow or foster discrimination, and we have worked hard to reinvigorate these laws as passed by Congress. The Coordination and Review Section of the Civil Rights Division is responsible for coordinating the government—wide enforcement effort to prohibit discrimination in programs and activities that receive federal financial assistance.
OFFICE OF SPECIAL COUNSEL FOR UNFAIR IMMIGRATION RELATED EMPLOYMENT PRACTICES
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The Civil Rights Division continues its relatively recent role of fighting unfair immigration-related employment practices—protections provided in the 1986 Immigration Act intended to balance the new employer sanctions for knowingly hiring illegal workers. The Office of Special Counsel carries out these responsibilities through an administrative enforcement program, and through litigation in federal court. Emerging public awareness and debate over the issue of illegal immigration underscores and heightens the need of the Civil Rights Division to remain vigilant in its protection of the rights of lawful immigrants.
Although amendments last year to the immigration law are expected to have an impact on the enforcement of the document abuse provisions of the statute, the Office continues to play an important role in ensuring that persons entitled to work in this country will not be subject to discrimination based on national origin or citizenship status. This role is carried out primarily through the processing of charges of discrimination and the initiation of independent investigations of patterns or practices of discrimination. Where such charges lead to meritorious findings of discrimination by the Special Counsel, actions are taken to correct and remedy the violation.
The Office of Special Counsel also maintains a vigorous public education program that is designed to inform both employers and potential employees of their rights and obligations under the law. Through the use of employer and employee ''hot lines,'' we are able to answer thousands of calls each year seeking information on the requirements of the Immigration and Nationality Act. As in our Disability Rights Section, sharing this information with the public is an effective means of stretching our limited enforcement resources.
Mr. Chairman, and members of the Subcommittee, I hope that this overview is helpful to your understanding of the work of the Civil Rights Division. I would be pleased to answer any questions that you may have.
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Mr. CANADY. Thank you, Ms. Pinzler. I wanted to follow up on the subject of the test that you just mentioned.
Now, you indicated that the test developed for Nassau County does not eliminate a cognitive element. Describe the cognitive element in that test?
Ms. PINZLER. There is a section of the test that tests reading comprehension.
Mr. CANADY. What does it take to pass that section of the test on reading comprehension?
Ms. PINZLER. That section of the test is on a pass-fail basis, and it is based on the level at which successful police officers in the Nassau County Police Department, police officers performing successfully, performed. In other words, if people are performing successfully, the department could pass at that level.
Mr. CANADY. Is it true that to pass that reading test, an applicant need only score as well as the lowest 1 percent of incumbent police officers in the department?
Ms. PINZLER. Yes, but also keep in mind, this is a highly educated police department. In order to be in this police department, you have to have at least a year of college. Many of the incumbent officers have a bachelor's degree and beyond that. Every one of these officers passed the Police Academy. This is a very highly educated group.
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When you talk about the bottom 1 percentile, you are not talking about the range of population, but a highly educated group.
Mr. CANADY. Did you say all of the members of the department have a year of college?
Ms. PINZLER. Yes, it is a requirement. Thirty-two college credits is a requirement.
Mr. CANADY. Let me ask you, if you can fail the cognitive portion of the test and still pass the test based on the other elements in the test?
Ms. PINZLER. No.
Mr. CANADY. So you have to——
Ms. PINZLER. Pass-fail. You have to pass.
Mr. CANADY. OK. So you are asserting here that for passing the test overall, you must pass the part of the test that deals with the reading comprehension?
Ms. PINZLER. Yes.
Mr. CANADY. That is contrary to other information I have seen. If you are not certain about your answer, I hope you will qualify it.
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Ms. PINZLER. I am certain.
Mr. CANADY. You are certain that that is the case.
Ms. PINZLER. Right.
Mr. CANADY. OK.
Ms. PINZLER. Let me also mention that this test is one of the most valid predictors of success on the police force that we have seen. We haven't seen a more valid one. Putting more cognitive elements onto this test does not make it any better predictor of performance on the force.
Mr. CANADY. If this is such a good test, why aren't you using it as a model in other places if you were quick to disclaim any interest in using it as a model? If it is so predictive, there is a dispute about that. Obviously, we are going to hear from others later who have a different idea about that. If that is the case, why don't you use it as a model elsewhere?
Ms. PINZLER. First of all, one size does not fit all in police tests. You can't just automatically take a test from one jurisdiction to another.
Mr. CANADY. Why is that so?
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Ms. PINZLER. Because there may be different elements in the job, there may be different priorities in a different department, different types of communities, larger, smaller, statewide or urban. You may have very different kinds of applicant pools. This was a very highly educated applicant pool, as I mentioned. But, to follow on what you are suggesting, we would certainly like to see other departments start to use tests that, like this, have elements that measure personality factors as well as traditional cognitive factors, because we think it provides better police officers.
Mr. CANADY. Let me relate this to the City of Torrence case which you touched on as well. You described some circumstances involving the City of Torrence. We are going to hear from a representative of the City of Torrence. Let me focus specifically on the Department's challenge to the test used by the City of Torrence.
Didn't the Department recommend the use of the Nassau County test or any other test as an alternative for the tests that were used by the City of Torrence?
Ms. PINZLER. I don't believe we recommended any alternative.
Mr. CANADY. Why did the department not recommend an alternative?
Ms. PINZLER. It is funny you should mention that. That is exactly what police departments have been saying to us for years. We have had this enforcement authority since 1972.
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Mr. CANADY. Let me clarify the question. Not only why did the Department not recommend an alternative to the police department, but why did the Department not establish that there was an alternative in the court case?
Ms. PINZLER. This has been a work in progress. It started in 1990 and it has taken a long time to develop. In order to properly develop a test, it involves running field tests, in effect, giving the tests to incumbent officers whose performance has been evaluated by the Department itself. This particular test was not ready——
Mr. CANADY. Let me ask you why the Department recommended—neither recommended nor established an alternative in the court case?
Ms. PINZLER. Well, again, this is something we have been severely criticized for in the past and the whole reason we launched on it, and it is going back, by the way, to the mideighties under Brad Reynolds, it was the beginning of attempts to do that very thing; to come up with some kind of alternative. You know the old commercial, ''what is a mother to do,'' what is a police department to do? This is part of that ongoing effort.
Mr. CANADY. But isn't it a part of proving your case in litigation such as this, establishing that there is an alternative that would meet the needs of the city, but which would not have the adverse impact or would not have adversely impacted at the same level? If you don't establish it as an alternative, how can you expect to prove your case? Of course, the judge found you didn't prove your case.
Ms. PINZLER. The first prong is to show the impact, the second prong is for the question of validity, is the test valid or not. In the case of Torrance, the judge found that the test was valid. In a lot of instances judges don't. That is the end of that.
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Let me say we disagree with that finding.
The third prong is, yes, to suggest a less discriminatory alternative that will serve the employer as well. While the Torrance case was going on, this test was under development. It was not ready yet.
Mr. CANADY. You didn't know of any test at that point. Why would you go forward with a case if you couldn't prove that element? Let me ask you furthermore, why would you challenge the tests that were being used by the City of Torrence when the Department had approved the use of identical tests in other municipalities in the State of California? Had the Department——
Ms. PINZLER. No, actually I believe you are referring to El Monte. We had not approved the use of this test in El Monte. We didn't challenge it there.
Mr. CANADY. Let me ask you a question: Had the Department ever approved in any other jurisdiction the use of tests identical to the tests that were used in the City of Torrence, any of the tests used in the City of Torrence?
Ms. PINZLER. I don't know. I am not aware of it. I would have to get back to you on that.
Mr. CANADY. I think I have exceeded my time. Mr. Scott.
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Mr. SCOTT. Thank you, Mr. Chairman. Ms. Pinzler, in your written testimony you talk about the study of the Fair Housing Council in the Washington, DC, area. Can you go into a little detail about how rampant housing discrimination is in this area?
Ms. PINZLER. I read that study some time ago, but my understanding is that what is true in Washington is something that is true across the country, which is that housing segregation is very rampant. That when blacks and whites go to real estate agents, they are steered to very different neighborhoods, very different areas. Blacks and Hispanics will not be shown the same kinds of houses and apartments in the same neighborhoods that whites are shown. When they request to see specific houses or apartments that they may have read about, they are told that they have already been rented, and then an hour later a white person comes along and asks for the same apartment, they are told it is available.
It is a rampant problem.
Mr. SCOTT. Now, have you found the same discrimination in employment?
Ms. PINZLER. Yes. The testing in the employment area, pair testing, we use the word testing a lot, I have to say what kind of testing, pair testing in the employment area is a fairly recent development. The same sort of situation has been found. You send people with resumes that indicate virtually identical qualifications, and the white men get 50 percent more job offers than the minorities get.
Mr. SCOTT. If you found someone guilty of discrimination, of a finding of discrimination, how do you remedy this if Proposition 209 is in effect in a State?
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Ms. PINZLER. Well, one way you wouldn't be able to remedy it would be with any form of affirmative action. That is one of the problems with Proposition 209. You may have proven discrimination and the need for a remedy, which would clue a race-conscious or gender-conscious remedy, one that would be fully constitutional under the equal protection clause and fully legal under Title VII of the Civil Rights Act, and you wouldn't be able to do it.
Mr. SCOTT. Would there be any effective remedy under 209? Can you think of any way of recommending it without having to wait and catch the person red-handed discriminating again?
Ms. PINZLER. Well, obviously you would do your best to try and come up with other forms of remedies, financial compensation, rightful place seniority. The fact of the matter is that has been frequently shown in the past that those types of remedies, while they are helpful, don't really solve the problem.
Mr. SCOTT. In the police area, because of your limited resources, how many police departments do you have credible complaints about that you are not able to investigate or are not fully investigating because of lack of resources?
Ms. PINZLER. I would have to get back to you with that figure.
[The information never provided:]
Mr. SCOTT. Is police brutality still a significant issue in the Division?
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Ms. PINZLER. Yes, it is one of our new areas of jurisdiction, as I mentioned, and we have a unit in our Special Litigation Section, which is just starting to work on that area and has investigations in a number of cities, and, as I mentioned, had its first major settlement with Pittsburgh back in February, I believe.
Mr. SCOTT. All right.
Ms. PINZLER. Let me say that is one of the reasons we think it is important to have tests that get you the best possible police officers, to hopefully avoid some of these problems in the future.
Mr. SCOTT. What other increased responsibilities do you have that are taxing your resources?
Ms. PINZLER. We have the new area of FACE enforcement, Freedom of Access to Clinic Entrances, both on the civil side and the criminal side, and we didn't get any additional resources for that. We have the ADA, which has just burgeoned—that whole area of our work is huge and getting bigger. A big element of that is technical assistance in addition to litigation.
Mr. SCOTT. Back quickly to 209, the case law on measures like 209, if you eliminate legal remedies, what has happened in the Supreme Court to those kinds of initiatives?
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Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Ms. PINZLER. With respect to the case that the plaintiffs specifically relied on in challenging Proposition 209, it was the Seattle School District case, that was similar. That was where the court established the principle where you use the categories defined by race to distort the political process and make it more difficult for racial minorities to obtain relief from discrimination, that that violates the protection clause, and that was the main theory under which we were proceeding.
The problem being that it takes the political process to a remote level of government and puts unique obstacles in the place of women and minorities seeking that kind of remedy.
The best example I can give of something like that would be the case of Johnson v. Santa Clara County, which was a Supreme Court case, where the Santa Clara County sought to remedy the fact that they had the inexorable zero, no women, in their road construction crews, and they wanted to do affirmative action to correct that problem.
They set up an affirmative action program which was ultimately approved by the Supreme Court. Under Proposition 209, it would no longer be possible for Santa Clara County to have that sort of remedy in place. They simply wouldn't be allowed to have it.
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The other thing I would like to make clear is what is not involved in the challenge to 209, what we have not said. We have not said that a jurisdiction has to have affirmative action programs, they are required to have affirmative action programs, and we have not said that a given jurisdiction can't repeal its affirmative action programs if they decide to for whatever reason.
What we have said is that you can't so distort the process that you make it much more difficult for women and minorities to get programs that favor them more than any other groups, to get programs that favor them.
Mr. SCOTT. How does the Colorado case, referendum, apply to the rationale in 209?
Ms. PINZLER. Well, it is another instance where a court effectively held an initiative or referendum unconstitutional because it totally stripped rights from, in that case, all civil rights from a particular group.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CANADY. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman. The late Justice Thurgood Marshall said something quite interesting in Brown v. Board when he was counsel. He said that governmentally imposed race distinctions are ''so odious that a State bound to afford equal protection of the laws must not impose them.''
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I have played with that sentence to try and get it into the spirit of the day, catch up to the zeitgeist. I have changed it so instead of so odious, they are so desirable that a State bound to afford equal protections of the law must enforce them.
Which of those two do you have sympathy for?
Ms. PINZLER. I, obviously, have sympathy for the former and I would never say that a State must impose any kind of distinctions based on race. I haven't said that and I wouldn't say that. What we have said is that sometimes because of historical and continuing distinctions, historical and continuing discrimination based on race, that it may be necessary as part of the remedy to take race into account.
Mr. HYDE. How long is the history?
Ms. PINZLER. From the beginning of the time of the Republic and before that.
Mr. HYDE. The purpose of my question is to inquire how long the historical discrimination gets to permeate the legal atmosphere. Do we ever reach a stage where your great, great, great, great grandfather's discrimination doesn't affect whether you get into a school or not?
Ms. PINZLER. I certainly hope so. I fervently hope and pray that day comes.
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Mr. HYDE. Have you a prediction?
Ms. PINZLER. I couldn't give you a prediction. It was only 40 years ago that official segregation in all aspects of life was declared unconstitutional, and it was many years after that before some of those formalistic barriers fell. The economic consequences, the educational consequences that have flowed from that are continuing to flow from it and it has some intergenerational aspects to it.
Because I was fortunate enough to be born to a middle-class family, my father was a dentist, I got a jump on anybody who didn't have that kind of advantage. I think that we have to look around and see, just observe the way our society is, and notice that it isn't a colorblind society, however fervently we wish to make it so. We aren't there yet.
Mr. HYDE. Well, do we have to wait for a colorblind society to do away with preferences?
Ms. PINZLER. I would think that we, as long as we continued to have discrimination, current discrimination, ongoing discrimination, that we may need, among other tools, to be able to use race and gender as a factor, a single factor, in decisionmaking, in order to overcome. As Justice Blackmun said, sometimes you have to take race into account to overcome race.
Mr. HYDE. Sure, and I couldn't agree more. But you said current discrimination. Every time there is current discrimination, that is wrong and there should be a remedy. That is a stipulation. But when you start talking historical discrimination, I am just wondering if anyone can ever get out from under that stigma?
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Ms. PINZLER. I am sorry, let me clarify. I don't mean historical discrimination that is absolutely in the past. I mean discrimination that may have continuing effects into the future.
Mr. HYDE. Institutional discrimination is what you are speaking of.
Ms. PINZLER. Right.
Mr. HYDE. OK. One last question. Would you entertain the thought out of your budget of paying attorneys' fees to people who have been taken through the courts and the courts of appeal and ultimately prevail when the courts and the highest appellate court finds that there really was no foundation or basis for your suit?
Ms. PINZLER. Well, the law already provides for that possibility. If we engage in a baseless and frivolous suit and the courts so hold, then the defendants are entitled to attorneys' fees. I might mention there is an attorneys' fees motion pending in the Torrance case. We have opposed that motion. We think they are not entitled to attorneys' fees in this case. Those papers have been sent out.
Mr. HYDE. Thank you.
Mr. CANADY. The gentleman from Michigan.
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Mr. CONYERS. Thank you, Mr. Chairman Canady. We are gathered here in the room in the Congress that has heard more matters concerning civil rights law, constitutional law, than any other place. Ms. Pinzler, you are sitting where a lot of people whose memory, I hope, informs this room, Deval Patrick, John Dunn, William Bradford Reynolds, Drew Days, Stanley Pottinger, John Door, Bert Marshall. And it is interesting the interplay that goes on about the question of solutions to the problem of race in America. Because congressional hearings are for Members, the great opportunity to inquire of the witnesses as in an effort to substantiate their view.
So, here we are in 1997, 40 years after the Civil Rights Act of 1957 in which Eisenhower was directed by statute, the first Civil Rights Act since reconstruction began to come forward, and we created an Assistant Attorney General for Civil Rights, and these were some of the persons involved.
At an earlier age, there were these legendary figures of civil rights from the American Civil Liberties Union, from the National Urban League, from the Southern Christian Leadership Conference, from the Student Nonviolent Coordinating Committee, and others. Of course, the towering figure of Dr. Martin Luther King also. But there were many others that King represented.
Here we meet with the responsibility to challenge affirmative action progression in this country, particularly race-based solutions.
The thing that interests me the most is that frequently there are solutions arrived at that are not race-based. But the race-based solutions, the necessity of the Government to still inquire into this subject matter, here we have every indicator going showing that we are slipping and we are back into about the 12th hearing under Mr. Charles Canady of this great historic committee, not just attacking the few little remedies that are frequently timidly offered up because of the reality of the social environment, but usually without a single looming alternative solution.
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Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.
Mr. CONYERS. Thank you, Mr. Canady. The problem that we face is those that are urging that we act more vigorously, as opposed to those who are saying we can solve the problems of discrimination in business and promotions and housing, on the job, in the Government itself, which still has a long way to go, without all of this interference. Why do we keep inventing things?
So I am going to study this record that is being built here very carefully because there are so many people that demonstrate just the opposite of what I argue in other capacities, that we are really moving out of the problem of race, and that African-Americans will soon be taking their place politically, economically and socially, and this will seem in the distant past.
But there are so many people who, because of their conservative bias and others because of economic consequences that make them terrified in an economic system that can't provide full employment, anybody trying to climb up the ladder or out of the box is in big trouble.
So I welcome you here in that spirit and would invite any comments that you may want to make about anything. I notice you couldn't get a lot of answers in, but if you feel inclined to want to respond, you can. If you don't, no problem either. But thank you for starting this hearing off.
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Ms. PINZLER. Thank you very much for your kind words. I think you said it very well and I have nothing to add to what you said.
Mr. CONYERS. Very good.
Mr. CANADY. Mr. Inglis.
Mr. INGLIS. Thank you, Mr. Chairman.
Ms. Pinzler, I was interested in something you said just a moment ago in response to Chairman Hyde's question. You noted a middle income background. At what point do you think we are focused on guaranteeing outcomes as opposed to guaranteeing opportunities?
Ms. PINZLER. I don't think that we should focus or do focus on guaranteed outcomes. We need to focus on guaranteed opportunities, but we are not there yet. I just don't believe that we are, in fact, guaranteeing the opportunities in an evenhanded way or that there may be instances of people who because of discrimination in education may not be in a position to take advantage of opportunities in employment. These things interrelate.
Mr. INGLIS. I guess what I am interested in is, I come from a background of transactional legal practice and buying and selling real estate, businesses and that sort of thing. It is interesting to me that several developer clients that I had in South Carolina, my firm had in South Carolina, one of them did business, they had a number of partnerships, one of them did business as Mill Hill Associates. The reason they did that is the two principals in the firm literally grew up on the Mill Hill. They are two guys now that are very successful. They didn't have the advantages you just talked about. But they had a free enterprise system and a growing economy in a place called Greenville, SC, that they could participate in.
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Another one recently on the front page of our paper in Greenville was a developer who was a lineman with the power company, got in an argument with his boss and got fired, or quit, I can't remember if he quit or got fired, and now the guy has been phenomenally successful as a developer. Again, very humble beginnings.
I guess I am sort of curious about really if things have changed in America or whether I am living in some age prior to your age, because maybe you are ushering in a bold new age where we really are talking about guaranteeing outcomes, not opportunities. These two cases I have just cited here are people who did not have the advantages that maybe you just described that you had, or that I might have had, but they have been phenomenally successful. Is there still a place in America for that kind of thing to happen, or do you think we have got to engineer outcomes?
Ms. PINZLER. Well, I would hope that there is a place in America. It is interesting—you haven't mentioned whether these people were white or minority. If they were white, I would expect that is an example of being able to succeed in a business community.
Mr. INGLIS. Let me push on that for a second. See, I think that is really a questionable assumption there. The two gentlemen I just mentioned that do business as Mill Hill Associates, do you understand the social, I don't know if you are from the South or not, or maybe you don't understand the stigma of being associated with Mill Hill.
Ms. PINZLER. I am sorry, I don't.
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Mr. INGLIS. Let me explain to you, it was not a favorable connotation. It was not a place you would relish the thought to go meet with the downtown banker to ask for a loan for your first project. You would not want to do that if you grew up on the Mill Hill. You would feel uncomfortable in such surroundings in a large boardroom with a large conference table. But these guys did it.
I wanted to add another one, a female who started as a minimum wage worker in a restaurant, and if she were here today she would tell you that she now owns a restaurant. In fact, she just told me over the weekend they are now partnering in two new restaurants, that is three that she and her husband will own. She just got her GED and she is very proud of that, at about 55 or 60.
She is female, so again, she would not be the type that would be welcomed in the boardroom maybe. What I am asking you if she were here, she would tell you about opportunity in a free enterprise system and not guarantees, and she is very happy to be here. The brave new world I wonder we are talking about here, is it very different from what I am describing?
Ms. PINZLER. It is not very different from what you are describing. It is like what you are describing. The problem is we found in doing the research for the compelling governmental interest part of the proposal of the post-Adarand proposal, found that, in fact, there are still significant barriers to minorities, and in many cases to women. Entrance into business, into the field of business, they suffer discrimination in lending, it is well-documented, discrimination in bonding, discrimination by suppliers, exclusion from old boy networks.
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So it is not the kind of thing that is necessarily visible to the outside world, but it has been documented, and we know it exists.
Mr. CANADY. Without objection, the gentleman will have three additional minutes.
Mr. INGLIS. Let me ask you this, getting more specifically to the issue of race. Do you think that this is a gross misunderstanding of history, that we could say there are maybe two phases of the Civil Rights Movement; the first phase being an effort to destroy the legal barriers that existed? In other words, separate but unequal facilities and separate fountains and separate accommodations. That was a legal phase that was won through heroic effort.
The second phase is economic empowerment that must build on the foundation of the first phase. I wonder if you might comment on whether the modus operandi of those two phases might be different, if you agree there are those two phases?
Ms. PINZLER. I do agree there would be a second phase that involves economic development. I don't agree that the first phase of the legal barriers is indeed over. I think that is still going on. That is what our docket shows. So it is not any more legal barriers such as you can't ride in the front of the bus, but there are barriers that have the same effect and there are prejudices and biases that continue to affect people's lives. So the level solution is still very much a point.
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Mr. INGLIS. I understand that. Because you understood what I said, it was that we build the second phase on the foundation of the first; that we must preserve the gains in the first phase in order to go forward into the second phase. What I am asking you is whether the second phase involves a different kind of activity, whether it involves a lessening of the focuses on the differences between us and more of a focus on how we can network among each other so that I can do business with you and make money from my association with you, and likewise you with me. Is that different?
Ms. PINZLER. I think that would be terrific. I think that is exactly the kind of thing we need to be doing on a community basis, statewide basis, national basis. We need to be building those bridges, we need to be having those networks that exist in communities become more inclusive and bring people who were previously excluded from them into them, to get more kinds of people involved than just lawyers, frankly, involved in solving these problems, because if we don't start working on some of those problems beyond the legal system, then we have a much longer road to go. That doesn't happen to be the provision of the Civil Rights Division, but I personally think that those are very important things for this society to be doing.
Mr. INGLIS. Thank you.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you. The gentleman from North Carolina?
Mr. WATT. Mr. Chairman, I pass.
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Mr. CANADY. Thank you.
Mr. JENKINS. I don't have any questions at this time.
Mr. CANADY. The gentleman from Virginia.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Ms. Pinzler, welcome. I would like to ask you about an entirely different subject matter, and that is the Justice Department's ongoing litigation with regard to the Virginia Military Institute, which is located in my district. Are you familiar with that?
Ms. PINZLER. I am somewhat familiar with that. I have not been directly involved in it.
Mr. GOODLATTE. Recently, in fact, just earlier this month, the Department submitted a very lengthy letter to the Deputy Attorney General for the Commonwealth of Virginia attaching a very long list, I think about 50 questions, regarding the Virginia Military Institute's implementation of the court order regarding the admission of women to Virginia Military Institute.
Can you tell me what the basis is for submitting that list of questions?
Ms. PINZLER. As I say, I am not directly familiar with that case. I have excused myself from participation in that case, but my understanding is that it involves the kinds of issues and questions of how women will be treated when they come into the cadet corps. So it is the sort of issues addressed by the Federal academies in integrating women, a successful integration of women into the corps, the kinds of issues that came up at the Citadel.
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Mr. GOODLATTE. What is the basis, what is the legal justification for submitting those lists of questions to the Commonwealth of Virginia? The Commonwealth is under a court order to file a report with the court regarding the progress that it is making, and, in fact, you note in your letter, in fact, you compliment the Commonwealth on the very substantial progress they have made.
They have received over 100 applications for admission from women. They have received 30 deposits from women for admission or for enrollment in the institution, and yet the Department continues to harass the Virginia Military Institute and the Commonwealth with innumerable questions. In fact, the Deputy Attorney General of Virginia was quoted in the major Commonwealth newspapers as saying, ''When I first got it, I thought someone had purloined a piece of Department of Justice stationery and played a practical joke,'' said Bill Hurd, the Deputy Attorney General.
The request is absolutely overwhelming in its volume. It goes into everything from haircuts to pictures of uniforms to all manner of other things. I just want to know, what jurisdiction, what justification the Department has, for persisting in that type of approach when the court has very clearly made it clear that this is a report to the court, not to the Department of Justice?
Ms. PINZLER. If I may, I would like to ask Bill Yeoman, one of the acting deputies in the Division, to answer that question since he is here.
Mr. GOODLATTE. With the permission of the chairman, that would be very helpful.
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Mr. CANADY. I have no objection.
Mr. YEOMAN. Thank you, Mr. Chairman. That letter was, as you say, in response to the quarterly reports that VMI is required to submit to the court. We are, of course, a party to the case, and it falls to us to comment on the quarterly reports. What that letter does is simply to give a list of the kinds of things that we think should be addressed in the next quarterly report. Those items come from the experience of the Federal military academies and the Citadel in trying to assimilate women.
Mr. GOODLATTE. Let me interrupt you for a second and say to you this is not just a suggestion. This is a letter not to the court asking the court to request that Virginia Military Institute or the Commonwealth of Virginia submit that information. This is a letter to the attorney general of the Commonwealth of Virginia with an attachment that says, ''Please include the following information and documents relating to the integration of women in the Virginia Military Institute.''
You say that this is a natural thing to do, but the court was very, very explicit to the Justice Department during the last hearing in November 1996 that this type of continued discovery was not going to be permitted.
At that time Ms. Keith, representing the Justice Department, said, ''Your Honor, we believe, as we said in our motion, that the defendants should be required to submit a plan within 30 days. We also believe within 30 days from that, the United States would submit a response and that discovery would be conducted within 45 days from the time of our response, from the time of the defendant's plan, I am sorry.''
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''In other words, we are talking about a schedule here, Your Honor.'' The court said, ''discovery?'' Yes, Your Honor. For what the court said? ''Your honor, to the extent the defendants did not submit a comprehensive plan.'' ''Well, no one is denying the defendants have submitted a comprehensive plan. In fact, you began your letter complementing them on the implementation of it.''
The court concluded by saying, well, without a very compelling reason, I am not going to open up discovery again in this case after the court has already ruled on it.
What is the purpose of that?
Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.
Mr. GOODLATTE. I appreciate that. What is the purpose of this ongoing harassment of VMI when they have done an outstanding job here of complying with the court's order and you have acknowledged that in the first paragraph of your letter to them?
Mr. YEOMAN. Congressman, I don't think we view it as harassment. What we were are doing is bringing to the attention of VMI the items we think it is important for them to address in trying to assimilate women.
Mr. GOODLATTE. What right does the Department of Justice have to micromanage a court case the court has ruled on, told you they are not going to conduct further discovery on, in which you have acknowledged they are following the law and properly proceeding?
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Mr. YEOMAN. What we have done is asked them to address these items in the next quarterly report. That is the extent of what we requested and that is the extent, I think, of our ability at this point. We have not demanded that they——
Mr. GOODLATTE. Let me ask you this. Supposing they were to comply with this request, and I don't know they will, but if they were to submit this information and if some didn't suit your liking, if the length of the haircuts you are inquiring about didn't seem appropriate to the Department of Justice, what would you do about it?
Mr. YEOMAN. I can't speculate about what we would do about that.
Mr. GOODLATTE. If you can't speculate about it, why are you asking the questions?
Mr. YEOMAN. Congressman——
Mr. GOODLATTE. If you don't have a reason for getting the answer, why ask the question?
Mr. YEOMAN. I think we have a reason for getting the answer.
Mr. GOODLATTE. What is the reason?
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Mr. YEOMAN. If I could answer, these are questions that have come up with regard to the other academies. What would happen with haircuts, I don't know, because I don't know what kind of haircut they have in mind. I am not sure that haircuts would become a big issue. But what these suggestions do is inform VMI——
Mr. GOODLATTE. You have inquired who the consultants are, how much time they are dedicating to this. These are questions that go to the micromanagement of how this plan is implemented and not to whether or not they are complying with the court order. It is like the Justice Department wants to get in there and handle this every step of the way and say to VMI and to the Commonwealth of Virginia, this is good, that is bad, this works, that doesn't work, and I want to know what right you have to do that?
This is one of the major complaints that people have about the U.S. Government today, is that it puts itself into situations where it has no basis for doing that. If you can't tell me what the justification is for doing this and asking these particular questions, you ought not to be asking the questions. You ought to withdraw them.
Mr. YEOMAN. Congressman, I think we have an obligation to contribute what wisdom to the production of the next quarterly report.
Mr. GOODLATTE. If you can't tell me what the wisdom is about the haircuts, why ask about the haircut?
Mr. YEOMAN. I think, Congressman, as you know, there are a number of items addressed——
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Mr. GOODLATTE. There are about 50 of them. If you can't tell me why you are asking the questions, you ought not to ask the question.
Mr. YEOMAN. They go to the totality of——
Mr. CANADY. The gentleman's time has expired.
The gentleman from Georgia.
Mr. BARR. Thank you, Mr. Chairman. A number of us and a lot of citizens of this country have been frustrated by seeing our electoral processes brought to a halt and having to see both our State legislatures and local governments, local school boards, local commissions be unable to hold elections for months and then years at tremendous expense to the citizens, all under the guise of preclearance under the Voting Rights Act.
In light of the Supreme Court's decision last week in Reno v. Bossier Parish School Board, has the Civil Rights Division finally gotten the word? Are you all going to stop using the Voting Rights Act as a club to try and effect social change, as opposed to using it the way I think the court now has very clearly stated and which was the intent of the legislation, and that is as a tool to prohibit discriminatory voting practices that dilute minority voting power?
Ms. PINZLER. Congressman, the particular issue in the case that was cited last week, the Bossier Parish case, is whether in making a Section 5 preclearance determination we could take into account whether there was a Section 2 violation. That practice goes back to the mid-1980's and is based on the rather reasonable idea that we shouldn't—the Justice Department should not—be preclearing voting changes that might violate or would violate the Voting Rights Act.
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The Supreme Court has now clearly said that the question under Section 5 is retrogression and whether there is a purpose or effect of retrogression, and that we may look at the question of vote dilution in determining whether there may be a purpose to retrogress which is to discriminate against voters. So, yes, we are obviously taking that decision very much to heart and will change whatever practices were based on prior regulation.
Mr. BARR. Is the Civil Rights Division at all mindful of or concerned about the tremendous expense, to say nothing of the lack of public confidence or the erosion of public confidence in institutions of government, when citizens are unable to express themselves because the Civil Rights Division takes months and months and months to preclear procedures? Is that of concern to the Division?
Ms. PINZLER. Yes, that is of concern to us and we are trying to work on streamlining our procedures. Keep in mind that we get literally thousands of submissions a year and end up preclearing all but a very few, or a tiny percentage of them; under 2 percent of the submissions are objected to.
But it is a lengthy process and one that we take very seriously, and given our resources, we are doing it as quickly as possible; and we are trying to—as I say, to streamline those processes as much as possible.
Mr. BARR. In light of your answer to my first question, is the Division or the Department going to take any steps proactively to communicate to local governments or State governments—and I don't know whether this is feasible or not—to let them know that the Department is going to be changing the way it views Section 5 and will be operating in accord with the Supreme Court decision, which may very well, if the Department does that, cut down on this huge number of cases? In other words, if local governments or State governments know that they—that it is not the purpose and will not be the purpose of the Department to use preclearance as a vehicle to affirmatively affect a certain voting result, then presumably you wouldn't be getting so many of these that then slow things down.
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Ms. PINZLER. I actually happen to disagree. I don't think it would change the number of voting changes that would be required to be submitted, because any voting change in a covered jurisdiction, anything that changes any sort of voting change is supposed to be submitted. So what it might affect is the result as to whether they are in fact precleared or not.
But it simply—we cannot ahead of time tell people to not submit changes to us when we don't know whether they would be preclearable or not.
Mr. BARR. Would you anticipate that the amount of, that the number of cases then that move forward in the Department, assuming no dropoff in the number of matters that are brought to the attention of the Department pursuant to the procedures, would you anticipate in light of the Supreme Court decision that the Department will in a very, very quick fashion then communicate back to a lot of these cases that they do not need to go through the preclearance procedures since they do not involve—have either the intent or the result of diluting minority voting rights?
Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.
Mr. BARR. Thank you, Mr. Chairman.
Ms. PINZLER. I don't know that I can guarantee that the process would take any less time because, as I say, we would have to analyze each of them in the same way. And in some ways, it is possible that it may be more time consuming because——
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Mr. BARR. Don't tell me that. I mean—you are telling me that in light of the Supreme Court's decision last week, that our local governments and State governments are now going to look forward to even lengthier delays and more litigation with the Department as a result of that decision? Certainly you are not saying that.
Ms. PINZLER. I am not saying that. I really don't know. All I know is that we will still have to analyze all of these changes, and we may have to be looking at the question, which sometimes takes a while, as to whether there was a purpose to discriminate or retrogress.
Mr. BARR. Do you all consider the Bossier Parish decision a pretty clear decision?
Ms. PINZLER. Well, it was clear on the automatic importation of Section 2 into Section 5 preclearance matters. It was less clear on the question of how you use the fact of vote dilution to indicate whether there is in fact an intent to retrogress. So there was one part——
Mr. BARR. Is that now the hook that you all are going to use to pull all of these cases in, the dilution?
Ms. PINZLER. The hook that pulls them in is the legislation, and we are under an obligation to review those submitted changes under the law. That is the obligation the law puts on us, and we are going to proceed with it.
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Mr. BARR. You are going to proceed with what?
Ms. PINZLER. With our obligation to review these voting changes.
Mr. BARR. Don't you also have an obligation to proceed in accordance with the Supreme Court?
Ms. PINZLER. Oh, absolutely. Absolutely.
Mr. BARR. And the Division and the Department are going to abide by that Supreme Court decision; is that correct?
Ms. PINZLER. Absolutely. Absolutely.
Mr. BARR. OK. Thank you.
Mr. CANADY. The gentleman from Arkansas.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
Ms. Pinzler, I wanted to ask you a couple of questions about your office. In reviewing your testimony, I see that you have a number of different responsibilities in your office. I view the Civil Rights Division as critically important to the enforcement of our civil rights laws. But, to me, the priority should be in enforcement and prosecution of specific acts of discrimination; and it appears from the testimony that a large degree of resources of your office are used for the civil pursuit of ''pattern and practice'' discrimination.
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Can you break that down? What percent of your resources and what is your priority in pursuing specific acts of discrimination versus going after a practice that might have a disparate impact?
Ms. PINZLER. Well, I can't give you an exact breakdown in terms of resources or numbers. We do both kinds of cases. We do the individual, disparate treatment cases; we also do the broader pattern or practice cases. I should also point out that not all pattern or practice cases are so-called disparate impact cases; they are pattern or practice of intentional discrimination.
Mr. HUTCHINSON. That is true, and I think certainly the ''pattern and practice'' discrimination should have a priority. But, what percent of your resources is spent on the disparate impact cases?
Ms. PINZLER. Again, I can't tell you exactly what percentage. We do do those cases, but it is not necessarily the major piece of our work.
Mr. HUTCHINSON. Let me go to the California initiative that the Department of Justice intervened in—the proposition regarding racial preferences. You intervened on behalf of the challengers to that proposition and sided with the ACLU; is that correct?
Ms. PINZLER. That is correct.
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Mr. HUTCHINSON. And the Ninth Circuit ruled against the Department of Justice position on that issue?
Ms. PINZLER. Yes, the panel did.
Mr. HUTCHINSON. And that is presently being considered or going to be appealed to the U.S. Supreme Court?
Ms. PINZLER. Well, there is a motion pending for reconsideration, for rehearing en banc to the full Ninth Circuit.
Mr. HUTCHINSON. Has the Department of Justice reevaluated its decision in light of the very clear decision of the Ninth Circuit?
Ms. PINZLER. Not that I am aware of.
Mr. HUTCHINSON. Well, you would be aware of it.
Ms. PINZLER. We supported the petition for rehearing en banc.
Mr. HUTCHINSON. Will you be reevaluating your position?
Ms. PINZLER. We can always reevaluate our position under the proper circumstances. At this point, we are not reevaluating it.
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Mr. HUTCHINSON. It would appear to me that when you look at the resources of the Department of Justice, that it might be a decision that is worth reevaluating, particularly in light of the strong decision of the Ninth Circuit. There is nothing that requires you to spend more resources going to the Supreme Court. Will you reevaluate that?
Ms. PINZLER. What requires us to be involved in a case like this is that California is obviously a very large State, a very important State, and the existence of Proposition 209 may make our job more difficult, may make it more difficult for us to remedy discrimination that we find in the State of California, and therefore we have an interest in that. It may require us to do much more litigation to prove cases that might have been amicably settled. So I think we are not going to reevaluate.
Also, in terms of resources, writing an amicus brief is not something that is very resource intensive. We didn't intervene in the case. We are a party in the case. We are not participating at that level.
Mr. HUTCHINSON. Now, from what you said, it caused me some concern. I believe there are petition drives in a number of other States based upon what happened in California. Would we anticipate that the Department of Justice is going to intervene if other States adopt similar initiatives such as California?
Ms. PINZLER. I can't answer that question. It may partly depend as to what happens as a result of the California litigation.
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Mr. HUTCHINSON. Well, I would hope——
Ms. PINZLER. In other words, ultimately the Supreme Court is the final arbiter of this. It is impossible for me to make that prediction.
Mr. HUTCHINSON. Is there anyone in the Department that gives you the other point of view and tries to point out how adoption of the California initiative might make your job easier?
Ms. PINZLER. Without going into the internal discussions within the Department, there are very vigorous discussions. Allow me to assure you, all points of view are aired.
Mr. HUTCHINSON. I thank you.
I yield back the balance of my time, Mr. Chairman.
Mr. GOODLATTE [presiding]. We thank you for your time, Ms. Pinzler, and if there are no further questions, you are excused.
Ms. PINZLER. Thank you.
Mr. GOODLATTE. From our second panel, we will hear first from Michael Carvin. Mr. Carvin is a partner in the Washington, DC, firm of Cooper & Carvin, and he represents the drafters of Proposition 209 in the Justice Department's case challenging the constitutionality of the measure.
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Second, we will hear from Prof. Pamela Karlan. Ms. Karlan is a professor at the University of Virginia Law School.
The final witness on the second panel is Wayne Flick. Mr. Flick is an attorney in the Los Angeles firm of Latham & Watkins. He represented the City of Torrence, CA, in litigation filed by the Justice Department alleging employment discrimination against women and minorities.
Without objection, your testimony will be made part of the permanent record. I ask you to summarize your testimony in 5 minutes. Thank you.
And, Mr. Carvin, you are welcomed.
STATEMENT OF MICHAEL A. CARVIN, ATTORNEY, COOPER & CARVIN
Mr. CARVIN. Thank you. I would like to focus my comments on the Department's effort to intervene and overturn Proposition 209, which reflects a sea change, a very dramatic shift in the Department's civil rights policies and really a shift in the entire civil rights debate.
For the past 20 years there has been a very vigorous debate about whether or not governments are permitted to racially discriminate against nonminorities in the name of affirmative action preferences. But before the 209 litigation, no one had ever suggested that governments are required to engage in these kinds of racially preferential activity. Justice Brennan made it quite clear in the Bakke decision that it was entirely up to the State itself to determine whether or not it made sense for it to engage in these divisive practices of racial preferences.
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But now the Department has come in and said that States are constitutionally disabled from ever ending preferences, that they are required to engage in affirmative action remedies, or whatever you want to call them, forever, even though those remedies were initially designed as temporary expedients.
In my view, this is political correctness run amok. The Clinton administration is seeking to silence States where a majority of its citizens disagree with the Clinton administration's policy on racial preferences and is seeking to have Federal courts enjoin those democratically enacted initiatives and silence people simply because they disagree.
Is there any constitutional basis for the Department's politically correct position? I think if we just glance at the Constitution, the answer becomes apparent. They argue that the 14th amendment prohibits the States from not racially discriminating, not engaging in racial preferences. But, of course, the 14th amendment prohibits States from discriminating. So the Department is reduced to the facially absurd proposition that the Federal constitutional provision preventing States from taking race into account prevents States from not taking race into account.
The weakness of this position, I think, is dramatically revealed by the Department's concessions. They say, sure, local governments can end racial preferences, and the Federal Government can end racial preferences, and State agencies can end racial preferences, and the State legislature can tell the State agencies to end racial preferences; but the State constitution can't end racial preferences even though the State constitution, of course, creates these local governments and State entities. So the only people who can't stop California government from discriminating against California citizens are the citizens of California themselves.
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They argue that it's only the State constitution that cannot prohibit racial preferences. And I would suggest that that has it precisely backwards. A law cannot be unconstitutional solely because it is enacted by the people when the people are sovereigns in our system, obviously.
Equally untenable is their argument that State constitutions can't go beyond the 14th amendment. And again their own concessions reveal the vacuity of this argument. They suggest that the problem with 209 is that it is a State constitutional provision that it provides nondiscrimination protections that go beyond the 14th amendment. But that is not a general problem, they say.
For example, let's look at a reverse 209, something that does precisely the opposite. The Department argues that State constitutions could require local governments to engage in affirmative action preferences, and that would be perfectly constitutional. And State constitutions, of course, can increase the nondiscrimination protections for minorities and women, as they have done through equal rights amendments and the like. But the only decision that State constitutions can't make is increasing the nondiscrimination protections of nonminorities who have been hurt by racial preferences.
So the Department's position necessarily rests on the proposition that white males and others that they designate as nonminorities have less equal protection rights than others; that they cannot do, through the State constitution, something that all other groups in California can do. And if there is anything clear from the Supreme Court's decisions in the affirmative action cases like Adarand and Croson is that all individuals, all persons have the same equal protection rights, and there is nothing in the Supreme Court's decision in Seattle, upon which they exclusively rely, which in any way casts doubt on Proposition 209.
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Indeed, in his dissenting opinion in Seattle, Justice Powell hypothesized a State enacting Proposition 209. He said that the majority's opinion could be misconstrued to invalidate this; and the majority opinion in Seattle itself said, no, that wouldn't be a problem at all because it has nothing to do with racial classifications and the political process.
Thank you.
Mr. GOODLATTE. Thank you, Mr. Carvin.
[The prepared statement of Mr. Carvin follows:]
PREPARED STATEMENT OF MICHAEL A. CARVIN, ATTORNEY, COOPER & CARVIN
Mr. Chairman, Members of the Committee, thank you for the opportunity to comment on the Justice Department's civil rights enforcement activities. I would like to focus my comments on the Department's wholly unprecedented and inexcusable effort to deny the citizens of California their most sacred right in a constitutional democracy where all sovereign powers reside with the people. I am referring, of course, to the Justice Department's recent challenge to the constitutionality of California's Proposition 209, which simply prohibits state and local governments from engaging in race-based or sex-based discrimination against any California citizen, minority or nonminority. (In that litigation, I represent Californians Against Discrimination And Preferences, the authors of Proposition 209). In that case, the Department boldly proclaims that the people of California are constitutionally disabled from preventing California's government from discriminating against them on these invidious bases. In doing so, the Civil Rights Division has taken a giant and unwarranted step in its ongoing agenda to impose racial discrimination against American citizens, in the name of ''affirmative action'' preferences.
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Prior to this case, the Justice Department, to be sure, has uniformly and unswervingly sought to twist the Fourteenth Amendment and federal civil rights laws to permit quotas and similar preferences by state and local governments. For the first time in American history, however, the United States' chief law enforcement agency is now arguing that the Fourteenth Amendment affirmatively requires states to maintain such racially discriminatory preferences in perpetuity. The question of whether to discriminate against a state's citizens cannot, according to the Department, be decided by the citizens of that state. Rather, all states are forever forbidden from ending racial discrimination against nonminorities and men because such discrimination purportedly ''benefits'' minorities and women. Thus, the Justice Department's catchy public relations slogan of, ''mend it, don't end it,'' has been converted into a constitutional requirement that no state may ever ''end it.''
The Clinton Administration is certainly entitled to argue that racial preferences which exclude, for example, Asians and nonminority women from contracting and higher education opportunities to achieve racial balance (''diversity'') is a beneficial public policy. They are not entitled, however, to use the federal courts to veto efforts by states who disagree with the Administration's view of''benign'' racial discrimination. But this is precisely what the Department has sought to do by urging federal courts to enjoin any application of Proposition 209. Fortunately, as with virtually all of the Department's other efforts in support of racial discrimination, their arguments have been unequivocally resected by a federal court—the Ninth Circuit Court of Appeals—because that Court, unlike the Department, has a glancing familiarity with the rule of law, the English language, and the basic precepts of a constitutional democracy.
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Undeterred by this stinging judicial rebuke, the Department now seeks en banc review of the Ninth Circuit's decision and will reportedly seek further review in the United States Supreme Court. If the Department is somehow successful in this facial assault on racial neutrality and popular sovereignty, the consequences of its newly-minted constitutional rule will be truly breathtaking. The Department argues that any law above the local level that prohibits discrimination which the Fourteenth Amendment permits is unconstitutional because it ''removes'' the question of affirmative action to a ''new and remote level of government.'' Federal nondiscrimination statutes, of course, would be particularly obnoxious to the Department's principle because they would remove the question of racial preferences to the most ''remote'' potential level of government—the federal level. Accordingly, the 1991 Amendments to Title VII prohibiting all ''race norming,'' even in circumstances where such norming is purportedly necessary to achieve a compelling government interest, is plainly unconstitutional. Similarly, last year's Dole-Canady bill, or any similar effort to prohibit federal agencies or states from engaging in racial preferences, is also forbidden. Similarly, Congress is constitutionally forbidden from ever amending Title VII to eliminate the preferences permitted by United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979), no state may ever take similar race-neutral steps and no state court may interpret existing equal protection guarantees (notwithstanding their plain language) to prohibit discrimination against nonminority males to a greater extent than the Fourteenth Amendment. Similarly, if this principle is honestly applied, all states' Equal Rights Amendments are unconstitutional, since they prohibit gender-based discrimination that the Fourteenth Amendment permits under ''intermediate scrutiny.''
While the flaws in the argument are quite obvious, I will briefly discuss why the Department's position is utterly lawless and undemocratic.
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A. PROPOSITION 209 IS PLAINLY CONSTITUTIONAL
Proposition 209 simply prevents official conduct discriminating on the basis of race. The Department argues that this prohibition facially violates the Fourteenth Amendment, although that Amendment's ''central purpose . . . is the prevention of official conduct discriminating on the basis of race.'' Washington v. Seattle School Dist., 458 U.S. at 484 (1982), quoting Washington v. Davis, 426 U.S. 229, 239 (1976). Thus, under the Department's Orwellian interpretation of equal protection principles, the federal constitutional provision prohibiting states from racially discriminating prohibits states from not racially discriminating.
How can this non sequitur possibly be a constitutionally-ordained principle? The Department asserts that some racial preferences are ''constitutionally permissible,'' in the narrow circumstances permitted by the Supreme Court in Adamant Constructors v. Peña, 115 S. Ct. 2097 (1995) and City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). This is true but irrelevant. For the Department concedes, as it must, that racial neutrality—or not using racial preferences—is also ''constitutionally permissible.'' No one has a Fourteenth Amendment right to preferential treatment on the basis of skin color and the Constitution therefore does not require state or local governments to engage in racial preferences. Thus, the Department agrees that every unelected bureaucrat in state government and every local municipality may permissibly pass policies or laws forbidding racial and gender-based preferences.
But if municipal laws can require the government of San Francisco to not engage in racial preferences, as all agree, why is the state constitution, in the form of Proposition 209, prohibited from doing precisely the same thing? Since Proposition 209 simply prohibits discrimination against nonminorities, and since the Fourteenth Amendment concededly permits such nondiscrimination, how is it possible that the Fourteenth Amendment simultaneously prohibits such nondiscrimination?
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The Department's truly astonishing answer is that the Fourteenth Amendment grants minorities and women greater equal protection rights than all others, and even affirmatively bestows on them a constitutionally-guaranteed veto power over any state policy that does not ''inure to [their] benefit,'' even if the substantive policy is fully consistent with—and indeed furthers—the Fourteenth Amendment's nondiscrimination principles. According to the Department, any decision to eliminate racial preferences, or to eliminate any other policy that ''inures to the benefit of minorities,'' is, ipso facto, a racial classification that impermissible burdens minorities' access to the political process.
The Department nevertheless concedes, as it must, that state constitutions are generally free to prohibit discrimination that the Fourteenth Amendment permits, since Equal Rights Amendments subject gender-based discrimination to stricter scrutiny than the mere ''intermediate scrutiny'' required by the Fourteenth Amendment. The Department also concedes, of course, that the state may require local racial preferences, as the California state legislature has done in the past.
Under the Department's regime, then, the state is entirely free to require its subordinate entities not to discriminate against minorities and women and even to require that they engage in ''constitutionally permissible'' discrimination in favor of minorities and women, without disrupting the political participation rights of the victims of that discrimination, but is prohibited from requiring nondiscrimination for males and nonminorities. Thus, while women and minorities have a Fourteenth Amendment ''right'' to be free of state laws enhancing the nondiscrimination protections of others, men and nonminorities have no such correlative right. Indeed, the Department maintains that federal courts must deny nonminority victims of discriminatory preferences equal access to the normal law-making process available to all others—the constitutional amendment process—to end discrimination.
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The Civil Rights Division thus seeks to erect a discriminatory, dual political regime, where ''minority'' groups have a right to veto state efforts at nondiscrimination and urge state-mandated discrimination against others, but nonminorities are deprived of a right to even urge an end to discrimination against themselves. The Department's position therefore necessarily rests on the principle that nonminorities have less equal protection rights concerning the political process than minorities and, indeed, that minorities are guaranteed preferential access because they can use the state constitution to ensure racially preferential treatment. This premise is plainly wrong because it could not be more firmly established that nonminorities have precisely the same equal protection rights as all others. City of Richmond v. J. A. Croson Co., 488 U.S. at 493–94 (''The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.''); Adapted, 115 S. Ct. at 2114 (''Consistency does recognize that any individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be.).
Moreover, the Supreme Court's decision in Seattle, upon which the Department exclusively relies, also unequivocally rejects precisely the position advanced by the Department. As the Department concedes, Seattle required only ''equal access to the ordinary political process to obtain the protection of laws against discrimination and its effects.'' U.S. Amicus Panel Brief 10. But, for the reasons explained, the Department seeks preferential access to a special political process to obtain the benefit of laws requiring discrimination against others. As the Ninth Circuit correctly recognized, however, Seattle did not overturn centuries of binding precedent and basic constitutional principles by mandating such uniquely advantageous treatment of substantive policies allegedly favored by minorities and women—particularly when the policy is violating the presumptive nondiscrimination rights of others. Quite to the contrary, Seattle prohibits only ''uniquely disadvantageous treatment'' that would ''exclude particular racial groups from effective participation in the political process.'' 458 U.S. at 486 and n.30 (emphasis added).
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Indeed, Seattle itself expressly rejects any such grotesque distortion of its opinion in the most unequivocal terms. In his dissenting Seattle opinion, Justice Powell advanced, in almost identical terms, the Civil Rights Division's distorted understanding of the majority opinion and the parade of horribles that would necessarily ensue from this ''strange'' and ''alien'' principle. Id. at 495 (Powell, J. dissenting). Just like the Justice Department here, Justice Powell maintained that the majority opinion held that the ''heretofore undoubted supreme authority of the State's electorate is to be curtailed whenever a school board—or indeed any other state board or local instrumentality—adopts a race-specific program that arguably benefits racial minorities.'' Id at 494. Moreover, as if specifically forecasting the adoption of Proposition 209, Justice Powell argued that the majority opinion could be misconstrued to invalidate statewide bans on affirmative action preferences by local agencies:
After today's decision it is unclear whether the state may set policy in any area of race relations where a local governmental body arguably has done ''more'' than the Fourteenth Amendment requires. If local employment or benefits are distributed on a racial basis to the benefit of racial minorities, the State apparently may not thereafter ever intervene.
Id. at 498 n.l4; see Ninth Circuit slip op. (filed Feb. 10, 1997) (''Op.'') at 3922. The majority responded to this exaggeration by explaining that it ''evidence[s] a basic misunderstanding of our decision . . . [I]t is evident . . . that the horribles paraded by the dissent . . .—which have nothing to do with the ability of minorities to participate in the process of self-government—are entirely unrelated to this case.'' Id. at 480 n.23 (emphasis added). Thus, the majority opinion in Seattle plainly stated that it did not in any way foreclose the ability of states to address racial preferences through statewide efforts. The Justice Department nevertheless blithely maintains that Seattle directly requires invalidation of a ''state's'' efforts to ''intervene'' in prior efforts to distribute ''local employment or benefits'' on a ''racial basis'' because such intervention has everything to do with ''the ability of minorities to participate in the process of self-government.''
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Seattle also rejected the Department's basic submission that ''every attempt to address a racial issue [by the state] gives rise to an impermissible racial classification.'' Id. at 485. Even more directly, the Court rejected the Department's related assertions that they have a vested ''constitutional right to local decision-making'' on racial issues and that a ''State's attempt to repeal a [local racial preference] program creates a racial classification, while 'identical action' by [a local government] does not.'' Id. at 480 n.23, 485 n.29. Thus, Seattle itself explicitly rejects each plank of the Department's attempted distortion of Seattle: (1) a state's alteration of a policy ''benefiting'' minorities is a racial classification, although identical action by a local government is not; (2) a substantive change in racial policies may only be done at the local, not state, level; and (3) most specifically, statewide elimination of local racial preferences is inconsistent with Seattle's analysis. The United States, in its briefs, does not even attempt to deal with these dispositive statements expressly rejecting its position.
Rather, the United States is reduced to the bizarre assertion that Seattle permits states to prohibit racial discrimination in local activities only if it ''eliminates local governments entirely'' or directly takes control of ''all other matters over which localities can retain authority.'' U.S. Amicus Brief in Support of Pet. En Banc 14. I assume that this was an ill-advised attempt at humor, because quite obviously a state, just like the United States, can prohibit local governments from racially discriminating without becoming a local government.
I could continue and point out the myriad other ways that the Department's argument flies in the face of common sense and binding Supreme Court precedent. But this should not be needed. As the Ninth Circuit aptly noted concerning the United States' argument; ''If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.'' Op. at 3912. Since the Department's position in this litigation is contrary to every coherent constitutional and democratic principle, and would doom forever all democratic efforts to promulgate race and gender-neutral laws, I respectfully urge the Subcommittee to take all appropriate steps to prevent any further action by the Department in this regard.
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Mr. GOODLATTE. Professor Karlan, welcome.
STATEMENT OF PAMELA S. KARLAN, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW
Ms. KARLAN. Thank you very much, Representative Goodlatte.
I am a beneficiary of affirmative action, not because I got my job because I was a woman, but because I have benefited from living in a society in which the law school at which I teach now has a substantial number of blacks, a substantial number of Asians, and a substantial number of Hispanics. That is primarily because of affirmative action. I think it is a good thing.
I appear today before the committee, however, solely in my individual capacity, and I should mention, as I did in my testimony, that I filed a brief on behalf of a group of 15 law professors in the Proposition 209 case. Let me summarize why I think that Proposition 209 raises grave constitutional concerns under well-settled voting rights law.
Put simply, Proposition 209 unconstitutionally relegates some of California's citizens to an inferior position in the political process by denying them a full opportunity to use political processes available to all others who seek remedies and responses to past and present discrimination.
In reaching this conclusion, I rely on a suttled line of Supreme Court cases from Hunter v. Erickson in the 1960s, through Seattle School District in the 1980s, and last term's decision in Romer v. Evans, about which Ms. Pinzler was questioned earlier. Like blacks prevented from seeking antidiscrimination legislation in Akron, OH, or school busing plans in Washington State, or gays seeking antidiscrimination legislation in Colorado, racial minorities and women in California will be prevented from seeking enactment of otherwise constitutional laws or policies by Proposition 209.
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As the Supreme Court said last term, ''A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.''
Taken together, Hunter and Seattle School District stand for the following proposition: Enactments that single out the panoply of preexisting policies designed to combat racial discrimination against members of minority groups trigger heightened judicial scrutiny. And in determining whether such targeting has occurred, particularly in cases involving popular lawmaking through referenda—which is something that the Founders of this country didn't see as a possibility; it is a 20th century response, it is not something that is fundamental to American republicanism—courts should look at the challenged legislation ''in terms of its immediate objective, ultimate effect and historical context, and the conditions existing prior to its enactment.''
The series of cases includes one for conditions under which States may enact narrowly tailored race or gender-conscious affirmative action programs. But Proposition 209 completely forecloses the State's ability to engage in this permissible remedial activity. Like the background circumstances involved in Seattle School District, the context in which Proposition 209 was enacted shows that it was intended precisely to target existing programs that benefited minorities and women.
Moreover, Seattle School District shows that heightened scrutiny may be triggered not only when a law targets protections against discrimination, but also race-conscious programs that confer an affirmative benefit on specific minorities. Prohibitions on race-conscious affirmative action play the same role that prohibitions on busing for integration played in the 1970's and 1980's and attacks on fair housing played in the 1960's; and they are similarly unconstitutional.
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The continued vitality of this strand of the Hunter-Seattle doctrine is illustrated by last term's decision in Romer v. Evans where the Supreme Court emphasized that ''central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that Government and each of its parts remain open on impartial terms to all who seek its assistance.'' Romer explained that the central flaw in the Colorado amendment that was challenged there was that it imposed a special disability on gays alone, since ''they alone can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State constitution. This is so no matter how local or discrete the harm, how public or widespread the injury.''
The flaw that the Supreme Court identified there taints Proposition 209 as well. Prior to Proposition 209's passage, members of minority groups could persuade local jurisdictions and individual State agencies to enact constitutionally permissible affirmative action plans.
Proposition 209 worked critical changes in this regime. It singled out race- and gender-conscious affirmative action plans, and those plans alone, for a special political burden. All other groups such as veterans, the disabled, or persons over the age of 40, for example, can continue to seek constitutionally permissible preferences by lobbying State and local officials, particular agencies charged with regulating a given activity, or the State legislature. Only racial minorities and women are required first to persuade California's entire electorate to approve a modification of the State constitution.
As Seattle School District explains, ''when the State's allocation of political power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the special condition of prejudice, the government activity seriously curtails the operation of those political processes ordinarily to be relied upon to protect minorities.''
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Over the past three decades, the Supreme Court has made clear in a variety of contexts that the constitutional protection of the right to vote does more than guarantee all qualified citizens the right to enter the voting booth. One thing it guarantees is the citizen's ability to influence postelection decisionmaking by elected representatives, and that is what Proposition 209 deprives nonwhites and women of in California.
Thank you.
Mr. GOODLATTE. Thank you, Professor.
[The prepared statement of Ms. Karlan follows:]
PREPARED STATEMENT OF PAMELA S. KARLAN, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW
I am a Professor of Law and the Roy L. and Rosamond Woodruff Morgan Research Professor at the University of Virginia School of Law in Charlottesville, Virginia. My primary scholarly interests lie in the areas of voting rights law and civil and constitutional rights. I have also been active in pro bono voting rights litigation. Last year, for example, I argued and won a case in the Supreme Court of the United States under section 5 of the Voting Rights Act, Morse v. Republican Party of Virginia, 116 S.Ct. 1186 (1996). And this year, I served as counsel of record for a group of distinguished law professors who filed two amicus briefs in the Ninth Circuit in the case challenging Proposition 209. I appear before the committee today solely in my individual capacity.(see footnote 1)
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Let me summarize why I think that Proposition 209 raises grave constitutional concerns under well-settled voting rights law. Put simply, Proposition 209 unconstitutionally relegates some of California's citizens to an inferior position in the political process. A line of Supreme Court cases extending from Hunter v. Erickson, 393 U.S. 385 (1969), through Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), to last Term's decision in Romer v. Evans, 116 S.Ct. 1620 (1996) shows that the Supreme Court has repeatedly subjected legislation similar in effect to Proposition 209 to heightened scrutiny under the equal protection clause, and has found such legislation unconstitutional because it denies identifiable groups of persons a full opportunity to use political and legal processes available to all others who seek remedial responses to past and present discrimination.
The Supreme Court made clear in both Hunter and Seattle School District that statutory or inonstitutional provisions limiting the availability of otherwise constitutional remedies for racial discrimination are constitutionally suspect, notwithstanding the fact that such provisions may not themselves include racial classifications of any kind. Proposition 209's race-neutral language does not insulate it from heightened scrutiny under the equal protection clause. Heightened review is required because Proposition 209, like the legislation at issue in these prior cases, has the effect of precluding existing policies that are designed to prevent or remedy unconstitutional race and gender discrimination.
Like blacks prevented from seeking anti-discrimination legislation in Akron, Ohio, or school busing plans in Seattle, racial minorities and women in California will be prevented from seeking the enactment of otherwise constitutional laws or policies through special barriers erected against their achievement, barriers not raised to prevent any other group of citizens from seeking the enactment of legislation favorable to itself. As the Supreme Court said last Term, in striking down a Colorado constitutional provision that prevented gay and lesbian people from seeking the enactment of local non-discrimination ordinances, ''[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.'' Romer, 116 S.Ct. at 1628. Romer made clear that state constitutional provisions that operate in this fashion fail even ordinary equal protection scrutiny, let alone the heightened scrutiny that applies to racial or gender-based classifications.
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The voting rights attack on Proposition 209 relies primarily on two cases, Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), The Hunter-Seattle line of equal protection jurisprudence addresses two distinct, yet complementary, questions. First, these decisions guide courts in determining whether a particular enactment involves a racial (or other suspect) classification, and thus warrants heightened scrutiny. Second, they explain how a challenged law or policy may operate to impermissibly disadvantage a protected group. Distilling the inquiry back into these original parts highlights the problems with Proposition 209. Not only does Proposition 209 involve a suspect classification; it also threatens a fundamental right: the entitlement of all citizens to participate on an equal basis in the political process of seeking remedies for past and current discrimination.
Not every state enactment that mentions the word ''race'' triggers strict scrutiny as a racial classification. Had Proposition 209 simply restated the equal protection clause's command in more specific terms—by banning all governmental action that discriminated on the basis of race in violation of the Fourteenth Amendment—it would be constitutional per se. What Hunter and Seattle School District do is to assist courts in determining when language that mentions race but ''draws no distinctions among racial and religious groups,'' Hunter, 393 U.S. at 390, or even language that ''nowhere mentions '''race,' '' Seattle School District, 458 U.S. at 471, nonetheless has the ''practical effect'' of burdening minorities' ability to participate in the political process and therefore involves a constitutionally suspect classification. Cf. Yick Wo v. Hopkins, 118 U.S. 356 (1886) (finding racial classification in the effect of a facially neutral regulation).
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Hunter involved an Akron, Ohio, charter amendment (''section 137'') that applied to any ordinance that regulated ''real property of any kind or of any interest therein on the basis of race, color, religion, national origin or ancestry.'' Hunter, 393 U.S. at 387. Specifically, section 137 required that any law dealing with racial discrimination on these grounds be approved by a majority of Akron's voters in a referendum before it went into effect. The Supreme Court emphatically rejected the proposition that section 137 was racially neutral. While it was true that ''the section [drew] no distinctions among racial and religious groups'' and made ''Negroes and whites . . . subject to the same requirements if there is housing discrimination against them which they wish to end,'' id. at 390, the Court recognized that ''the reality is that the law's impact falls on the minority,'' id. at 391, since it was they who would be the most likely beneficiaries of fair housing ordinances. The Akron city council had recognized, in the open housing ordinance that was suspended as the result of section 137, that racial discrimination had consigned ''people of different race, color, religion, ancestry or national origin . . . [to] circumscribed and segregated areas, under sub-standard, unhealthful, unsafe, unsanitary and overcrowded conditions'' and that section 137 had to be assessed ''against this background.'' Id.
Likewise, Initiative 350—the provision at issue in Seattle School District—was not drawn in explicitly racial terms. It simply provided that ''no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student's place of residence.'' Seattle School District, 458 U.S. at 462. Although Initiative 350 did not directly target particular individuals on the basis of race, it did target a particular issue—busing to achieve racial balance—on the basis of its racial salience, and the Court found it ''beyond reasonable dispute'' that Initiative 350 involved a racial classification that triggered strict scrutiny. Seattle School District, 458 U.S. at 471. The Court began by emphasizing that proponents of the initiative had ''candidly represented'' to the electorate that its sole effect would be to prevent busing for purposes of racial desegregation. Id. The conclusion that this formally race-neutral effect involved racial discrimination against the minority stemmed from the Court's pragmatic recognition that, although school desegregation did not benefit racial minorities exclusively (and that busing had supporters and opponents among members of every demographic group), ''desegregation of the public schools, like the Akron open housing ordinance, at bottom inures primarily to the benefit of the minority, and is designed for that purpose.'' Id. at 472. ''[W]hen the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the 'special conditions of prejudice,' '' this constitutes a racial classification.'' Id. at 486.
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Taken together, Hunter and Seattle School District stand for the following proposition: enactments that single out the panoply of pre-existing policies designed to combat racial discrimination against members of minority groups trigger heightened judicial scrutiny. And in determining whether such targeting has occurred, particularly in cases involving popular lawmaking through referenda, courts should look at the challenged legislation ''in terms of its immediate objective, its ultimate effect, and its historical context and the conditions existing prior to its enactment.'' Reitman v. Mulkey, 387 U.S. 369, 373 (1967) (internal quotation marks omitted).
In my opinion, Proposition 209 falls within this class of constitutionally dubious legislation. Proposition 209 performs two functions. The directive that ''[t]he state shall not discriminate against . . . any individual or group on the basis of race,''(see footnote 2) Cal. Const. art. 1, §31(a), simply restate[s] existing law. Proposition 209's real bite—the only ''slice of the initiative'' at issue in the ongoing legal challenge—comes from its other command: that the state not ''grant preferential treatment to[] any individual or group on the basis of race, sex [or the other enumerated traits] . . . in the operation of public employment, public education, or public contracting.'' Cal. Const. art. 1, §31(a). City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987), and Regents of the University of California v. Bakke, 438 U.S. 265 (1978), together identify a set of conditions under which states may enact narrowly tailored race- or gender-conscious affirmative action programs. The latter aspect of Proposition 209 completely forecloses the state's ability to engage in this permissible remedial activity.
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It has not seriously been disputed that all the ''preferential treatment'' currently accorded by California state actors involves race- and gender-conscious affirmative action that benefits members of racial minority groups or women. Thus, Proposition 209 falls at the intersection of Hunter and Seattle School District. Like Hunter, although Proposition 209 ''on its face treats Negro and white . . . in an identical manner, the reality is that the law's impact falls on the minority,'' 393 U.S. at 391, since the only currently constitutional policies it bars are those that benefit nonwhites. And like the background circumstances involved in Seattle School District, the context in which Proposition 209 was enacted shows that it was intended precisely to target existing programs that ''inure[d] primarily to the benefit of the minority.'' 458 U.S. at 472. Both non-partisan and partisan ballot pamphlet materials highlighted Proposition 209's effects on race- and gender-conscious affirmative action as its central focus. Moreover, Seattle School District shows that heightened scrutiny may be triggered not only when the state targets protections against discrimination (such as the pre-existing fair housing ordinance in Akron), but also when it targets race-conscious programs that confer an affirmative benefit on specific minorities. Prohibitions on race-conscious affirmative action play the same role today that prohibitions on ''busing for integration'' played in the 1970's and 1980's, and attacks on ''fair housing'' played in the 1960's. And they similarly require strict scrutiny. See Seattle School District, 458 U.S. at 473–74 (making this point about busing and fair housing in the context of its explanation of why Initiative 350 involved a racial classification).
Both Hunter and Seattle School District took as their starting point the proposition that the government was entirely free, as a general matter, not to enact either fair housing ordinances or voluntary desegregation plans. ''[I]n the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process.'' Seattle School District, 458 U.S. at 474; cf. Reitman, 387 U.S. at 376 (holding that repeal of a fair housing statute may rise to the level of a constitutional violation when the intent and effect of the repeal is to ''encourage and significantly involve the State in private racial discrimination''). Section 137 and Initiative 350 ran afoul of the equal protection clause not simply because they repealed existing protections, but also because they impaired racial minorities' access to the political process. The second strand of the Hunter-Seattle doctrine focuses on the uniquely disabling effects of provisions that ''distor[t] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.'' Seattle School District, 458 U.S. at 467. Section 137 and Initiative 350 triggered strict scrutiny from both barrels of the equal protection cannon: they involved (1) discrimination against racial minorities, that (2) infringed the exercise of a fundamental constitutional right.
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Hunter relied explicitly on Reynolds v. Sims, 377 U.S. 533 (1964), and Avery v. Midland County, 390 U.S. 474 (1968)—two one-person, one-vote cases that raised no allegations of racial discrimination—to explain the way in which section 137 unfairly burdened ''racial minorities within the governmental process.'' Hunter, 393 U.S. at 391. The Court concluded that ''the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size.'' Id. at 393. Section 137 ran afoul of this principle because it inverted Akron's normal political processes: usually, a group could obtain beneficial legislation simply by persuading the city council to enact an ordinance, ''[b]ut for those who sought protection against racial bias, the approval of the City Council was not enough. A referendum was required by charter at a general or regular election, without any provision for use of the expedited special election ordinarily available. The Akron charter obviously made it substantially more difficult to secure enactment of ordinances subject to §137.'' Id. at 390.
Similarly, Initiative 350 unfairly ''modified'' Washington State's ''political mechanisms . . . to place effective decisionmaking authority over a racial issue at a different level of government.'' Seattle School District, 458 U.S. at 474. Before the passage of Initiative 350, under Washington law, ''the local community and its electorate'' controlled decisions about racial desegregation. Id. at 478 (emphasis added) (quoting Wash. Rev. Code §28A.58.758(1) (1981)). Under the pre-existing regime, minority voters and their allies within Seattle had persuaded their local school board to implement a voluntary desegregation plan. See also Seattle School District, 458 U.S. at 460 n.1 (noting the unsuccessful effort by opponents of an earlier Seattle plan to recall four members of the board who supported integration). But Initiative 350:
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work[ed] a reallocation of power of the kind condemned in Hunter. The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board. . . . [T]he initiative expressly requires those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action. As in Hunter, then, the community's political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government.
Id. at 474.
The continued vitality of this strand of the Hunter-Seattle doctrine is illustrated by last Term's decision in Romer v. Evans, 116 S.Ct. 1620 (1996), where the Court emphasized that
Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
Id. at 1628. Romer explained that a central flaw in Colorado's Amendment 2—which, among other things, prohibited state actors from enacting or enforcing any policy that granted ''preferences, protected status or claim[s] of discrimination'' on the basis of homosexual, lesbian, or bisexual status, Colo. Const., Art. II, §30b—was that it imposed a ''special disability'' on gays alone, since they ''can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution . . . . This is so no matter how local or discrete the harm, no matter how public or widespread the injury.'' Romer, 116 S.Ct. at 1627. Moreover, the Supreme Court found it unnecessary to apply strict scrutiny in reaching its conclusion that Amendment 2 violated the equal protection clause. See id. at 1627–28. Romer held that when a state prohibits a discrete, demographically defined class from pursuing its interest in ''preferences'' or protections against discrimination, it denies ''equal protection of the laws in the most literal sense.'' Id. at 1628. The constitutional violation is even clearer here, where the state has imposed this ''special disability,'' id. at 1627, on women and racial minorities, constitutionally suspect classes entitled to heightened scrutiny.
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The flaw the Supreme Court identified in section 137, Initiative 350, and Amendment 2 taints Proposition 209 as well. Prior to Proposition 209's passage, members of minority groups could persuade local jurisdictions and individual state agencies to enact constitutionally permissible affirmative action plans. Proposition 209 worked critical changes in this regime. It singled out race- and gender-conscious affirmative action plans, and these plans alone, for a special political burden. All other groups—such as veterans, the disabled, or persons over the age of 40, for example—can continue to seek constitutionally permissible preferences by lobbying state and local officials, particular agencies charged with regulating a given activity, or the state legislature. Only racial minorities and women are required first to persuade California's entire electorate to approve a modification of the state constitution. Thus, like the plaintiffs in Hunter, the plaintiffs in this case cannot rely on representative government to obtain legislation on their behalf; they must also persuade the electorate as a whole—a far more costly undertaking. And like the school board's constituents in Seattle School District and the plaintiffs in Romer, the plaintiffs in this case cannot use the local political process to deal with local issues of discrimination and equal access; they must persuade voters across the state to permit their locally elected representatives to address their concerns. Thus, Proposition 209 offends the core commitment of equal protection in a democratic society: keeping the political process open to full participation by members of minority groups. As Seattle School District explained, ''when the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the 'special condition' of prejudice, the governmental action seriously '[curtails] the operation of those political processes ordinarily to be relied upon to protect minorities.' '' Seattle School District, 458 U.S. at 486 (quoting United States v. Carolene Products Co., 304 U.S. 144, 153, n.4 (1938)).
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Over the past three decades, the Supreme Court has made clear in a variety of contexts that the constitutional protection of the right to vote does more than guarantee all qualified citizens the right to enter the voting booth and cast a ballot for the candidates of their choice or the initiative propositions they favor. The constitutional right to vote involves a constellation of interests—an entitlement to participate in the formal election process by casting a ballot and having it counted; the use of fair rules to determine election winners; and the ability to influence post-election decisionmaking by elected representatives. See Pamela S. Karlan, The Rights To Vote: Some Pessimism About Formalism, 71 Tex. L. Rev. 1705, 1709–20 (1993). Proposition 209 radically restricts the right to vote as it is currently understood.
Electoral schemes that ''operate to minimize or cancel out the voting strength of racial or political elements of the voting population . . . raise a constitutional question.'' Davis v. Bandemer, 478 U.S. 109, 119 (1986) (internal quotation marks omitted). Even if a politically identifiable group remains free to go to the polls and cast its ballots for the candidates and propositions it prefers, the members' right to vote may nonetheless be unconstitutionally diluted ''when the electoral system is arranged in a manner that will consistently degrade a voter's or group of voters' influence on the political process as a whole.'' Id. at 132 (plurality opinion). Of course, ''the power to influence the political process is not limited to winning elections.'' 478 U.S. at 132 (plurality opinion). Normally, ''the candidate elected will [not] entirely ignore the interests of those voters [who voted for a losing candidate].'' Id.; see also id. at 152–53 (O'Connor, J., concurring in the judgment).
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But California's Proposition 209 undercuts this presumption of open access. Proposition 209 is designed precisely to curb nonwhite and female voters' influence on the political process as a whole and, if allowed to stand, will have exactly that effect. The impetus for Proposition 209 was the success that supporters of entirely constitutional affirmative action programs had achieved through California's existing political processes. Proposition 209 was designed to roll back the gains these groups had already achieved—before the California legislature, in local legislative bodies, and through the persuasion of executive officials—and to ensure that nonwhites and women would not be able to achieve any future affirmative action policies except through the extraordinary mechanism of a state constitutional amendment. Proposition 209 ensures that elected officials in California not only will, but must ''entirely ignore,'' Bandemer, 478 U.S. at 132 (plurality opinion), the interests of the group of voters who seek expansive civil rights remedies, because elected officials are absolutely disempowered from responding to these constituents' concerns. There is no other identifiable class of California voters whose influence on the political process is similarly degraded.
As the Supreme Court has repeatedly warned, ''[o]ne must be ever aware that the Constitution forbids sophisticated as well as simple-minded modes of discrimination.'' See, e.g., Reynolds v. Sims, 377 U.S. 533, 563 (1964); Lane v. Wilson, 307 U.S. 268, 275 (1939). Perhaps the most famous example of political disempowerment in modern American history is the notorious Tuskegee gerrymander case, Gomillion v. Lightfoot, 364 U.S. 339 (1960). Gomillion shows both what constitutes ''sophisticated'' discrimination respecting the right to vote and why federal judicial intervention is necessary when a state manipulates its governmental structure to disempower a discrete group of voters, id. at 566.
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Tuskegee was (and is) a majority-black municipality within majority-black Macon County, Alabama. When, in the mid-1950's, Tuskegee's black community began to express its determination to participate in the political process, Alabama's white majority responded in three ways. First, the Macon County Board of Registrars engaged in a series of evasive maneuvers designed to prevent African Americans from registering to vote. See United States v. Alabama, 192 F. Supp. 677 (M.D. Ala. 1961), aff'd, 304 F.2d 583 (5th Cir.), aff'd 371 U.S. 37 (1962) (per curiam). Second, through a statewide referendum, Alabama adopted a constitutional amendment permitting the state to abolish Macon County altogether ''if the uppity Negroes there continued pestering for the vote.'' Bernard Taper, Gomillion v. Lightfoot: Apartheid in Alabama 51 (1962). See Ala. Const. Amend. No. 132 (1957), repealed Ala. Const. Amend. No. 406 (1982). Third, the Alabama Legislature passed Local Act 140, which redrew Tuskegee's municipal boundaries ''to remove from the city all save only four or five of its 400 Negro voters [as well as several hundred other African American citizens] while not removing a single white voter or resident.'' Gomillion, 364 U.S. at 341.
The Supreme Court held that Act 140 could be challenged under the Fifteenth Amendment, which protects only the right to vote against racial discrimination. If ''the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights,'' the Tuskegee gerrymander would be unconstitutional. Id. at 347. Although the Court acknowledged a long line of cases recognizing the states' general prerogative to organize their local governments as they saw fit, it held that it was ''inconceivable'' that the Constitution ''would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions.'' Id. at 345. The broad principle to be derived from Gomillion is that the Constitution protects the right to vote from state efforts to manipulate political structures to deny voters ''their theretofore enjoyed voting rights.''
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The ''inescapable effect'' of Proposition 209 is not far removed from the Tuskegee experience. Like Alabama, California has responded to the influence of nonwhites and women on the state's traditional political process with an unprecedented reorganization to ensure that local political activity would be rendered ineffectual. States ''cannot foreclose the exercise of constitutional rights by mere labels,'' NAACP v. Button, 371 U.S. 415, 429 (1963). Proposition 209 is no more a simple ban on special rights than Colorado's Amendment 2 was, and it raises the same sort of constitutional problems posed in cases such as Romer, Gomillion, Hunter, and Seattle School District.
Mr. GOODLATTE. Mr. Flick, you are welcome.
STATEMENT OF WAYNE FLICK, ATTORNEY, LATHAM & WATKINS
Mr. FLICK. Good afternoon, and thank you for the invitation to be here this afternoon. As you said in the introduction, since 1993 I have had the privilege of representing the City of Torrence, CA, and its police and fire departments in an action brought by the Civil Rights Division.
In May 1991, the Civil Rights Division commenced an investigation into the hiring practices of the police and fire departments. The focus of that investigation and of the lawsuit that followed was primarily written examinations used by the city to select entry-level police officers and firefighters.
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At the outset, it is important for you to understand several things about the examinations themselves. First, they are not examinations that are uniquely used in Torrance. In fact, in the case of almost all of the examinations, they are widely used and have long been widely used throughout the State of California and, in the case of some of the examinations, throughout the country for precisely the same purposes.
Second, they were professionally developed and have been validated consistent with professional standards over and over and over.
Third, these tests measure reading, writing, and reasoning skills, and in the case of the firefighters examinations, some quantitative skills at approximately the 11th grade level.
And lastly, as the government was forced to concede by the end of the trial, there is no known alternative for a municipal public safety agency to use to ensure that its employees possess these essential skills.
Now, from the initiation of the Government's investigation and throughout the entire litigation, the city repeatedly asked a very simple question: If these examinations are not acceptable to you, what examinations should we use to ensure that our employees have these skills? For 5 years the answer was the same: We don't know. When the court finally asked the question at trial, the answer was: There are none.
In November 1992, after its 18-month investigation, the Justice Department announced its conclusion that the examinations in fact violated Federal law, but it invited the city to enter into one of its now-famous consent decrees. That consent decree would have required the City of Torrence to abandon the use of a written tests and grant preferential hiring status to individuals who had not been able to pass the tests, and set up a fund of several million dollars to compensate people, including some who never even applied to work in Torrance.
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When the city declined the Justice Department's invitation, the Justice Department filed suit in July 1993. On the eve of the filing of the complaint, the lead attorney for the Civil Rights Division called the city attorney in Torrance and advised him of the Justice Department's decision that in return for the city's refusal to acquiesce and enter into a consent decree, the government had decided to double the period during which it would seek to establish liability. The lawsuit would now reach back to 1981. This was possible because Congress gave the Attorney General no statute of limitations in pursuing a Title VII action.
When the case finally came to trial last summer, after 5 years of investigation and litigation that cost the people of Torrance more than $3 million, the Government was unable to present any credible evidence whatsoever to support its allegations.
Consider this excerpt from the Court's decision:
The United States has failed to carry its burden. In response to a very weak prima facie showing made by the United States, the defendants have made a strong showing of justification for the use of the written examinations. Moreover, they have not only established that the written examinations and the manner in which they have been used serve the legitimate goals of the city, but also that the tests, as used, are job related and consistent with business necessity. Defendants have affirmatively shown that the tests are essential to job efficiency and that there is a correlation between the tests, as used, and success on the job.
The United States has wholly failed to disprove defendant's case. It has not shown that other tests or selection devices without a similarly undesirable racial effect could also serve the city's legitimate interests. The United States has made no case at all on alternatives which could or should have been used.
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Ultimately, in the absence of any evidence that the tests themselves were unlawful, attorneys for the Justice Department were forced to concede that it was not the examinations that prompted the lawsuit in the first place. The lawsuit was filed simply because the City of Torrence had failed to hire a sufficient number of minority applicants to satisfy the Civil Rights Division.
During the trial, in an exchange between the court and lead counsel for the Justice Department, it became clear that what the Justice Department did was simply reason backwards. In other words, they looked to the bottom line, concluded that they didn't like the numbers they saw, and determined that something the city was doing must be unlawful. Put another way, no matter what selection procedures the city had been using, the lawsuit would have been filed.
I suppose this is what Ms. Pinzler referred to earlier as ''guaranteeing outcomes.''
One more minute, if I may. We have recently asked Justice Pfaelzer of the Central District of California to award the city $2 million in sanctions against the Justice Department for pursuing this case in bad faith. Having argued that motion myself, I have had the opportunity to hear the Justice Department defend its conduct in this case. And I heard Ms. Pinzler's comments this morning. I tell you, as I laid out in my written testimony, the clear record in this case overwhelms any suggestion that this case was pursued in good faith.
I welcome your questions.
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[The prepared statement of Mr. Flick follows:]
PREPARED STATEMENT OF WAYNE FLICK, ATTORNEY, LATHAM & WATKINS
I. INTRODUCTION
Mr. Chairman and Members of the Subcommittee, good afternoon. My name is Wayne Flick, and I am an attorney with the law firm of Latham & Watkins in Los Angeles. For the last four years, I and four other attorneys in my firm have had the privilege to represent the City of Torrence, California and its Police and Fire Departments in an action brought by the Civil Rights Division of the United States Justice Department. The case was brought in July 1993 pursuant to Section 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e–6. The principal claim purported to challenge as unlawful written examinations used by the City since at least 1981 to select entry-level police officers and firefighters. I say ''purported to challenge'' because there never was any credible evidence, either before or during the litigation or at trial, that the challenged examinations are inconsistent with federal law. These examinations, professionally developed and validated over the course of several decades, measure job applicants' reading, writing and reasoning ability—skills which both common sense and the Supreme Court tell us are essential to the jobs at issue—at approximately the eleventh grade level. (In the case of the challenged firefighter examinations, some quantitative skills are measured as well.)
After more than five years of pre-litigation investigation and discovery throughout the lawsuit, at substantial taxpayer cost, the Justice Department had virtually no response to the City's substantial business justification for the challenged examinations, nor the City's avalanche of evidence of their job-relatedness and validity. In fact, the Court so held. Moreover, as was apparent from the Justice Department's evasive behavior throughout the case, and as it was forced to concede at trial, there are no viable alternatives which would efficiently and effectively satisfy the City's (or other similarly situated employers') legitimate hiring objectives while reducing the alleged adverse impact of the challenged examinations.
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The Government was neither distracted nor deterred by the lack of evidence to support its challenge to these examinations. Rather, it was content to pursue the case in the absence of a factual or legal foundation and, instead, to focus on using the litigation process itself to achieve its desired result. Mindful that, at some point, any defendant in a costly lawsuit might simply throw up its hands merely to avoid the financial burden of continuing to defend itself, the Justice Department conducted some of the most inexplicable discovery I have seen conducted by any plaintiff, to say nothing of a plaintiff bearing the name of the sovereign.
Unfortunately, even the Congressional Record lacks sufficient space to detail all of the troubling conduct of attorneys for the Civil Rights Division. Suffice it to say, however, that the discovery process was tortured and perverted so badly in this case that, by the time the Government was finished, the people of Torrance had spent nearly two million dollars responding to discovery alone, almost all of it entirely useless. And this takes no account of what the United States itself spent in conducting this discovery. To appreciate fully the magnitude of this waste, the joint costs of discovery could have paid the salaries and benefits of approximately 25 additional entry-level police officers in Torrance for four full years.
In my view, United States v. City of Torrence represents an abuse of the Civil Rights Division's prosecutorial authority. It was an indefensible exercise of federal power and use of substantial federal resources for the singular purpose of coercing a municipality to abandon merit as a selection criterion in its public safety agencies, and effectively to adopt what amount to racial preferences. My remarks today will focus on the burdensome litigation the Government threatened and delivered, the baselessness of the Government's claim, the economic and other hardship the lawsuit imposed on the City, and what the Court ultimately concluded based on the evidence the Government presented at trial. I cannot emphasize strongly enough my belief that this case stands as a stark example of how our federal government should not be permitted to conduct itself. Although I do not wish unnecessarily to personalize my remarks, or to point an accusatory finger to particular attorneys, it is difficult to separate the persons involved from the entity they represent. Indeed, throughout the litigation, some of the attorneys representing the United States appeared to hide behind their ''client'' to avoid taking personal responsibility for their actions. Although many of them have since left the Justice Department, several remain. Those few continue to use the same tactics, the same economic threat inherent in their enforcement authority, and the same level of what seem to be limitless resources in pursuit of a singular goal: to force municipal public safety agencies to hire candidates based on race or ethnicity rather than on objective qualifications.
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Sadly, Torrance is not the only municipality that has endured this pattern of coercion and intimidation by the Civil Rights Division. In Southern California alone, El Monte, Alhambra and Pomona have all entered into consent decrees since 1992, in large part because, whatever the supposed merits of the Justice Department's allegations, they did not have the resources or the resolve to wage a lengthy and enormously costly battle with the federal government. The Civil Rights Division is keenly aware of the advantage inherent in its special position, and uses that advantage to achieve through litigation—or the mere threat of litigation—what neither it nor Congress could constitutionally achieve through legislation. Few cities, small or large, can afford to devote their scarce and much-needed resources to defend against claims like the one made in the Torrance case, which was found specifically to be without any legal or factual merit. Ironically, the experience of Torrance itself, although an unqualified defeat for the Civil Rights Division, may alone be sufficient to deter other municipalities from defending themselves against the Justice Department's efforts to enforce ideologically appropriate levels of diversity. The potential detriment to these municipalities' public safety agencies, and the citizens they serve, cannot be understated.
Lest there be any doubt whatsoever about the merits of the Justice Department's claim in this case, I refer to the district court's opinion on that subject:
[T]he United States has failed to carry its burden. In response to a very weak prima facie showing made by the United States, the defendants have made a strong showing of justification for the use of the written examinations. Moreover, they have not only established that the written examinations and the manner in which they have been used serve the legitimate goals of the City, but also that the tests as used are job-related and consistent with business necessity. Defendants have affirmatively shown that the tests are essential to job efficiency and that there is a correlation between the tests as used and success on the job. The United States has wholly failed to disprove the defendants' case. It has not shown that other tests or selection devices, without a similarly undesirable racial effect, would also serve the City's legitimate interests. The United States has made no case at all on alternatives which the City could or should have used and which would have resulted in a reduced adverse impact.
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In short, after extraordinary expense in both actual dollars and human capital, the Government presented no credible evidence whatsoever to support allegations it has now pursued for a total of more than six years. To make matters worse, it continues to pursue them with what we believe is a frivolous appeal.
If this is the manner in which attorneys for the United States are to be permitted to perform their prosecutorial function, then it is no wonder why Justice Department efforts are so often met with skepticism, cynicism and outright mistrust. While I doubt that the extreme and, in my view, unethical conduct of the attorneys in this case is typical of the conduct of all Justice Department attorneys, or even all those in the Civil Rights Division, I fear on the other hand that there existed under Assistant Attorney General Deval Patrick, and still exists a permissive atmosphere, an excess of available resources and a lack of safeguards that allows or even encourages individual attorneys to wage lengthy, costly battles not over violations of law, but over mere ideological differences. Perhaps more than any other of which I am aware, this case serves as compelling evidence that Title VII is being used by the Justice Department in ways that its drafters surely never intended, and that I would hope and expect this Subcommittee would not knowingly tolerate.
The command of Title VII—indeed, the promise of Title VII—is equality of opportunity. The statue has served that objective well for more than three decades, under seven different administrations. To permit its use as a mere instrument of economic warfare between the well-funded federal government and municipalities most of which are powerless to do little but acquiesce, is to do violence to an indispensable component of our national commitment to equality and to trivialize its otherwise proud history of ridding the national workplace of invidious discrimination. This Subcommittee and this Congress owe the people of the United States more.
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II. FACTUAL BACKGROUND
A. The City of Torrence and its Historical Recruiting Efforts
Torrance, California is a business and residential community in the ''South Bay'' area of southwestern Los Angeles County. In 1990, the City's population of approximately 133,000 was comprised of 73% whites, 21.9% Asian-Pacific Islanders, 10.1% Hispanics, 1.5% blacks and 0.4% Native Americans; 3.3% were of other races or national origins. In 1980, these figures were: 83.9% whites, 10.5% Asian-Pacific Islanders, 8.3% Hispanic, 0.7% black, 0.5% Native American and 4.4% other. A study commissioned by the Torrance City Council projected that the City will be approximately 50–60% Asian by the end of the next decade.
The Torrance Civil Service Administrator is responsible for, among other things, the recruitment of applicants and administration of portions of the selection process for the positions of police officer and firefighter in Torrance, with the assistance of the Police and Fire Departments, respectively. The Civil Service Administrator has the ultimate responsibility to select the written examinations administered to select police officers and firefighters. After obtaining review copies and any validation documentation from the publishers of any written examinations under consideration for administration (often between two and four tests), the Civil Service Administrator typically consults with other municipalities that may have used one or more of the examinations in an effort to select the examination(s) that best suit the City's needs with the least adverse impact upon minority candidates.
Notwithstanding its reliance on the community proper for applicants, Torrance has long endeavored affirmatively to attract minority candidates. The Civil Service Administrator has made consistent efforts to recruit qualified minority applicants by sending mailings to minority organizations and colleges, and by extensive advertising in newspapers that specifically target minority communities, including, but not limited to, the Chinese Daily News, Compton Daily Bulletin, La Opinion, and Wave newspapers. In fact, in an effort to increase minority representation among applicants for police officer and firefighter jobs, the Civil Service Administrator often has not advertised in The Daily Breeze, the primary South Bay newspaper, which reaches a largely white community.
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Between 1981 and 1994, the period relevant to the lawsuit, the City's recruitment efforts succeeded in attracting substantial numbers of applicants for relatively few entry-level police officer and firefighter openings. Moreover, as the Court ultimately found, this applicant flow had a richer representation of blacks and Hispanics than would have been expected given the representation of blacks and Hispanics in the population that the Torrance Police and Fire Departments serve. Indeed, relative to black availability in the Torrance PUMA (Public User Microsample Area), blacks were excessively represented among passers of written police officer exams by more than 18 standard deviations. Relative to the availability of Hispanics in the Torrance PUMA, Hispanics were excessively represented among passers of the same written exams by more than 8 standard deviations. When the City's labor market area is defined as Torrance and its five proximate PUMAs, black and Hispanic representation among passers of these police officer exams still is excessive—measuring 3.47 and 4.63 standard deviations, respectively.
Each year in which the City has conducted recruiting for police officer or firefighter positions, it has been faced with the challenge of selecting from among a substantial pool of candidates for a small number of openings. Turnover in both departments has historically been low and, as the Court concluded, an applicant's chance of being hired even after passing a written examination is extremely low—approximately 5%. Only 66 persons were hired as entry-level police officers from the written police exams administered between January 1986 and July 1992. There were 2,350 applicants competing for these 66 positions, thereby giving each applicant a probability of being hired that is less than three chances in 100. There were 1,122 persons who passed the written exam; even their probability of being hired was less than six chances in 100. Expressed in other words, while passing the written exam increased an applicant's probability of being hired by three percentage points, his/her hiring odds were still slim—amounting to one in 18 to 20.
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The probability of being hired as a firefighter was even lower. Between 1981 and 1994, Torrance hired 79 firefighters. There were 3,193 applicants and 1,666 written exam passers. Each applicant had approximately 2.5 chances in 100 of being hired; and each written exam passer has 4.7 chances in 100 of being hired. While passing the written exam almost doubled an applicant's probability of being hired, it still was slim—less than one in 20.
One consequence of the low probability of being hired, even when an applicant passed the written exam for police officer or firefighter, is that the Government's allegation that blacks, Hispanics and Asians had lower passing rates than whites on the challenged examinations has almost no practical consequence. Given the actual probability of any written exam passer being hired, had there been no difference in the pass rates of whites as compared with blacks, Hispanics and Asians, the Court concluded that only one more black applicant, less than one more Hispanic applicant and no more Asian applicants would have been hired as police officers between 1986 and 1992. Likewise, two more Hispanic applicants and no more black or Asian applicants would have been hired as firefighters from between 1981 and 1989.
Allan Parachini, Public Affairs Director of the American Civil Liberties Union of Southern California, testified at trial concerning a 1994 ACLU report which analyzed the composition by race and gender of 107 police departments and 80 fire departments in Southern California. Mr. Parachini testified that the ACLU believes a public safety agency should reflect the race and gender composition of the city it serves, that ''in terms of achieving and maintaining the confidence of a particular local community, [] a public safety agency can best do that if it reflects that community.'' The ACLU found the ''integration'' of Southern California's police and fire agencies to be generally poor, but noted that Torrance and three neighboring cities in the South Bay area (Manhattan, Hermosa and Redondo Beaches) had demonstrated progress toward integration of their police departments in comparison with other agencies studied.
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In reaching these conclusions, the ACLU used a statistical method known as the ''EEO index,'' which compares the proportion of racial groups in a given city to the proportion of those groups in the agency being evaluated. Thus, if a municipality had a 10 percent African-American population, and the city's police department was only 5 percent African-American, the EEO index for African-Americans in the police department would be 0.5. This would indicate that the police department had half the representation of African-Americans as was present in the city. According to the ACLU, an EEO index of .75 indicates an ''acceptable'' level of integration, while an EEO index over 1.0 may indicate ''over-representation.'' Mr. Parachini testified that the Justice Department itself uses the EEO index (also referred to as the ''Walker index'' after its creator, Professor Sam Walker) in its annual publication, The Source Book. For the past several years, the Justice Department has published the EEO indexes for African-Americans and Hispanics in 65 of the largest cities in the United States. The ACLU found, for example, that the Torrance Police Department had an EEO index for African-Americans of 2.73, indicating that African-Americans were substantially over-represented in that department.
B. The City's Selection Processes
In order to hire the most qualified individuals from among its many applicants for police officer and firefighter, the City invests substantial time and resources in its selection processes. In an effort to avoid candidates' overexposure to particular selection devices, and to minimize disparate performance between racial groups while keeping within its budgetary constraints, the City has changed its selection processes from time to time, including varying the written examinations it has administered. Both monetary and human capital costs of the process are high; in addition to the cost of leasing written examinations, some of which are accompanied by validation studies from independent test developers, and retaining the services of physicians, psychologists, and polygraph examiners for the background investigation, considerable overtime hours are required of the individuals who serve on the oral interview panels, and who participate in the administration of the physical agility tests and background investigations.
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1. Police
Every peace officer in California must meet the minimum standards enumerated in California Government Code sections 1029–1031. Torrance participates in the California Commission on Peace Officer Standards and Training (''POST''), as do most police agencies in California. POST sets the following minimum selection standards for peace officers, largely reflective of the Government Code provisions, which are enumerated in POST Regulation 1002, codified in Title 11, Div. 2, California Code of Regulations: 1002. Minimum Standards for Employment.
(a) Every peace officer employed by a department shall be selected in conformance with the following requirements:
(1) Felony Conviction. Government Code section 1029: Limits employment of convicted felons.
(2) Fingerprint and Record Check. Government Code sections 1030 and 1031(c): Requires fingerprinting and search of local, state, and national files to reveal any criminal records.
(3) Citizenship. Government Code sections 1031(a) and 1031.5: Specifies citizenship requirements for peace officers.
(4) Age. Government Code section 1031(b): Requires minimum age of 18 years for peace officer employment.
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(5) Moral Character. Government Code section 1031(d): Requires good moral character as determined by a thorough background investigation.
(6) Education. Government Code section 1031(e): Requires high school graduation, passage of the General Education Development Test (GED) or attainment of a two-year or four-year degree from an accredited college or university.
(7) Physical and Psychological Suitability Examinations. Government Code section 1031(f): Requires an examination of physical, emotional, and mental conditions.
(8) Interview. Be personally interviewed prior to employment by the department head or a representative(s) to determine the person's suitability for police service, which includes, but is not limited to, the person's appearance, personality, maturity, temperament, background, and ability to communicate. This regulation may be satisfied by an employee of the department participating as a member of the person's oral interview panel.
(9) Reading and Writing Ability. Be able to read and write at the levels necessary to perform the job of a peace officer as determined by the use of the POST Entry-Level Law Enforcement Test Battery or other job-related tests of reading and writing ability.
At the time of application, candidates are screened to determine, if possible from the information provided, whether these initial prerequisites are met. Those whose applications do not contain obvious disqualifying factors are permitted to sit for the written examination, which measures skills such as reading comprehension and written communication (a state law requirement), as well as memory and reasoning.
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The Civil Service Administrator sets the raw score pass point for the written, entry-level examinations, based on professional analysis and recommendations provided by the test developers. During the period relevant to the lawsuit, applicants who obtained a passing score on the written examination were invited to an oral interview conducted by a panel of two police officers and one sergeant, who posed situational questions designed to ascertain the candidates' potential for dealing with problems likely to be encountered on the job. The oral interviews were also scored.
Based upon their combined written examination and oral interview scores (with 50% weight assigned to each), candidates were then placed in rank order on an eligibility list for further processing. Depending upon the size of a particular eligibility list and the Department's projections regarding future openings, the City processed candidates in groups of 10 to 20. All candidates were required successfully to complete a physical agility test, medical and psychological examinations, a polygraph test and a background investigation, which was conducted in part based on the information the candidate provided in a 10- to 12-page detailed questionnaire concerning past residences, jobs and other personal information. The background investigation also entails a fingerprint check and a credit check. Candidates who clear all of these screening devices remain on the eligibility list, from which new employees are hired as openings occur. Lateral applicants (i.e., those who were continuously employed by another California law enforcement agency for the one year immediately preceding their application to Torrance), are not required to take a written examination. The lateral selection process is otherwise identical to the post-examination selection process for entry-level police applicants.
III. THE JUSTICE DEPARTMENT'S CHALLENGE
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In May 1991, the Civil Rights Division initiated an investigation into the hiring and employment practices of the Torrance Police and Fire Departments. That investigation lasted 18 months, and focused almost exclusively on the Government's allegation that the City had violated Title VII of the Civil Rights Act of 1964, as amended, by using written examinations to select entry-level police officers and firefighters that had an unlawful adverse impact on blacks, Hispanics and Asians. Despite repeated requests from the City that the United States identify viable alternatives to the written examinations, Justice Department attorneys responded simply that ''We're not here to give advice.'' In fact, throughout the entire investigation, the Government refused to identify a single alternative to the challenged examinations, leaving no reasonable conclusion other than this: the Government's singular goal was to force the City to abandon its practice of measuring applicants' reading and writing skills altogether, in favor of some other, non-merit-based criterion.
Following the investigation, during which it gathered substantial information about the City's employment practices and procedures, the United States issued a Notice Letter advising the City that it had reasonable cause to believe that the City had engaged in a pattern or practice of discrimination in violation of 42 U.S.C. §2000e–6, and ''invited'' the City to enter into a consent decree. Among other things, that consent decree would have required the City to abandon the use of the written examinations and to set up a fund of several million dollars to compensate alleged discrimination victims, including individuals who never even applied to work for the City.
Subsequent conciliation efforts failed and, in July 1993, the United States filed a boiler-plate complaint making nothing more than vague allegations in conclusory fashion without factual support of any kind. Despite the Government's 18-month investigation into the City's hiring practices, its Complaint was virtually identical to those it had earlier filed against the cities of Alhambra, El Monte and Pomona, California. It did not contain any factual allegations specific to Torrance, and in no way reflected the substantial investigation it had conducted. (See Exhibit A.) To underscore the punitive nature of the lawsuit, the Government's lead attorney telephoned Torrance City Attorney John Fellows on the eve of filing the original complaint, advising him that in return for the City's refusal to accept the proposed consent decree, the United States had decided to double the period during which it would seek to establish liability. (Pursuant to the statute itself, the Attorney General has no statute of limitations in cases brought under Section 707.) During discussions concerning the proposed consent decree, this attorney, Philip K. Eure, had responded to a City request that the Justice Department explain how it had calculated the City's alleged monetary liability by stating that the Civil Rights Division was attempting to accomplish ''rough justice.''
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The case was assigned to United States District Judge Mariana R. Pfaelzer in the Central District of California, who granted the City's request that the United States be compelled to articulate with a greater degree of particularity the specific nature and scope of its allegations. As it stood, the original complaint was to vague to indicate what, if any, violations of law were being alleged. The Court agreed, noting in open court that she grants fewer than one-half of one percent of all such motions. This was an exceptional case warranting that action. Despite the Court's specific instructions, the Amended Complaint did almost nothing to clarify the Justice Department's allegations. Indeed, nearly eight months expired between the commencement of the lawsuit and the identification by the Justice Department of a single examination that was the subject of its challenge. With that, the games began.
What followed were three years of aimless, pointless and often incomprehensible discovery efforts, punctuated with repeated assertions by attorneys for the United States that they were pursuing a coherent theory of discrimination in good faith. As is chronicled below, however, the extraordinarily expensive and burdensome discovery in which the Justice Department engaged the City was conducted for no apparent purpose other than to coerce the City to acquiesce in the Government's command that the City adopt hiring preferences. Moreover, the United States' assertions regarding its good faith pursuit of its adverse impact allegation were ultimately called into serious question. At trial, the Government's presentation was as sloppy and disorganized as it was utterly disingenuous. Until the final day of trial, Justice Department attorneys assured the Court that they intended to present evidence of suitable alternatives to the challenged examinations—examinations, incidentally, whose use they had specifically blessed under consent decrees in neighboring jurisdictions. No such evidence was ever presented, however, and the Court so held.
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A. The Adverse Impact Claim
Although no mention was made in the Amended Complaint to any specific selection device, the Government ultimately revealed that its adverse impact challenge was directed at 12 different written examinations used to select entry-level police officers and firefighters from 1981 to 1994. In substance, the Justice Department alleged that, although neutral on their face, these garden-variety tests of reading and writing ability were unlawful because they had a disproportionate exclusionary effect (i.e., an adverse impact) on blacks, Hispanic and Asian test-takers. It is important to keep in mind that Title VII does not outlaw adverse impact per se; it proscribes the use of selection devices or practices that have an adverse impact and which cannot be justified by the articulation of a legitimate business objective. In this case, that legitimate business justification was never seriously in doubt, and never seriously challenged: police officers and firefighters need to possess basic reading, writing and reasoning skills, and the most efficient, cost-effective way for a municipal employer such as Torrance to ensure that applicants possess such skills is to administer standardized tests as part of the selection process.
As the course of the litigation eventually made clear, it was not the examinations themselves that prompted the Torrance litigation; it was the Justice Department's mere dissatisfaction with the racial composition of the City's police and fire departments. Whether or not the City discriminated, intentionally or otherwise, was quite beside the point. The Justice Department used Title VII and the federal court to seek to ''correct'' what it regarded as an unacceptably low bottom line. The following excerpt from the trial transcript makes the Government's objective apparent:
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The COURT. You look at the numbers, and if the numbers are agreeable, whatever they did to get to those numbers is all right; isn't that right? . . . If they had good numbers, you wouldn't even look at the way they selected.
Mr. EURE. That's how Title VII operates.
The COURT. I'm not quarreling with Title VII. I'm asking you what you specifically did.
Mr. EURE. As an enforcement agency, that would be our modus operandi.
The COURT. Listen to me. I'm not loading the question. I'm saying to you that you reason backwards, don't you? You look to see what the numbers are and if the numbers look to you as if they are improving over the years and they are presently at a rate that you think is right, you are not going to bother about their selection procedures, are you?
Mr. EURE. If individuals—Yes, your honor.
In other words, its ethical obligations notwithstanding, the Civil Rights Division would have filed this lawsuit no matter what selection procedures the City had been using. It was not the selection procedures that the Government found unacceptable, it was the failure of merit-based selection to produce racially desirable results.
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B. The Government's Evasive Discovery Responses
At the parties' December 1993 Early Meeting of Counsel (at which, pursuant to local court rules, parties are required to disclose certain evidence relating to their allegations and defenses), the United States refused to identify any of the specific selection devices that were the subject of its adverse impact claim. The Government took the position that such details could be addressed during the course of discovery. ''Addressed'' apparently meant ''obfuscated.''
On February 25, 1994, the Government served its responses to the City's first request for production of documents. Those requests, among other things, sought ''all documents which evidence, refer to, relate to or concern'' the pertinent allegations in the United States' complaint. The Government's response to the first 19 such requests was identical:
The United States objects to this request on the ground that it seeks materials that are protected from disclosure by the attorney work product doctrine. Without waiving this objection, the United States agrees to produce all non-privileged documents responsive to this request.
These non-privileged documents (consisting of about one file box) related almost entirely to the proposed consent decree the Government offered Torrance shortly after it concluded its pre-litigation investigation. Not one document produced identified a single selection procedure or device that was the apparent target of the Government's allegations. In addition, the Justice Department objected to some requests on the ground that ''some of the materials sought are internal documents which form the basis of the reasonable cause determination made pursuant to Section 707(a) of Title VII . . . and, therefore, are not subject to discovery.''
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On April 15, 1994, the City served a notice of deposition on the United States pursuant to Federal Rule of Civil Procedure 30(b)(6), seeking a knowledgeable, designated representative to testify regarding (among other things):
(1) the relevant labor market;
(2) the specific ways the City was alleged to have violated Title VII;
(3) the particular selection devices that the United States contended disproportionately exclude minorities; and
(4) any specific alternative selection devices that the United States contended should have been used.
In response, the Government refused to produce any witnesses for deposition, on the ground that no persons existed (other than the Justice Department attorneys themselves) who could testify as to those issues. It stated, however, that the information sought could be obtained through written interrogatories. Torrance had already sought—and had been denied—this very information through interrogatories, however. ''Obtained'' apparently meant ''withheld.''
The City's Interrogatory No. 2 (consistent with the Government's own suggestion) requested that the United States ''state the particular selection devices and selection procedures . . . which you contend have disproportionately excluded blacks, Hispanics and Asians from employment,'' including the dates any such devices were used. When the Justice Department finally responded, at long last, it identified two such tests:
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1. the Cooperative Personnel Services (''CPS'') Entry Level Law Enforcement Test Number 1020 (''and all written examinations derived therefrom''); and
2. the CPS Entry Firefighter Test Number 2149 (''and all other written examinations derived therefrom'').
Other than those two examinations (and the unidentified derivative ''others''), the Government stated that ''[a]t the present time, the United States cannot identify all other selection devices and selection procedures used by Torrance'' that have had an adverse impact on minorities. Thus, taking the Justice Department at its word, as of February 1994, it had no evidence that any other examinations used by Torrance produced an unlawful adverse impact. This did not deter the Government from seeking to challenge every single police officer and firefighter examination used in Torrance from 1981 forward.
The City's Interrogatory No. 3 asked whether the United States contended that the two selection devices it identified were not job-related, and if so, to explain its reasons therefor. The United States' verified response was as follows:
(1) the information was protected by the attorney work-product doctrine;
(2) it could not respond because the City had not yet furnished sufficient information in its discovery responses; and
(3) it could not respond because it had not yet retained an expert.
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Again, taking the Justice Department at its word, it had no basis in February 1994 for alleging that any of the examinations used by Defendants were not job-related. It simply hoped such evidence would turn up.
Finally, Defendants' Interrogatory No. 4 asked the United States to identify ''what alternative selection device or selection procedure you contend should have been used by Torrance consistent with business necessity.'' This led to perhaps the most galling aspect of the United States' evasive approach to the City's discovery efforts. The Government responded as follows:
The United States contends that Torrance should have used alternative selection procedures or selection devices for entry-level [police officer and firefighter] which are job-related and consistent with business necessity in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., and the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §1602 et seq.
As the City pointed out at trial (and as the Court evidently agreed), this response can be translated only two ways: either ''we don't know'' or ''we're not telling.'' In either event, it alone reveals the baselessness of the United States' adverse impact claim. There are no alternatives, there never were any alternatives and the Civil Rights Division never possessed any evidence to the contrary.
C. The United States' Own Discovery Requests
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At the same time that it steadfastly refused to set forth the bases for its adverse impact claim, the Government sought to expand its case even further. For example, during the third session of the ten-session deposition of the City's Civil Service Administrator, the United States asked numerous questions relating to sex discrimination, notwithstanding the fact that alleged sex discrimination had never been raised during the United States' pre-litigation investigation, and appeared nowhere in the First Amended Complaint. The following colloquy aptly demonstrates both the City's frustration and the Justice Department's arrogance:
Q. [By counsel for the City] Counsel, could you explain to me why you care? Your Complaint makes no reference whatsoever to sex discrimination. There has been no issue raised in this litigation concerning discrimination against applicants or existing employees based on sex. . . .
A. [By Justice Department attorney Elizabeth Hack] I believe that we are entitled to this material, and if it's material that can lead to other discoverable material, we are allowed to ask these questions . . . There is nothing to stop us from amending our Complaint if we find that there has been a failure to recruit, and we are allowed to delve into these areas.
What Ms. Hack had apparently forgotten was that the United States had already alleged a failure to recruit (another allegation that was later shown to be without any merit). Her admission that, nearly a year after the lawsuit was filed, she was looking for evidence to support that allegation is revealing.
Rather than using the discovery process to develop evidence to support a coherent theory, the Government used the discovery process to find a theory. When pressed to justify its overly broad demands, the Government's consistent response was that ''the United States is entitled'' to the information. In other words, the Justice Department believed it was proper to impose any burden on Torrance—no matter how costly or how useless the discovery to its case—with no more justification than ''because we can.'' Neither Rule 11 nor the Civil Rights Act permits the discovery process to be used in such a fashion.
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The United States' most flagrant abuse of the discovery process was undoubtedly the depositions of the so-called ''Subject Matter Experts'' (or ''SMEs''), incumbent police officers and firefighters who had participated in the job evaluations that supported the professional validation of some of the challenged examinations. The United States deposed 17 SMEs (and sought to depose 20 more) for three to five hours each. The general subjects of these depositions were as follows:
(1) ''When I say common sense, what does that mean to you?'' (Deposition of Police Officer Stephen D'Anjou.)
(2) ''Do you think that the ability to deal with people in tense situations is an important skill?'' (Deposition of Police Officer Thomas Stark.)
(3) ''Do you believe it's important for a police officer to—in order to perform well in a position in Torrance, to appear confident?'' (Deposition of Officer Devin Chase.)
(4) ''Is it important to be a good listener?'' (Deposition of Police Officer Stephen D'Anjou.)
(5) ''Do you need to give oxygen to people as part of your job as a firefighter?'' (Deposition of Firefighter Dennis Hansen.)
(6) ''Do you think that you had common sense before you became a police officer in Torrance?'' (Deposition of Officer Kevin Kreager.)
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(7) ''Would you describe that as a difficult task to endure, fearing for your life or the life of another officer?'' (Deposition of Officer Kevin Kreager.)
After enduring the first round of these foolish sessions, the City was forced to move on an emergency basis for a protective order on the ground that the depositions were illogical, pointless and were being used solely to harass the City. In a telephonic hearing, the Court granted the City's application within two hours after it was filed, warning the United States that ''at some point, the folly must end.''
D. The Court's Repeated Attempts to Comprehend the Basis of The Justice Department's Claim
The City and its counsel were not alone in their frustration with the United States' unlimited and unfocused approach. At the time it filed the Complaint, the United States presumably had (a) determined the appropriate labor market; (b) conducted an analysis to determine whether there was a statistically significant adverse impact resulting from the challenged examinations; (c) identified the supposedly unlawful selection devices; (d) evaluated whether those examinations (which are and long have been commonly used throughout California) were job-related; and (e) investigated whether there existed any alternatives. The United States' discovery responses, however, revealed that it had done none of these things.
More than one year after it filed its initial Complaint, the Government filed a motion to extend discovery for an additional six months. At a hearing held shortly thereafter, the following exchanges took place:
The COURT. You want some more time, don't you?
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Mr. EURE. Yes, Your Honor.
The COURT. All right. Well, you're going to have to explain to me why. Because you filed the action. And when you filed it, you certainly had some reason for doing so—some facts to back up what you said.
* * * * *
Mr. EURE. There are glaring disparities between the percentages of minorities in the City's Police and Fire Departments and the percentages of minorities in the [relevant] labor market——
The COURT. But you had more than that when you filed the court case. You had more than just the percentages. You had some facts of the——
Mr. EURE. We had some facts. But we didn't have the personnel files, which is part of the reason why we need to extend discovery——
* * * * *
The COURT. I'm not following you. The relevant labor market?
Mr. EURE. Yes. This case is going to—basically, in order to prove our allegation to [sic] discrimination, the parties or the court is going to have to determine what the relevant labor market is. The court is going to have to determine at what level the City of Torrence should have been hiring blacks, Asians and Latinos into police officer and firefighter positions. And in order for an expert to conduct that kind of an analysis, the expert would need to know where the current incumbent employees come from.
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* * * * *
The COURT. You're the plaintiff. You've already decided what your relevant labor market——
Mr. EURE. Well, we haven't.
The COURT [continuing]. Wait a minute. And you—not only have you decided that, but you've decided that they are not—out of their relevant labor market—taking enough of certain kinds of people. You've decided that already.
Mr. EURE. We've decided that the possible relevant labor market is Los Angeles County. And that if one uses Los Angeles County as a relevant labor market, then defendants are not hiring enough minorities.
Although it was perfectly reasonable for the Court to assume that the United States had already decided upon the relevant labor market, the Court turned out to be mistaken. Two weeks after that status conference, the Justice Department conceded in response to Defendants' Requests for Admissions that ''our labor economist has not yet determined what Torrance's relevant labor market is.'' One wonders how the Government nonetheless represented to the Court two weeks earlier that there were ''glaring disparities'' between this unknown labor market and the racial composition of the Torrance Police and Fire Departments. That representation simply cannot be regarded as having been made in good faith.
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By February 1995, six months after the Court extended the discovery cutoff date, the Justice Department still had not clarified its contentions. At a status conference, the Court asked counsel for Defendants: ''What is the claim about? Is it an examination claim?'' When Marissa Chun, a Justice Department attorney who was not even assigned to the case, interrupted the hearing from the back of the courtroom and objected to the Court's inquiry, the following colloquy occurred:
The COURT. I am asking the question because Mr. Eure has not been very knowledgeable about the theory of his case on the other occasions when we got together. I am still curious what the case is about.
Ms. CHUN. I would respectfully disagree in terms of his knowledge about the case, Your Honor, but——
The COURT. No. I should have said he couldn't make up his mind is what has been occurring so today I was looking forward to having an opportunity to talk over with somebody where we are in the case. Now I don't know if you think it is inappropriate for me to ask that but I have asked it on more than one occasion and I am still curious to know.
* * * * *
The COURT. I have been looking periodically at this case because every conference I have had has been a conference in which I have said to Mr. Eure what is it about. What is the theory of your case. Now I am still curious about what the theory of his case is.
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* * * * *
The COURT. . . . You might just as well tell [Mr. Eure] one other thing and that is I still don't know what the theory of the case is and some day I intend to find out what it is.
* * * * *
The COURT. That is, I am very reluctant to cause [Mr. Eure] to fly out from Washington, but I was looking forward to at least one moment in this case when I could find out what the factual theory of it was.
By August 1995, the Government's claims had still become no more coherent. During a hearing in which the United States sought to compel the production of ''underlying data'' relating to studies which Defendants' experts had read (but had not themselves conducted), the Court made the following observations:
The COURT. . . . This is the thing that puzzles me about your case. It puzzles me that the United States government, with all the power and financial ability they have, brought the action against the City of Torrence and yet I still can't figure out what it is you have that will carry the burden of proof here. What is it?
Ms. CHUN. Your Honor, we believe that the evidence that we have——
The COURT. See, because what you're telling me is you can't prove the case without discovery from them.
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Ms. CHUN. No, Your Honor. What we're saying——
The COURT. Did you understand the exchange we just had? What you're saying repeatedly to the court is, you can't carry the burden of proof that you have unless you get details from the City. Now, how can that be? You wouldn't have picked out the City unless you had a prima facie case, would you?
* * * * *
The COURT. But you had—presumably when you filed the complaint, you had evidence that they had been discriminating or there had been various kinds of effects on various kinds of things that they did. Isn't that right?
Ms. CHUN. Yes, Your Honor.
The COURT. Well, why is it then that you can't put that evidence on without going through millions of dollars worth of additional discovery of data that support some other expert on which the expert on the stand is dependent? I mean, why do we have to do this much when presumably what you had was in front of you evidence that caused the United States to bring this action?
* * * * *
The COURT. So I'm asking you, in order to evaluate what you're saying, what is the theory of your case?
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Ms. CHUN. Your Honor, our theory of the case is basically that the City of Torrence has discriminated against blacks, hispanics and asians in a number of manners. One of the primary ways, Your Honor, is a disparate impact theory where [examinations] that they used are not related to specific formula of the firefighter/police officer. There is no——
The COURT. All right. Now, listen to me, because we've had this exchange lots of times before and I don't want to be unfair to your case. We're not talking about some person named Bill Smith or John Jones bringing an action against the City of Torrence, we're talking about the United States government. Now, that's a big case. That's a big step to take, because you have cities all over the United States where you suspect that and you picked Torrance. All right. Now, when you picked Torrance, you must have had in front of you before you wrote the first word on that complaint a theory that would let you go through a prima facie case. You wouldn't bring—I know you wouldn't. You wouldn't write a complaint and then say we're going to go and discover that which will support what we've written. You wouldn't do that, would you?
Although the Court quite generously indulged Justice Department attorneys in the benefit of the doubt well beyond what was required, they did file this lawsuit without evidence. They did allege that the challenged examinations were unlawful with no evidence to support that assertion. They did use the discovery process to construct a theory from the ground up, rather than to support a theory erected on a foundation put in place during its pre-filing investigation. The only thing the Justice Department did not do was share its theory (if ever there was one) with the Court or the City. This Subcommittee should be absolutely intolerant of evasiveness such as this by a federal enforcement agency.
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E. The Government's Theory Changes
On February 12, 1996 (two and one-half years after the Complaint was filed), the Government unveiled yet another version of its constantly evolving theory of civil rights misdeeds by the City. Although the Government's entire case to that point had been based on its allegation that the tests themselves were not job-related (or, as the United States put it, that ''evidence of validity was lacking''), it abruptly announced that it was now challenging the way the examinations were used. Needless to say, the City was as surprised as was the Court.
The COURT. Now we look at the test. There is the test, and your person says it is not job-related but since it is the kind of test that it is, it is to some degree job-related?
Ms. CHUN. That may be true, Your Honor.
The COURT. Now listen to me. So what do you do about the fact that to some degree it is job-related?
Ms. CHUN. We produce evidence with regard to Torrance's use of a test which may in the abstract be job-related, but Torrance's particular use of the test, whether it be how they have weighted that test in the entire selection scheme, whether it be the particular cut-off score that they use in terms of the placement of the written exam in the sequence of different components of the selection system——
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The COURT. That is very different. That is very different.
Ms. CHUN. That that particular use of the test is not job-related.
The COURT. Now it is the way they use it, not the test itself.
Ms. CHUN. That's correct, your honor.
Mr. FLICK. Well, I am astonished. We have litigated——
The COURT. I am having a hard time.
This sudden change in the Government's position was no doubt prompted by the City's pointing out to the Court that the United States' had expressly approved of the use of the two challenged police officer examinations in neighboring jurisdictions.
Perhaps the Government's most amazing assertion was made at the final pre-trial conference. Defendants had presented to the Court the United States' response to Interrogatory No. 4, which had sought the identification of alternative selection devices. The response was that the Justice Department was unaware of any such alternatives (or at least was unwilling to share them). In an attempt to defend its non-answer, Civil Rights Division attorneys stated as follows:
Ms. CHUN. Mr. Flick posed the question what should the defendants have done. We recognize, and we understand that jurisdictions have police officers, firefighters. They have a continual need to hire such public safety officials, and if they ask what they should have done, they could have picked up the phone and called us.
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What counsel neglected to mention was that the City had asked the Justice Department—repeatedly—what they ''should have done.'' The City asked during the United States' investigation. It asked in their discovery requests. It asked repeatedly in the presence of the Court. The Government's consistent response, however, was a total refusal to respond.
The parties' motions in limine further demonstrated the inadequacies of the Government's case. First, the United States moved to exclude any evidence relating to the relevant labor market—an issue which the Government itself introduced into the case. The Justice Department had retained an expert (Dr. John Pencavel), who had submitted an expert report and whom the City deposed. At significant expense, the City then retained an expert (Dr. Judith Stoikov) to rebut Dr. Pencavel's testimony, and the Government deposed her. When asked to explain why it now sought to exclude all labor market evidence, the United States stated as follows:
As far as the Defendants' statements about the United States' labor market analysis being originally propounded, we did propound at the beginning of expert discovery a labor market report. We hired an economist from Stanford to do that. We found that it was not relevant to the case. . . .
By ''not relevant,'' the Justice Department obviously meant ''not helpful to the Government's case.'' This conclusion was particularly strange, given that the United States had earlier told the Court that ''glaring disparities'' in the labor market were the very basis for its Complaint. The Court denied the Government's motion.
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The United States next moved to exclude (perhaps out of embarrassment) evidence that it had permitted other cities in Southern California to use the very same tests that it sought to challenge in Torrance. The Court, adopting the City's obvious position, noted that this was ''equivalent to an admission''—i.e., that it was ''equivalent to saying that the Government really doesn't see anything wrong with the tests.'' The Court denied this motion as well.
Torrance moved to preclude a challenge to six examinations used by the Police Department, as well as one used by the Fire Department, with respect to which the Government had produced no evidence of adverse impact whatsoever. The United States argued that, although there was absolutely no evidence that any minorities even took those examinations, it nonetheless could assert that the City violated Title VII by using them. The Justice Department urged the Court to ''infer'' that a statistically significant number of minorities had taken the test, and then ''infer'' that a statistically significant adverse impact resulted. When it became apparent that the Court was not inclined to accept the United States' string of unfounded ''inferences,'' the Government's fallback position was that ''we can get an expert to give an opinion on the labor market availability.'' Several minutes earlier, however, the United States had argued that labor market evidence ''was not relevant to the case.'' The Court granted the City's motion, thereby limiting the challenge at trial to five written examinations:
1. the CPS Entry Level Law Enforcement Test Number 1027;
2. the California Commission on Peace Officer Standards and Training (''POST'') Exam Number 210 (for entry-level police officers);
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3. the CPS Entry Firefighter Test Number 2149;
4. the Biddle & Associates Test Preparation Manual (''TPM'') and Examination for entry-level firefighters; and
5. an entry-level firefighter examination administered in 1981, which, due to the passage of time, neither the City nor the Justice Department were able to identify.
F. The Trial
The trial was organized according to the shifting burdens of proof applicable to a Title VII adverse impact claim: the United States was to put on its prima facie case; the City was to produce evidence of a business justification; and the United States was then to attempt to rebut the City's claim or, failing that, demonstrate that equally effective alternatives with less alleged adverse impact could have been used.
1. The Government's Attempt to Make Out a Prima Facie Case
Before the trial, the Justice Department bemoaned the fact that it would be required to put on evidence of adverse impact to meet its initial burden of proof. It evidently assumed that is was necessarily supposed to win on the issue of statistical disparity, and that, therefore, it need not bother putting together a coherent, logical presentation supported by competent evidence. The Government's discussion of the prima facie case in its trial brief reflects this arrogance:
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To avoid this mindless mincing about minutiae, the United States offered to stipulate in the Pre-trial Conference Order to Defendants' own datasets, but Defendants refused.
As is discussed below, the City declined to stipulate to their ''own datasets'' because, as the Justice Department had been advised more than two years earlier, those datasets were inaccurate.
The Government based its prima facie case on the testimony of Dr. John Miller, a statistician. The United States attempted to lay a foundation for Dr. Miller's opinion through the testimony of Kay Roso, a Justice Department paralegal. According to Ms. Roso, she provided Dr. Miller with a database that she had created, containing the names and races of the relevant test-takers. However, that database was created by merging data from the City's own documents (known as ''CVS reports'') with a different database created by a Dr. Harriet Zellner. The Government provided no evidence whatsoever as to the creation of the Zellner database. Nor did they provide Dr. Zellner. In fact, neither Defendants nor the Court have ever met Dr. Zellner. Clearly, Ms. Roso provided no competent testimony of her own:
Q. [By Ms. Von Eschen] You didn't work with Dr. Zellner in the creation of her database, did you?
A. No, I did not.
Q. You don't have personal knowledge of what documents she input into her database either?
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A. No, just what I was given to understand when I was provided the Zellner data and the CVS exam detail reports. I was told that she did the data entry.
Q. Other than what you've been told by either counsel here or anyone, you don't have any personal knowledge of what source documents Dr. Zellner used?
A. No.
In addition to this lack of foundation, the data upon which the United States relied was seriously flawed—a fact of which the Government had been made fully aware in early 1994. Although the City's Civil Service Administrator had informed counsel for the United States of computer errors reflected in the CVS reports, the Government did not bother to check the documents, or to communicate this information to Ms. Roso or Dr. Miller. This virtual disinterest in the prima facie case became evident when the documents were shown to Ms. Roso during her cross-examination:
Q. And if you'd turn actually to the second page in that document, what's numbered in the bottom 07–25–89. The twelfth applicant down, number 233, George Estrada, appears on this document to be a black female; isn't that right?
A. Yes.
Q. And a little further down the page, third from the bottom, Tae J. Kim, number 225, is reported as a white male?
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A. Yes.
Q. And on the next page—just to speed this along—number 181, the first entry, Ann Lazure, is a white male. And number 191, Walter Malone, is a black female. Number 227, La Donna Palmer is a [sic] hispanic male. And Jacqueline Stephens, about midway—two thirds of the way down, number 206, is a white male; isn't that right?
A. That's what the report says, yes.
Although the Court expressed doubt about the Government's prima facie case, calling it ''extremely weak,'' and found Dr. Miller's testimony unpersuasive, it ultimately declined to rule on whether the United States had established a prima facie showing, because it made no difference in the outcome. Sadly, the United States' clumsy attempt to meet its initial burden was the very strongest part of its case.
2. The Government's Attack on the Examinations
The City's business justification for the use of the examinations was not complicated. Simply put, police officers and firefighters must possess basic reading, writing and reasoning skills. The most efficient, cost-effective means known to ensure that the City hires individuals with those skills is to include a standardized test as part of the overall selection process. Moreover, because leasing and administering a written examination is the least expensive component of the selection process, using it as the initial screening device is the most sensible. (For example, the City could not afford to interview orally all 2,350 police officer applicants or 3,193 firefighter applicants during the relevant period, but the written examination reduced the overall applicant pool to a number who could be processed more efficiently and within the City's economic limits. The Supreme Court has specifically included economic considerations in its test of what constitutes a legal ''alternative.'')
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The Government offered no evidence whatsoever to refute this business justification. Instead, it focused solely on criticizing minutiae in the professional validation studies which the City offered—although it was not required to do so—to buttress its justification. The United States did not assert that the examinations were invalid; it merely claimed that Torrance could not prove the contrary. Indeed, the Court expressly concluded that ''[t]he United States does not attempt to establish that the examinations are invalid.''
The Justice Department's criticisms of the validation studies were based primarily (if not entirely) upon the Uniform Guidelines on Employee Selection Procedures, which, though the Government was loath to concede it, have never been adopted as federal regulations, are not legally binding and are not professional standards recognized as state-of-the-art in the field of industrial organizational psychology. The most glaring flaw in the Justice Department's approach, however, stemmed from the fact that Title VII defendants ''are not required, even when defending standardized or objective tests, to introduce formal validation studies at all.'' See Watson v. Forth Worth Bank & Trust Co., 487 U.S. 977, 998, 108 S. Ct. 2777, 2791 (1986). Though it tried valiantly to ignore the Supreme Court's decision in Watson, counsel for the United States reluctantly conceded that there was no such requirement:
The COURT. Legally do they have to show in this action a validation study?
Ms. CHUN. Our belief is yes, Your Honor, that they—
The COURT. No. That is I know what you believe. I just said to you legally do they have to.
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Ms. CHUN. I guess the only thing that I am aware of, Your Honor, with respect to that issue—I am just so—in terms of the testing case law that I have reviewed, the defendants generally produce validation studies, etc., and although there are instances where employers do not produce such, the only cases that I can recall off the top of my head generally find that those tests are not valid because they haven't been professionally developed. I can't exclude the possibility that an employer need not produce a validation study.
Thus, the United States' entire case was based on the proposition that Torrance did not correctly do that which it was not required to do at all.
In attempt to breathe life into this feeble theory, the Civil Rights Division took the position that the validation studies on which the City relied could not be credited because of the absence of some of the ''raw data'' underlying the studies. Even though much of the missing data were collected more than 15 years before this case came to trial, the Justice Department contended that the City's (or the test developers') failure to maintain every shred of related paper was fatal to the defense. As the Court concluded, not even the Uniform Guidelines, which the Government sought to proclaim as gospel, place such a document retention burden on Title VII defendants.
As I referred to generally above, one of the most significant flaws in the Government's assertion that the challenged examinations were not job-related was its express approval of the some of the same examinations in neighboring jurisdictions. For example, in United States v. City of El Monte, USDC Case No. CV 91–6151–R, the Civil Rights Division expressly approved the use by the El Monte Police Department of the CPS #1027 test, calling it a ''job-related written examination.'' That consent decree was approved by the federal court on May 27, 1992, one year after the United States began its investigation in Torrance, and 14 months before it filed suit against Torrance. The City pointed out, and Judge Pfaelzer observed that, in the absence of evidence that the job of police officer in Torrance was materially different than the job of police officer in nearby El Monte (a position the Government initially sought to take), the Government's endorsement of the CPS #1027 examination amounted to an admission.
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3. The Government's Showing Regarding Alternative Selection Devices
The Court's Memorandum of Decision, and Findings of Fact and Conclusions of Law (see Exhibit B), recognized that the Government failed to identify a single alternative selection device—either a different selection device or an alternative use of a current selection device—during the investigation, or ever. This finding was previewed during the closing sessions of the trial:
The COURT. You are not going to disagree with that, are you? You never offered any alternatives, did you? You don't even contend that you did.
Mr. EURE. We did not point to specific alternatives.
The COURT. Don't fence with the words here. I have already pursued that with you. You said to me you did not consider that to be your . . . And that's been borne out through everything I have seen, that the Justice Department never said at any time to Torrance, this is what we want you to do.
Mr. EURE. We have not said that, you are correct.
* * * * *
The COURT. You never said to them in all of the time you were talking to them, we hear you use the XYZ 17 test and you are in the clear with us. Never.
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Mr. EURE. The United States just simply does not sponsor specific exams.
The next day, Justice Department attorneys suddenly attempted to reverse course and claim that they had, in fact, offered evidence of alternatives.
The COURT. You are passing me by on the question. The question I have asked before and I asked yesterday, did the government make a proposal or make a suggestion to the City of Torrence as to how they could stay within the limits of the law and avoid a lawsuit. The answer to that is no.
Mr. EURE. Not a specific proposal based on what we knew.
The COURT. I don't know the difference between specific and proposal.
Mr. EURE. Certainly the suggestion was made that——
The COURT. You said to me before, ''we don't do that.'' That is what you said. ''We don't—it is not the government's role to do that.''
Mr. EURE. I said, ''we don't propose specific written tests.''
The COURT. ''We don't propose anything specific. We just are talking to them, that is all.''
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Mr. EURE. That was the nature of the discussions between counsel for the parties.
Sensing that the Court was unwilling to play along, the United States tried yet another approach: it began promising the Court that it would offer evidence of alternatives before the conclusion of the trial:
The COURT. I gather—just let me put this one question to you. I gather you are not going to show any alternatives because you don't believe you have to.
Mr. EURE. The United States will be presenting evidence today, your honor——
The COURT. You will.
Mr. EURE [continuing]. That there were alternatives available during the relevant time period.
* * * * *
The COURT. Well, Mr. Eure, to be fair about this——
Mr. EURE. Sure.
The COURT [continuing]. The plaintiff in an action doesn't only have to criticize in an action like this. What you are saying, in effect, is they should go out and do the best they can to respond to your criticisms, but it may not be good enough, and you are not prepared to tell them what would be good enough.
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Mr. EURE. Well, certainly during the investigation of this case we did not see that as our duty under Title VII.
The COURT. Now, I am asking you and that is different than the investigation, because they have to do it, and you have to criticize.
Mr. EURE. Yes. Well, you will be hearing testimony, Your Honor, as this case proceeds——
The COURT. I want to. I want to.
Mr. EURE [continuing]. From the United States——
The COURT. I want the United States to say—I want the United States to say that if this written reading and writing examination were given it would not have a substantially adverse impact if it were used in a following way.
Mr. EURE. You will hear testimony.
* * * * *
The COURT. Somebody along the way, I mean, having read all these narrative statements—somebody along the way is going to have to sort of step up and be counted on the question of how you would use it if you used it validly.
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Mr. EURE. The United States is willing to step up to the plate, Your Honor, when we get to the alternative selection devices burden, and we will obviously be offering the testimony of our experts to address a much more specific matter—in a manner that is consistent with professional practice.
The COURT. I want him to.
Mr. EURE. We will be addressing those issues in due course through the testimony of our experts.
The Court recognized that the Government's promise to introduce evidence of alternatives at trial was entirely inconsistent with its position before the litigation and throughout discovery. Moreover, the Court observed that this posture was particularly improper for a plaintiff invested with the power of the federal government:
The COURT. There is also a problem that if you begin with alternate procedure evidence, you start putting on your case as you indicate you would showing that there are alternate procedures, doesn't the court have a right to say, ''Well, if there are alternate procedures and you knew what they were, why didn't you tell them about them?''
Mr. EURE. If I may respond. I believe the United States' view is that the appropriate analysis under Title VII or the appropriate inquiry for the Court to conduct is to establish whether or not the defendants were aware of alternative selection procedures, made any effort to use those procedures. It is the view of the United States that it was not the obligation of the plaintiff. We weren't even plaintiffs before we filed suit obviously, but it is not our understanding of the law that the United States——
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The COURT. Mr. Eure, it is not a game, you know. If the sovereign comes in to investigate, doesn't the sovereign have to say something that indicates what would solve the problem?
Judging from its total failure to present any evidence of legitimate alternatives, the Justice Department obviously never intended to offer such evidence; counsel's repeated representations to the Court must be regarded as having been knowingly false. Having found themselves far more deeply immersed than they ever thought they would be, in a real trial, with real parties, in a real Court, with real interests at stake, Justice Department attorneys were simply unable to admit that their entire claim had been a fraud upon the Court all along. Faced with the revelation that the Court actually expected it to present evidence to meet its burden, the United States evidently concluded that it had no practical option other than prevarication. Contrary to its repeated, emphatic assurances to the Court (but consistent with the position it took with the City for nearly five years), the United States failed altogether to present any evidence of an alternative selection device. As the Court put it, the Justice Department ''put on no case at all.''
IV. THE AFTERMATH
As the Subcommittee may be aware, the United States has asked the Court of Appeals for the Ninth Circuit to overturn Judge Pfaelzer's decision, although the precise bases of the appeal have yet to made clear. (Absent a request for an extension, the Justice Department's opening brief is due on May 27.) This is not a close case, however, nor is it one where a district judge with more than two decades of distinguished service on the bench, sitting as the trier of fact, somehow overlooked altogether persuasive evidence that would have demonstrated that the challenged examinations are unlawful. There simply is no such evidence. The City is of the view that the Civil Rights Division's appeal is as frivolous as was the case below.
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More importantly for the purposes of this hearing, the City has asked the district court to award it nearly two million dollars in attorneys fees, urging that the Government's conduct departed from the ethical standards applicable to lawyers generally and government lawyers in particular. On the City's behalf, I have urged that the Civil Rights Division's conduct be met with the equalizing power of the federal court to restore the City to the status quo ante.
The law frequently fails to provide an adequate remedy for defendants forced to endure frivolous civil rights litigation, however. The circuit courts have frowned upon attorneys fee awards for prevailing defendants in civil rights cases on the theory that they will chill the pursuit of legitimate claims. This claim was hardly legitimate, however, and this case did not involve a private plaintiff. This plaintiff is the sovereign, the most well-funded plaintiff ever to file suit in federal court. It there is any chilling effect to flow from an award to Torrance in this case, it would be a chilling effect on conduct of which the Court's rules, the Subcommittee's expectations and the Civil Rights Act itself should be absolutely intolerant.
If there is any single legislative proposal I would make in response to the Torrance experience, it is an amendment of the Civil Rights Act to make clear that, a prevailing Title VII defendant is entitled to an award of attorneys fees against the United States where the district court concludes that the Government failed to make a reasonable pre-filing factual inquiry, or where the claim was without legal or factual merit at any stage of its prosecution, or where the conduct of the Government's attorneys depart in a material way from the Federal Rules of Civil Procedure, the applicable rules of court, or the Ethical Canons. In light of its special position, the statute should expressly recognize the duty of the sovereign to be exemplary in its pursuit of its enforcement efforts, and should create economic disincentives to conduct such as that I have observed first-hand and have described here today.
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V. CONCLUSION
It is difficult for me to imagine a case that is more frivolous, unreasonable or without foundation. It would be disappointing enough if this case was brought by a private plaintiff, acting as a private attorney general. It is shocking that this case was brought and pursued by the Attorney General, at enormous public expense. Despite its recent assertions to the contrary, the Justice Department had no credible evidence of discrimination in July 1993; it filed suit in the hope of finding it. It also hoped that long before it reached trial, the City would collapse under the withering pressure of its abusive litigation tactics, that it would decide to put its scarce resources to better use, and simply acquiesce in the Government's command that it adopt hiring preferences. It used the discovery process, reinforced by countless misrepresentations, to try bludgeon the City into submission. The Federal Rules of Civil Procedure and Title VII require more—especially from the sovereign. They require attorneys to sign pleadings based on more than just a gamble, a hope or the likelihood that the threat of persistent, burdensome litigation will coerce the desired result.
Government attorneys, more than all other attorneys, must have a good faith belief—and facts to support that belief—that a violation has occurred. In this case, the United States had neither. In its role as prosecutor, the United States' highest principle must be that justice results, not merely that the result can be justified by some ideological or political whim. In this case, the Government attempted to distort the facts and the law beyond recognition, and to manipulate the process to its sole advantage.
As Judge Pfaelzer so aptly and repeatedly explained to counsel for the United States, the litigation process is not meant to be a game. The goal of a lawyer—particularly one entrusted with the full power of the federal government—should not be simply to win at all costs. When the sovereign acts in its civil enforcement capacity, it has a duty to exercise that authority with even-handed fairness and in the interest of justice. Because it is invested with the power of the United States, an enforcement agency may not simply set out to win, as the Justice Department did in this case. As set forth in the Ethical Canons:
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A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. . . . A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlement or results.
Model Code of Professional Responsibility EC 7–14 (1981).
The Court of Appeals for the District of Columbia Circuit recently described the duties of a government attorney. In Freeport-McMoran Oil & Gas Company v. F.E.R.C., 962 F.2d 45 (D.C. Cir. 1992), the Court ''pause[d] to address [a government attorney's] remarkable assertion at oral argument that government attorneys ought not be held to higher standards than attorneys for private litigants.'' Id. at 46. The Court repudiated this suggestion as follows:
The notion that government lawyers have obligations beyond those of private lawyers did not originate in oral argument in this case. A government lawyer 'is the representative not of an ordinary party to a controversy,' the Supreme Court said long ago in a statement chiseled on the walls of the Justice Department, 'but of a sovereignty whose obligation . . . is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L.Ed. 1314 (1935). The Supreme Court was speaking of prosecutors in Berger, but no one, to our knowledge (at least prior to oral argument), has suggested that the principle does not apply with equal force to the government's civil lawyers.
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Id. at 47. In a conclusion that is particularly applicable to this case, the court noted: ''[w]e find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.'' Id. at 48.
In the Torrance case, the United States was blinded by its single-minded pursuit of a policy goal: increasing the racial and ethnic diversity of public safety agencies. Instead of asking whether Torrance had violated the law, it asked ''has Torrance hired enough minorities to suit us?'' Having answered that question in the negative before it ever set foot in Torrance, the Government simply glossed over its duties as lawyers, and has tried to run roughshod over the City for six years. As a result, the Government engaged in the ultimate exercise in prosecutorial gamesmanship: it attempted to use the process, rather than reliance on the facts, to achieve the desired result. Judge Posner put it succinctly:
[L]itigation under the Federal Rules of Civil Procedure is not supposed to be merely a game, a joust, a contest; it is also a quest for truth and justice.
Ash v. Wallenmeyer, 879 F.2d 272, 275 (7th Cir. 1989). Both truth and justice have been ill-served by the Government's conduct in this case.
If nothing else, as part of its oversight function, I genuinely hope that the Subcommittee will take action to see that no other municipality, large or small, ever again falls victim to the abuse visited upon the City of Torrence.
Thank you.
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Mr. GOODLATTE. Thank you, Mr. Flick.
In your opinion, are there adequate disincentives in the current system to discourage the Department from filing or threatening to file frivolous litigation?
Mr. FLICK. I think there are not. Let me explain. There was a reference made earlier in question that was put to Ms. Pinzler, whether or not she would agree to have the Justice Department pay attorneys' fees in cases where defendants prevail. She evaded the question. The Civil Rights Act, as interpreted by the Supreme Court, provides that when a plaintiff prevails, they are entitled to their attorneys' fees. When a defendant prevails, they must demonstrate that the case was either frivolous, unreasonable or without foundation.
Now, the problem is that the circuit courts almost unanimously have frowned upon awards to defendants in civil rights cases on the theory that it would create a chilling effect on the pursuit of legitimate claims. Most of the circuit courts seem not to distinguish between a private plaintiff who is found to have pursued a frivolous claim and the U.S. Government which is found to have pursued a frivolous claim.
A word to defendants are just generally disfavored. This was not a legitimate claim. If a chilling effect results from an award of attorneys' fees in this case, then so be it. We should all hope the Civil Rights Division's conduct in the Torrance litigation would be chilled.
Were I to rewrite Title II, I would make clear in the statute a difference between a private plaintiff who is found to bring a frivolous claim and the Justice Department which might be found to bring a frivolous claim and the entitlement of a defendant then to recover attorneys' fees.
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Mr. GOODLATTE. If the Congress finds that the Division can afford to devote great manpower to cases such as Torrance, that appears to be meritless, should the Congress consider reducing the budget to encourage the Department to concentrate on truly meritorious actions?
Mr. FLICK. I certainly have no quarrel with many of the activities of the Civil Rights Division, and I applaud many of them. If your question is, should they be devoting their resources to legitimate claims, then yes of course. I don't have enough information to know in their annual budget whether or not a reduction in their funding necessarily would create a disincentive for them to continue to pursue illegitimate claims. I am concerned that it would not.
Mr. GOODLATTE. Thank you.
Professor Karlan, is it possible to be against discrimination but in favor of preferential treatment?
Ms. KARLAN. Is it possible to be against discrimination and in favor of preferential treatment? It depends on how you define discrimination and preferential treatment. To my mind, yes.
Mr. GOODLATTE. Preferential treatment would be preferring one person over another on a basis prohibited by law, whether it be race or sex or age or national origin or handicap, some of the various categories. If we prohibit discrimination on that basis, how can we allow preferential treatment?
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Ms. KARLAN. I will give you a concrete example from the Americans With Disabilities Act. It prohibits discrimination against persons with disabilities, but requires reasonable accommodation of those people. The same thing with Title VII which prohibits discrimination on the basis of religion, but requires reasonable accommodation. That means under some circumstances you have to allow someone time off because of his religion, but you would not have to on the basis of political beliefs or personal——
Mr. GOODLATTE. Let me take something that is more clear-cut. Certainly when it comes to handicapped, one reasonably can assume that if you are going to accommodate them, there might be a limit to how much money, if you were talking about millions and millions of dollars.
Let's take something that is more clear-cut: whether you get the job or he gets the job; whether you get admitted to the University of Virginia or he gets admitted to the University of Virginia; something where there is only one vacancy left and it is between two individuals. Can you make that plain for me? Can you have preferential treatment there without discrimination?
Ms. KARLAN. I believe that you can, because I don't believe it is discrimination to have race-conscious affirmative action.
Mr. GOODLATTE. If you have two individuals, one a man and one a woman, why isn't it discrimination if the man is equally qualified, or perhaps in some instances even better qualified than the woman, to pick the woman simply because of her gender?
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Ms. KARLAN. If all you did was pick her simply because of her gender, then that would be impermissible discrimination. But if you took into account having people with a variety of experiences in the class, which may mean people who have been single mothers or people who have taken time off from work to support their husbands going through graduate school, although you have taken sex into account, I don't believe that you have acted unfairly with regard to the male applicant who hasn't been selected.
Mr. GOODLATTE. Why not? If the two academic records on which you are basing your entry are identical, why wouldn't that be a form of discrimination?
Ms. KARLAN. Because in the specific context of law school admissions, the fact that people have identical academic records does not make them fungible. We look, in addition to academic records, for a wide variety of backgrounds and experiences and things that they can contribute to their classmates.
I was in one class——
Mr. GOODLATTE. All of those other things being equal?
Ms. KARLAN. If everything else was equal, then you could flip a coin and that would be the fairest way to pick.
Mr. GOODLATTE. And I would agree on that point. I yield myself 2 additional minutes.
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Mr. Carvin, would you like to respond to that?
Mr. CARVIN. Yes—no, it is obviously a non sequitur. If you prefer one individual because of their race over another individual, that is discrimination.
Now, a lot of people will argue because of our history of discrimination against certain minority groups, blacks most obviously, that discrimination in favor of them is not as morally reprehensible; and that is certainly a reasonable point to make.
Mr. GOODLATTE. Let me ask you with regard to that, though, most of the people who might be subject to reverse discrimination, which is what you are referring to there, would be younger people coming into entry-level positions who might be applying for a job at the police department, the fire department, might be applying for admission to a university or some other entry-level job in the workforce.
Not all—certainly there is discrimination at higher levels as well, but most people would be younger people. Should they be held accountable for the discriminatory actions which I think everyone here would acknowledge was on the part of their forefathers, their ancestors?
Mr. CARVIN. No. Proposition 209 is a good illustration of that point. We are talking about discriminating undergraduate in admissions to the University of California. The people being selected were born in 1979, the last year of the Carter administration. It is difficult to believe that the minority students were subject to the kind of historical segregation practices that initially justified affirmative action. And it is equally difficult to believe that the 18-year-old nonminority female hurt by this often has engaged in any kind of practices that we would consider reprehensible or has benefited from a racial system.
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If the point is—if you do find instances of this going on, they can be remedied without engaging in this kind of discriminatory preferences.
And the final point I would make is, I don't think anybody in this room or anybody in California would seriously suggest that the University of California at Berkeley, now that they are prohibited from using preferences in favor of certain groups, are going to begin an active regime of discrimination against minorities and women. These people have been bending over backwards for many years to increase the numbers through de facto quotas and the like. It is simply incomprehensible they will turn now and start actively discriminating against the groups that they have been benefiting for so long.
Mr. GOODLATTE. Thank you.
The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Mr. Carvin, what do you think the probability is out of a thousand Fortune 1000 companies that 99.9 percent of those CEO's would come from 40 percent of the population? What do you think the odds of that happening would be if there wasn't something going on other than random distribution?
Mr. CARVIN. When you get to the CEO level, I think you are talking about people that have been in the workforce for 20 or 30 years, and I don't think anybody denies that there is ongoing workforce discrimination.
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Mr. SCOTT. Say that again.
Mr. CARVIN. I don't think anybody denies that there is ongoing discrimination in the work force.
Mr. SCOTT. Just on that point, if you recognize that there is discrimination going on in the work force—first, is that a problem?
Mr. CARVIN. Of course it is a problem.
Mr. SCOTT. Then how do you remedy it?
Mr. CARVIN. The way I don't remedy it is by visiting the same evil on somebody else.
Mr. SCOTT. Leveling the playing field would not be fair?
Mr. CARVIN. Discriminating against John Doe today to correct discrimination against John Smith 20 years ago doesn't level the playing field for John Smith and doesn't make his situation any better. All it does is make John Doe's situation worse.
We just had the 50th anniversary of Jackie Robinson. You are not going to solve the problems that Jackie Robinson and Satchel Paige faced by promoting less qualified players——
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Mr. SCOTT. Affirmative—wait a minute. Stop right there. Affirmative action, the way we have described it, does not allow an unqualified person to get a job.
Mr. CARVIN. No, but most assuredly it allows less qualified persons to get jobs. Otherwise, it will not be effective. That is how it is defined.
Mr. SCOTT. The point is that you just acknowledged that there is bigotry all over the work force and what you are trying to do is level it out so that fully qualified people can get through this discrimination that they are going to face.
You are aware that in just housing, just to let you know what kind of discrimination we have got going on, that minorities, according to a recent study in the Washington area, face discrimination almost half the time they go for housing; half the time they go in to a real estate agent, half the time they try to rent a house or buy a house, they face discrimination.
Mr. CARVIN. Congressman, I believe that that kind of discrimination is abhorrent and should be attacked with every legal remedy by the Civil Rights Division. Why aren't they spending time attacking that kind of discrimination rather than assuring that people who have never been victimized by discrimination are preferred against people who never committed the discrimination, which is exactly what is going on in California?
Mr. SCOTT. If you have a sophisticated bigot as a hiring officer, without affirmative action, how would you address that bigotry?
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Mr. CARVIN. I would either remove him from his job or assure that there was a procedure in place that didn't involve bigots making hiring decisions, and have a fair, objective and neutral procedure to govern all hiring practices in the future. These are the——
Mr. SCOTT. Say that one again.
Mr. CARVIN. Have a fair, objective and neutral hiring practice.
Mr. SCOTT. How do you do that with fairness if the bigot is the hiring officer?
Mr. CARVIN. One thing is a written test, like the City of Torrence has, and as long as the city plays by the rules——
Mr. SCOTT. Do you make sure a fair sampling get to take the test?
Mr. CARVIN. I don't think that Torrance or any other public institution in California or the United States is actually limiting applications by minority applicants. If they are, that is the easiest problem to solve and that will happen immediately, I can assure you.
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Mr. SCOTT. Is recruitment—a requirement that you recruit in all areas affirmative action?
Mr. CARVIN. Not under 209's definition of affirmative action.
Mr. SCOTT. Can you require people to recruit where they are more likely to find minorities and women?
Mr. CARVIN. So long as when those minorities and women are considered for the job or the educational placement there are no preferences involved.
Mr. SCOTT. Is that legal if you did that? Under 209, could you have a race-based recruiting requirement?
Mr. CARVIN. I don't think it is race-based to say that we have been getting our applicants from Harvard University, and now we are going to reach out to Howard University because it has been excluded from our recruitment. I don't think that is preference. I think that is equal treatment so long as the people, once you get them in the door, are judged by the same standards.
Mr. SCOTT. Could I get 3 additional minutes?
Mr. CANADY. Without objection.
Mr. SCOTT. I yield the 3 minutes to the lady from Texas. Ms. Sheila Jackson Lee is not a member of the committee, but I yield my time.
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Ms. JACKSON LEE. I thank the ranking member very much for his kindness. I am very glad that, as I have been able to hear just a small amount—I apologize, I was engaged in a budget debate—that I have certainly come to accept my initial assessment of this hearing. I will say that at the very end.
Mr. Carvin, can you just answer yes or no, are you familiar with the 50-percent drop in the minority admissions to the University of Texas?
Mr. CARVIN. I saw that in the Post yesterday.
Ms. JACKSON LEE. Have you ever been to Bed-Stuy in New York City?
Mr. CARVIN. Yes.
Ms. JACKSON LEE. Are you familiar with the Tuskegee experiment?
Mr. CARVIN. Yes.
Ms. JACKSON LEE. And are you familiar with redlining?
Mr. CARVIN. Yes.
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Ms. JACKSON LEE. And you still think it is responsible to politically lynch affirmative action based upon those experiences?
Mr. CARVIN. No.
Ms. JACKSON LEE. And I think that is what you are doing.
Ms. Karlan, would you answer the question as to whether or not we are able to remedy past discrimination that may have existed—and particularly I am interested in, though I don't want to diminish sexual discrimination, but race discrimination. Is there a basis in the law for remedying past race discrimination?
Ms. KARLAN. Yes, there are both constitutional requirements that apply primarily to State actors, State and local governments, and the Federal Government. And also there is a series of statutory commands, both Federal and State.
Ms. JACKSON LEE. And are we correct in understanding that affirmative action can be implemented by what we call an equalizing implementation, meaning that you merely—preferences we have already stated have been made illegal but you merely equalize the playing field. Is that an acceptable implementation of affirmative action?
Ms. KARLAN. I believe under the existing Supreme Court precedent, it is.
Ms. JACKSON LEE. What does Proposition 209 do to that?
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Ms. KARLAN. Two things: One, it simply restates the equal protection clause, and nobody has a problem with that.
Ms. JACKSON LEE. Not at all.
Ms. KARLAN. The second thing it does is to say that as to affirmative action, race-conscious or gender-conscious affirmative action, which would be constitutional under the Federal Constitution and under Title VII, Title VI, Title IX, and the like, the State is nonetheless disabled from doing it. So, for example, it says that the precise affirmative action plan that the Supreme Court approved in Johnson v. Transportation Administration of Santa Clara County would now be illegal under California law.
Ms. JACKSON LEE. So we would be further crippling that opportunity——
Mr. CANADY. The gentleman's time has expired.
Ms. JACKSON LEE. Thank you, Mr. Scott. Thank you very much for your kindness.
Mr. CANADY. Chairman Hyde.
Mr. HYDE. This is kind of an academic question, Professor Karlan. In thinking about discrimination, historic discrimination, one begins, in our country anyway, with the Civil War and slavery, although discrimination existed whenever people came over to this country and were slaves treated as property, which was well before the Civil War.
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But on the grand scale of justice do you think some credit should be given to the 360,000 dead who fought on the Union side—I don't want to alienate my Southern brothers here, but the Union side who gave their lives in the Civil War, many of whom were fighting against slavery? Do you think on this scale of justice that some credit should be given to those people—and of course, we, their descendants, on the other side of the equation—of holding America responsible for that terrible blot on our history?
Ms. KARLAN. Yes, I do agree with you, and I don't think it is an academic question. But, you know, the Union soldiers who survived the Civil War and served in the Reconstruction Congresses specifically had race-conscious affirmative action for the freedmen, and I think we do their memory honor by having race-conscious affirmative action today.
Mr. HYDE. Those were stormy days, I agree, very stormy. But I am glad to see some credit for the blood that was shed to eliminate this scourge of slavery which was recognized by many people for what it was.
Thank you. No further questions.
Mr. CANADY. The gentleman from Michigan.
Mr. CONYERS. Thank you, Mr. Chairman. Attorney Carvin, you have been the only one at these hearings that has used the phrase ''nonminorities.'' You have used it several times. You are talking about white people?
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Mr. CARVIN. That is actually borrowing the phrase from the Justice Department. Their premise is that——
Mr. CONYERS. Just tell me what you mean by——
Mr. CARVIN. I assume they mean white males.
Mr. CONYERS. You assume that is what they mean?
Mr. CARVIN. Yes.
Mr. CONYERS. OK. Now, do you generally come down on the side of affirmative action or against it, or do you have qualifications about it?
Mr. CARVIN. I am in favor of affirmative action as it was traditionally understood, which is outreach and recruitment. I am against any form of affirmative action that engages in racial preferences or preferences on the basis of gender.
Mr. CONYERS. All right. Let me accept that answer.
What about goals and timetables?
Mr. CARVIN. The problem with goals and timetables is that they operate as de facto quotas in the sense that a 30-percent goal is a 28-percent quota.
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Mr. CONYERS. So you are against them?
Mr. CARVIN. Yes.
Mr. CONYERS. And that is against your traditional support of affirmative action? That was something that you think was subsequently grafted on?
Mr. CARVIN. Right.
Mr. CONYERS. Or came out of the courts or something?
Mr. CARVIN. At the time of the civil rights enactments, the Kennedy or Johnson administrations never used goals or benchmarks. That didn't arrive until the 1970's.
Mr. CONYERS. Mr. Scott was in a very interesting discussion with you because he asked you, you know, how would you remedy this without the newfangled affirmative action. You proceeded to tell him how you won't remedy it or how it cannot be remedied. You never—as I remember, you never answered his question.
Mr. SCOTT. Will the gentleman yield?
Mr. CONYERS. Of course.
Mr. SCOTT. The question is, you would agree that you could make someone go to a race-based college for recruitment, but the question is whether or not the bigot ever stops discriminating if you don't have numerical goals or timetables or some kind of measurement to know that the bigot has stopped discriminating.
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Mr. CARVIN. Right. And what I am saying is that the better solution is to attack the process itself. There are a hundred different ways of ensuring that—
Mr. CONYERS. Let's start counting then, because I don't know how long you are going to be in Washington. Let's start. What is the first of the hundred?
Mr. CARVIN. I think the best example is what the California higher education institutions are doing this very day in the wake of Proposition 209, their decision to abandon racial preferences. You choose people on the basis of merit, written scores——
Mr. CONYERS. But you just read the Washington Post today like everybody else.
Mr. CARVIN. Are you suggesting, because I didn't read it in the Post, but I would find it very hard to believe that anybody at the University of California preferred a white male over anybody else? As I understand it, the numbers dropped because minority students were now being judged by the same standards. And I don't see anything wrong with judging minority students by the same standards. Indeed, if anything——
Mr. CONYERS. You don't know how people get preference in universities.
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Could I get some more time, Mr. Chairman?
Mr. CANADY. When your time expires, without objection, you will have 3 additional minutes. And then, let me say, there is a series of votes going on, and we are going to have to depart for that.
Mr. CONYERS. Right. OK.
Let's go to the second of the 100. What else do you have in mind?
Mr. CARVIN. OK. We have already talked about written neutral tests in which everybody is judged without regard to race or sex. You can have—again, grades or other neutral standards where everybody is judged by the same standards. You could have——
Mr. CONYERS. But you, Attorney, give us a break here. You are not—you are not suggesting that if you leave in someone who is skillfully biased without going around him, putting in all these tests, I mean, the person may be the one that has made sure that there are not fair tests to begin with. This is a little naive here.
Mr. CARVIN. No, I didn't want to suggest otherwise, Congressman. I fully agree. Let's get rid of that person.
My question was, is there any allegation that any of those people are making the admissions decisions at the University of California Berkeley Law School, which is what we are talking about. And I haven't heard anybody suggest that. Indeed, these people have been the same ones who have been implementing affirmative action very vigorously for over 20 years.
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Mr. CONYERS. Well, we are in a fix here. We have got plummeting African-American school attendance and you are telling us, in effect, that there are pretty standardized procedures that you would either support knocking out, or you want to stay knocked out; and there is a disconnect here that is getting pretty serious.
Mr. CARVIN. No, I would vigorously attack the program at the elementary school level through school vouchers and widened opportunities for minority students, and then I am quite confident minorities will be able to compete on an equal footing and satisfy the same standards as others.
Mr. CONYERS. Let me get at the other distinguished lawyer who is here. I am really glad you fellows are here. I only wish we had more time.
Didn't you enter into a consent decree in the case of Torrance?
Mr. FLICK. With respect to the adverse impact claim, sir? No.
Mr. CONYERS. You did not?
Mr. FLICK. No, the case was fully tried before the district court.
Mr. CONYERS. Then let me ask you this, the case came out of some abuse that African-American police——
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Mr. CANADY. The gentleman's additional time has expired. There is a lengthy series of votes, so the subcommittee will stand in recess and will reconvene at the conclusion of the series of votes.
[Recess.]
Mr. CANADY. Mr. Scott is recognized for an announcement.
Mr. SCOTT. Mr. Chairman, I just wanted to recognize the fact that many members of Alpha Kappa Alpha Sorority attending their third annual public policy conference are with us. Dr. Evans and Mrs. White are officers. I just wanted to recognize their presence.
Mr. CANADY. Would you stand?
[Applause].
Ms. JACKSON LEE. Would the gentleman yield? They happen to be related to me.
Mr. SCOTT. I would be happy to yield.
Ms. JACKSON LEE. Let me, as well, offer my extensive greetings to ladies who have always been on the forefront of equality, and I am glad to see my sorority sisters. Thank you very much.
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Thank you, Mr. Chairman.
Mr. CANADY. Again, I apologize to each of you individually, but I will apologize again for the delay. We have been in a series of votes on the floor of the House. I am glad to announce that we don't expect to be interrupted again until midnight when the next vote will take place. We probably will not still be here then.
I also want to apologize for missing your testimony. I was unavoidably called a way for a matter in the Senate. I had a bill on the floor of the Senate. But I would like to ask you, Mr. Flick, how much you estimate the Department of Justice spent to litigate the Torrance case?
Mr. FLICK. Mr. Chairman, I can tell you that the City of Torrence spent approximately $3.3 million defending what I believe were claims that had no legal or factual merit. It is difficult for me to know—and perhaps you have better access to the information than I—what the Government spent. I can tell you, though, that there were numerous times when I sat across the table at a deposition or sat across the courtroom in a hearing from three or four Justice Department attorneys who flew out from Washington at taxpayers' expense and stayed in hotels and ate meals at taxpayer expense. And while that might not in and of itself appear necessarily inappropriate or excessive, I think in the grand scheme of things, in light of the overall conduct throughout the prosecution of this case, those specific practices ought to be looked at very closely.
Let me give you just a sense of the magnitude of the expense. I said that the City of Torrence spent $3.3 million altogether. Approximately $2 million of that was devoted to the defense of the adverse impact claim, the testing claim. If I was to estimate that the Government spent approximately the same amount, the combined total would have put 25 full-time police officers on the streets in the City of Torrence for four full years.
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It is easy to focus, I think, on the $3 million-plus that the city spent in defending the claim, but the burden on the city of a case like this goes well beyond the legal fees that were paid to my firm and to other firms. Because of the pendency of this lawsuit, the city was rendered ineligible for the COPS grants, the grants pursuant to the crime bill, which were designed to put 100,000 more police officers on the streets.
The Justice Department administes those grants. What it said to Torrance was because we have sued you, we are not going to give you grants that we administer.
In 1995 alone, that cost the city half a million dollars. Another component of the burden on the city was during the entire pendency of the investigation and the lawsuit, no independent test developer was willing to sell or lease to the city another written examination. Torrance and all other cities of which I am aware of that use written tests change them every few years, because as you can imagine, there is a lot of repeat test taking. Thousands of people apply for a handful of jobs, and they go from municipality to municipality applying until they get lucky and get one of these rare jobs. So cities, to avoid applicant familiarity with the test material, change every 2 or 3 years.
Torrance has been using the same police officer test since 1988 because no test developer wanted to be drawn into this battle with the Justice Department, and who could blame them?
I guess the last component of the burden on the City of Torrence, which can never be repaid, is the thousands of hours spent by city officials and city employees who produced over half a million documents during this case, and who sat for over 130 days of deposition.
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So I can only speak authoritatively about what the city spent, and I can only guess about what the Justice Department spent. In any event, I believe it was money wasted.
Mr. CANADY. Let me ask you if you have any specific responses to any of the comments that Ms. Pinzler made in her response to the questions I asked her about the Torrance case?
Mr. FLICK. I do have one. It is my understanding from some that I have read and much that I have heard about the Nassau County test, that it, if at all, barely measures reading and writing abilities, skills that even the Supreme Court has recognized to be essential to law enforcement. What it does at least purport to measure is personality. She said this morning that you get better police officers——
Mr. CANADY. Without objection, I give myself 3 additional minutes.
Mr. FLICK. She said this morning you get better police officers if you measure noncognitive abilities, that is, personality traits. I agree. Virtually every police department of which I am aware, including Torrance, measures precisely for those skills.
Let me tell you what the selection process in Torrance looks like. It begins with the written test, which was the subject of the lawsuit. It is followed by an oral interview, a physical agility test, a medical examination, a psychological examination, a lie detector test, and an extensive background investigation. Several of those components following the written test measure precisely what Ms. Pinzler says we ought to be measuring in police officers.
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The point is you don't need to abandon the use of a written test which measures reading and writing skills which are essential in order to make sure that you have got outgoing, charming, happy police officers.
Mr. CANADY. OK. Let me ask you, Professor Karlan, about your understanding of what the State of California can do to eliminate race and gender preferences. Can the State legislature eliminate preferential programs that the State legislature has established?
Ms. KARLAN. Yes, it can.
Mr. CANADY. Can the State legislature eliminate preferential programs that had been established by entities such as the board of regents?
Ms. KARLAN. Probably, yes.
Mr. CANADY. OK. Can the State legislature eliminate preferential programs established by regional or local governments?
Ms. KARLAN. That would depend in part on how it is done, because the constitutional problem with Proposition 209 is not its elimination of a particular affirmative action program or not. It is the broader decision to carve out from among all the kinds of employment issues and education issues those of particular interest to minorities and to put those off limits, while not putting everything else off limits. That is, for example, what the Seattle School District was about. The State could have eliminated all busing, but what they continue do——
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Mr. CANADY. Let me get this refocused again. I think I understand your position that even the State legislature, so it is not just a problem with the referendum process, this is also a principle that could be applied to the State legislature.
Let me ask you this: Do you think Congress could act to prohibit the use of preferences by State and local governments under the 14th amendment?
Ms. KARLAN. I don't read the 14th amendment that way. The way I read footnote 10 in Katzenbach v. Morgan, which talks about this body's rights under Section 5 of the 14th amendment, entitles Congress to expand, but not to contract, the protections of the 14th amendment.
Mr. CANADY. Let me ask Mr. Carvin if he would like to respond to those particular points?
Mr. CARVIN. I think the Justice Department's position is, indeed, that Congress is constitutionally disabled from telling States not to racially discriminate. So cutting through all the lawyer talk, the end result of this analysis put forth by the Justice Department and others is that the 14th amendment, which was designed and expressly says that States can't discriminate, now disables the Federal Legislature, the State Legislature, from ever taking any corrective action to end racial preferences in any form. That is an astonishing and absurd result.
Mr. CANADY. The gentleman from North Carolina?
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Mr. WATT. Thank you, Mr. Chairman. I want to welcome the witnesses here, and particularly Ms. Karlan, who I know from prior times. I don't know the other two gentlemen, but I welcome all three of you. I apologize to you for not being able to be here for your oral presentations.
I just wanted a clarification from Mr. Flick. Is it your position that any time somebody loses a case, they ought to be required to pay the counsel fees for the other side?
Mr. FLICK. Absolutely not.
Mr. WATT. OK.
Mr. FLICK. May I add to that answer?
Mr. WATT. Yes.
Mr. FLICK. On the other hand, when the clear record demonstrates that the case was either absent a legal or factual basis or was pursued for an improper purpose, I think the statute, which does not now, ought to compel an award of attorney's fees.
Mr. WATT. Wouldn't that make it a frivolous case, and wouldn't those be the circumstances under which the attorneys fees are be awarded now?
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Mr. FLICK. The problem with the state of the law is this: The circuit courts have frowned heavily upon an award of attorney's fees——
Mr. WATT. Let me just avoid the dissertation. Isn't the state of the law that if one brings a frivolous case, including the Justice Department now, the court can award attorney's fees?
Mr. FLICK. The answer requires more than 5 minutes—5 words, sir.
Mr. WATT. Then you decided you are not going to answer any questions today then.
Mr. FLICK. I will answer your question, sir.
Mr. WATT. If you would like to answer the question, you can. Is the state of the law now such that if one brings a frivolous case, including the Justice Department, the court is entitled upon request to award attorney's fees?
Mr. FLICK. The court is entitled to do so, yes, sir.
Mr. WATT. OK. And have you made such an application with the court alleging that this was a frivolous lawsuit?
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Mr. FLICK. We have, sir.
Mr. WATT. And the court will address that issue at some point, I take it?
Mr. FLICK. I assume she will, sir. It is pending.
Mr. WATT. Thank you, Mr. Chairman.
Mr. CANADY. Thank you. Again, I appreciate the testimony of each of these witnesses. Your testimony has been very helpful to us. Thank you.
Now, I would like to ask the very patient members of the third panel to come forward and take your seats.
Our third and final panel of witnesses today will begin with Professor Linda Gottfredson. Prof. Gottfredson teaches in the University of Delaware's Department of Education. She is a widely published scholar and has done extensive research on the Justice Department's involvement in the testing of applicants for police officer positions. She serves as a member of both the editorial board of the Psychologist Manager and on the National Council of the Federation of American Scientists.
Next to testify will be Weldon Latham. Mr. Latham is an attorney in the Washington, DC, firm of Shaw, Pittman, Potts & Trowbridge. He represents minority-owned businesses, and will discuss the Clinton administration's proposed reforms to Federal procurement.
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The last witness we will hear from today will be Prof. Lawrence Stratton. Professor Stratton is an adjunct professor at the Georgetown University Law Center and serves as research fellow at the Institute for Political Economy. He has recently written a book based on his research on preferential quotas and their effects on American democracy.
I want to thank all of you for being with us today. Without objection, your full statements will be made a part of the permanent record. I would ask that you do your best to summarize your testimony in 5 minutes, although we will not strictly enforce the 5-minute rule, particularly in view of your patiently waiting for us to get to you.
Professor Gottfredson.
STATEMENT OF LINDA S. GOTTFREDSON, PROFESSOR, UNIVERSITY OF DELAWARE
Ms. GOTTFREDSON. Thank you, Mr. Chairman, members of the subcommittee, I appreciate the opportunity to be here today to share my concerns with you. I have spent most of my career researching the aptitude demands of work and the social dilemmas involved in employment testing, none of which we have talked about today, but perhaps we will.
One example of the work I have done on the policy implications of testing are my articles both in scientific journals and the Wall Street Journal on race-norming and its use by the Federal Government. That practice was subsequently banned by the Civil Rights Act of 1991.
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For the last 12 months, I have been investigating a new form of quota hiring that the Justice Department developed in Nassau County, NY, and that it is now pressing on police departments nationwide. I have analyzed the technical details of the 1994 Nassau County Public Exam, the pertinent court documents, and interviewed test developers nationwide.
I, myself, play no role in developing employment tests, and I have no financial stake in producing or evaluating any of them. Before I report my findings, I would note that I have researched controversial topics in my career, but I have never encountered such visceral fear as I have in talking to people who have dealt with the Justice Department as members of police departments and test developers.
Let me say first that the City of Torrence is different than most cases that I have heard about including Nassau County, in that Torrance fought DOJ in court. Most counties, most cities, most jurisdictions do not fight, because there is a one-two punch which the Justice Department administers to counties or to jurisdictions who resist.
The first is that if DOJ finds disparate impact, that is, unequal rates of hiring, it investigates with very heavyhanded harassment techniques and crushing demands for information. In response, the jurisdictions involved often try to show the validity or job relatedness of their employment tests, because that makes them lawful.
Having the Justice Department typically allows the data to be manipulated so as to make the validity seem to disappear, which is the second punch, to deprive them of their defense.
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As for Nassau County, it has gone through three consent decrees in the last 20 years. The first two represent the old sort of Justice Department intimidation. However, the third decree in 1990 is really revolutionary. What it does, what was revolutionary about it is that the Justice Department, for the first time, became a partner in developing an employment test. What that allowed the Justice Department to do was to participate in creating a new form of quota hiring, a new tool for affirmative action.
How it works is that one picks and chooses the content of the test, depending on the racial result you expect. So, for example, personality and interest tests are retained because minorities tend to do equally well on them. Cognitive tests are eliminated because minorities tend not to do well on them because of well-documented skill gaps that the U.S. Department of Education and others have shown us over the years.
That form of test construction gets you the racial results you want, the bottom line of equal results. What it ignores is the skills that are required to do the job. It is an insidious form of racial preferences, of race-driven hiring, because the quotas are hidden. They are built in at the front end. This new form of quota hiring is insidious also because it is done by lowering standards for everyone.
Let me give you an example by describing what happened in Nassau County. There was a 4-year multimillion-dollar effort in which 10 experts, 5 of them justices, stripped the county's new employment test of almost all cognitive demands. Twenty-five thousand people sat for a 25-test battery. By the time they got their scores, only nine of those tests counted; eight personality questionnaires that were fakable, and a 1 percent cutoff on the reading exam which you have already heard about.
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I would point out that Ms. Pinzler was incorrect in noting or in arguing that the 1 percent was the cutoff. It merely added some credit to your top test score if you passed that minimum standard. We can talk later about the evidence that those people were highly educated.
The people who failed the test were often very highly qualified, experienced police officers, probation officers. People at the top included an unusual number of people who were semiliterate, who had outstanding arrest warrants or who refused to take the polygraph test or the drug test.
Let me read you what one vice president of the company that led the creation of this test said. ''Through 18 years and four presidents, the message from the Justice Department was that there was no way in hell that they would ever sign on to an exam that had adverse impact on blacks and Hispanics. What we finally came up with was more than satisfactory if you assume a cop will never have to write a coherent sentence or interpret what someone else has written.''
The scientific reaction to this test in the field has alternated between ridicule and shock, and some of the comments about it have included, and these are from the most eminent people in the field, being intellectually dishonest, a clear selective presentation of information, and the like.
Now, the Nassau police unions are also concerned. They are afraid that the county has been misled. The training academy is taking in students who are not as able as earlier classes.
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But the important point here is not just what is happening in Nassau County. What is key is that the Department of Justice is suggesting to police departments around the country that they adopt this test or its progeny that has been developed in Louisiana by essentially this same group of test developers.
The Justice Department has been using this test, which it claims is highly valid but has almost no disparate impact, as a trump card for arguing that the valid tests that police departments currently use cannot be used because they have more disparate impact than this test.
Experts have taken what information is available about the Nassau test, and it is far less than what the Federal uniform guidelines require, and estimated that the tests validity is not even half of what it is claimed to be. It probably is also less valid than the earlier tests that the county has given.
So the trump card which the DOJ is using to try to replace valid police tests around the country is virtually worthless. It is not much better than picking people at random. However, DOJ has threatened jurisdictions that are reticent to use it, and I can explain more about that later. Some jurisdictions have already been sued, or their effort to hire police with their current test is being crippled.
I would finally summarize by saying I think Federal tax money is being spent to do things that the Justice Department has no business whatsoever doing, things that are probably illegal and lack common sense in many cases. The Justice Department is interfering in the employment test market. It is not an honest broker of tests. It is threatening jurisdictions if they do not use particular tests or particular test developers. It would also seem to have a conflict of interest when it litigates tests that it has already helped develop. This means DOJ cannot provide equal protection to all classes of litigants.
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Moreover, the tests DOJ is pushing represnets a race-motivated kind of testing. The 1991 Civil Rights Act bans the adjustment of scores on the basis of race. This new form of quota hiring involves adjusting the content of tests on the basis of race. Finally, it represents a widespread destruction of standards, mental standards, in police hiring across the country at the same time when the administration and the Congress are trying to improve public safety by putting more police on the streets.
Thank you.
[The prepared statement of Ms. Gottfredson follows:]
PREPARED STATEMENT OF LINDA S. GOTTFREDSON, PROFESSOR, UNIVERSITY OF DELAWARE
Mr. Chairman, members of the subcommittee, my name is Linda Gottfredson. I appreciate the opportunity to be here today to share my concerns with you. I am a professor at the University of Delaware, and have spent most of my career researching the aptitude demands of work and the social dilemmas involved in employment testing. I am best known in personnel selection psychology for detailing why those testing dilemmas exist and how they can sometimes lead to the corruption of science for political ends. I do basic research on the nature of human talent as well as analyze its policy implications. On example of such work are my articles, both in scientific journals and the Wall Street Journal, on race-norming and its use by the federal government. That practice was subsequently banned by the Civil Rights Act of 1991.
For the past 12 months I have been investigating a new form of quota-hiring that the Justice Department developed in Nassau County, NY, and is now pressing on police departments nationwide. I have analyzed the technical details of the 1994 Nassau County exam, read pertinent court documents, and interviewed test developers nationwide. I reported my findings in the Wall Street Journal last fall as well as in a scientific article which will be published later this year. I myself play no role in developing employment tests, and I have no financial stake in producing or evaluating any of them.
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I should note fires that, although I have dealt with controversial topics in my career, I have never encountered so much fear—visceral fear—as I have while investigating the Justice Department's involvement in police testing. Most test developers and the public agencies they serve feel too vulnerable to DOJ retribution to make public their complaints about improper actions by its civil Rights Division. These people may have to be assured confidentiality or protection if the full story is to be told about how DOJ has been abusing its power to promote quota hiring.
Let me distinguish what is old from what is new about the Nassau County case. What is old is the way in which DOJ has pressured Nassau County into 20 years of consent decrees. Nassau County recently entered its third decade of the Justice Department investigating and reshaping its police hiring. The entrance exams developed pursuant to its first two consent decrees both had disparate impact against blacks. In both cases, the test developers provided evidence that their tests were job related and therefore lawful despite their disparate impact. But in both cases, court records suggest that Justice allowed the supporting research data to be manipulated in many ways in order to find some pretext by which plaintiffs should argue that the tests were not job-related after all. Such fishing expeditions in the validation data are not scientifically justified, but they allowed plaintiffs to claim that tests should be rescored in a manner, as both were, to increase minority scores.
This is the last half of Justice's old one-two punch. The first, as described in Mr. Flick's testimony about the City of Torrence, is to intimidate departments with threats and crushing requests for information. The Second, as I have described, is to strip them of their legitimate defenses.
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What is new about Nassau case is that under Nassau's third consent decree, in 1990, DOJ itself became a partner in creating the county's next police entrance examination,which was administered in 1994. The implications of this precedent are hard to overstate. The result was a new mechanism by which DOJ could force police departments more quickly and effectively into quota hiring. The procedure begins by picking and choosing the content of the exam according to how well different races tend to score on that content. Content on which all groups do about equally well (like the sections asking candidates to report their personality and interests) is retained. However, sections on which whites and Asians tend to do better (for example, reading, reasoning, and problem solving) are eliminated. This racial gerrymandering of test content is especially insidious because its many layers of technical procedures camouflage not only that the exam has built-in racial quotas but also virtually eliminates mental standards. It is unfair to talented people of all races because it drastically lowers standards while claiming to raise them. Worst of all, by lowering standards for everyone, it threatens public safety. As one leading scientist in the field wrote last fall in the Wall Street Journal, this ''will be a disaster wherever it is used.''
Race-motivated selection of test content violates professional testing standards, of course, and probably the 1991 Civil rights Act as well. However, it can yield the equal racial results that DOJ seems to insist on. It is also clever because there is no need to go through the intermediate and now illegal step of adjusting the scores by race in order to produce racial equality in test results despite racial gaps in essential skills.
In Nassau County the race-based test construction effort took the form of a four-year, multimillion dollar effort by 10 experts 5, of them DOJ's, to strip Nassau County's experimental test battery of all crucial cognitive demands. The final version of the exam ended up consisting of 8 fakable personality questionnaires and the mere shadow of a mental test. To receive points for mental competence, candidates had only to read as well as the worst one percent of readers on the police force. This is comparable to saying that colleges should select high school students according to their grades in non-academic subjects like gym and art, and ignore grades in math and science. But to avoid being accused of ignoring academic ability, colleges should also give students a little credit for getting at least a D in social studies.
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With such standards, it is not surprising that many highly qualified Nassau candidates—for example, lawyers, experienced police and probation officers—earned very low or failing scores on the new test. Or that the test's top scorers included an unusual number of people who were semi-literate, had outstanding arrest warrants, or refused to take the drug or lie-detector test. Despite DOJ's fulsome praise of the new test, it actually turns out to work little better than simply picking applicants at random.
Racially gerrymandering the content of the Nassau exam was but the first step in DOJ's new strategy for quota-hiring. Step 2 was to hide the new test's near worthlessness. Among other things, the consultants made statistical errors that conveniently more than doubled the test's apparent value; they failed to report information that is required by DOJ's own Uniform Guideliness for independently evaluating a test; and DOJ officials misled the U.S. District Court and have even publicly impugned the integrity of the test's critics.
Step 3 in DOJ's new strategy has been to turn the Nassau test and its progeny into a legal trump card by which DOJ can compel police departments to abandon all tests having disparate impact, regardless of their job-relatedness. DOJ claims that the Nassau test is as valid as others (which is not true) but that it has virtually no disparate impact against blacks (which is true). By law, employers have no choice but to switch to equally valid, less impactful alternatives. The Nassau test does not meet the equal validity test, but DOJ treats it as if it does.
The New Jersey State Police refuse to switch to the Nassau test, and the NAACP sued. Suffolk County, NY, refused, and DOJ is now crippling its ability to hire any police. In both cases, those departments were using police exams that DOJ itself had earlier forced them to adopt in order to increase minority hiring.
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In effect, DOJ is trying to make it impossible to defend any meaningful mental standard, no matter how critical. This short-cut to racial equality in police hiring is as dangerous to the public as it is dishonest and unfair. While the Clinton Administration tries to improve public safety by putting 100,000 more police on the streets, its own Justice Department is taking actions that will devastate the quality of policing in communities nationwide.
Police work is becoming increasingly complex. Police hiring standards should be going up, not down. Indeed, the Clinton Administration has adopted the PoliceCorps program, which pays for college scholarships if the recipients agree to work four years afterwards as a police officer. DOJ, is contrast, refuses to accept any educational standards for police beyond a high school diploma if they have disparate impact, which they usually do.
It appears to any of us in the testing community that DOJ's Civil Rights Division is operating outside the law and has arrogated for itself policy making authority that is Congress's alone.
Mr. CANADY. Thank you.
Mr. Latham.
STATEMENT OF WELDON H. LATHAM, GENERAL COUNSEL, NATIONAL COALITION OF MINORITY BUSINESSES, AND SENIOR PARTNER, SHAW, PITTMAN, POTTS & TROWBRIDGE
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Mr. LATHAM. Thank you, Mr. Chairman. Good afternoon, Mr. Canady.
Mr. CANADY. I am not sure your microphone is on. That sounds good.
Mr. LATHAM. Thank you, Mr. Chairman. Good afternoon Chairman Canady, Mr. Scott, distinguished members of the panel. It is a pleasure to come before you and this committee to discuss the Federal acquisition regulations and reforms recommended by the Department of Justice to comply with the case of Adarand v. Peña. I am here today both as a private attorney that represents a wide cross-section of government contracting firms as well as representing in my capacity as general counsel the National Coalition of Minority Businesses.
NCMB members provide a wide variety of goods and services to the Federal Government, from janitorial services to satellite services, from pens and pencils to complex computer and warfare systems, and each of them will tell you that their ability to perform in the Federal environment has been greatly enhanced, if not merely permitted, by use of such programs as the 8(a) program. Racial and gender discrimination, bigotry, unfair and disparate treatment, continues to exist currently in every aspect of economic, political, and social lives of our Nation.
Inequality remains a reality in our American society, and to represent otherwise is both disingenuous and injurious to our entire Nation.
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In 1994, approximately 12 percent of the American work force was comprised of minorities, and 45 percent of women. The Nation's economy and economic well-being is obviously jeopardized by the unfair and unequal treatment of 57 percent of the U.S. work force. Affirmative action is the only remedy addressing this disparate treatment.
My written testimony focuses in much greater detail on the specific regulations proposed by the Justice Department, but particularly having had the opportunity to hear the comments that came before me, I would like to speak more to some of the comments from the Members.
Let's look at history, since history has been a subject that has come up quite a bit. Every President since Lyndon Johnson, both Democrat and Republican, has supported minority business programs, and every Congress has recognized the existence of exclusion of minorities and women in the Federal procurement system, and every Congress has acted to build upon and improve these programs to gain greater access.
Contrary to popular belief, the Supreme Court's decision in Adarand did not find any Federal program unconstitutional. In fact, seven of the nine Justices reaffirmed the concept that the Federal Government has the power to remedy past and continuing discrimination.
Justice Sandra Day O'Connor specifically said the ''unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and the Government is not disqualified from acting in response to it.''
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President Clinton created his ''mend it, don't end it'' policy, and charged the Justice Department with conducting substantive review of all Federal programs to ensure that they comply with the requirements of Adarand.
The proposed amendments represent a good-faith effort by the Department of Justice to meet the requirements of the Adarand decision, but even President Clinton's Justice Department may have gone too far in restricting the ability of government agencies to reach highly qualified minority businesses heretofore denied access to the Federal procurement system.
In response to calls for elimination of affirmative action programs, it is instructive to repeat the words of Colin Powell and Gov. William Weld, two very well-known, prominent Republicans. ''When equal performance doesn't result in equal advancement, then something is wrong with the system and our leaders have an obligation to fix it.'' Those are the words of Colin Powell.
''Our society needs a little nudge to make sure we are all sitting at the table at the year 2010. A diverse workplace is not just a moral issue, it is a business necessity.'' Those are the words of Gov. William Weld.
Numerous other commentators, Republican and Democrats alike, have made the point of how important affirmative action measures are because they are an immediate measure in process. They don't merely create a preference, they seek to right a class wrong.
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Even Speaker of the House Newt Gingrich, has said affirmative action should not be ended until a suitable and effective replacement can be instituted.
There are massive statistics that demonstrate why there is inequality in our society. Congressman Scott noted one of the most prevalent ones, the fact that when minorities and white applicants for loans seek to secure those loans with exactly the same qualifications, the loans are twice as often denied to the minority applicant.
One telling statistic as relates to government procurement is although minorities and women represent 57 percent of the work force, and closer to 70 percent of the population, they only represent 6 percent of Federal procurements and women represent only 1.6 percent.
In conclusion, I would say that when President Nixon first devised the 8(a) program and referred to it as the black capitalism program, which was appropriate, given the fact that the predominant minority group were then African-Americans, he wanted to give them a stake in America. He appropriately recognized that minorities had been unlawfully denied access to participation in the entire free enterprise system and he thought by giving access to the Nation's largest purchaser of goods and services, the Federal Government, which they support with their tax dollars, he would begin to reverse a wrong.
The Supreme Court in Fullilove v. Klutznick and even Adarand has continually reaffirmed the right of the Federal Government to seek to remedy past wrongs, and the past wrong of discrimination is not only a past wrong, but a continuing and decisive part of our Nation today.
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I hope your committee, Mr. Chairman, will recognize that and will take actions to continue to protect all its citizens.
Thank you.
[The prepared statement of Mr. Latham follows:]
PREPARED STATEMENT OF WELDON H. LATHAM, GENERAL COUNSEL, NATIONAL COALITION OF MINORITY BUSINESS, AND SENIOR PARTNER, SHAW, PITTMAN, POTTS & TROWBRIDGE
Good morning, Chairman Canady and distinguished members of the panel.
I. INTRODUCTION
It is a pleasure to appear before this Committee to discuss the recently proposed amendments to the Federal Acquisition Regulations (''FAR'') to Reform Affirmative Action in Federal Procurement. I am testifying both as a General Counsel of the National Coalition of Minority Businesses (''NCMB'') and as a private attorney who represents a wide cross-section of government contractors, including large and small, minority- and majority-owned companies. NCMB is a multi-ethnic, multi-racial trade association of minority businesses that are interested in securing equitable access to the Federal procurement market, commensurate with their substantial, yet often underrated abilities.
NCMB member companies provide a wide variety of goods and services to the Federal government—from janitorial services to satellite communications services, from pens and pencils to complex computer systems. NCMB members support virtually every Federal agency all across the country from home states such as New Jersey, Maryland, Virginia, Nebraska, Missouri, Oklahoma and California.
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II. STATEMENT OF THE PROBLEM
Racial and gender discrimination, bigotry, unfair and disparate treatment continue to exist in every aspect of our economic, political and social lives. In summary, inequality remains a reality in our American society and to represent otherwise is both disingenuous and injurious to our entire nation. In 1994, approximately 12% of the American work force was composed of minorities and 45% of women. The nation's economic well-being is jeopardized by the unfair and unequal treatment of these workers.
III. BACKGROUND—THE ADARAND DECISION AND ITS PROGENY
My testimony today will focus on the appropriateness of the proposed regulations as a response to the decision of the Supreme Court in the case of Adarand Constructors, Inc. v. Peña.(see footnote 3) In light of the aforementioned continuing need for Federal governmental remedial action on behalf of its minority and female citizens, any suggestion that minority and female contracting programs be curtailed or ended only continues the unfair treatment of these segments of our society.
As you know, since the 1960's, the Federal government has taken steps to provide access, heretofore denied, to Federal procurements for minority and female business owners. Every President since Lyndon Johnson, both Democrat and Republican, has supported minority business programs, and every Congress has recognized the exclusion of minorities and women from a Federal procurement system funded by their own tax dollars, and acted to build upon and improve those programs.(see footnote 4) Prior to the Supreme Court's Adarand decision, the Federal Courts had responded to constitutional challenges to such programs by according considerable deference to Congressional action and applying an ''intermediate'' level of scrutiny.(see footnote 5) The June 1995 decision in Adarand directed that a higher standard—''strict scrutiny''—be applied when race was a factor in Federal contract awards.
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Contrary to popular belief, the Supreme Court's opinion did not find any Federal program unconstitutional. In fact, seven of the nine Justices affirmed the continuing need for and constitutionality of minority procurement programs. The 5–4 majority opinion simply raised the level of scrutiny to be applied in reviewing such programs and specifically noted that this standard of review should not be regarded as ''strict in theory, but fatal in fact.''(see footnote 6) The Court clearly and emphatically acknowledged continuing racial discrimination in American society and reaffirmed Congress' authority to enact remedial measures to redress the continuing denial of access to Federal procurements. According to the majority decision, written by conservative Justice Sandra Day O'Connor:
[t]he unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and the government is not disqualified from acting in response to it (emphasis added.)
The strict scrutiny standard requires simply this: Federal programs that use race as a factor for awards must be narrowly tailored to further a compelling governmental interest—the same standard the Court had earlier applied to state action in City of Richmond v. J.A. Croson Co.(see footnote 7)
Shortly after the Adarand decision was issued, President Clinton delivered a major address regarding Federal affirmative action policy and stated:
. . . I also want to emphasize that the Adarand decision did not dismantle affirmative action. . . . In fact, while setting stricter standards to mandate reform of affirmative action, it actually reaffirmed the need for affirmative action and reaffirmed the continuing existence of systematic discrimination in the United States.(see footnote 8)
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After noting the arguments of opponents of affirmative action that there had been abuses of federal contracting programs for minorities, President Clinton resolved on behalf of the country that:
We should reaffirm the principle of affirmative action and fix the practices. We should have a simple slogan: Mend it, but don't end it.
President Clinton then charged the Department of Justice (''DOJ'') with conducting a substantive review of all Federal affirmative action programs and recommending ways to ''mend'' them where necessary. DOJ conducted a painstaking review of such programs, and in May 1996, DOJ issued its Proposed Reforms to Affirmative Action in Federal Procurement.(see footnote 9) More than 1000 comments were received, nearly all of which supported not only the continuing need for minority business programs, but also that the proposal was too restrictive and such programs should be expanded. This is an extraordinary response to any regulatory proposal. DOJ has reviewed those comments and provided guidance to DoD and the other procuring agencies, the result of which is the proposed FAR amendments which are the subject of this hearing.
These proposed amendments represent a good faith effort on the part of DOJ to meet the requirements of the Adarand decision and to comply with the President's goal of ''mending, not ending'' Federal affirmative action programs. The fact, however, is that the proposed amendments are unnecessarily restrictive in limiting the tools available to achieve a fairer contracting environment for minority businesses and go well beyond what is necessary to meet the strict scrutinizing standard.
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In particular, the proposed regulatory procedures inappropriately including the SBA's Section 8(a) program. That program, developed under President Nixon a temporary business development program, which received specific, positive mention in the Adarand decision. Justice O'Connor specifically noted as advantages that the 8(a) program required an individualized inquiry into economic disadvantage, a showing that the individual's ability to compete had been impaired as compared to others in the same or similar line of business who are not socially disadvantaged, and because the presumption of social disadvantage is rebuttable. Given the use of the Section 8(a) program as an example of how to do the right thing the right way, it is hard to understand why DOJ would ever consider restructuring its use.
IV. THE FEDERAL GOVERNMENT HAS A COMPELLING INTEREST IN CREATING THE LEVEL PLAYING FIELD IN FEDERAL PROCUREMENT THAT OPPONENTS FALLACIOUSLY CLAIM ALREADY EXISTS
As noted above, the Supreme Court's Adarand decision itself recognized the existence of discrimination and reaffirmed the government's ability to act in response to it. An appendix to the DOJ May 1996 proposal lays out in detail the proof of the government's compelling interest in affirmative action in Federal procurement. I will not repeat that detailed analysis here, but I commend it to anyone who doubts that there is a continuing need for a significant governmental role in assuring equal contracting opportunities for all Americans.
I will note that in addition to the legal analysis provided by DOJ, there is significant empiral evidence of such a governmental interest. Leading Americans of both major political parties agree:
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When equal performance doesn't result in equal advancements, then something is wrong with the system, and our leaders have an obligation to fix it. If a history of discrimination has made it difficult for certain Americans to meet standards, it is only fair to provide temporary means to help them catch up and compete on equal terms. (emphasis added).(see footnote 10)—General Colin Powell.
Our society needs a little nudge to make sure we're all sitting at the table in 2010. . . . A diverse work place is not just a moral issue it is a business necessity. . . . You wouldn't design an all-white police force for a city that's half black. The same goes for the composition of our public universities. And the same goes for the roster of our successful business firms. The ''nudge'' I have been talking about goes by the name ''affirmative action.''(see footnote 11)—Governor William Weld, Massachusetts.
Affirmative action's purpose was not to give unqualified people special rights, but rather give people who were, in fact, qualified and eager and ambitious, the opportunity to enter into fields that had been denied them solely by virtue of the color of their skin or their gender. . . . [L]et us not indulge in the delusion that the field of dreams is equal and level for all of our people. We still have a long, long way to go.(see footnote 12)—William S. Cohen, U.S. Senator, Maine, Former Secretary of Defense.
Affirmative action 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 long-standing and persistent discrimination.(see footnote 13)—President William J. Clinton.
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Even House Speaker Newt Gingrich has said that affirmative action should not be ended until a suitable and effective replacement can be instituted.
A. The Deck is Stacked Against Minorities
There are those who claim that a level playing field has been achieved, that equal opportunity exists. But obvious and constant evidence belies these claims. According to a 1995 Report by the Glass Ceiling Commission, a body established under President Bush and legislatively sponsored by Senator Dole, white males, who compose only 43% of the work force, hold 95% of senior management positions in the nation's largest companies. Clearly, the current system has permitted preferential treatment of white males and affirmative action is merely a means to remedy and equalize the adverse effects of the status quo. Minority and females participation is extraordinarily low for senior management position at Fortune 1000 companies:(see footnote 14) African Americans 6/10 of 1%; Hispanic Americans 4/10 of 1%; Asian Americans 3/10 of 1%; and Women 3–5%.
Other, similar, statistics in the Glass Ceiling Commissioner Report include:
African Americans hold only 2.5 percent of top jobs in the private sector and African American men with professional degrees earn only 79 percent of the amount earned by their white counterparts. Comparably situated African American women earn only 60 percent of the amount earned by white males.
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Women hold only 3 to 5 percent of senior level management positions—there are only two women CEOs of Fortune 1000 companies; there are no African American CEOs of such companies.
The unemployment rate for African Americans was more than twice that of whites in 1994. The median income for black men working full-time in 1992 was 30 percent less than white males. Hispanics fared only modestly better in each category. In 1993, black and Hispanic men were half as likely as white men to be managers of professionals.
In 1992, over 50 percent of African American children under 6, and 44 percent of Hispanic children, lived under the poverty level, while only 14.4. percent of white children did so.
Black employment remains fragile—in an economic downturn, where ''last hired, first fired'' still prevails, black unemployment leads the downward spiral.
In 1993, less than 3 percent of college graduates were unemployed; whereas 22.6 percent of whites had college degrees, only 12.2 percent of African Americans, and 9.0 percent of Hispanics did.
Behind each of these statistics are real people and real families who continue to suffer unfairly from ongoing discrimination.
B. Federal procurement programs are a powerful tool, but minorities and women do not have a fair share of these procurements
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President Nixon realized nearly 30 years ago that one important way to increase minority and female participation in the American economy is to foster business formation and development. Minority and female owned businesses generally hire and train other minorities and women in significantly greater numbers than majority owned companies. These minority and female owned, usually small, businesses provide numerous benefits to our nation, including tax generation, innovation in management and production, and increased American competitiveness globally via a diverse work force, minority and female role models and vehicles for implementing welfare-to-work programs.
Notwithstanding the Federal government's growing but still meager minority and women business programs, minorities lag in business development efforts. The statistics are compelling:
Minorities comprise 21% of all Americans, but only own 9% of businesses and those businesses receive less than 6% of receipts of all businesses.(see footnote 15)
The typical minority owned firm has annual receipts less than half of white-owned firms.(see footnote 16)
The average payroll among white-owned firms with employees was $85,786 in 1987; for minority owned firms the average payroll was $38,318.(see footnote 17)
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As noted above, Federal procurement can provide the government with a powerful tool for promoting opportunities for minorities and females which can counteract discrimination. To date, however, this tool has been used sparingly and 30 years later has only begun to address this massive problem. In 1994, the Federal government spent approximately $250 billion on goods and services but only 6.4% went to minority owned firms and women-owned businesses received only 1.6%.(see footnote 18) As the single largest customer in the nation, our government has a duty to set an example for private industry and to allow minorities and women, who represent a majority of our population, to continue to receive the minimal level of access it has achieved to date.
A recent study by the Urban Institute(see footnote 19) determined that ''based on their number, minority-owned firms receive only 57 cents for every dollar they would be expected to receive'' from state and local government contracting given the availability of minority firms ''ready, willing and able'' to perform such contracts. No similar study exists for Federal procurement but one is currently in progress by the Department of Commerce to support its recommendations to the Administrator of the Office of Federal Procurement Policy (''OFPP'') with respect to the scope and implementation of the mechanisms covered by the proposed FAR regulations.
As we all await the results of the Commerce Department study, the results of the state and local study are instructive for a number of reasons:
State and local government contracting makes up a substantial share of GNP (about equal to Federal spending), thereby influencing the number and size of minority firms;
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The barriers to minority business formation—problems in obtaining capital, bonding and insurance, higher supplier prices, etc.—are similar at the state, local and Federal levels, and;
Many of the goods and services purchased by state and local governments are paid for with a mix of Federal and local funds where Federal procurement rules apply.
The fact that minority firms face such obstacles in securing work from their own governments is an embarrassment to this country. The Federal government, as well as state and local governments, have an obligation to ensure that minorities and women are given a fair opportunity to compete for contracts paid for by their own tax dollars.
It should also be noted, however, that neither the Federal government nor state and local government have even begun to address long term adverse results of discrimination which cause the current small number of minority and female-owned companies currently operating in our nation. The benchmarking symptom proposed for the Federal government, and the state and local experience, are both based on current ''availability of minority and female-owned firms,'' and make no adjustment for the fact that ''but for'' discriminatory exclusion historically and continuing until today, many more minority and female-owned firms would exist and would be ''available'' to perform government contracts on all levels. Any proposal that would limit Federal remedial actions blatantly ignores both historical and current reality.
C. Why is Minority Participation in Federal Procurement So Low?
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According to a study by the Urban Institute, there are 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.
Barriers to business creation and growth, include lack of or limited access to:
Financial capital, i.e. debt and equity financing;
Social capital, i.e., business contacts and networks;
Human capital, i.e., highly educated and trained professional personnel; and
Nonminority commercial consumer markets.
Barriers to minority participation in the government contracting process include:
Contract bundling;
Customizing of contract requirements to fit the preference of the agency for large majority contractors.
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Extensive grants of waivers to majority contractors from minority subcontracting requirements;
Ineffective screening for fraudulent minority front companies;
Bid shopping on the part of majority prime firms subcontracting bids to their majority competitor so they can underbid; and
Emphasis on subcontracting for minority and female owned firms which can limit the experience of these companies in managing and handling large contracts and promotes the perception that the firms are unable to act as major prime contractors.
Each of these limiting factors is exacerbated in commercial contracts where there are no statutory obligations to utilize minority and female owned firms and thus discrimination appears more likely.
D. Minority Business Programs Complement Rather Than Adversely Impact Small Business Procurements
Claims that the Small Disadvantaged Business (''SDB'') program has had an adverse impact on small business procurements are purposefully divisive and are blatantly false. First, SDBs are also small businesses and as such are eligible to participate in small business procurements. Second, small business programs are protected by both statute and regulation from intrusions by the SDB program.(see footnote 20)
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There is also no evidence that affirmative action programs have resulted in so-called ''reverse discrimination.'' In fact, the paucity of cases—less than 3% of all discrimination complaints are of reverse discrimination despite the great publicity provided to a few—demonstrates that this is not a real or significant issue. The proposed regulations go too far to avoid even the potential for any reverse discrimination in Federal programs and that policy has been built into the DOJ review and the proposed regulations.
V. PROPOSED REGULATIONS MEET THE ADARAND Standard and the President's Goal of Continuing Legitimate Programs
A. Compelling Governmental Interest
There is a compelling governmental interest in seeking to create a level playing field for all Americans to fully participate in our American free enterprise system including doing business with their own government. Thus, the government must act to prohibit and counteract discrimination in Federal procurement. There is also a compelling governmental interest in ensuring equal opportunity for all of its citizens in the American economic mainstream outside the Federal contracting arena. As Justice O'Connor noted in the majority opinion in Adarand, discrimination exists, and the government fully authorized to respond to it.
B. Narrow Tailoring
The proposed regulations establish a program whereby the Federal government seeks to increase the participation in Federal contracting of small businesses owned and controlled by socially and economically disadvantaged individuals.(see footnote 21)
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This program is narrowly tailored to meet the government's interest in equal opportunity because it:
Provides a limited number of strictly defined mechanisms for increasing minority participation;
Establishes procedures for OFPP, upon advice from the Department of Commerce, to limit use of any or all of the mechanisms based upon an ongoing review of minority participation;
Provides for review by SBA, or SBA-designated agencies, of the qualification of individual concerns; and
Provides protest and appeal mechanisms which permit eligibility determinations to be challenged by SBA, the Contracting Officer, and other offerors.
In many ways, the regulations are overly restrictive, going far beyond the requirements of the Adarand decision. For example, given the widespread and widely recognized adverse effects of discrimination, rather than establish a system where the OFPP Administrator can ''authorize'' mechanisms to increase participation, the standard should be that all mechanisms are available unless a determination is made that curtailing their use will not adversely impact the participation of minorities and women.
C. Positive impact on minority participation
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The proposed program will continue the Federal Government's vital efforts to increase the participation of minority-owned businesses in the American economy—efforts which are still needed.
The proposal however only includes mechanisms to encourage minority participation in Federal procurement and in fact is substantially less aggressive than the Supreme Court authorized in Adarand.
These mechanisms will be available only to the extent authorized by the Administrator of OFPP. The determination to authorize a mechanism will be based upon the participation of minority firms in Federal procurement within two-digit Major Groups of the Standard Industrial Classification (''SIC'') Manual. The Administrator may determine, for example, that a price evaluation preference is necessary to support minority participation, but that such evaluation preference would be no more than 5%, instead of the potential 10%.
The Administrator, based upon the recommendation of the Department of Commerce, will publish on an annual basis, by two-digit Major Groups as contained in the SIC Manual, and by region, if any, the authorized SDB procurement mechanisms, and their effective dates for new solicitations in the upcoming year.
As a further effort to narrowly tailor the regulations, each agency shall designate personnel responsible for determining whether use of an SDB mechanism has caused a particular industry category to bear a disproportionate share of contracts awarded by a contracting activity of the agency to achieve its goal for SDB concerns. In the event of a determination of disproportionate impact, the determination shall be forwarded to the Department of Commerce. If the determination is approved by Commerce, the contracting activity will limit the use of the SDB mechanism.
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The determination of whether a particular contractor is eligible for SDB status likewise contains several narrow tailoring mechanisms, including a procedure whereby all concerns representing themselves as SDBs must obtain precertification that the concern is owned and controlled by a disadvantaged individual. As I have already mentioned, procedures have been established for a determination of disadvantaged business status to be challenged by ''any offeror, the contracting officer, or SBA.''(see footnote 22) The regulations go too far to protect majority businesses from any significant intrusions into their domain by minority and female owned businesses. The government should be more aggressive at ensuring that minority and female-owned businesses secure a fair share of the government's procurement dollars.
VI. CONCLUSION
History is particularly relevant, as is the legal predicate underlying the tenure of minority business programs. President Nixon first devised the 8(a) program and referred to it as ''black capitalism,'' which he deemed as a means of providing the African American community (then the predominant minority group) with a ''business stake in America.'' He appropriately recognized that minorities had been unlawfully denied access to participation in the free enterprise system and that the largest single purchasers of goods and services in our nation was the Federal government.
By granting access to these federal markets, Nixon believed he could end the base causes of urban unrest. Several years later, his plan was reinforced by the Supreme Court which held in the case of Fullilove v. Klutznick, that minority business assistance programs are constitutional due to their remedial nature, i.e., the programs are intended to remedy past wrongs on the part of the government and private industry. Nothing in Adarand is contrary to this opinion.
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This lack of access to public and private sector contract dollars has prevented many minorities from developing successful business entities. The 8(a), small disadvantaged and women owned business programs were intended to overcome this discriminatory conduct, and are now buttressed by the courts in still seeking to overcome decades of these wrongs. Thus, the value of these programs in 1997 and the sacrifices by many civil rights leaders to secure their basic method of providing minority and female American citizens with access to federal procurement dollars, derived from tax dollars paid by all this nation's citizens, cannot be overstated.
Further perspective can be gained by a review of basic facts and statistics. The U.S. population currently exceeds 250 million, approximately 20 percent of which are minorities and more than half of which are women. Additionally, the minority population is growing at a substantially faster rate than the population at large.
According to statistics from the Bureau of the Census, minorities represented 11 percent and women represented 46 percent of the civilian labor force. Minority unemployment consistently runs as much as double that of majority population; even though minority and women-owned businesses have played a major role in providing employment opportunities for minorities and women. Their impact has been limited, however, because the number of minority owned business account for just 9 percent of all business enterprises in the United States and women-owned business acount for about one third.
Federal contracting opportunities worth nearly $200 billion a year are critical to the success of the entire economy, but particularly to the minority and women owned-business sector. Of this amount, however, a mere 4 percent of the value of all federal contracts were awarded to small, minority-owned businesses and less then 2 percent to women owned businesses via all forms of contracts (including the entire 8(a) program).
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Any proposal that seeks to reverse the slow but constant improvement since enactment of the civil rights laws of the 1960s is, in the words of former Maine Senator and current Secretary of Defense William Cohen:
A preposterous notion . . . any short term political success gained from elementary affirmative action is going to prove a long-term policy disaster.
I hope that the next time I appear before this Committee I will be able to testify regarding the improvement of the regulations after a review of comments and their operational success in creating opportunities for minority and women seeking to do business with the Federal government.
Thank you Mr. Chairman and Members of the Committee.
INSERT OFFSET RING FOLIOS 1 TO 4 HERE
Mr. CANADY. Thank you, Mr. Latham.
Mr. Stratton.
STATEMENT OF LAWRENCE M. STRATTON, J.D., RESEARCH FELLOW, INSTITUTE FOR POLITICAL ECONOMY, WASHINGTON, DC
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Mr. STRATTON. Chairman Canady, thank you.
The United States is a country whose Constitution forbids privileged standing in the law for any group. Equality before the law prevents class-based, race-based, or other distinctions in the law. This is an historical achievement that differentiates modern societies from premodern social systems in which rights differed according to status.
In 1896, Justice John Marshall Harlan stated the facts well when he declared in his famous dissent from Plessy v. Ferguson that, ''There is no caste here. Our Constitution is colorblind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.''
This isn't the case anymore in the United States. Paradoxically, in the name of civil rights, we have been creating privilege. Groups designated as preferred minorities are routinely given access to universities, law schools, medical schools, employment training programs, promotions, and government contracts on easier terms than those afforded to white males. Indeed, the Federal Government pays bounties to businesses that discriminate against whites and hire minority-owned subcontractors.
These privileges are inconsistent with equality before the law. White males are permitted to compete only for their proportionate share of Federal contracts, university admissions, and so forth, and then group quotas take over, with disparate group rights. Indeed, the Congressional Research Service has identified over 160 manifestations of this phenomenon in the Federal Code. This is a caste system.
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The problem with privilege is, once it gets a foothold, it grows. Quotas have already expanded beyond race and sex to age and handicap status, and efforts are currently under way to expand quotas to sexual orientation.
Even beyond the field of civil rights, there are attempts to give preferences in the Tax Code on the basis of geographic residency, such as proposals to give special tax rates to the District of Columbia.
My colleagues at Georgetown Law School, Charles Lawrence and Mari Matsuda, propose race-based tax codes in their book, ''We Won't Go Back Making the Case for Affirmative Action,'' arguing for reparations to be paid to blacks by whites. None of these proposals would have passed muster with Justice Harlan, but today privilege in the law is accepted as normal.
The codification of privilege is getting a big boost from the U.S. Justice Department's newly published ''Regulations on Affirmative Action in Federal Procurement.'' The designations of Black American, Hispanic American, Native American, Asian-Pacific American, and subcontinent Asian automatically make it unnecessary to win competitive bids to get contracts. Special 10 percent price credits will let privileged firms obtain Federal contracts with fictitious low bids in order to meet benchmark quotas set up by the Department of Commerce that approximate statistical proportionality.
Because the Supreme Court has rejected broad-based quotas in favor of quotas having some purported connection to alleged past discrimination, the regulations direct the Commerce Department to conduct massive racial disparity studies of 80 business sectors to find evidence of discrimination and estimated amounts of ''minority contracting that would exist absent the effects of discrimination.''
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The Croson decision has already created at the State level an industry of disparity studies. Forbes Magazine estimates by 1994, State and local governments had already spent over $45 million on these studies. The Justice Department's new guidelines create a multimillion-dollar revolving door for Federal bureaucrats and lawyers working on these studies.
We learn from the lack of faith today of the Justice Department in the Torrence case, the VMI case, and of the Nassau case that I think it is fair to say there will be no good faith on the part of the Justice Department in conducting these massive ''mother of all disparity studies'' either. The disparity study loophole means the Justice Department regulations do not really limit quotas in Federal contracting. The consultants will find what they are paid to find. The regulations will, however, further entrench racial quotas into Federal law.
To understand what is going on, essentially what the new Justice Department guidelines do is, they start with quotas, they start with the preferences and say we are going to authorize the Department of Commerce to go out and find the evidence for them. It would be as if the FBI were to arrest someone and then go and create evidence in the crime lab to prove that this person had committed a crime. In fact, the Inspector General of the FBI says that is exactly what the FBI has been doing.
When Congress spoke legislatively in passing the 1964 Civil Rights Act, legislators insisted on equal treatment and strictly forbade quotas. In my book here, I quote Congressman Keller up there to that effect.
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The bureaucrats and judges succeeded in substituting their edicts for statutory law. How can Congress accept this? Congress has a duty to reclaim equality before the law from status-based legal privileges and reassert its lawmaking authority over the executive and judicial branches of government. By exercising its oversight powers over the Department of Justice, this subcommittee can defend the Constitution from this contravention and strike down this latest deception which codifies quotas.
[The prepared statement of Mr. Stratton follows:]
PREPARED STATEMENT OF LAWRENCE M. STRATTON, J.D., RESEARCH FELLOW, INSTITUTE FOR POLITICAL ECONOMY, WASHINGTON, DC
The United States is a country whose Constitution forbids privileged standing in the law for any group. Equality before the law prevents class-based, race-based or other group distinctions in the law. The absence of privilege in the law is a historic achievement that differentiates modern societies from pre-modern social systems in which rights differed according to status. In 1896 Justice John Marshall Harlan stated the facts well when he declared in his famous dissent from Plessy v. Ferguson that ''There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.''
This is no longer the case in the United States. Paradoxically, in the name of civil rights, we have been creating privilege. Groups designated as ''preferred minorities'' are routinely given access to universities, law schools, medical schools, employment, training programs, promotions and government contracts on easier terms than those afforded to white males. Indeed, the federal government pays bounties to businesses that discriminate against whites and hire minority-owned subcontractors. These privileges are inconsistent with equality before the law. White males are permitted to compete only for their proportionate share of federal contracts, university admissions, and so forth, and then group quotas take over, with disparate group rights. This is a caste system.
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The problem with privilege is that once it gets a foothold, it grows. Quotas have already expanded beyond race and sex to age and handicapped status, and efforts are currently underway to expand quotas to sexual orientation. Bi-partisan legislation is now being introduced that expands privilege outside the sphere of civil rights. The Congress has become so accustomed to unconstitutional group privileges that its members do not even notice egregious constitutional violations in legislative proposals. In defiance of the constitutional requirement that all taxes ''shall be uniform through the United States,'' recent bipartisan proposals call for lower federal tax rates on the basis of geographic residency, with citizens of the District of Columbia having a lower federal income and capital gains tax rates than citizens in the rest of the country. If the District of Columbia can have a federal tax code different from other jurisdictions, so can other political subdivisions, with low rates for favored regions and higher taxes for unfavored areas in order to make up the revenue loss. There might as well be race and gender based tax codes, as two Georgetown University Law Professors, Charles R. Lawrence and Mari J. Matsuda, propose in their new book, We Won't Go Back: Making the Case for Affirmative Action, arguing for reparations to be paid to blacks by whites.
In another recently publicized manifestation of legal privilege, the taxpayer-funded Washington Metro system is considering granting free Metro service to present and former members of the police force. Once instituted, there is no reason not to expect the expansion of this privilege to other favored groups with the unfavored making up the loss in revenues. None of these proposals would have passed muster with Justice Harlan, but today privilege in the law is accepted as normal.
The codification of privilege is getting a big boost from the U.S. Justice Department's newly published regulations on affirmative action in federal procurement.(see footnote 23) The designations of ''Black American,'' ''Hispanic American,'' ''Native American,'' ''Asian-Pacific American,'' and ''Subcontinent Asian,'' automatically make it is unnecessary to win competitive bids to get contracts. Special 10 percent ''price credits'' will let privileged firms obtain federal contracts with fictitious ''low bids'' in order to meet ''benchmark'' quotas set by the Commerce Department that approximate statistical proportionality.(see footnote 24)
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Because the Supreme Court has rejected broad based quotas in favor of quotas having some purported connection to alleged past discrimination,(see footnote 25) the regulations direct the Commerce Department to conduct massive racial disparity studies of 80 business sectors to find evidence of discrimination and estimated amounts of ''minority contracting that would exist absent the effects of discrimination.'' The Croson decision has already created at the state level an industry of disparity studies. Forbes magazine (August 15, 1994) estimates that by 1994 state and local governments had already spent over $45 million on these studies. The Justice Department's new guidelines create a new multi-million-dollar revolving door for federal bureaucrats and lawyers.
The disparity study loophole means that the Justice Department regulations do not really limit quotas in federal contracting. The consultants will find what they are paid to find. The regulations will, however, further entrench racial quotas into federal law.
When Congress spoke legislatively in passing the 1964 Civil Rights Act, legislators insisted on equal treatment and strictly forbade quotas. But bureaucrats and judges succeeded in substituting their edicts for statutory law. How can Congress accept this? Congress has a duty to reclaim equality before the law from status-based legal privileges and reassert its law-making authority over the executive and judicial branches of government. By exercising its oversight powers over the Department of Justice, this subcommittee can defend the Constitution from this contravention and strike down this latest deception which codifies quotas.
Mr. CANADY. Thank you, Mr. Stratton.
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Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Stratton, I am intrigued with this privilege that minorities are entitled to and that whites are—I think you said something to the effect, are only allowed to compete for their fair share of the contracts, or their proportional share of the contracts.
Are you aware that under many of these programs you have got almost 65 to 70 percent of the population getting 5 percent of the contracts with this privilege?
Mr. STRATTON. Well, the whole purpose of this program is to increase the preferences that are given to the people designated with minority status. The legal framework establishes proportionality as a baseline, and that is what these benchmarks which the Commerce Department is talking about are established for.
Mr. SCOTT. Proportionality would mean that women and minority groups would get about 60 percent of the contracts.
Mr. STRATTON. The reason that the Federal Government——
Mr. SCOTT. You are saying somehow there is some privilege in allowing them to get 5 percent. It doesn't seem——
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Mr. STRATTON. I am not sure they should even get 5 percent. You raised the issue earlier about the University of Texas and the University of California and the reductions in minority applicants there. I interpret that as an example of the excessive preferences that were apparently going on before the principle of equality before the law was established at these universities. Similarly in the Federal Code, there are 160 programs establishing preferences. Are you denying the Congressional Research Service?
Mr. SCOTT. I think when you said you don't think 60 percent of the population should get 5 percent, that is 5 percent too much.
Mr. STRATTON. I don't care what percentage. The purpose of Federal contracting should be to buy things at the lowest possible price for the Government. What is happening here is, the Government is paying a 10-percent premium and then paying all of these lawyers and consultants to come up with the statistics to justify the overpayment. I think that is outrageous as a taxpayer.
Mr. SCOTT. Sixty percent of the population gets 5 percent of the contracts. That is 5 percent too much.
Mr. STRATTON. If they are being paid 10 percent more than what they would otherwise pay for the lowest bid, that is right.
Mr. SCOTT. We understand each other.
Mr. Latham, can you explain what kinds of discrimination minority firms suffer that cause them to get in situations where they are not getting contracts?
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Mr. LATHAM. Historically we have seen a number of things; historically meaning yesterday. The Federal contractors that have been given access to the programs, minority firms, have performed exceptionally well on those contracts. The Department of Defense has utilized these contractors in Desert Storm and in a range of activities.
Mr. SCOTT. Do you mean to say, after they have been given the opportunity, then they are competitive?
Mr. LATHAM. Yes, sir. Once they have been given that opportunity and they perform, they get access to contracts. Immediately after graduating from a program like the 8(a) program, the same contractor that performed effectively for 8 or 9 years in a row immediately is not given that same opportunity to perform.
I am amazed at my colleague's view, and he makes me nervous about my old law school, Georgetown, when he tells me 60 percent of our population and 60 percent of the taxpayers are not entitled to even an opportunity to go after contracts or to perform those contracts where they have a record of performing.
Mr. SCOTT. What are some of the barriers that minorities face because of discrimination, like is there discrimination in getting a bond, for example?
Mr. LATHAM. There is discrimination in bonding, in capital, in access to capital, in loans.
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Mr. SCOTT. If a contractor can't get a bond, can they get a contract?
Mr. LATHAM. Absolutely not, particularly in the construction industry. Without access to a bond, there are no contracts. It is even more prevalent at the State and local level.
Mr. SCOTT. Has discrimination in bonding been found?
Mr. LATHAM. Absolutely. Even the Justice Department and the Department of Defense have indicated they have been willing to give a preference because of the disparate pricing of bonds. In other words, bonds cost more money for minorities performing exactly the same services.
Mr. SCOTT. And what about access to loans? Has there been discrimination in getting a loan so that your business can have an opportunity to get even that 5 percent?
Mr. LATHAM. Absolutely. In loans, in bonding, all forms of access to capital.
Mr. SCOTT. Thank you, Mr. Chairman.
I yield the balance of my time to the gentlewoman from Texas, Sheila Jackson Lee.
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Ms. JACKSON LEE. I thank the ranking member for his kindness.
Let me just very quickly, Mr. Stratton, ask you a question. Is there not room to remedy past discrimination? Do you believe that we should correct past discrimination?
Mr. STRATTON. I agree with Justice Scalia in his Adarand concurrence——
Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.
Mr. SCOTT. I do want to point out, Ms. Jackson Lee is not a member of the subcommittee and is not entitled to time on her own, and I yield her the entire 3 minutes.
Ms. JACKSON LEE. Thank you for explaining that. My interest is extremely strong in this area.
Mr. STRATTON. Congresswoman, I agree with Justice Scalia that under the Constitution, he said there can be no such thing as either a ''creditor'' or ''debtor race.'' That concept is alien to the Constitution's focus on the individual. It is very interesting——
Ms. JACKSON LEE. Could I ask you, is Mr. Scalia a civil rights activist, or has he been involved in the civil rights movement?
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Mr. STRATTON. He is certainly arguing for equality before the law, and I agree with his statement that in the eyes of the Government——
Ms. JACKSON LEE. Let me ask you this, reclaiming my time, if I might—and I thank you for that—as was indicated by the ranking member, the percentages of minorities and women would total about 60 percent. Edward Alby in a speech said in the 21st century this country would be a majority minority.
Would you think it would be fair to make sure that there were opportunities for Caucasian Americans in a minority majority United States of America?
Mr. STRATTON. Well, in my view, the purpose of Federal contracting is to get products at the lowest possible price, and whoever supplies that under those conditions——
Ms. JACKSON LEE. What about in private contracting and opportunities? Would you want to have opportunities to go to a Princeton or a Yale or Harvard if, for example, the student body became majority minority? Would you like seats and positions for qualified white students to be able to attend?
Mr. STRATTON. There should be equal standards for all people that apply.
Ms. JACKSON LEE. Are you suggesting that affirmative action means unequal standards? Can you point to that any place in the law, that affirmative action means unequal?
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Mr. STRATTON. Actually, there are 160 programs that the Congressional Research Service has identified.
Ms. JACKSON LEE. Are they suggesting the products are unequal?
Mr. STRATTON. They are saying that the standards to get the products are not equal. It is all a status——
Ms. JACKSON LEE. There is no suggestion that the product or the quality has to be unequal.
Mr. STRATTON. I have said nothing about the actual product itself. I have talked about the price the Government has to pay for it and the benchmarks established in these regulations by the Department of Justice.
Ms. JACKSON LEE. All right, you don't say there is an unequal product.
Mr. Latham, may I continue my question because I am short in time. Would you please allow me an explanation as to the issue of past discrimination? Would you explain to me the Community Reinvestment Act, the reason for that, and what was redlining, and do we have any of those or any need for those at this time?
Mr. LATHAM. I think all of the studies indicate there is continuing discrimination in all forms of lending, and it hits most hardest at the business level, because business people are seeking the largest amount of money. Even contractors that have been found to have won major contracts have sometimes not been able to perform for Mr. Scott's point because they can't get bonding or because they can't get lending, even though they have the major asset of a contract. So there is certainly serious redlining in the business arena.
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Mr. CANADY. The gentleman's time has expired.
Mr. Jenkins.
Mr. JENKINS. Mr. Chairman, I don't have any questions at this time, and I will yield my time to the Chair.
Mr. CANADY. Thank you. I appreciate that.
Let me follow up on some questions we have had about the test that we have been discussing throughout the day.
The Department's position with respect to the Nassau County test is that it is adequate in measuring cognitive ability because there is a reading segment of the test which can be passed if the applicant reads at a level equivalent to the lowest 1 percent of incumbent police officers, and the explanation of that is, well, this is a highly educated police force, all of the incumbent police officers have 1 year of college. Although I have to tell you, I have met some people with 1 year of college who were not able to write a sentence. So therefore, the cognitive aspect of this is adequately taken care of.
Professor, do you want to comment more on the Department's position on that and on the issue of whether there are, in fact, real threats to public safety which come from not adequately testing the cognitive abilities of people who are applying for positions in law enforcement?
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Ms. GOTTFREDSON. The test was systematically stripped of cognitive content in a way that was meant to appear scientific but was not at all.
Whenever a cut score is set, a cut score being a pass/fail level, as on this reading test, there is supposed to be a justification given. What one is required to do is to show the level of performance of those people above and below the cut score. That was never done in this study.
In fact, this study, its technical report does not produce virtually any of the basic results that are required to evaluate the value of a test such as this. That massive failure to report information is information that is required by the Department of Justice's own uniform guidelines, and by both sets of testing standards in the profession.
The individuals who wrote the report have refused so far to provide those basic data, so we do not know, in fact, how well that bottom 1 percent reads.
I do know from discussions in Nassau County that there are people on the force who cannot read well enough and write well enough to do incident reports, and they have 2 years of college education. One only needs to get credits from any sort of college in order to accumulate college credits.
The Department of Justice and the test developers have come up only post hoc with this argument that these people, and the entire force, is highly educated. The bottom line is that they don't produce the evidence about how well these particular officers perform on the job.
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That is what one does when one does a validation study. You get the test scores on the one hand, and you see how well they predict or relate with how well people do on the job. They did a study to see how well 500 Nassau police officers did on the job and to see how well different tests predicted their performance. They do not report those relations. We do not know how well those tests predict performance.
We do now know, however, based on what little data they did produce, that they grossly inflated the value of the test, its apparent validity, by two to three times. Moreover, when the Justice Department lawyer testified in court to compare the validity of this test with the previous tests in the county, he made his own statistical errors and underestimated or underrepresented by half the value of the previous tests.
What we have is a new test that has been systematically stripped of virtually all cognitive content, despite the project's own job analysis study showing that it is—they did and despite a decade of studies have showing that cognitive skills tend to be the most important and critical skills in many jobs, including police work. So the test is virtually no better than tossing a coin, as far as we can tell, but we can't tell everything about the test because crucial information has not been reported.
The bottom line is that Nassau County is going to have less competent police officers; that is, if they can make it through the training academy. If the standards are held, they won't. If they are dropped, the county will be getting a lot of poor police officers, making perhaps some very serious mistakes.
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We have seen a number of cities in the United States where hiring standards have been decimated leading to lives beening lost, a lot of court cases being thrown out, simply because the incident reports and the like are incompetent.
Perhaps the leading person in my field predicts there is going to be a public safety disaster in Nassau County. If the Justice Department has its way installing or getting such tests produced elsewhere, there is going to be a public safety disaster in many areas.
Mr. CANADY. Thank you very much.
Mr. Conyers.
Mr. CONYERS. Can I defer for a while, Mr. Chairman? I just enjoy seeing Weldon Latham in the fix he is in.
Mr. LATHAM. Thank you, Mr. Conyers.
Mr. CANADY. Certainly.
The gentlewoman from California.
Ms. WATERS. Thank you very much, Mr. Chairman.
Prof. Linda Gottfredson, is that your name?
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Ms. GOTTFREDSON. Yes.
Ms. WATERS. Do you believe that blacks and whites have different levels of intelligence based on race?
Ms. GOTTFREDSON. There are many decades of evidence that there are differences in distributions of cognitive abilities among all sorts of different races, and I would point out that the Department of Education, as I mentioned before, has been telling us for many years how very serious the differences in literacy and other higher-order cognitive skills are between different racial ethnic groups in the United States.
My concern with tests like the Nassau police test is their efforts to ignore a very serious problem instead of devoting resources to remediating the skill differences.
Ms. WATERS. Having said that, do you believe that blacks and whites have different levels of intelligence based on race?
Ms. GOTTFREDSON. No, that is an incorrect statement. There are differences in the proportion of different racial ethnic groups that score high on tests and score low on tests. It is not related to race, per se. It is simply the number of people who possess higher or lower literacy levels.
Ms. WATERS. In your 1986 paper, ''Societal Consequences of the G Factor in Employment,'' vol. 29, Journal of Vocational Behavior, page 379, 1986, you appear to be of the view that 74.5 percent of all white males but only 28.4 percent of all black males in this country possess the minimum IQ required for the job of police officer. That is in your table 2.
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Ms. GOTTFREDSON. Yes, those are data quite consistent with what the field of personnel selection psychology, educational psychology, and others have found for many decades. I am simply reporting what is very well known in the field, and it is the basis of the testing dilemma that I mentioned before.
When you have received groups that come into the testing situation with different levels of skills, and you have a race-neutral test, what you are going to get is disparate impact. And I can provide you a number of articles. But it is well established in the field that race-neutral, unbiased, valid, job-related cognitive tests have disparate impact as the rule and not the exception.
Ms. WATERS. Would you further explain then what accounts for this?
Ms. GOTTFREDSON. Oh, that is a different question.
Ms. WATERS. Yes, it is.
Ms. GOTTFREDSON. When I am speaking of intelligence or literacy, I am speaking about developed abilities. Differences in those are very well established in the literature. What is not established and what is a lively area of concern is where they come from, to what extent they are educational or the like. So those are two very different questions. I am talking about the level of skills of people when they come out of the educational system.
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For example, the National Assessment of Educational Progress shows year after year that blacks and Hispanic students who are 17 years old have the achievement levels in math, science and reading of whites 4 years younger. Black college graduates have the skills, on the average—and there is lots of overlap—of white high school graduates with only a high school degree.
Those are very serious gaps in skills that create an enormous dilemma for employers and certainly among many others; and the issue, the difficulty in employment testing has been how to deal with it. What a lot of employers were doing until the 1991 Civil Rights Act was simply to race-norm the tests. And what that does is rank everybody only within their own race. The reason this was done is because the tests are not biased. If they were biased, we would simply throw them out.
Mr. CANADY. Without objection, the gentlewoman will have 3 additional minutes.
Ms. WATERS. Thank you. In this discussion, are you familiar with the history of the police forces of America, where they came from, who dominated the police forces for a long time in this country?
Ms. GOTTFREDSON. That is not my area of knowledge. My area of expertise is the nature of fair testing and the dilemmas that are involved in testing. And what I have seen for many years is the effort to develop fair tests, fair in the sense of unbiased, that would reduce disparate impact.
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The search has not yielded the kind of success that many of us hoped for. In Nassau County they added a number of personality tests. We know there is very little or no disparate impact on personality and interest questionnaires, and they also help predict performance. So if you add them to a battery, you can reduce the disparate impact of a battery while raising the job relatedness.
The problem is that the only way that you can eliminate enough disparate impact in most situations to satisfy the Federal Governemnt's rule is to essentially remove mental standards. That is a very dangerous thing to do. And I think it is a shortcut to racial equality that is foolhardy. I think we should look for more constructive ways of dealing with the testimony dilemma than destroying the quality of our police forces.
Ms. WATERS. I understand that you concluded in some of your writings, and I will quote, ''More intellectually demanding jobs tend to employ relatively fewer blacks, and parity is found only in the lowest level jobs.'' Is that your quote?
Ms. GOTTFREDSON. It could very well——
Ms. WATERS. Page 402.
Ms. GOTTFREDSON. I can give anybody a copy of it. I have it here, that entire volume. I edited several volumes of a journal looking at this very issue of the dilemma, the testing dilemma that is created by racial gaps in job-related skills.
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One of the problems, given the particular differences in distributions of scores, is that the more complex the job, the relatively fewer minorities there will be who have high enough skill levels to be competitive for the job. So you generally find more disparate impact, the higher the level of the position that you are hiring for.
Ms. WATERS. Would you describe—I assume you are of the view that cognitive or intelligence tests are the best predictors of police officer job performance.
Mr. CANADY. The gentlewoman's additional time has expired.
Ms. WATERS. I request unanimous consent for 3 more minutes.
Mr. CANADY. Without objection, the gentlewoman will have 1 additional minute. No one else has taken 9 minutes.
Ms. WATERS. I don't care what no one else has done. I would ask then if you are going to grant it, do it. If you are not, don't.
Mr. CANADY. Without objection, the gentlelady with have 1 additional minute.
Ms. WATERS. Thank you.
What evidence do you have that demonstrates that cognitive tests are the best predictors of police officer job performance?
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Ms. GOTTFREDSON. I have not made that claim. I know it has been attributed to me, but I have not made that claim. It is true for many, or most, moderate to highly complex jobs.
My point here is simply that mental ability is a very important predictor of performance. The job analysis that was done in Nassau County, which used experienced police officers to detail the duties of police work concluded, itself, that the most critical skills were——
Ms. WATERS. Such as?
Ms. GOTTFREDSON. Well, they labeled them as reasoning, judgment and inferential thinking. They are higher order thinking skills, if you want to summarize them that way, which are the very skills the Department of Education is very concerned are not possessed by equal proportions—in high degree—by all of our racial ethnic groups in the school system.
Mr. CANADY. The gentlewoman's time has expired.
Ms. WATERS. You heard it for yourself.
Ms. GOTTFREDSON. Pardon?
Ms. WATERS. Thank you.
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Mr. CANADY. Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
Ms. Professor Gottfredson, you are familiar with the case Griggs v. Duke Power?
Ms. GOTTFREDSON. YES.
Mr. WATT. And as I understand that case—actually it was my law firm that litigated that case before I came to Congress—and what it stands for, I take it, is the proposition that in order to give a test, it must somehow be related to the duties of the job. And that has to be documented. The Supreme Court has held that in the Griggs v. Duke Power case.
Now, what I understand you to be saying is, notwithstanding whatever the Supreme Court said, mental ability is a very important predictor of performance in any job.
Ms. GOTTFREDSON. What has been found, and this is very well documented in my field, and I can provide numerous publications——
Mr. WATT. I just want you to answer the question. I don't need any documentation. Just tell me what you are saying.
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Ms. GOTTFREDSON. Well, there are two issues here. I don't want to confuse them. One is that mental ability tests have been found to be useful to some degree in probably all jobs.
Mr. WATT. OK.
Ms. GOTTFREDSON. But the more complex—more complex and difficult the job is cognitively, the more useful the tests seem to be. This means that by the time you get to mid- to high-level jobs, the job relatedness of cognitive tests the tightness of prediction goes up.
Mr. WATT. OK.
Ms. GOTTFREDSON. And that has——
Mr. WATT. In the field of police work where the performance is measured in terms of driving an automobile, knowing how to handle a gun, knowing how to do a whole range of things that may or may not be related to mental aptitude in this case, I take it the Supreme Court would say, given a choice between having a higher intellectual aptitude, a higher IQ, and having those skills that are required for this particular job, you must opt for those skills related to this particular job.
Is that what Duke Power—Griggs v. Duke Power stands for?
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Ms. GOTTFREDSON. What the law requires is, if your test has disparate impact, you must show that it is job related.
Mr. WATT. OK. I thought that is what that case stood for, and I think I understand it now.
Ms. GOTTFREDSON. There is another step——
Mr. WATT. Mr. Stratton, how do veterans' preferences and small businesses' preferences fit into your scheme of life?
Mr. STRATTON. When it comes to small business preferences, I would have voted against them if I were in your position as a Member of Congress.
Mr. WATT. What about veterans' preferences?
Mr. STRATTON. I probably would also have voted against preferences for veterans.
Mr. WATT. So what you are saying is that there is no set of preferences that the Federal Government can do that does not create this caste system or rise to the level of being in violation of the Constitution? Is that what you are saying?
Mr. STRATTON. For the veterans' benefits, I think the answer would have been to pay veterans more when they were soldiers.
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Mr. WATT. Well, I might have been in favor of that, but I didn't ask that question. We are not talking about how soldiers were treated when they were soldiers. We are talking about whether under your scheme of things, a veteran's preference would survive constitutional scrutiny, legal scrutiny.
Mr. STRATTON. Well, generally in terms of legal scrutiny, I think Justice Scalia probably would tolerate them. And I would go along with him, though I am not a Justice.
Mr. CANADY. The gentleman will have 3 additional minutes.
Mr. WATT. I take it whatever Scalia says is constitutional is constitutional in your scheme of things?
Mr. STRATTON. No. Actually he doesn't command a majority of the Court right now.
Mr. WATT. And we are very fortunate that that is the case, I would say, if you want my honest opinion on it.
What about Ivy League schools that give preference to the kids of parents who attended those schools? How do they fit into your scheme of things?
Mr. STRATTON. My point is that I am in favor of quality before the law, and there is nothing in the law that requires any private institution to give people preferences on the basis on athletic merit—actually that is beginning right now with title IX.
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Mr. WATT. If those schools decided that they were going to give preference to the children of people who have graduated from there, and if historically—if historically it turned out that 95, 98 percent of the people who had previously graduated from there happened to be white and that created a disparate impact as a result of that historical fact, how would that fit into your colorblind society scheme?
Mr. STRATTON. Congressman, I am glad you mentioned the term ''disparate impact.'' I reject Griggs v. Duke Power and this notion that you have——
Mr. WATT. Unfortunately, you ought to withdraw from being a citizen then, because it is still the law as I understand it. You are saying that you are practicing the law and you reject that notion just because you don't like it?
Mr. STRATTON. Actually, I don't practice law. But I am a person who writes about law, and one of the great achievements of this society is that when people don't like the law, they can petition their legislators to try to get it changed. And that is why I am here.
Mr. WATT. ''I reject that notion,'' that is what you said?
Mr. STRATTON. You are right. That is the wonder of the First Amendment.
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Mr. WATT. OK. All right. At least we know where the two of you stand now, and that is all I wanted to make sure we understood. I don't care where she gets her money from. It is her ideas that I am more concerned about.
Ms. WATERS. That is what is driving her ideas, where she gets her money from.
Mr. WATT. I yield back the balance of my time, Mr. Chairman.
Mr. CANADY. Thank you.
The gentleman from Michigan.
Mr. CONYERS. Thank you, Mr. Chairman. I don't have any questions for Mr. Weldon Latham, unfortunately. I would like to see him work hard for his money. He is a hardworking lawyer.
One of the places that Professor Gottfredson gets money from the Pioneer Organization—well, she gets her funding from the Pioneer Organization which also funds Dr. Shockly. Right, Professor?
Ms. GOTTFREDSON. Dr. Shockly died some years ago.
Mr. CONYERS. What is the answer to my question?
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Ms. GOTTFREDSON. They gave him a small grant a long time ago.
Mr. CONYERS. Forget Shockly.
Ms. GOTTFREDSON. Can I tell you——
Mr. CONYERS. You got $174,000, right, for your organization?
Ms. GOTTFREDSON. At least that.
Mr. CONYERS. Is that correct? At least that? Could it be $274,000?
Ms. GOTTFREDSON. I don't recall, but it is probably at least that.
Mr. CONYERS. All right. Now, did you write on your home page that it was inevitable that blacks would have inferior job-related cognitive skills?
Ms. GOTTFREDSON. I don't have a home page.
Mr. CONYERS. Well, I can't see this. Let me ask you about the ''Vacuous Defense of a Hollow Test: Commentary on the 1994 Nassau County Police Exam.'' Is that your work product?
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Ms. GOTTFREDSON. Yes, I would be happy to tell about that.
Mr. CONYERS. I didn't ask you—I am going to ask you the questions, and then you tell me about the answers. Now, on the first page of this—you did say, yes, you did write this?
Ms. GOTTFREDSON. That—yes, yes. That was a talk that I gave.
Mr. CONYERS. That is OK. That is fine.
''You are all well aware of the testing dilemma that bedevils personnel selection. On the one hand, there is a very large racial gap in job-related cognitive skills that makes much disparate impact inevitable.'' Did you write that? Or did you say that?
Ms. GOTTFREDSON. Yes, it summarizes what the field knows.
Mr. CONYERS. OK. Well, do you believe that we can—well, do you concede that there is racial discrimination at many levels in our society as we meet here today?
Ms. GOTTFREDSON. I am sure there is. My expertise is whether there is discrimination in testing.
Mr. CONYERS. I am interested in your expertise, but not during this questioning period. So the answer is yes?
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Ms. GOTTFREDSON. I don't know how much, but there must be; there is some.
Mr. CONYERS. You know that there is some discrimination in America?
Ms. GOTTFREDSON. Yes.
Mr. CONYERS. OK. Well, that is good. Do you know that most of it revolves around African-Americans?
Ms. GOTTFREDSON. I don't know that for a fact.
Mr. CONYERS. You don't know that for sure?
Ms. GOTTFREDSON. I am an empiricist and unless I see the evidence——
Mr. CONYERS. You would have to do a study to determine that?
Ms. GOTTFREDSON. Because that was said of testing as well, and that turned out to be false.
Mr. CONYERS. Wait a minute. I said, you would have to do a study to determine that; is that right?
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Ms. GOTTFREDSON. That was a very sweeping statement you made.
Mr. CONYERS. Right, but I said you would have to do a study to determine that.
Ms. GOTTFREDSON. Well, work would have to be done.
Mr. CONYERS. I see, another attempt here.
Isn't it true that your codirector in the Project for the Study of Intelligence and Society—Robert Gordon, the codirector, recently called for a campaign to convince those with low IQs to breed less?
Ms. GOTTFREDSON. No. I don't recall him ever saying anything like that.
Mr. CONYERS. Well, we have got a fair amount of misinformation up here, so——
Mr. CANADY. The gentleman's time has expired. Do you want another minute?
Mr. CONYERS. Well, I thought we were getting 3 minutes?
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Mr. CANADY. Oh, I am sorry, 3 minutes.
Mr. CONYERS. Thank you. Thank you, Mr. Canady. See, the problem that we have here is that—Mr. Chairman, is this leading up to a bill that will be introduced, or is this just an oversight hearing?
Mr. CANADY. Mr. Conyers, as the notice for the hearing indicated this is an oversight hearing with respect to the Civil Rights Division.
Mr. CONYERS. So there is no legislation pending at this time.
Do you have a computer, ma'am?
Ms. GOTTFREDSON. Yes, I do.
Mr. CONYERS. And do you have a Web Site identification?
Ms. GOTTFREDSON. I don't have a Web Site, no.
Mr. CONYERS. Well, this probably is erroneous. We have something that suggests that this may have come from your computer, but that is neither here nor there.
Ms. GOTTFREDSON. A lot of very strange things have been said about me in order to try to discredit the problems—the notion that there are problems to talk about.
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Mr. CONYERS. Attorney Stratton, I cannot let this opportunity go by without us having met.
Do you believe in affirmative action in terms of resolving racial discrimination problems in employment and education?
Mr. STRATTON. Well, I mean, the whole question of affirmative action is how is it defined.
Mr. CONYERS. Wait a minute. That was a question. What is the answer?
Mr. STRATTON. Well, if affirmative action means quotas and preferences, I am completely opposed to it.
Mr. CONYERS. Well, is there some way I could phrase this that you would go for it?
Mr. STRATTON. Well, to the extent that you are choosing that you are going to benefit one group at the expense of another, I am opposed to that.
Mr. CANADY. Without objection, would the gentleman like 1 additional minute now?
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Mr. CONYERS. Thank you, that is very kind of you. But, Mr. Chairman, these are, I presume your witnesses?
Mr. CANADY. The majority called two of these witnesses. One of the witnesses was called at request of the minority.
Mr. SCOTT. Mr. Chairman, I would like the record to reflect that the minority side invited Mr. Latham.
Mr. CANADY. The record will so reflect.
Mr. LATHAM. Thank you.
Mr. CONYERS. What we are trying to do, you see, we really have a very serious subject in front of us here. I mean, we have had great people out of the legend of the civil rights movement who have come before us to help give us direction; and I don't know—we need—it is great to hear people's opinions, but I think we are going to have to examine our Chairman Canady's legislation, if there is any that follows up this oversight. We are having an oversight before we get to the legislation, but that is not——
Mr. CANADY. The gentleman's time has expired.
Mr. CONYERS. Thank you very much.
Mr. CANADY. Thank you.
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The Chair will now recognize the Chair for some questions.
And, Mr. Latham, I don't want to you feel left out, so I am going to have some questions for you.
Mr. LATHAM. Thank you, Mr. Chairman.
Mr. CANADY. What does the Federal Government do to discriminate against minority contractors, currently?
Mr. LATHAM. Usually a denial of access.
Mr. CANADY. When you say ''a denial of access,'' do you mean an inability to obtain information about jobs that—contracts that are available? An inability to submit bids for jobs that are available?
Mr. LATHAM. The first example that you gave is an excellent one. There are a number of procedures where you have—where the contracting officer has an opportunity to select a partial list of prequalified bidders. And in so doing, they select people that they have worked with in the past, and in selecting those people, they have often failed to have any minority contractors on the list.
Mr. CANADY. OK. Now, assuming that is a problem, that is the kind of problem that could be corrected without giving a 10 percent bid credit, right?
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Mr. LATHAM. There are a number of things——
Mr. CANADY. Just on that question, that could be corrected without giving a 10 percent bid credit, because that is just being on the list, that is not getting 10 percent.
Mr. LATHAM. That is correct.
Mr. CANADY. How else does the Federal Government discriminate against contractors, minority contractors, currently?
Mr. LATHAM. In the actual selection process, as Mr. Scott said, the intellectual bigot or the highly qualified bigot goes to great lengths to build into the process, quote, ''discriminators'' that would suggest that minority firms were not qualified—size is a typical example; contract bundling, you make the contract so big that there are no minority firms big enough to perform the contract even though there is no good government reason for making the contract that large.
Mr. CANADY. That is something that could be addressed by measures that simply give access to small businesses, without regard to their racial makeup, to the contracting process.
Mr. LATHAM. I would agree with that, but for the fact historically that small business set-asides go 98 percent to majority members.
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Mr. CANADY. But the problem you identified is not a specifically racial problem?
Mr. LATHAM. Well, it can be.
Mr. CANADY. I understand you are saying that it may have an impact that is racial, but do you believe it is motivated by race?
Let me ask you this.
Mr. LATHAM. I didn't answer it, Mr. Chairman. Let me give you a thought.
Mr. CANADY. Answer that and then give me your thought.
Do you think it is motivated by a desire to racially discriminate?
Mr. LATHAM. It often can be so.
Mr. CANADY. Give me some examples in the current administration where that sort of discriminatory conduct has taken place.
Mr. LATHAM. Perfect example: The Department of Defense, under the bundling rule, goes in and bundles existing contracts and those contracts are made up of small businesses, 8(a)'s and SDB's, and the vast majority of them are currently minority contracts.
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Mr. CANADY. But the question is—I understand about the bundling; you already talked about that in your earlier response, but do you believe that is motivated by desires to racially discriminate?
Mr. LATHAM. Yes, because you didn't listen to me, sir, when I said, when they select minority contracts presently; so a number of contracts that are bundled are not just any contracts, they are minority business contracts. They put them together and then they make them too large for a minority firm to bid on it.
Yes, I think that is racially motivated.
Mr. CANADY. Why do you think the Clinton Defense Department is motivated to engage in racial discrimination?
Mr. LATHAM. I am glad you asked that question.
I served in the Ford administration, I served in the Nixon administration, I served as a volunteer in the Bush administration, as well as Clinton and Carter. The system is so ingrained with people and practices that institutionally discriminate that it cannot be overcome by any one President.
Mr. CANADY. Well, but there is a Secretary of the Department of Defense, and there is a structure there, and it seems to me that if there are practices which you believe are discriminatory, then there are ways to address those practices by eliminating the discriminatory practices without—without creating a system which puts in place mechanisms to give people an advantage simply because of their race.
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Now, you have talked about access a lot. You have talked about opportunity. I support efforts to increase access and opportunity. I believe that we should engage in aggressive outreach and recruitment efforts. I think we should go to great lengths to make people aware of opportunities and to make certain that all aspects of the society have an opportunity to submit their bids.
But my view is that when that opportunity comes and the bids are submitted, then they should be dealt with on a nondiscriminatory basis; that is, no one in that bidding process should receive an advantage because of that person's race or gender. And getting a 10 percent credit is an advantage, wouldn't you agree?
Mr. LATHAM. I agree with that, Mr. Chairman, but wouldn't you also agree that after 30 years of putting in place a lot of the provisions that you would like to see repealed, that they haven't worked adequately and the reason why they haven't worked adequately is that these programs are administered by human beings and many of those human beings engage in racially discriminatory conduct.
Although you or I or the President would like it to stop, it still exists every day; and we need to work together to take further actions to stop it, and oversight is a good way of doing it because you can bring in members of the Department of Defense and ask them why their programs aren't working and why they are not enforcing their own current laws.
Mr. CANADY. My time has expired. I will give myself 2 additional minutes without objection.
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I believe that your characterization of the programs' not working is correct. I don't believe that these programs have worked to attain the desired goal. I believe that is because they are a dead end. I believe that these programs are simply perpetuating the problems, rather than trying to address the problem of discrimination in this country.
I don't believe we will overcome discrimination by practicing discrimination, and that is what these programs do because they put in place mechanisms that give people an advantage simply because of their race or gender, and I think that sends a powerful message. Let me finish this and then I will go back to you.
That sends a powerful message from the Government that we should continue to think along racial lines.
That is the wrong message. We should transcend that and treat people as individuals who are equal in the eyes of the law.
Mr. LATHAM. Mr. Chairman, if you were truly omnipotent and you could truly change people and the way they acted, I would agree with you. The problem is that 30 years of Congresses have tried by enactments, by Executive orders and edicts to try and change that. And discrimination is not rational; it is an inappropriate conduct. It hurts the country, and it hurts our environment.
And I think that you could do a great service to our Nation if you would—a suggestion—meet with a number of successful minority business people. I have had several meetings of this nature with leaders of the Clinton administration, the SBA Administration, heads of Departments of Defense. Meet with successful businesspeople who pay taxes and employ hundreds of people and you, too, would believe it has a positive impact. I am sure there are people in your State that are doing exactly that, and without these programs, they would not have the ability to participate in our society.
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One of your fellow colleagues pointed out success stories. The success stories are on the front page of the newspaper because they are unique, because the system is stacked against our ability to perform. So when an African-American performs in an extraordinary way, it is a story, because most African-Americans of average capability are not allowed to be that successful. And you could do a lot to help enforce the laws that are presently on the books, and we would go a long way toward having a more successful and cohesive nation.
Mr. CANADY. Well, I appreciate your comments, and I want to thank the other members of this panel for being with us. You receive special gratitude for waiting while we were away. So thank you very much. Your testimony has been very helpful and beneficial to the committee.
The subcommittee stands adjourned.
[Whereupon, at 5:47 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
| U.S. Department of Justice, |
| Civil Rights Division, |
| Washinton, DC, May 6, 1997. |
WILLIAM H. HURD, Esq.,
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Deputy Attorney General,
Commonwealth of Virginia,
Office of Attorney General,
Richmond, VA.
Re: United States v. Virginia, (VMI), C.A. No. 90–0126–R.
DEAR MR. HURD: As we stated in our letter of January 14, 1997, we awaited filing of and have now reviewed defendants' Second Quarterly Report, as well as the First Quarterly Report, the consolidated Statement of Activities, and information on the VMI Internet website. We are pleased that defendants are proceeding with their plans and preparations for the admission and assimilation of women to VMI. there are, however, a number of matters involving the integration of women to VMI where it is still unclear what if any steps and actions defendants are pursuing. Also, in some instances there is simply a lack of information and documents regarding assimilation plans
Accordingly, in Attachment A hereto, we have identified information and documents we consider appropriate for inclusion in the upcoming May 1997 Quarterly Report to the Court. In addition we have enclosed a copy of the U.S. Department of Education publication, ''Sexual Harassment Guidance.'' This publication ''provides educational institutions with information regarding the standards that are used by the Office of Civil Rights (OCR), and that institutions should use, to investigate and resolve allegations of sexual harassment of students engaged by school employees, other students (peers), or third parties.'' 62 Fed. 12034 (3/13/97). We anticipate that addressing and including the designated information and documents in the Report to the Court, and reliance on the OCR Guidance, will assist defendants in formulating and implementing a complete and effective integration plan. Of course, the ultimate concern is that constitutional obligations are fully satisfied by defendants.
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If you have any questions, please do not hesitate to contact me. We look forward to hearing from you, and to receiving the May 1997 Report to the Court.
Sincerely,
| Isabelle Katz Pinzler, |
| Acting Assistant Attorney General, |
| Civil Rights Division. |
(By) D. JUDITH KEITH, Attorney,
| Educational Opportunities Litigation Section. |
INFORMATION AND DOCUMENTS FOR INCLUSION WITH MAY 1997 REPORT TO THE COURT
Please include the following information and documents relating to the integration of women to Virginia Military Institute (VMI) with the May 1997 Report to the Court. All information and documents are for the period June 1996 to date unless otherwise specified.
I. SEX DISCRIMINATION AND SEXUAL HARASSMENT
1. A general description of the type, nature, and substance of any training, programs, sessions, and/or courses addressing or involving any issues of coeducational classrooms and/or discrimination on the basis of sex (other than what has been identified in the reports to the court concerning sexual harassment and hazing) given or planned, for (1) VMI faculty, staff, and administrators; and/or, (2) VMI cadets (present and future).
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2. Copies of all policies, procedures, and/or regulations, involving sexual harassment, hazing, fraternization, discrimination on the basis of sex and/or any issues of coeducational classrooms at VMI which, since June 1996, have been promulgated, enacted and/or approved by the VMI superintendent and/or Virginia, or which are being considered by defendants. See First Quarterly report at 9, (12/20/97); Second Quarterly Report at 13, (2/24/97).
3. A description of the substance of; (1) the training and information, inducing that given on sexual harassment, hazing, and fraternization, discussed at the orientation training and information sessions relating to the assimilation of women to VMI; and (2) of the follow-up informational briefings being given by the VMI Superintendent.
4. A statement of whether any orientation training sessions have taken place or are planned which are directed only to faculty, staff and administrators in terms of expectations of them, and their obligations and responsibilities respecting the assimilation of women. Please state when the sessions were or will be given, the nature and substance of the information being discussed, and the duration of each such session. Please state the same information as to orientation training sessions directed only to cadets.
5. A statement of whether the VMI policies regarding sexual harassment and/or sexual assault will be addressed solely or primarily ''as being among those actions constituting 'Conduct Unbecoming a Cadet' '' with the attendant penalties, or whether additional and/or modified policies and regulations regarding sexual harassment and/or sexual assault have been or will be put in place. First Quarter1y Report at 9 (12/20/97). A statement of when such additional or modified policies and regulations have or will become effective.
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II. ADMISSIONS
1. Identification and description of any changes in VMI admissions requirements since June 26, 1996.
2. A statement of the total number of women denied acceptance and admission to VMI, and of all reasons each such denial.
3. Identification and description of any differences between the VMI eligibility, selection, acceptance and admission policies, practices, and requirements for males and for females.
4. A description of the duties and responsibilities relating to assimilation of women of the new Assistant Admissions Director, Terri Wheaton Reddings, and of the new Assistant Commandant Maj. Sherrise Powers.
5. A statement of what proportion of Ms. Reddings' duties and responsibilities involve the recruitment and admission of women, and of what proportion of Maj. Powers' duties and responsibilities involve the assimilation of women.
6. A statement of whether there is a recruitment budget devoted to the recruitment of women, the amount thereof, and whether and to what extent Ms. Reddings has access to this budget to support her female recruitment efforts.
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7. The Jan. 30, 1997 Status Report on the VMI Internet website states that ''plans are underway to fill new positions of the . . . assistant director of cadet affairs, a physical education instructor, and a counselor. . . . In addition, up to five full time tactical officers will be hired.'' In addition, the Consolidated Statement of Activities to Date, at 12. (11/25/96), (Consolidated Statement), states that hiring a psychologist and a gynecologist is also under consideration. For each of these positions please include a statement of whether and when the position was filled, by whom, their qualifications, the duties and responsibilities of each position as they relate to the assimilation of women, and the proportion of the time/duties of each position which is expected to be devoted to matters involving the assimilation of women. If the positions have not been filed, please state when defendants anticipate they will be filled.
8. A statement of whether steps and actions (excluding the mass mailings mentioned in the reports to the court) have been taken to recruit women to VMI which differ, either in scope of type, from those taken to recruit men to VMI, and identification and description of the different steps and actions, and of how they differ.
9. A statement of whether defendants have devised or plan to devise any recruitment materials, including but not limited to recruitment brochures, specifically for the purpose of recruiting female cadets. If so, please include copies of any such materials/brochures. If the materials/brochure are in the planning stage, please state when will they be complete.
10. A statement and description of any steps and actions taken by defendants, other than what has been stated in the reports to the court, and in the VMI Internet website, to make female potential applicants aware that they are welcome and wanted as students at VMI.
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III. FINANCIAL AID AND FUNDING
1. Identification of all funding and expenditures under consideration by submitted to and/or approved by the Virginia legislature and/or the Governor of Virginia that relate in any way to the assimilation of women at VMI, including the specific amounts and purposes for each such expenditure/allocation of funds. This identification would include, but is not limited to, VMI's budget/funding requests to Virginia, and any recommendations by the Department of Management and Budget concerning funds for the assimilation of women to be allocated to VMI by Virginia. First Quarterly Report at 11.
2. Identification of all VMI recruiting and other publications (and portions of publications) relating to the assimilation of women which have been or are planned to be published for which Virginia has committed/will commit to provide funding, and a statement of the amount of funding which has been/will be committed, and when it will be provided to VMI. A description of the general nature and content of each such publication (and portions of publications), and the expected publication date. In lieu of such a description, copies of the publications and portions of publications could be included with the report to the Court. Jan. 30, 1997 Status Report, VMI Internet website.
3. A statement of the total number of women expressing interest in, and/or seeking admission to VMI who have formally applied for financial aid.
4. A statement of whether defendants have or plan to solicit funds for and/or create new scholarships or other financial aid awards for the purpose of attracting women to VMI. If so, please state what has been or will be done in this regard, and the amount of funds involved.
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5. A statement of the following information, as to all financial aid awards available to VMI students (separately for each category); (1) listed in stipulation no 59, Stipulations of Fact, at 11–17 (12/12/90); (2) available through the Alumni Education Fund administered by the VMI Keydet Club; (3) Institute Scholars Program; (4) George C. Marshall '01 Fellowships; and (5) all other financial aid awards from whatever source (excluding federally funded financial aid):
a. Whether, for the period June 1996 to date any changes were made or are planned to be made to the eligibility and selection criteria for any of these financial aid awards which in any way affect the eligibility of women, and if so please identity each such award, and the nature and substance of such changes which have been made or are planned to be made;
b. Whether the availability of these financial aid awards has been made known to female potential applicants beyond general information such as that contained in the VMI catalog and in publications such as ''VMI Timeless Pursuits,'' and if such, how and when information on these financial aid awards was disseminated to female potential applicants, and a summary of the information disseminated for each category of financial aid;
c. The total number of women seeking admission to VMI who were granted and who were denied financial aid by VMI and/or Virginia, and for each denial please state the reasons for such denial;
d. The total number of these financial aid awards which were granted and denied to men for the 1997–98 school year, by category of aid;
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e. The First Quarterly Report at 7 identifies offers of full and partial scholarships to certain individuals appointed to the Class of 2001. Please describe the eligibility and selection criteria for these financial aid awards, and any differences in these criteria for male and female candidates; and
f. Identification of the total number of these financial aid awards containing gender restricted terms, and for each financial aid award with such terms, a description of the nature and substance of the gender restrictive terms (see Consolidated Statement at 15). Also, a description of any steps or actions being taken and/or planned to be taken by defendants to ''handle these restrictions,'' including timetables for such steps and actions. First Quarterly Report at 15.
IV. VMI ALUMNI ASSOCIATION AND VMI FOUNDATION, INC.
1. Identification and description of (for the period beginning June 1996 and extending to steps/actions planned through the 1997–98 school year), any and all steps and actions taken or planned to be taken, (including when taken/will be taken) by the VMI Alumni Association which relate in any way to the assimilation of women to VMI. Please include the same information as to the VMI Foundation, Inc.
2. Identification, by amount and purpose of any funding relating in any way to the assimilation of women to VMI which has been or will be expended on behalf of or provided to VMI by the VMI Alumni Association for the period beginning June 1996 and extending through the 1997–98 school year. Please include the same information as to the VMI Foundation, Inc.
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3. Copies of any correspondence or other communications disseminated by the VMI Alumni Association to its members relating in any way to the assimilation of women to VMI. Please include the same information as to the VMI Foundation, Inc.(see footnote 26)
V. POLICIES, PROCEDURES, AND PRACTICES
1. Identification and specific description of all modifications and additions relating in any way to the assimilation of women which have been, are being, or will be made to the: (1) blue Book of Regulations; (2) the Bullet (Rat Bible); (3) Rat Disciplinary SOP; (4) the Dyke system practices and procedures; and (5) other VMI rules, policies, manuals, regulations and/or regulations may be included with the Report to the Court.
2. A description and photographs, pictures or drawings of all uniforms, gym clothing, band uniforms, and shoes for athletic activities and marching that female cadets will be required to wear.
3. A complete description of the regulation haircut, including hair length, which will be given to female cadets at the inception of the rat year.
4. A statement of whether, when, and how defendants will assess and evaluate the degree of success or failure of their efforts to assimilate women, including but not limited to the efforts in the areas of recruitment, retention, physical training, rat system and year dyke system, barracks experience, sexual harassment, sex discrimination, and hazing. This request encompasses any such assessments done for the period June 1996 to the beginning of the 1997–98 school year, and future assessments planned for 1997–98, through 2000–01.
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5. A statement of whether the Governor of Virginia signed the legislation amending Virginia code §23–105 (state cadetships), and if so, a statement of when the amended legislation will become effective. Second Quarterly Report at 7 (2/24/97).
6. A statement of whether the State Council of Higher Education has approved amendment of VMI's mission statement, and if so, a statement of when the new mission statement will become effective. Second Quarterly Report at 8, (2/24/97).
7. A statement of whether and when defendants will change the VMI Internet website Nondiscrimination Policy currently included under ''Instructions for Applicants'' to reflect that applicants are admitted without regard to gender.
8. A statement of whether VMI has considered, and has or will modify and/or expand references contained in various publications to ''brotherhood'' and ''Brother Rat'' to reflect the fact that VMI is now a coeducational institution. See ''Different Stories, Same Beginning,'' the ''Bullet.''
9. A statement of what VMI's policy will be regarding having locks on doors to either or both male and female cadet rooms in the Barracks in the 1997–98 school year?
10. The Consolidate Statement, at 12, states that VMI is considering creating an ''expanded leadership cadre'' to include additional individuals experienced in the leadership of both men and women in a military setting.'' If this ''leadership cadre'' is not the same thing as the exchange program with other universities, then please include a statement of whether and how the leadership cadre will be expanded, and what that will mean in practical terms for females in the corps.
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VI. ATHLETICS AND PHYSICAL REQUIREMENTS
1. A statement of whether women cadets will be required to or be able to elect to take boxing, wrestling, principles of physical conditioning, weight training, gymnastics and tumbling, and if so, what, if any accommodations relating to the assimilation of women including but not limited to, accommodations related to the physiological differences between men and women, have been or will be made in these courses and in the equipment for these courses. If not, then please identify what, if any, alternative courses will be offered to women.
2. A statement of all reasons and bases for changing the VMI fitness test standards from the 1990 standard of ''a minimum of 45 push-ups, 5 pull-ups, 60 sit-ups and [a] . . . two mile[] rune in 14:30 or less'' to the current standard of 60 sit-ups in two minutes, 5 pull-ups, and a 1.5 mile run in 12 minutes. Stipulations of Fact. No. 55 at 10 (12/12/90); first Quarterly Report at 5 (12/20/96). Please include a statement of when the standards for this test were changed, and the reason(s) the current standards were selected. Please also describe any changes made in the VFT since June 1996, and the reasons therefor.
3. A statement of whether and to what extent VMI considered the preferences of male cadets (e.g. What level of VFT performance standards the cadets considered appropriate) in determining the current VFT physical requirements.
4. A statement of how often the VMI fitness Test (VFT) is administered during a school year, how many school years (e.g., freshman, sophomore, junior or senior years) cadets are required to take the VFT, and the specific consequences (e.g., limitation or withholding of privileges, applying sanctions, or other punishments) to a cadet for failing all or part of the VFT, including the nature and duration of such consequences.
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5. A statement of whether the VFT constitutes a percentage of a cadet's final semester grade in physical education, and if so, what percentage of the final grade the test constitutes.
6. A statement as to the physical fitness tests (PFT) which are administered in physical education courses, and which constitute 25% of the final grade in each course, of what the standards are for passing each PFT. VMI Catalogue, 1997–97 at 88. A statement of whether any accommodations and/or modifications relating to the assimilation of women have been or will be made to any PFT and/or to the standards for passing any PFT. If so, please include a general description for each PFT of the nature and type of accommodations/modifications made, and state the revised standards for passing each PFT, including but not limited to accommodations/modifications related to the physiological differences between men and women. If no accommodations/ modifications have been made or planned, please include a statement of the reasons for not making changes.
7. The NCAA has advised us that VMI had not yet sought a waiver of the NCAA requirements regarding the seven male/seven female teams. Please include a statement of whether this waiver been applied for by VMI, and if not, whether and when VMI will seek this waiver.
8. A statement of whether any modifications or accommodations relating in any way to the assimilation of women, including accommodation of the physiological differences between men and women, have been, are being, or are planned to be made to the following physical activities at VMI, and if so identification of the specific modifications and/or accommodations which have been, are being, or are planned to be made, including when made/to be made:
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(a) stoop runs;
(b) running and calisthenic events;
(c) rifle runs;
(d) training marches;
(e) the obstacle course;
(f) pugil stick problems;
(g) ranger pit problems,;
(h) wall problems;
(i) 3 mile runs;
(j) ravine crossings;
(k) rat sweat parties and rat mass parties;
(l) push-ups imposed on cadets as personal individual correction;
(m) physical training sessions held daily during the cadre period;
(n) drills; and
(o) marching (other than the grouping of cadets according to height which is mentioned in the reports to the court).
9. A statement of whether defendants plan to hire any athletic coaches specifically for the purpose of coaching female students, and if so, when, how many, and what athletic activities will they coach? A statement of whether any of the existing athletic coaches have experience coaching female students, and the nature and extent of such experience.
10. A statement of whether and to what extent modifications, adjustments, or accommodations to the Cadre period requirements and activities (including physical requirements) have been, are being, and/or will be made relating in any way to the assimilation of women to VMI. Identification and description of the specific consequences to a cadet of failing to meet the required levels of performance for physical exercises in effect for the Cadre period.
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VII. ACTION ON ASSIMILATION OF WOMEN
1. Copies of all written materials pertaining in any way to the assimilation of women which were disseminated at the orientation sessions. Second Quarterly Report at 8–10.
2. Copies of the ''book[s] with information discussed and VMI policies'' which were disseminated at the April VMI orientation sessions. Status Rept. No. 5, VMI Internet Website (3/28/97).
3. Identification, by name, title, and experience of the ''professional consultants' who have been retained by defendants to address sexual harassment and hazing in the context of the orientation sessions. Second Quarterly Report at 9.
4. Identification, by name, title, and experience of every consultant and expert who participated in any way in the development, planning, assessment, and/or modification of the plan and approach to the assimilation of women at VMI, and of the members of the 8 blue ribbon committees.
5. Copies of any reports, analyses, studies, guidance, recommendations, and/or memoranda, generated by VMI relating to and/or as a result of the visit of VMI staff and cadets to Norwich Academy, New Mexico Military Institute, U.S. Marine Corps Parris Island, the U.S. Coast Guard Academy, and the U.S. Merchant Marine Academy.
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6. Copies of any memoranda, reports, assessments, guidance, studies, and/or analyses obtained by defendants from the U.S. Coast Guard Academy, the U.S. Merchant Marine Academy, Norwich University, Texas A&M University, and New Mexico Military Institute which defendants are relying on, utilizing, or plan to rely on or use in their planning and preparation for the assimilation of women at VMI.
7. A copy of the video produced by the VMI Foundation, Inc., in which the VMI Superintendent addresses VMI alumni concerning the assimilation of women and which is to be disseminated to all VMI alumni. Second Quarterly Report at 13. A statement of when this video was/will be prepared and disseminated. Please also include copies of any VMI recruitment videotapes done since June 1996.
8. Copies of any reports and recommendations of: (1) the eight blue ribbon committees which are addressing women's integration to VMI in the areas of academics, recruiting, orientation, facilities, athletics, co-curnculum, and public relations; and (2) of the cadet committee-at-large which has been established to facilitate communication with the Corp of Cadets. Consolidated Statement at 1–2; Second Quarterly Report at 13–14.
9. Identification of all ''VMI systems and areas,'' as they pertain to the assimilation of women, which have been reviewed and researched by the 8 blue ribbon committees, including specific identification of all such ''VMI systems and areas,'' where it has been recommended that there be no changes to VMI's systems, areas, policies, practices, procedures, and/or regulations. Please include a statement of the reason(s) for the latter recommendations. Please also include copies of all policies which have been approved by the VMI Superintendent and/or Virginia, and of all proposed policies which were either not approved or are still under consideration, relating in any way to the assimilation of women. (''At present the Superintendent has approved approximately 30 policies'' which then went to ''counsel for their final review and recommendations. There are approximately 27 policies still being researched and developed.'' Status Report No. 2. VMI Internet Web site 2/14/97); see also later status reports).
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10. A copy of the guidelines for me VMI student exchange program with Norwich Academy and Texas A&M University.
DUMBING DOWN THE POLICE FORCE
FOR DIVERSITY'S SAKE, FEDS FIGHT COGNITIVE TESTS
(DAVID A. PRICE)
If the Justice Department has its way, the police of fleer of the future will be singing ''If I Only Had A Brain.''
That, at least, is the reaction of some experts to a series of recent suits brought by the department.
Since the late 1980s, the department's Civil Rights Division has been pressuring police forces across the country to abandon ''cognitive'' entrance exams, which test for basic reading, writing, memory and reasoning skills.
Justice argues that such tests are illegal because they exclude too many minorities from the ranks of the police. And, Justice says, the tests aren't sufficiently related to police work.
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A test that hurts minorities more often than whites is illegal under federal civil rights laws unless it is ''job-related'' and ''consistent with business necessity.''
Some localities have capitulated, changing exams so they test mainly personality, not literacy or brainpower.
Supporters of cognitive tests argue that they are a cost-effective way to screen thousands of applicants for skills needed on the job. They say police of ricers need mental skills to make quick decisions about everything from the constitutional rights of suspects to the use of deadly force.
''Police jobs, like all middle- and high-complexity jobs, require cognitive skills,'' said Linda Gottiredson of the University of Delaware education department, a critic of Justice's campaign. ''The research shows that cognitive tests will to some extent predict performance in those jobs.''
As of 1993, some 83% of large city and county police forces used cognitive tests in hiring, according to a survey conducted for the Justice Department.
That may be changing.
New York. Nassau County on New York's Long Island agreed to replace its entrance exam seven years ago, under pressure from the Bush Justice Department.
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Justice said the exam was discriminatory even though it was the product of a settlement of an earlier civil rights suit.
The new exam—developed by a testing firm under the supervision of Justice and the county—replaced written cognitive sections with new ones that relied on videotapes instead of reading.
The new exam also added personality tests for traits like ''achievement motivation'' and ''openness to experience.''
Even that wasn't enough. The county threw out 16 of the 25 sections after the test was given in 1994. The testers found that those sections had too much ''adverse impact'' on minorities.
Eight of the nine sections left were personality sections.
The one cognitive section that stayed was a reading comprehension test, which was graded pass-fail. To pass, applicants had to score only as well as the bottom 1% of current police officers.
In response to critics, the team that developed the test wrote that cognitive ability ''did not prove to be related to assessed job performance'' in police work. It added that dropping cognitive tests was justified because ''police departments cannot function effectively in minority neighborhoods when virtually all police officers are white males.''
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But the test produced some peculiar outcomes.
When William Hayden, a fire marshall and former New York City cop, took the test in 1994, he got a marginal score of 78.9. Hayden found that other applicants with law enforcement experience also received low scores.
The New York-based Atlantic Legal Foundation recently filed a reverse discrimination suit against the county on behalf of Hayden and 67 other white and Hispanic applicants, many with experience on other police forces.
''There are better ways to diversify a police force than giving this coin-toss police test,'' said Hayden. ''Their recruiting is so poor. They set tables up in the poorest neighborhoods and cajole people into signing up for the police test. Why don't they go to top black colleges and recruit people?''
Other nearby police departments are also under pressure to revamp their tests.
Justice sent a letter in March to officials in Suffolk County directing them to throw out their current police exam—although it, too, had been adopted as part of a settlement in a previous civil rights suit.
Justice said too few of the test's top scorers were minorities. If the test were race neutral, top scorers would have included 249 more blacks, 170 more Hispanics and 447 fewer whites, the department claimed.
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And the National Association for the Advancement of Colored People sued the New Jersey State Police in state court last year over its entrance exam and college education requirements.
Louisiana. The Louisiana State Police also bowed to pressure from the Justice Department in a consent decree last August. The police force replaced a cognitive exam with one that initially contained six parts: three personality, one biographical, and two cognitive.
The force later threw out one of the cognitive sections to reduce the impact on minorities.
According to Steve Wollack, head of the Redmond, Wash., test development firm Wollack & Associates, the remaining cognitive part has 20 questions—and most applicants get essentially the same score on it. ''It's a cursory examination,'' he said.
''The portion of the overall test score that comes from the cognitive section is minuscule,'' according to Wollack.
Wollack, whose tests are not used by the Louisiana State Police, but who is familiar with the situation, said that the new test is ''no better than chance.''
He added, ''It's the same story as in Nassau County. They're watering down the examination by denuding the cognitive content.''
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California. One locality that has stood firm is the Southern California City of Torrence. Justice sued that city in July of 1993, arguing that its entrance exams for police officers and firefighters had an adverse impact on minorities.
Before filing suit, Justice proposed a settlement in which Torrance would abandon the tests and create a multi-million dollar compensation fund for alleged victims of the tests.
Torrance declined to settle, although several neighboring communities had done so.
''The city concluded early on, 'We haven't done anything wrong, and we're not going to be told that we have, and we're not going to be told how to select police officers firefighters,' '' said attorney Wayne Flick, who is representing Torrance.
Last September, Judge Mariana Pfaelzer ruled for the city. She found that the cognitive tests are a legitimate tool for hiring police and firefighters. Justice's argument about differences in pass rates for whites and minorities ''did not take into account factors such as fluency in English, educational quality or cultural/socioeconomic influences,'' she noted.
The Justice Department's appeal of that decision is now pending in the U.S. Court of Appeals for the Ninth Circuit.
Testing Firms' Plight. Justice's shift away from cognitive testing has meant problems for test development firms that haven't embraced the new philosophy.
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One such firm is Richardson, Bellows and Henry of Arlington, Va., which worked with Justice during the 1980s to develop exams with less impact on minorities. Its exams have been used in Suffolk County and New Jersey under earlier Justice consent decrees.
But starting in 1988, Justice's goal became ''impact reduction at all costs,'' says company president Frank Erwin. When that shift continued, his firm and Justice parted ways.
''Very often, a case will rise or fall on the content, the accuracy and the thoughtfulness of the arresting officer's written report or the arresting officer's oral testimony,'' Erwin said. ''That is pure, unadulterated mental ability.''
Now the firm is in Justice's gun sights. ''In 1996, Justice was going around knocking on our clients' doors saying, 'Here's the Nassau test. You ought to take a look at it.' ''
More recently, as the Nassau exam has come under fire from critics, Justice has started to promote the Louisiana State Police program instead, according to Erwin.
''It's not a comfortable position to be in,'' Erwin said.
Reprinted by permission of Investor's Business Daily, June 13, 1997. Copyright AF 1997, Investor's Business Daily, Inc.
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RACIALLY GERRYMANDERED POLICE TESTS
LINDA S. GOTTFREDSON
While President Clinton tries to take credit for putting 100,000 cops on the streets, his Justice Department is quietly pressing for policies that will drastically lower the quality of police throughout the nation. Under Assistant Attorney General Deval Patrick, Justice's Civil Rights Division is trying to force state and local governments to adopt a new police entrance examination that allows nearly equal percentages of black and white applicants to pass—and that achieves this result by stripping the test of crucially important reading, reasoning and judgment skills.
The new test arose out of a 1990 consent decree in which the Justice Department and the Nassau County, N.Y., Police Department agreed jointly to ''design, develop and validate'' a new test for would-be officers that ''either does not have adverse impact upon blacks, Hispanics and females, or has been validated''—shown to be job-related. Four years and millions of dollars later, the county administered its new test. While the proportion of blacks who passed was nearly the same as for whites, the results make clear that the new examination had been created to avoid testing for job-related skills.
Many exceptionally well-qualified candidates received very low or failing scores. Some had years of experience as probation of fleers or as cops in other jurisdictions; others had or were pursuing graduate degrees in law or criminal justice. A look at those who passed the test is even more disturbing. According to close observers, a high proportion of top scorers not only have poor academic records, but also have outstanding arrest warrants, are unable to account for years of their work history or refuse to take a drug test.
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To understand how this happened, you have to wade through a nearly impenetrable five-inch-thick July 1995 report in which the technical consultants hired by the Justice Department and the county describe how they developed and validated the test. The consultants were well aware that they faced a virtually impossible task: developing a test that measures important job skills but also produces proportional hiring despite big gaps in such skills between blacks and whites when they leave school. How these experts set about this task is a case study in racially gerrymandering the content of a test.
The report begins by explaining that experienced county cops rated ''reasoning, judgment and inferential thinking'' as crucial for good police work. It concludes by recommending a set of tests that measures none of these skills. Of the 25 tests the county administered in its day-long 1994 battery, the consultants decided that the scores from onlyeight of them—all personality tests—should be used in ranking candidates. These measured such qualities as ''responsibility,'' ''nondelinquency'' and ''openness to experience.'' The actual test questions are secret, but the report gives the following two examples:
1. When you were in high school, you were a member of a sports team. A. Yes B.No
2. Which of the two statements is most like you—A or B? A. I'm always in a hurry at work to get things done. B. At work, I think of myself as part of a smooth running machine.
The final test battery—the subset of the 1994 test that was actually used to determine who was eligible to be hired—replaced scores on a reading test with a pass/fail grade: Candidates merely had to read as well as the worst readers—the bottom 1%—among incumbent police of officers.
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The consultants' first step in denuding the test had been to exclude from consideration all traditional cognitive tests, despite their superior value in predicting job performance. Instead, they created their own ''innovative'' tests of judgment and reading comprehension. Mostly administered by video, these substitute tests seemed designed to reduce demand for skills. For example, the reading test used passages that applicants had available for study up to 30 days before the exam.
The consultants' second step was to test their exams for ''disparate impact''—racial discrepancies in scores—before testing their ability to predict job performance. Normally, a test battery is first tried on a sample of experienced officers to determine which of its component tests best predict performance. Then, those that are most predictive are administered to applicants, at which point disparate impact can be assessed. In this case, the consultants threw out all the tests with substantial disparate impact—purportedly because they failed to predict job performance. Among those thrown out were all the ''innovative'' substitutes for traditional cognitive tests.
The consultants concealed the standard statistics that would have disclosed what they were doing. The most important data they kept secret were ''zero-order validities,'' the raw correlations between test performance and job performance, which are required by federal guidelines and professional standards. Instead, they used improper correlations and gave them a patina of authority by making up a similar name—''simple validities.'' The consultants then committed a series of statistical errors that inflated the final battery's apparent value by over 100%, boosting it into the acceptable range for police exams.
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Given the lack of appropriate data in the report, there is no way to know whether the Nassau County test works any better at selecting qualified police officers than simply flipping a coin. Yet John M. Gadzichowski, a Justice Department lawyer who oversaw the test's development, has testified, ''I think it's beyond question that the exam . . . is valid. It predicts job success.''
Meanwhile, the test provides the Justice Department with a new tool for coercing police departments into proportional hiring. The New Jersey State Police and the Suffolk County, N.Y., Police Department were among the first to feel the heat this year. The former has been sued by the NAACP and the latter subjected to a heavy-handed ''compliance review'' by the Justice Department. The alleged disparate impact of their exams is a focus of complaint in both cases, and both departments have been told that they might end their new legal troubles by adopting the Nassau County test.
The Nassau County test destroys what it purports to embody—merit hiring. In the name of fairness, it removes competence as an advantage, denying job opportunities to talented individuals of all races. Thus the quality of policing can be expected to fall. This new form of racial preferences poses a clear and present danger to public safety.
Appeared in the Wall Street Journal, October 24, 1996. Reprinted with permission. Copyright AF 1996 Dow Jones & Company, Inc. All Rights Reserved.
INSERT OFFSET RING FOLIOS 5 TO 6 HERE
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THE FLIGHT FROM g IN EMPLOYMENT TESTING(see footnote 27)
COLLEGE OF HUMAN RESOURCES, EDUCATION, AND PUBLIC POLICY, UNIVERSITY OF DELAWARE (LINDA S. GOTTFREDSON)
Many of you are aware of the controversy over the police entrance exam developed several years ago for Nassau County, NY. You can find the details of that controversy on the IPMAAC webpage (www.ipmaac.org/nassau). I won't be discussing them today, but will instead use the Nassau project to illustrate a broader social phenomenon in the United States that might be called the flight from g, or general intelligence.
The flight from g is a continually evolving, disparate-impact driven effort to minimize or avoid using cognitive ability in selection. I will also describe how the flight from g is pervasive throughout national life, is transforming that life, and is reflexively denied by organizations who engage in it. This flight represents an effort to solve some vexing racial problems, but it will do more harm than good. As I shall explain, the source of most disparate impact may not be racial at all, nor may its amelioration.
Both the Nassau consultants and their critics include professionals whom many of us admire, which has prompted some soul-searching in the profession about the extent to which it has blurred the distinction between measurement and social values (e.g., Mattson, 1997). The critics) chief complaint is that, under pressure from the U.S. Justice Department, the Nassau test battery was stripped of all meaningful cognitive demands in order to nearly eliminate disparate impact against blacks. As Russell (1996) has written, the project's technical report paints a picture of the test developers bending over backwards to eliminate the remnants of cognitive ability tests from their 25-test experimental battery, which the project had previously administered to over 25,000 candidates. The anti battery recommended a year later for actually ranking the candidates consisted of eight personality scales and a reading test regraded pass-fail with the passing score set at the first percentile of incumbents. The Justice Department, which in an unprecedented move had jointly developed the test, immediately began pressuring police departments around the country to adopt the test or one like it. The Justice Department's chief litigator in the case said that the test was, in his words, as close to perfect vis-a-vis disparate impact as he had seen in his many years of practice.
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Cognitive ability, however, is a strong predictor of learning police work, it is a useful predictor of supervisor ratings of police performance, and it shows up as critical in job analyses of police work, including the project's own job analysis in Nassau County. Schmidt (1996a, 1996b) has shown that the project vastly overestimated the validity of its cognitively-denuded final battery, and he warns that the test will be a public safety disaster wherever it is used (see also Gottfredson, in press).
IMPACT DRIVEN
To restate the phenomenon more generally, the ''flight from g'' is the effort by organizations to reduce or eliminate racial differences in outcomes by minimizing or eliminating consideration of individuals' cognitive skills and abilities in making decisions about them. What distinguishes it from merely sloppy or haphazard selection is that it is an active effort, even if sometimes unwitting, to avoid selecting for g or general mental ability.
This effort to minimize the role of cognitive ability in selection has been precipitated by the dilemma with which you are all familiar. Cognitive tests are the best single predictor of job performance overall, but they tend to have much disparate impact due to large average racial gaps in cognitive skills. As you also know, however, there is relentless legal and political pressure to eliminate disparate impact in all arenas of social life. Because mental standards have disparate impact, this means that there is enormous pressure to degrade or eliminate those standards, even where they matter most, say, in high-level or critical and sensitive jobs where mistakes can cost lives, property, and public trust.
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To take Nassau County as an example, the Justice Department forced it during twenty years of litigation not only to lower its educational requirement for police candidates (a requirement which, by the way, it can use only if it does not have disparate impact) but also to abandon each valid entrance exam the county had produced under successive consent decrees. Justice was satisfied only when the county succeeded in virtually eliminating disparate impact the disparate impact ratio was 77%—which, as I have described, entailed eliminating any meaningful mental standard.
CONTINUALLY EVOLVING
Since 1971, when the Supreme court declared that disparate impact constitutes prima facie evidence of discrimination, the United States has become one vast experimental lab in how to reduce disparate impact. Employers' first response to the Supreme Court's Griggs decision was simply to drop mental tests. However, that exacted considerable cost in lost productivity. The reality of the importance of mental ability for job performance has a way of asserting itself when it is ignored.
Much validation research followed Griggs and showed that mental tests are not culturally biased and are valid for perhaps all jobs. Research in the field of intelligence simultaneously confirmed that all cognitive tests measure g more than they do any specific mental ability that a test might have been intended to measure, that average racial differences in test scores are larger on more g-loaded mental tests, and that racial differences in g are real, although their source is still unknown. By the 1980s, it had become clear that improving cognitive tests was not, as many had hoped, the solution to disparate impact. Indeed, higher reliability and validity often increased impact.
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This recognition fueled the move by many employers to use different hiring standards for different races in order to eliminate disparate impact. The most sophisticated form of double standards was to race-norm test scores. Some personnel psychologists advocated this form of race-conscious selection in order to reduce impact because it exacts fewer short-term costs in lost productivity than does lowering mental standards across the board for all races. However, the procedure's naked race-consciousness led Congress to outlaw it in 1991.
This ban in turn reinvigorated the search for useful non-cognitive predictors of job performance, because they have little or no disparate impact. Researchers have indeed been able to develop and validate less cognitive selection devices, such as biodata and personality tests. They have also shown that when used to supplement cognitive tests, they can often raise a selection battery's validity while lowering its disparate impact.
If that is the good news—and good news it is—the bad news has been that adding lesscognitive tests to batteries containing cognitive tests does not lower their impact enough to pass the federal government's 80% rule for determining disparate impact. As Schmitt and his colleagues (in press), among others, have recently shown, passing that rule requires virtually eliminating any cognitive content. Not surprisingly, then, this is where many psychologists have been investing their creative energies in recent—years developing ways to minimize the use or impact of mental standards while not eliminating them altogether. Techniques include, for example, setting low minimum cut-offs on cognitive tests, banding the scores, or reducing the tests' weight in the overall selection process. However laudable such g-minimizing efforts may seem from some perspectives, they should be recognized for what they are—racially-motivated efforts to minimize the use of a known valid predictor.
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Racially gerrymandering the content of tests, as was done in the Nassau County, is a more sophisticated and harder to detect method of minimizing g in selection. It involves finding technical pretexts for picking and choosing content according to the racial results it produces. Such racially-motivated gerrymandering of test content was also a predictable development in the evolving flight from g; indeed, it was the logical next step when race-norming was banned. Although Sackett (1997) has recently defended the Nassau project, he and Wilks (1994) have discussed how employers, now denied the use of race-norming, might begin reducing the efficiency of their selection systems in order to reduce disparate impact. They might '' 'bury' predictors with adverse impact by using them in such a way that they have a negligible effect on selection decisions (such as setting a cutoff so low that virtually all applicants pass)'' (p. 951). But Sackett and Wilks also discussed content-selection procedures which they thought might be prohibited by the 1991 ban on race-norming. They said specifically that they thought that after-the-fact removal of test items based on group differences on those items could be ''construed as group-based score adjustments'' (p. 940).
In his defense of the Nassau study at the SIOP meetings this spring, Sackett (1997) also touched on what I suspect will be the next major development in the flight from g—changing the criteria against which batteries are validated. Army Project A (Campbell, 1990) showed that cognitive tests best predict the ''can-do'' dimensions of job performance while noncognitive tests generally best predict the ''will do'' component. I predict that we will see more emphasis on the latter dimensions of criterion performance in future validation studies, specifically for the purpose of reducing disparate impact. But I would caution those who are tempted to follow this path. You will get what you select for and lose what you don't. Once again, the reality of the importance of g for core technical job performance, if ignored, will eventually assert itself in practical ways the organization will not appreciate. Too many incompetents, no matter now conscientious and cooperative they may be, can quickly demoralize coworkers, gum up the works in any project, and even do great damage to an organization or its reputation when they make critical mistakes.
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PERVASIVE
Attempts to reduce the role of g are widespread in personnel selection. I suspect it has even become a preoccupation for many in the field. However, we can expect the same phenomenon in all social institutions in which greater mental competence provides individuals greater access to resources, services, rewards, or official certification of skills, knowledge, and abilities. This means just about everywhere. It may be most obvious, however, in education, a very g-demanding arena to which all citizens are subjected for most their early life, regardless of how able they are.
Like in the employment setting, any educational practice that is g-related routinely comes under heavy fire as racially discriminatory, and is often either abolished or watered down. For example, many schools have eliminated ability grouping and broadened the entrance criteria for gifted classes to include non-cognitive talents in order to prevent racial disparities in class assignments. Disproportionate assignment to special education classes, minimum competency tests for high school graduation, and teacher certification tests are also perennial objects of criticism, if not litigation, due primarily to their disparate impact.
Many colleges and universities use racial preferences in order to admit more minority students. However, most have also watered down their intellectual standards for admission. For example, many have added social characteristics to their admissions criteria and greatly reduced the proportion of admissions based strictly on academic merit. These additional criteria tend to be weakly or even negatively correlated with g in order to dampen the advantages of academic credentials that minorities disproportionately lack. The most striking example of avoiding g in admissions, and of that avoidance's disastrous consequences for educational quality, are the open admissions policies adopted by colleges such as the once-great City University of New York.
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Institutions that have recently been barred from using racial preferences, like the Universities of Texas and California, are all now contemplating other means of increasing minority admissions. Most turn out to involve some flight from g. To illustrate, the University of Texas has decided to offer admittance to the top 10% of all graduating seniors in each of the state's high schools. Given the enormous variability among high schools—the student bodies of some perform much above the national average and others much below it—this practice would admit less able students on the average and create a much more ability-heterogenous student body overall. To the extent that high schools are racially segregated, however, such a policy constitutes a crude form of race-norming and thus yields greater racial parity in admissions.
I should also mention in passing that just as g-related forms of competence are deemphasized in preferring candidates when they have disparate impact, so too are g-related forms of incompetence, inadequacy, and misbehavior for rejecting candidates. Employers, including police departments, are not allowed to turn away job applicants convicted or charged with serious crimes because criminal records have disparate impact. And as Zelnick (1996) describes in his book Back Fire, the Justice Department has also forced insurers and mortgage lenders to ignore major actuarial risks in providing and pricing home insurance and mortgages, once again to reduce disparate impact.
In short, the dictates of the disparate impact standard are creating a topsy-turvy world that punishes institutions for rewarding competence or for sanctioning social pathology when competence and pathology have disparate impact, as they usually do. This practice stigmatizes merit and promotes multiracial incompetence.
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TRANSFORMING AMERICAN LIFE
The incessant, impact-driven pressure for lowering common standards of performance and behavior is transforming organizations and American life to a degree we have yet to appreciate. Let's take a small example. Police hiring standards in New York City collapsed some years ago in the effort to meet racial goals, which in turn led to numerous highly-publicized problems on the force. The point I wish to make here, however, is that the new lows in performance led to changes in the job itself, specifically, to reducing the discretion allowed police officers. I am told, for example, that for some years now, York City police officers have not been allowed to make arrests without first obtaining approval from their supervisors, who often actually come to the arrest scene.
If there are not too many incompetents on a work team or in a workforce, then more able workers can supervise or finish the work that the less competent cannot, albeit not without resentment for the lack of reciprocity involved and not without hurting their own efficiency. But once the number of poor performers reaches a critical mass, the job itself has to be narrowed to prevent costly mistakes, meaning that work is shifted to other classes of workers such as supervisors, as was the case with New York City police.
As I noted earlier, some personnel professionals argue that organizations should use racial preferences to reduce disparate impact rather than lower standards for all races. Let us set aside for a moment the implication that minority skill levels cannot be raised and the disturbing ramifications of racial preferences. The point I would make is that racial preferences eventually lead to degraded common standards anyway, but just generate more racial animosity in the process. Let me provide an example of how this happens, especially when the organization does not want to admit having lowered standards for anyone, which is almost invariably the case.
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Bernard Davis describes how, during the 1970s, Harvard Medical School began reserving 20% of its medical school openings for minorities. His 1986 book, Storm over Biology (as reviewed by Gordon, 1988, pp. 85–87), recounts the silent erosion of standards that Davis witnessed there as a faculty member.
Because black students experienced their greatest difficulty in basic science courses, it was suggested that the ''long tradition of building on these courses as a foundation for clinical training might have been wrong: perhaps one really did not need to be competent in science in order to be a good physician.'' Letter grading was replaced by the less informative pass-fail criterion, and incompletes were rendered invisible on student records once the missing coursework had been made-up. Such changes made it easier for the dean to claim that performance records of minority students were indistinguishable from those of other graduates. Departments were expressly to permit repeated reexaminations for failing students, ''and inevitably these examinations became less demanding.'' As a by-product, the standards for passing crept downwards for all students.
Before long, the dean's office discontinued yearly reporting of the school's students in the National Board Examinations, until then a ritual. Eventually, the faculty came to rely on passing the National Board Examinations as evidence that its standards had not declined too far, although Harvard would have considered such a criterion excessively permissive for its students in the past. But the National Board Examinations are renormed each year, Davis informs us in another essay, ''and so the absolute norm for passing is necessarily lowered by any nationwide increase in admission of students with substandard academic qualifications.'' . . . (At Harvard) a failing student could retake the National Board Examinations five times, but eventually that anemic standard was itself waived and a diploma awarded in the case that at last caused Davis to publish a 1976 guest-editorial in the New England Journal of Medicine in which he sounded the alarm. . . .
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[T]o contain the embarrassment . . . the dean sent out a letter to all medical schools denying that standards had been lowered at Harvard and issued a misleading press release castigating Davis, as Davis's colleagues abandoned him publicly, as blacks debated whether or not he was a racist, and as the Harvard Crimson and [others] rushed to depict him as indeed a racist who questioned the ability of all black medical students if not all blacks.
Now, one seldom gets such inside accounts, for obvious reasons. However, this one alerts us to what may be happening now in the Nassau County police training academy as it struggles with its first class of trainees hired with the new test. The new class is rumored to be failing academy exams at much higher rates.
DENIAL
Let me be clear that we cannot assume that all disparate impact results from racial disparities in g or other job-related skills and abilities. We cannot presume that discrimination has disappeared. However, we do know that still-stubborn racial disparities in g guarantee much disparate impact when unbiased, valid cognitive tests are used in the absence of discrimination to select individuals into curricula, colleges, jobs, and the like.
However, a scripted public rhetoric is enforced in American life to deny that racial differences in outcome might be due in part to racial disparities in key skills and abilities. Adherence to this script is maintained by massive self-censorship so that individuals withhold signalling any awareness that such skills gaps exist, by ritual denials by organizations that they have lowered standards even in the face of obvious evidence otherwise, and by instant vilification of those who have revealed such evidence. Recall what happened to Bernard Davis when he finally went public about how racial preferences had caused Harvard medical school's standards to fall like dominos.
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As a society we are engaged in what social scientist Timur Kuran has called ''living a lie,'' and which he describes in his 1995 book, Private Truths, Public Lies. Drawing on a comparison with Eastern Europeans under communism, most of whom felt compelled to feign agreement with the official dogma, Kuran notes that many Americans self-protectively report opinions about affirmative action and race that they do not believe. Many others tacitly support a public opinion sharply at variance with their private convictions by simply holding their tongues.
Such reticence to question the reigning dogma makes it easy for institutions to deny that they have substantially reduced disparate impact by lowering their standards. Few individuals will contest the denials. None may actually know the weight of private opinion, but all know that expressing ideologically incorrect beliefs will surely provoke unpleasant social sanctions.
Although some of the avid supporters of a public lie know it to be false, others will believe it because they have been misled or themselves resolutely avoided the truth. When information is suppressed, ignorance reigns. And it reigns piously when, as in universities today, liberal arts and education courses routinely teach falsehoods about intelligence and mental tests as if they were incontrovertible truths.
When such falsisms abound and remain uncontested by skeptics, is it any wonder that the Nassau County project could claim the equivalent of having found that water runs uphill—namely, that cognitive ability is not useful in hiring police officers? And that is precisely what the Nassau report concluded—that cognitive tests add no meaningful validity to noncognitive tests in predicting who will be a good cop. That the project nonetheless decided to give candidates at least some credit for passing their watered-down reading test at the incumbent first percentile suggests that at least some of its members knew otherwise.
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While the project's conclusion lacked credibility in view of the extant literature on g and its predictive validity, so did the project's starting premise that the consultants could develop a test battery with significant cognitive content that would not have much disparate impact in Nassau County. The general structure of mental abilities is well known and, at least for our purposes, has been described in excruciating detail (Carroll, 1993). All cognitive abilities are moderately to highly correlated with g, which is their common and dominating element.
Nor is there anything mysterious about the practical, everyday meaning of g. As described in the just-published special issue of Intelligence, ''Intelligence and Social Policy'' (Gottfredson, 1997a), g can be conceptualized at the molar level as the relative rate of learning reasonably complex material (Carroll, 1997). This conceptualization can be translated into two others that are also useful: g as the ability to deal with complexity (Gottfredson, 1997b) and g as the probability of not making cognitive errors (Gordon, 1997). The manifest mental behaviors that are prototypical of g include problem-solving, abstract thinking, and reasoning. We often designate these in short-hand terminology as information-processing or critical-thinking skills. The g 1oadedness of a test depends on the complexity of test items, for example, how abstract the content is or how many bits of information must be apprehended and processed. A test's g loading does not depend on its manifest content (say, verbal versus numerical) or its mode of administration (say, oral vs. written).
The magnitude of racial differences on different cognitive tests is highly correlated with these tests' g loadings, that is, their cognitive complexity. It seems fanciful to suggest, as did the Nassau report, that one might materially reduce the disparate impact of cognitive tests without changing the mental skills they are thought to measure by, for example, going to a video format requiring no reading or writing.
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Although the Nassau team continues to defend virtually all the project's odd technical decisions which allowed it to justify its improbable conclusion, even supporters of the study don't seem to take the defense seriously. When asked to discuss the Nassau study at the SIOP meetings this April, Murphy (1997) and Sackett (1997) both avoided discussing that defense or any specifics of the study, and spoke instead only in generalities about the complexity of test validation. While refusing to criticize or even discuss particulars of the project, both discussants nonetheless spoke as if the study team had in fact done precisely what it has stoutly denied doing, namely, restricted the cognitive content and subsequent validity of its test battery for purely racial reasons. Specifically, the two discussants gave reasons for why and when they thought one should disregard valid cognitive tests to meet racial goals. Sackett argued that if that is what an organization wants, then that is what the consultant should do. Taking a different tack, Murphy suggested that it might show a pro-segregation attitude if one chooses not to reduce the cognitive component of a test battery. In other words, both defended the study by suggesting that the team was justified in doing what it had denied ever doing.
It is worth looking at Murphy's argument in more detail because it also illustrates how social pressure is used to maintain public lies in the face of contrary knowledge. He stated quite emphatically that cognitive ability ''is special.'' To quote him, it ''is relevant to every job we know about'' and it ''is the best single predictor'' of job performance. He continued, however, that if we believe that we must therefore include cognitive tests in selection batteries, we must announce that we also believe that it is ''better to have racial segregation than other outcomes.'' We are, according to him, ''definitely also saying that we should not have as many black police officers.''
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What he is saying here quite explicitly is that if you favor maximizing validity you are declaring yourself not just a racist but a segregationist. Being pro-validity is being pro-segregation. What once was taught as good professional practice—enhancing validity—now apparently transforms us into Bull Conners. To avoid becoming moral pariahs we must limit validity when that allows us to reduce impact. Murphy's is but a new variation on the old discussion stopper that is used so regularly to squelch honest debate, namely, threatening to label people racist if they don't fall into ideological line. The tactic is not meant to silence the speaker so much as it is to intimidate third parties who might have been tempted to express agreement with the speaker. It is in this manner that the public dogma about race is enforced in the United States.
I would remind you at this point that disparate impact is lawful if you can demonstrate test validity and that the 1991 Civil Rights Act expressly forbids hiring practices that are racially motivated. The implication of Murphy's argument is that adhering to civil rights law by seeking the most job-related tests makes you a closet racist whereas violating the law by racially gerrymandering your tests to reduce impact protects you from such insinuations. As I mentioned earlier, the flight from g has created a topsy-turvy world.
LATROGENIC
However, might not it be better for social harmony to live a lie? Might not it be a useful fiction to maintain that all races come to the labor market, the mortgage lender, and the insurance broker equally qualified? Wouldn't it be harmful to puncture that fiction? Currently fashionable ideology would have you believe so, but let me raise a few troubling questions about its unexamined assumption that this lie is beneficial.
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Let us take the matter of productivity first. What does it mean for a national economy when it spends so much effort deliberately limiting or rolling back the valid selection of perhaps its most valuable asset—its intellectual capital—especially in this information age? I sometimes wonder just how many employees in large companies and public agencies are devoted full- or part-time to restricting or reducing the reliability and validity of selection systems. We do know that there is a very large and intimidating division of the U.S. Justice Department pressing them to do so. All this effort surely constitutes a rather large tax on our economy, one not shared by our global competitors. If we are not careful, we may end up fighting over slices of an ever shrinking economic pie.
Second and perhaps more insidious is the impact on race relations of the public lie which requires and then camouflages the flight from g. If a substantial proportion of racial inequalities in life chances are due to racial gaps in skills but we cannot say so, how then is inequality to be understood by the public? The ideologically correct answer today, of course, is white racism. But note what that means. If we cannot address the real problem of cognitive skill deficits, those continuing deficits will assure us in perpetuity the appearance of ubiquitous and unyielding white racism, even where none exists, and in virtually all facets of social life.
For blacks, this apparently pervasive racism is all the more diabolical for seeming to be unseen, unconscious, institutional, and literally woven into every nook and cranny of American life. For their part, whites resent the constant imputation of racism, especially when the charges become self-evidently ludicrous and when personal experience begins to suggest contrary explanations. In short, the public lie about racial parity in basic skills not only guarantees a continued flight from g, but also that both races will continue to accumulate grievances against the other. Note that these racial grievances stem not from problems of race per se but from the race-neutral problems of cognitive skill deficits. This is extraordinarily important. We are creating divisive racial problems out of non-racial ones.
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What we have is a common non-racial problem—cognitive deficits in substantial portions of all races—that affirmative and anti-racism programs do nothing at all to ameliorate in any race. Both blacks and whites have many skill deficient members who are finding it increasingly difficult to succeed in our increasingly complex post-industrial world. And both races are becoming increasingly bifurcated along economic lines, with both the black and white underclasses continuing to grow as the economy's use of low-skill workers shrinks.
Finally, policies grounded in falsehoods provide only illusory solutions. More resources are being poured today into denying than into constructively dealing with the fact that a disproportionate number of blacks are seriously skill deficient. Life gets markedly more difficult the lower one's general ability to deal with complexity, solve problems, and learn efficiently.. That is a cross-racial problem that hits the black community harder, but it cannot be adequately addressed in any group without directly tackling the cognitive disadvantages involved. We should not overpromise but be realistic about our currently limited ability to ameliorate g-related social inequalities. We can continue to flail away at such realism as hardhearted while leaving the skills problem untouched, or we can work slowly but directly and doggedly toward reducing it. The flight from g only hobbles our ability to make a difference.
Personnel psychologists have tried hard to ease the disparate impact problem. Perhaps no profession has tried harder. But we must remember that its primary mission is to husband human capital. It certainly should not be obscuring the import of one of its chief components. At some point the profession must clarify what it cannot do and what it should not be asked to attempt. Professionalism always requires specifying its limits. Perhaps we are at this point now, judging from the soul-searching I mentioned earlier. President Clinton has said that we need more candor in our discussions of race. We should accept that invitation. We can urge standing fast on standards while trying to raise skills. It may be slow, hard work, but both national productivity and racial progress depend on it.
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COMMENTS ON THE 1997 SIOP SYMPOSIUM ON THE NASSAU COUNTY POLICE TEST
(FRANK SCHMIDT, UNIVERSITY OF IOWA)
This symposium may have been the most popular event on the program at the Society of Industrial and Organizational Psychology (SIOP). More than 300 people attended it. The idea for this symposium came from Linda Gottiredson, and it was her intent that I be on the panel, to ensure some semblance of balance. But panel members involved in developing the Nassau test, and who were defending it, threatened to withdraw if I was included. So the panel wound up with only one critic of the test (Linda) and many defenders—a very unbalanced panel.
In compensation for my being blackballed, Chair John Hollenbeck agreed that at the end of the symposium the first person he would call on would be me, and I would be allowed to at least say a few words. However, for some reason, he did not call on me for quite some time. But finally he did (after we had officially run out of time), and I did get to say a few words.
However, there are a number of number of additional things that I think should be addressed.
The first is Neal Schmitt's use the 1986 Personnel Psychology meta-analysis by Hannah Rothstein, Lois Northrop, and myself to argue that general mental ability (GMA) has little if any validity for police work.
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First, Neal did not present the validity estimates for the criterion of learning in the Police Academy. Table 8 of our meta-analysis shows that GMA (as assessed by Verbal + Quantitative; the only GMA measure in the Table) predicts amount of job knowledge learned in the Police Academy with validity in the .71–.75 range. Published I/O research using causal modeling indicates that the major determinant of job performance is job knowledge (research studies by Wally Borman, Malcolm Ree, and by Jack Hunter and myself; this research is summarized in Current Directions in Psychological Science, 1992, 1, 89–92). And GMA predicts the acquisition of job knowledge in police work with a validity of .71 or higher. These research facts indicate that GMA does predict police performance on the job.
Second, in looking at the criterion of ratings of performance, Neal cited results not for GMA but for specific aptitudes (such as memory, quantitative ability, and reasoning ability). The question at issue concerns GMA, not specific aptitudes; specific aptitudes have lower validity because each is only one of many indicators of GMA. (In fact, one of the deficiencies of the Nassau study is that it never combined its various indicators of GMA into a GMA measure, thereby masking the validity of GMA.)
Third, Neal cited biased estimates of validities; he cited observed validities, which are downwardly biased estimates. He did not present the true validity estimates, which are unbiased.
In Table 11 of our article, the relevant table, one can see that GMA (assessed by V + R + M + Sp/M; the only measure of GMA in that table) has validity for performance ratings in the .22–.27 range. Although not large (see below), this is much larger than the erroneous figures that Neal presented (which were mostly under .10).
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In the attached Q & A prepared for Law and Order magazine, I provide further evidence supporting the relevance and validity of GMA for police performance. However, it is apparent just from what I have presented here that police performance does depend on GMA, contrary to the impression given by Neal's presentation at SIOP.
Why is this important? Remember that Neal attempted to justify the virtual elimination of GMA from the Nassau exam by arguing that research indicates that GMA is barely—if at all—relevant to police work. This is clearly not the case.
However, the validity estimates for the criteria of ratings of job performance are lower than is expected for a job at this (medium) level of complexity. In his presentation, Neal stated that we had hypothesized that this could indicate that personality traits were more important in determining police job performance than is the case in most other jobs. Indeed we did. However, we also advanced another hypothesis which we considered more credible—and Neal did not mention that hypothesis at all. We hypothesized that supervisory ratings of police job performance lack construct validity, due to lack of opportunity of supervisors to actually observe performance. (The officers are out in their patrol cars and the sergeants acre in the police stations behind desks.) If so, police validity estimates based on ratings are downwardly biased. We believe this to be the case.
In my opinion, both discussants erred. Paul Sackett essentially maintained that the role of the I/O psychologist is to give the client what it wants—no questions asked. So if what a client really wants is a police selection test with minimal group differences, then this is just what you give the client. You—the I/O psychologist—have no social responsibility to ask whether police performance decrements stemming from a selection process gutted of GMA will endanger public safety. You have no social responsibility to ask, ''Down the road, could people be injured or lose their lives because of resulting poor police performance?'' I think this is wrong. I believe, along with Frank Landy who pointed this out from the floor during the session, that we do have social responsibilities, and that we cannot be merely ''servants of power''.
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Kevin Murphy argued that the issue is whether I/O psychologists are under an obligation to maximize selection validity. If the answer is yes, then there can be no justification for virtually eliminating GMA from the Nassau test. If the answer is no, then there is nothing wrong with what was done in constructing that test. Kevin's argument is a red herring. The issue is not whether I/O psychologists have an obligation to maximize validity. The issue is the social consequences of stripping GMA virtually entirely out of the Nassau test.
What are those social consequences? As I noted at the symposium, we have a real-world social experiment that informs us about those consequences: The District of Columbia police force. During the 1980s, the District of Columbia took control of that police exam from the U.S. Office of Personnel Management and eliminated its GMA component—as well as essentially eliminating its background investigation. The subsequent collapse of what had been one of the best police forces in the nation has been documented by Tucker Carlson (Carlson, 1993a; 1993b; these articles appeared in The Wall Street Journal, November 3, 1993; and Policy Review, Winter, 1993, 26–33).
The first consequence is that the Policy Academy had to be dumbed down drastically because flunk out rates soared after the new exam was introduced. As an example of the performance decrements in performance on the job, many murder charges have had to be dropped because, due to low literacy levels, the police reports filed were unintelligible—something that had not happened before.
These and many other problems are traceable to the elimination of the GMA component of the exam. Other problems—essentially the surge in crimes committed by the police—are traceable mostly to the elimination of the background investigation. (It is not true, as Jim Outtz stated at the symposium, that all the subsequent problems were due to the elimination of the background investigation.)
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I urge everyone to read these two chilling articles. The bottom line conclusion is this: Because of the gutting of a police selection test, some people were injured and some people lost their lives. A lot of other bad things happened, as detailed by Carlson, but these are the worst things. And they did happen. Gutting the D.C. police selection test was serious act of social irresponsibility. There is no reason to expect different results in Nassau County.
Kevin Murphy argued that use of GMA tests ''will guarantee a segregated, all white police force.'' However, the District of Columbia police force was mostly Black before the police selection test was gutted. That is, it was mostly Black back when its performance was outstanding.
Kevin Murphy and some others on the panel warned against ''demonizing the Justice Department'' (DOJ). They said DOJ was ''just doing its job.'' That is what DOJ would like you to believe, but it is not true. DOJ would like you to believe that doing its job—enforcing the law—requires it to pressure police agencies throughout the U.S. to gut the validity of their selection exams. In actuality, there is no such requirement in any law; we have a Justice Department that has moved outside the law.
This is essentially what Federal judge Mariana Pfaelzer said in her opinion last September upholding the police hiring test used by the City of Torrence, California, against DOJ charges that it was discriminatory [U.S.A. v. City of Torrence, Central District of California, Case no. CV 93–4142 MRP (RMCx)].
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This case simultaneously illustrates DOJ's bully boy modus operandi and threatens that modus operandi. Over the last five years, DOJ has followed the same procedure in city after city. DOJ goes into a city and ''reviews'' their selection methods for police officers and firefighters. They then say something like this to the city: ''Our review finds your tests to be discriminatory and illegal, because pass rates (or hiring rates) are lower for Blacks or Hispanics. We can take you to court, but tell you what—we won't, if you'll just sign this consent decree and meet these hiring numbers each year. It's a lot cheaper than a court case.'' Few cities have had the financial resources to resist this threat.
Four other cities in California alone capitulated to this DOJ shakedown racket. But the small City of Torrence was different: it knew its hiring methods were fair and nondiscriminatory and it refused to cave in. So DOJ brought all its considerable Federal power and resources to bear against the city—and lost in court. This was not a close loss, either. DOJ lost ignominiously, with the judge castigating DOJ quite severely for its tactics and methods. DOJ has now appealed this case; if it loses on appeal, which many think likely, this case will become law in an entire circuit, posing a real threat to the bully boy blackmail tactics of DOJ.
The idea expressed at this symposium that DOJ is ''just doing its job'' and ''just enforcing the law'' is false. DOJ has gone outside the law and has abused its power. These things are indeed bad but they are not the worst thing. The worst thing is that, in jurisdictions across the country, DOJ has endangered public safety—and continues to do so.
QUESTIONS AND ANSWERS ON THE NCPD EXAM FOR LAW AND ORDER MAGAZINE
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(FRANK SCHMIDT)
1. Question. What do you think is the fundamental cause of the controversy over the NCPD exam?
Answer. The basic cause is the conflict between the goal of equal hiring rates for minority applicants and other applicants, on the one hand, and the need to hire people who will best learn the job requirements and will perform best on the job, on the other. We would all like to see minorities be hired and advance at the same rate as others. But we know from years of research that if you hire on the job related qualifications that indicate high job performance, the percent of minority applicants hired will generally be lower than for others. On the other hand, if you lower hiring requirements to reduce this ''adverse impact'' on minority applicants, you will have lower job performance. So this is a dilemma.
This dilemma does is not due to any bias in the tests; it is due to the fact that minority individuals have not acquired the required skills and abilities to the same degree as others. All employers face this dilemma, and so do personnel psychologists who develop tests and other hiring procedures.
The NCPD exam is different from most other cases in two ways. First, the Civil Rights Division of DOJ was involved and exerted strong pressure to reduce minority-majority score differences, even at the expense of reduced performance on the job and in training. Second, poor procedures for hiring police of ricers can endanger public safety in ways not true for many other jobs. So it is particularly important in police hiring to hire those people with the highest indicated future levels of job performance. In the District of Columbia, where this was not done, and hiring methods have been very bad, the result has been disastrous, as has been well documented.
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Some of the most respected and accomplished people in industrial psychology were involved in developing the NCPD exam. I have a great deal of respect for these individuals. But they were under a lot of pressure from DOJ. The history of past litigation over police tests in Nassau County intensified this pressure from DOJ. I understand the position they were in. I have had that same kind of pressure exerted on me. But I think their final report went too far in reducing the mental ability component in the exam.
2. Question. Let's follow up on that. In a letter to the WSJ, you stated that NCPD exam ''comes close to totally disregarding the critical mental skills needed in police work. ''But the NCPD exam does contain a mental ability test: a test of reading skills. What is wrong with finding out what the minimum ability needed to do a job is and then setting your requirements at this level of ability?
Answer. What do you mean by ''minimum ability to do the job?'' Job performance is not just either OK or not OK. It is not dichotomous. It varies from horrible (and dangerous to public safety) all the way up to outstanding. The higher the ability levels of the people hired, the higher their performance will be. We know this from 85 years of research. If you set ability requirements at the minimum, then you are going to get minimum job performance, too. This is not what we should be doing, especially on a job where public safety is at stake.
Furthermore, there is not even a real minimum ability requirement on the NCPD exam. If you score at or above the bottom 1% of the current officers on the reading skills test, you get points on the exam. (And you get the same number of points whether you barely score above the bottom 1% or you get the highest possible score.) If you score below the bottom 1%, you don't get points. But you are not necessarily eliminated: You can still be hired if your scores on the personality parts of the test are high enough. So you do not even have to score as high as the bottom 1% on this ability test to be hired.
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Also, a measure of reading comprehension, used alone, is not an optimal measure of ability, even if you select people top down on those scores. To get a good overall measure of mental ability, other measures of mental ability should also be included—for example, quantitative and reasoning ability measures—and all these mental ability measures should be combined into the final measure of general intelligence. However, in this case all other mental ability measures were eliminated from the test. This should not have been done.
People with higher mental ability learn the job knowledge presented in the Police Academy faster, and they learn and retain more of it. We know from research that job knowledge is a major determinant of performance on the job. The simple fact is that you cannot do the job if you don't know what you are supposed to be doing. This is a major reason why it is important to hire the most intelligent police officers possible.
3. Question. Well, as you say, the cutoff for credit was set at the bottom 1% of current police officers. These officers were on the job and were performing satisfactorily, weren't they?
Answer. Well, I noted above, you can still be hired even if you score below the bottom 1% of current of ricers.
Also, the bottom 1% of current of officers are probably not performing satisfactorily. According to the report on the NCPD exam, 14% of current officers are below the satisfactory level of job performance. This unsatisfactory group likely includes those in the bottom 1% on the reading comprehension test of mental ability. The last thing you want to do is hire more officers who will likely be in this low performance category. And this would be true even if their low performance were ''minimally satisfactory.''
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4. Question. What about the requirement that in order to be hired, you have to have 32 college credits? Doesn't that requirement ensure that anyone hired will have a pretty good level of mental ability?
Answer. Well, there is some Question about whether the 32 college credits are being required. Supposedly, DOJ will not allow use of this requirement if it has adverse impact against minority applicants—which it likely does. So Nassau County may not be using this requirement.
But the Answer to your Question is no: even if this requirement were used, it would not ensure the needed minimum levels of mental ability. And it certainly would not be a good way to identify high levels of mental ability.
It is true that the average mental ability level of people who have completed 32 hours of college credit is probably somewhat higher than for those who have no college credits. But given what we know about admissions standards and grading standards in most community colleges and some other colleges, this difference in averages is probably small.
And another fact is critical here: there is a lot of variability in mental ability in the group with 32 credits. Those on the low end in this group are likely to be quite low in mental ability. The 32 credit requirement will not detect these individuals and screen them out. So this requirement, even if it were used, could not be a substitute for a strong mental ability component in the exam.
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But even if Nassau County did require the 32 college credits, and if this requirement did work as a measure of mental ability, there would still be a big problem. DOJ has ''suggested'' to other police departments around the country that they should use the NCPD exam. Many police departments do not have a requirement for college credits. So they will not have even this inadequate safeguard against disaster.
5. Question. In response to some of the criticisms of the NCPD exam, the TDAC group states that past research shows low validity for mental ability tests for the job of police officer. If that is true, then why get excited about the ''virtual elimination '' of mental ability from the NCPD exam?
Answer. We know from research that mental ability tests have a very high level of validity in police work for predicting the learning of job knowledge. That is, research shows that people with higher levels of mental ability learn and retain more job knowledge in the Police Academy. This relationship is very strong, as you would expect from that fact that the material taught in police academies is complicated and complex. (Validities are in the .60 to .70 range.)
Across a wide range of different jobs studied, research shows that people with more job knowledge perform better on the job. Job knowledge is probably the most important direct determinant of job performance. You cannot perform the job if you don't know what you are supposed to be doing.
The TDAC group was not talking about the ability of mental ability to predict the learning of job knowledge. They ignored this important fact and discussed only studies in which police job performance was measured by ratings (usually ratings by supervisors). And even there, they gave estimates of validity much lower than the actual values shown by research.
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We know that police performance on the job requires considerable mental ability. Every job analysis of police work, including the NCPD exam job analysis, has shown that police work requires considerable judgment, decision making, and other complex information processing. When police job performance is measured by ratings, mental ability measures do predict these ratings, although not as well as for non-police jobs that require similar levels of judgment, decision making, and information processing. (For police work, validities are approximately .25 vs. about .51 for other jobs comparable in complexity.)
So mental ability does predict performance on the job for police officers. However, these results for police work are anomalously low compared to results for other comparable jobs. So they probably underestimate the predictive power of mental ability for police officer performance on the job.
The reason these estimates are low is probably that ratings of police job performance are not as accurate as for most other jobs. This would be expected because police supervisors have little opportunity to observe the actual everyday job performance of their officers. The sergeants are in the station, and the officers are out in patrol cars. Since the supervisors don't observe actual performance, they can't rate it accurately.
What we know about occupations in general from 85 years of research and what we know from job analysis of police work is not consistent with a conclusion that mental ability could be less important in police job performance than for other jobs with similar mental demands. We know that mental ability strongly facilitates the learning of job knowledge in police work, as in other occupations. It is unlikely that job knowledge has less impact on job performance in police work than in other jobs of comparable mental complexity.
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And if job knowledge does strongly affect police job performance, as is the case in other occupations, then mental ability must have a strong effect job performance—because mental ability is the major determinant of amount of job knowledge learned. So the conclusion that mental ability has less validity for police performance on the job than for other jobs of comparable complexity is not likely to be correct.
However, I do not want to overemphasize this apparent underestimation of validity. The research estimates of approximately .25 for the validity of mental ability for predicting police job performance that I mentioned above are still substantial, even if they are underestimates. Taken at face value, even these estimates indicate that mental ability is important in police performance on the job.
The District of Columbia police are a real-world test of the importance of mental ability for police job performance. When mental ability requirements for hiring were eliminated in Washington, D.C., performance in the Police Academy literally crashed. But performance on the job also crashed. This indicates that mental ability has an important effect on police performance not just in the Police Academy, but also later on the job.
6. Question. A considerable part of the NCPD exam consists of personality and related tests (''noncognitive'' measures). What is wrong with using personality measures in police hiring?
Answer. Nothing. Valid personality tests increase the validity of an overall selection exam. They also have the benefit of reducing adverse impact somewhat, because minority and other applicants usually score about the same. Considerable research shows that personality tests can predict both training performance and job performance.
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However, personality tests are not a substitute for mental ability tests. The people with the best personality test scores are not necessarily those with high intelligence. The problem with the NCPD exam is that it virtually eliminates mental ability requirements, not that it uses personality tests.
7. Question. What do you think the national ramifications are for the NCPD exam? What if it is widely used across the U.S. for police hiring?
Answer. This test is going to be a disaster wherever it is used. We know from past experience and from research that the rate of failure in the Police Academy will shoot up wherever this exam is used to hire police officers. Unless the content of the Academy is ''dumbed down,'' many candidates will not be able to graduate. If Academy demands are dumbed down, then police performance on the street will deteriorate markedly (as it did in Washington, D.C.), and public safety will be endangered (as it has been in Washington, D.C.).
In the end, the consequences will be so intolerable that public outrage will cause the exam to be discontinued. But that will take quite some time. And in the meantime much harm will be done.
8. Question. As I understand it, validity tells you how well a test works. In the NCPD exam study, there were statistical adjustments made to the study findings on the validity of the NCPD exam. What is your opinion of those adjustments?
Answer. Such ''adjustments'' are corrections intended to eliminate the biases that occur in validity studies. It is appropriate, indeed required, to make corrections of this sort. If you don't, you have biased estimates of exam validity.
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So the problem is not that such corrections were made. The problem is that some of these needed corrections are pretty complex, and it is easy to make an error in applying them. In this case technical errors were made in applying at least one of the corrections, resulting in an overestimate of exam validity.
The TDAC group has now acknowledged that errors were made and have computed new validity estimates. However, there are still technical errors in their new calculations, and their new estimates of how well the NCPD exam works are still biased upwards.
But the NCPD exam is not completely invalid; it does have some validity. The validity us just fairly low. By my calculations, and using the criterion of supervisory ratings relied on in the NCPD study, the best estimate of the operational exam validity is .14 (on a scale from zero to 1.00).
Normally, something of this sort might just be considered a technical point. But in this case, it is more important, because the validity of previous Nassau police exams was compared with the validity of the new NCPD exam. The conclusion was that this new exam was more valid than the police exams used in the past. This conclusion may not be valid, because of the upward bias in the validity estimate of the new NCPD exam.
But what about the fact I mentioned earlier: that police job performance ratings are not as accurate as ratings in most other jobs? That fact probably causes a downward bias in the validity estimate for the new exam and for all the older exams, too. That is, validity estimates for all the exams are biased downward by about the same amount. So you can still compare them to see which one does the best job—or you could if it were not for the upward bias in the validity estimate for the new NCPD test. So you have to eliminate this upward bias if you want an accurate conclusion about which of these exams is most valid for police hiring. So far this upward bias has not been eliminated.
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THE NASSAU TEST: THE JUSTICE DEPARTMENT'S LATEST WEAPON IN THE WAR AGAINST MERIT SYSTEMS
(STEPHEN WOLLACK, PH.D., IPMA SOUTHERN REGIONAL CONFERENCE, CORPUS CHRISTI, TEXAS)
Suppose you are the Personnel Director in a public agency responsible for hiring police officers, and you are contacted by a representative of the U.S. Department of Justice, who informs you of their intent to conduct a compliance review of your police department's employment process. A request is made for documentation extending back over a period of several years including: the racial and ethnic composition of your workforce and of the of fleers hired over this period; the results of your employment testing; all applicable test validation reports, and so forth.
Based upon Justice's review of this information, a determination is made that minorities are underrepresented in the police department. This finding is based upon a numerical comparison between the workforce and labor market. Because your employment tests have produced an adverse impact against minority applicants, you bear the burden of proving that these tests have been properly validated and are, therefore, job related and lawful. However, the experts retained by the Justice Department have concluded that your tests are unfair and the validation studies inadequate. You are told that a civil rights lawsuit will be filed against your agency for noncompliance with Title VII of the Civil Rights Act.
You are faced with a serious dilemma. What to do? On one hand, you find the allegations to be unfair. You have, for many years, endeavored to promote the employment of minority police officers. You have consistently made special efforts to recruit and hire as many qualified minorities as you could find. You feel that you have not discriminated against anyone, but you are responsible for administering a merit system, and you have always tried to balance merit objectives with the need for diversity.
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On the other hand, there are fewer minorities in your police department than you would like to see, and your employment tests do have an adverse impact. The reality is that you now have the full force and power of the United States Department of Justice aimed against you. They are the undisputed heavyweight champions of Title VII; armed with a cadre of highly experienced attorneys, testing experts, and inexhaustible resources. The morning newspaper has been full of stories concerning the alleged discriminatory hiring practices of your department, and the people to whom you are subordinate do not appreciate the adverse publicity. You infer from discussions with your legal counsel that the impending lawsuit might be a bit of a mismatch—one in which you get to play the role of General Custer. Although you don't like it a bit, it is fair to say that you are now in the mood to negotiate.
A settlement of this dispute is on the table. In order to avoid litigation, you are informed by Justice that several conditions must be met. Among these conditions, the principal elements are: that you must agree to numerical quotas by race or ethnicity, and that you must adopt a test called the Nassau test, which has been approved by DOJ because it produces no adverse impact against minorities. This scenario has been played out a number of times in recent years across this country. It is the modus operandi of our U.S. Department of Justice. For those of you responsible for the administration of merit systems, it is important that you be informed about the Nassau test, because it is not entirely unlikely that, one day, you may have a close encounter with it.
On October 24 of last year, the Wall Street Journal published an article entitled: ''Racially Gerrymandered Police Tests'' written by Professor Linda Gofflredson, University of Delaware. In her article, Gottfredson contended that the Justice Department is:
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trying to force state and local governments to adopt a new police entrance examination that allows nearly equal percentages of black and white applicants to pass—and that achieves this result by stripping the test of crucially important reading, reasoning and judgment skills . . . The consultants were well aware that they faced a virtually impossible task: developing a test that measures important job skills but also produces proportional hiring, despite big gaps in such skills between blacks and whites, when they leave school. How these experts set about this task is a case in racially gerrymandering the content of the test . . . Meanwhile the test provides the Justice Department with a new tool for coercing police departments into proportional hiring . . . The Nassau County test destroys what it purports to embody—merit hiring.
The newspaper article by Gofflredson was based upon a much more comprehensive paper she wrote in which her specific criticisms of the development and validation of the Nassau test are detailed. Gottfredson described a systematic effort by the test developers to subordinate the maximization of test validity to their principal goal of reducing adverse impact. Departing from the conventional sequence of events, test items were first selected based upon comparative passing rates by race, and only then was validity considered. More predictive cognitive measures were rooted out and discarded in favor of less valid, less meaningful non-cognitive measures. There can be little doubt that impact reduction, not validity, guided this decision-making process. I have also read papers written by Frank Schmidt, University of Iowa, and Craig Russell, University of Oklahoma, both of whom are also highly critical of the Nassau test. I have reviewed the Nassau test validation report, as well, and I concur with the many criticisms leveled at this examination and its validation.
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The Nassau test was developed as a result of a 1990 consent decree involving the Nassau County, NY, Police Department. In a highly unusual arrangement, the U.S. Department of Justice and Nassau County agreed to develop a test which has been validated or lacks adverse impact against minorities. At the staggering cost of four million dollars, a test was produced which resulted in nearly equal passing rates for each separate group. Let us take a careful look at how they managed to do this.
The Nassau test consists of nine subtests: one very simple cognitive examination and eight noncognitive tests. The cognitive test is represented to be a reading comprehension measure and consists of a number of brief passages. A cutoff score was set so that only the bottom one percent of police officers in the validation sample would be excluded. Moreover, this subtest was used only as a pass-fail device, that is, no distinction was made between high and low passing scores. As if the reading test had not been simplified enough, two additional steps were taken. The reading passages upon which the test questions were based were made available to applicants up to 30 days before the exam and the test was administered with relaxed time limits in order to accommodate the slower readers. As users of employment tests, you are well aware that the security of such tests is of paramount importance. If applicants were given a month to study the actual reading passages used in the examination, one could not reasonably argue that the test actually measures reading comprehension. It is beyond dispute that this practice totally undermines the meaningfulness of the Nassau test's reading comprehension section.
The remainder of the test battery consists of eight non-cognitive, personality-type tests. The test battery, heavily weighted with non-cognitive measures, produced virtually equal passing rates for black and white job applicants. As you will see shortly, these tests are not only devoid of adverse impact; they are also devoid of validity.
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The developers of the Nassau test started with 25 predictor tests which they endeavored to validate against job performance ratings. Based upon correlations with the job criteria, a set of nine predictors was chosen from the 25 for inclusion in the final Nassau test battery. The validity coefficients were derived from a sample of N = 508 police officers. The highest of the nine validity coefficients was r = .12, the lowest was r = .03. The average coefficient was r = .08. To describe these validity coefficients as small is probably being too kind.
There are a number of serious technical problems in the validation of the Nassau test. These technical errors involve the misapplication of various statistical procedures and, in the aggregate, resulted in a spuriously high estimate of test validity. Let us examine their data analysis.
Whenever a very large number of correlation coefficients are computed among predictor and criterion variables, a concern always exists about the choice of the appropriate level of confidence required for a finding of statistical significance. Statisticians typically use either the 5% or 1% level of confidence. The 5% level means that the obtained correlation coefficient could not be expected to occur by chance more than 5% of the time. The 1% level of significance means that a correlation coefficient of the obtained magnitude could not be expected to occur by chance more than 1% of the time. One of the major considerations in deciding whether to specify the 5% or 1% level is the number of correlations you are working with.
To illustrate my point, suppose I conducted a validation study in which I sampled hospital patients in 100 hospitals across the country. For each group of patients, I correlated their social security numbers with their bad cholesterol numbers. With 100 such correlations, specifying the 5% level of confidence, I would expect to find five hospitals for which social security number was significantly correlated with the patients' bad cholesterol level. Of course, these correlations are nonsense. This kind of practice has been described as ''validity shopping.'' If you nun a large enough number of correlations and specify an inappropriately low confidence level, you will, of course, find that many of the correlations are statistically significant by virtue of chance alone. This is, in fact, what happened.
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The researchers who validated the Nassau test computed 172 validity coefficients of interest. Regrettably, they specified the 5% level of confidence, which means that about nine of the coefficients obtained are expected to be valid by chance alone. These nine correlations would appear to be statistically significant, but may actually be false positives. With the large number of correlations in this study, the choice of the 5% level was clearly bad judgment. A much more sensible, conservative decision would have been to adopt a 1% level. When one applies the more appropriate 1% level, six of the nine subtests in the Nassau examination prove to be nonsignificant.
Most notable among the predictor tests which are invalid is the one cognitive measure, the previously-described, watered-down reading comprehension test. What this means is that the representation that the Nassau test provides a valid assessment of job applicant reading skills is untrue. At most, the Nassau test creates the illusion that it measures reading comprehension.
The conclusion that any of the nine Nassau subtest validity coefficients is significant is dubious, because the coefficients obtained are so small as to be indistinguishable from zero in practical terms; that is, the finding of significance is primarily a function of the large sample size. Ironically, one member of the project advisory group, Marvin Dunnette, had written a journal article many years ago which was highly critical of the very practice which the advisory group followed, namely, using a very large sample to achieve statistical significance for variables which have very small relationships. Dunnette's article is critical of psychologists who rely on inconsequential correlations for predicting a person's behavior. I couldn't agree more.
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The first requirement in analyzing the results of any test validation study is that of rationality; it has to make sense. If the tests being studied bear no direct, observable relation to the criteria, then the red flags go up—meaning the study is over. You cannot have a collection of predictor variables, most of which have zero correlations with the criterion, and by virtue of combining or statistically adjusting these measures, achieve a valid test. To do so would certainly qualify as making marshmallows out of horsedroppings, so to speak. The research team should have allowed this rather bad test to die peacefully.
Despite a clear-cut absence of validity for the predictor variables, the subtests were combined into an equation which estimated the multiple correlation of the test battery. Two statistical adjustments were also made which boosted the validity estimate. I believe the adjusted multiple correlation of R = .35, which the test developers claim for their battery, is inflated and fictitious. It requires quite a bit of ingenuity to take a test battery composed of, at most, three significant subtests with a maximum correlation of r = .12 and six subtests with non-significant correlations and boost the validity coefficient to a multiple correlation of R = .35. I call this validity laundering because it is entirely inappropriate to take validity coefficients which are not statistically significant and boost those coefficients to a level of statistical significance by virtue of certain analytical methods and statistical corrections. If this were allowable, it would destroy the very meaning of statistical significance, in that, it would permit test makers to transform virtually all invalid tests into valid ones. The group which validated the Nassau test obscured this bit of reality by converting a battery of invalid tests to a multiple correlation, taking maximum advantage of chance and, thereby, producing an inflated validity estimate.
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Their use of the multiple correlation technique overstated the test's true level of validity for two reasons. The first source of inflation stems from preselecting tests from a larger set. Recall that the researchers selected the nine most valid tests from a set of 25 tests. Preselecting in this way takes advantage of chance, and capitalization on chance was made more egregious because most of the nine coefficients were really non-significant. The second source of inflation in multiple correlation occurs whenever a set of weights is chosen to maximize some function. These weights are selected in such a way as to extract the last ounce of predictive power out of the test battery, thereby once again capitalizing on sampling error.
To control for inflated validity estimates in such circumstances, it is considered standard professional practice to cross-validate one's results. Cross validation means applying the elements of the prediction equation to an independent sample to determine if validity holds up. When multiple correlation is utilized, cross validation invariably produces a lower, more conservative validity estimate. No cross validation study was performed of the Nassau test.
Let's recap the validation study to this point. The researchers developed a test which was virtually devoid of cognitive content in order to eliminate adverse impact. They preselected subtests on the basis of correlations with the job criterion. The standard they used to determine statistical significance was set far too low, and, by necessity, would produce many false positives. Most of the subtests were invalid, if you apply the more appropriate level of statistical significance. The correlations were so low as to be barely above zero. They combined these subtests by a method which capitalizes on chance, thereby, obligating themselves to cross validate their findings. They did not. Instead, they improperly applied what is called a shrinkage correction. Shrinkage approximates the results of cross validation for most applications, but not when the predictor variables are preselected based upon their correlations, a practice which merely heaps together all positively correlated error. As a result, the researchers produced a spuriously-high estimate of validity.
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Even though the shrinkage formulas were not an acceptable substitute for cross validation, it is possible to use such a formula to estimate the upper and lower boundaries for a multiple correlation. Schmidt, in his critique of the Nassau study, performed this analysis and, in doing so, corrected two mistakes that the Nassau research team had made, that is, they shrunk the wrong multiple correlation and they applied the wrong formula.
Schmidt estimated the maximum possible multiple correlation of the Nassau test to be .14. If one requires nine predictor variables in an equation to achieve a multiple correlation of .14, then one is hard pressed to claim that the test battery is valid. To interpret a multiple correlation, you have to square it in order to obtain what is called the coefficient of multiple determination. Multiple correlations for employment tests are generally fairly high, because they represent the combined validity of a battery of tests. For example, a multiple correlation of R = .70, when squared, equals .49. This means there is a 49 percent predictive association between the test battery and the job criteria. In other words, the test battery accounts for or predicts about half of what it takes to do the job. Applying Schmidt's estimate of the Nassau test's actual maximum multiple correlation of .14, it is appropriate to square that value to obtain a coefficient .02, meaning that there is merely a two percent predictive association between the Nassau test and the job criteria. The probability of obtaining, by chance, a multiple correlation of .14 is 36 percent. What this means is that the Nassau test's validity actually falls far short of being statistically significant.
The researchers claimed a multiple correlation of .35 for the Nassau test. Schmidt has observed that such a correlation is not possible and is, in part, the result of a computational error as well as the two mistakes in shrinking the correlation. The reported value of .35 was also achieved by virtue of successive statistical corrections for criterion unreliability and restriction of range, both of which substantially boosted the validity coefficient. However, because the properly-computed maximum multiple correlation is non significant, it is improper to apply any statistical corrections to boost validity. Not only was it improper to make these corrections, but the researchers applied the restriction of range correction improperly.
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I hope that I haven't bored you with a lot of technical details. I attempted to gloss over most of the statistical stuff out of mercy for this audience. But, the fact is that test validation is pretty technical. Most civil service or police administrators are not schooled in the statistics of validation. When these statistical methodologies are systematically misused, as they were in the Nassau study, a layperson can be easily misled. If a group of credentialed psychologists, and the U.S. Department of Justice, tell you that the test is valid, how many police chiefs or personnel directors are in a position to dispute this claim?
In evaluating the basic premise of the Nassau test, it is also important to consider some broader underlying issues. I would like to address the issues of adverse impact, as well as the role of cognitive examinations in police officer selection.
To understand the issue of adverse impact in cognitive employment tests, you must first understand the underlying educational problem in this country. At first blush, the goal of developing a police officer employment test with no adverse impact may appear to be a laudable objective. Upon closer review, such an undertaking is logically flawed. The flaw is in the presumption that adverse impact is a property of tests, somewhat like reliability or variance. This is wrong. Observed differences in acceptance rates by race or ethnicity inform you of the disparity in educational achievement among applicant groups in your labor market. Accordingly, adverse impact is a property of people, not tests. Job-related cognitive examinations which measure required basic educational skills typically result in a showing of adverse impact against blacks and Hispanics. Over the years, data from testing in the areas of education, employment, the military, and research consistently confirm these discrepancies. Such achievement tests, on average, produce wide gaps in prose, document, and quantitative literacy among whites, blacks, and Hispanics. Do not misunderstand what I am saying. I am not talking about native ability. I am addressing basic educational achievement and, in particular, literacy. This is a national problem which most everyone recognizes. The loudest critics of employment testing are often the very same people who have been critical of this educational problem. These are positions which one cannot have both ways. If there is an educational problem in this country, then one cannot be critical of employment tests which reflect this disparity in achievement levels.
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Data from yearly educational achievement tests have provided sobering documentation of racial and ethnic differences in literacy. The most comprehensive research on literacy has been the National Adult Literacy Survey conducted by the Educational Testing Service with funding from the U.S. Department of Education. Based on their findings, it has been estimated that approximately 90 million employment-age adults, nearly half of the U.S. labor market, have poor literacy skills which substantially limit their range of occupational choices. The practical implications of these findings are unmistakable. There exists in the labor markets throughout the country a literacy problem which is staggering in its proportions, and the precise extent and nature of this problem must be understood by those responsible for hiring police officers.
Searching for the one cognitive employment test having the least adverse impact ignores the reality of the underlying problem in this country. Adverse impact on cognitive tests reflects an educational problem which is real and cannot be fixed by changing the test. You cannot eliminate this disparity in educational achievement by designing a new test. You can, however, make a test which conceals this disparity-which is precisely what the Nassau test does.
Imagine, instead of being a test publisher, Wollack & Associates manufactured mirrors. Suppose we sold some mirrors to a family of ugly people, who were offended by what they saw in the mirrors. They want their money back, because the images in the mirrors are so unflattering. Wait a minute,'' I tell them, We will make you some new mirrors that you will like much better.'' So, we paint the glass black. It reflects no light, and everybody is happy. We made the sale, and the customers are satisfied. The moral of the story is that an employment test is a mirror. Like it or not, it reflects the realities of the labor market. We can obscure your image of reality by making different tests, but we cannot change the disparity in educational achievement. To the extent that cognitive skills are job related to police work, an employment test which is designed to conceal group differences will, necessarily, result in hiring police officers who are less capable.
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There is also the issue of how important cognitive skills are for success in law enforcement work. As a publisher of police employment tests, our firm, Wollack & Associates has conducted about 40 validation studies over a period of 21 years. These studies have involved hundreds of law enforcement agencies across the entire country. Job analysis studies of municipal, county, and state law enforcement agencies have consistently identified literacy skills as among the most critical basic requirements for law enforcement personnel. I believe there are few public sector occupations which are more literacy intensive than that of police officer. Reading memos, reports, correspondence, policies and procedures, statutory materials, codes, ordinances, and the like, is a daily occurrence. Officers are responsible for preparing narrative reports whenever they respond to a wide variety of calls ranging from the investigation of accidents; domestic calls; criminal incidents; citizen complaints; interviewing witnesses, and so forth. The thoroughness and accuracy of such reports is often pivotal to the successful prosecution of a criminal matter. Understanding the rights of citizens, the legal parameters regarding the use of force, the constraints pertaining to search and seizure, interrogation, departmental policy in dealing with juveniles, and the like are essential requirements for professional law enforcement personnel-requirements which depend upon literacy skills.
Literacy skills also enable employers to identify the applicants who possess the basic reaming skills required to benefit from police training. Wollack & Associates' police examinations have been the object of 12 predictive validation studies against police training, studies involving police academies in eight states. A sample of 1,500 police officers, most of whom were hired with our examinations, were followed up in their training. The Alert examination, our police literacy test, is correlated r = .58 with academic grade-point average in police training. Corrected for a direct restriction in range, the validity coefficient is r = .80. A correlation of this magnitude approaches the theoretical maximum correlation possible, given the reliability of the predictor and criteria. Simply put, literacy skills are the single best predictor of success in police training academies.
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When one considers the Justice Department's apparent war on police officer competence, one irony becomes clear. While one federal agency, the U.S. Department of Education, has, for years, funded the National Adult Literacy Survey, which has documented disparities in educational achievement between whites, blacks, and Hispanics, a second federal agency, the Justice Department, continues to sue public agencies for using employment tests which reflect these disparities.
There is overwhelming evidence that basic literacy skills are essential prerequisites for police officers. Relying on tests which use gimmicks to eliminate impact means that you will hire people who are substandard performers—and there is no escaping that bit of reality.
The primary purpose of employment testing is to discriminate among applicants in order to determine their level of job-related abilities. Of course, in this context, discriminate means to differentiate, which is the proper thing to do with tests. Tests which are watered down or interpreted in a watered-down fashion provide little basis for distinguishing among applicants' abilities. In my view, tests such as the Nassau test amount to throwing out the baby with the bathwater.
One may rightly question the propriety of Justice's conduct in using their might to inflict a test upon public employers which is so poorly conceived. Those of you responsible for administering merit systems should be fully aware of the disregard which Justice has shown for police officer competence. That is the most troubling aspect of this problem. The U.S. Department of Justice wants strict proportional hiring. The quotas are determined by raw labor market numbers based upon census data. The Department of Justice does not recognize the literacy problem in this country. Regardless of your attitude about quota hiring, please recognize that the Nassau test is worse than quota hiring. It produces no adverse impact by relying upon random selection. If you were to hire police of ricers under a quota system, you would still have the ability to identify the most qualified white applicants and the most qualified minority applicants providing you were relying upon meaningful, job-related tests. The Nassau test does not allow you to do this. What you get with the Nassau test is random selection which is, by definition, unrelated to ability. You may as well be using the Ouija board or the roulette wheel to select officers.
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Whom does it hurt? The short answer is everyone. Applicants who possess the necessary job-related abilities, regardless of race or ethnicity, are penalized by random selection. The police department is penalized because random selection equals the abolition of standards of competence. The citizens who depend upon professional police services suffer, as well. Frankly, this is a game nobody wins. Should you ever have the misfortune of coming face-to-face with the Department of Justice and their Nassau test, my advice to you is very simple: Don't roll over. You have everything to lose.
VACUOUS DEFENSE OF A HOLLOW TEST: COMMENTARY ON THE 1994 NASSAU COUNTY POLICE EXAM
(LINDA S. GOTTFREDSON, COLLEGE OF EDUCATION, UNIVERSITY OF DELAWARE)
Presented at the annual meeting of the Society for Industrial and Organizational Psychology, in the symposium Police Selection in Nassau County: Validity and Demographic Diversity. St. Louis, April 12, 1997.
You're all well aware of the testing dilemma that bedevils personnel selection. On the one hand, there's a very large racial gap in job-related cognitive skills that makes much disparate impact inevitable. The Department of Education reports, for example, that 25% of white adults but over 75% of black adults have such poor functional literacy that they're ''not likely to be able to perform the complex literacy tasks that . . . [are] important for competing successfully'' in our economy (cited in Gottfredson, 1997).
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As shown in Table 1, people at this literacy level—levels 1 and 2 in the National Adult Literacy Survey—can't routinely perform tasks any more difficult than locating the expiration date on a driver's license or an intersection on a map. Surely we want police officers who are able to handle more complexity than that, which means that we must expect disparate impact in hiring them.
On the other hand, we have EEO laws and regulation that define disparate impact as evidence of illegal discrimination. This might not be so bad, except that we also have a Justice Department that defines a perfect test as one that has no impact and therefore treats job-related cognitive tests as impediments rather than contributions to fair hiring. For each of Nassau County's two prior police exams, Justice allowed plaintiffs to opportunistically ransack and disaggregate the validation data in order to make the cognitive tests' criterion validity seem to disappear so that plaintiffs could rescore them to reduce impact. David Jones knows this well. He was involved in producing both those exams.
Sackett and Wilk (1994), among others, have shown that to satisfy the four-fifths disparate impact rule, you have to get the mean black-white difference on a predictor battery down to .1 to .2 standard deviations for selection ratios of 10–50%. However, as you may realize, you cannot expect to narrow the racial gap in scores to that extent unless you eliminate most of your test battery's cognitive component.
And that is precisely what the Nassau consultants did. In fact, their exam came close enough to meeting the four-fifths criterion that the Justice Department lawyer testified that theirs was ''the closest ['to a perfect exam, vis-a-vis disparate impact'] that I've seen in my years of practice.'' He's the same lawyer who has tried to get other test developers to cut back the valid cognitive component of their police tests.
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The Nassau project's job analysis had unambiguously reconfirmed that cognitive skills are critical for good police work, and the civil service told candidates that the exam would indeed test for such skills. Nonetheless, candidates later learned that all that actually counted toward their scores were 8 personality scales and being able to read as well as the worst one percent of readers in the validation sample.
The Nassau project has defended the virtual elimination of its battery's cognitive component by arguing that it simply heeded the criterion-related validities of the component tests. However, as their recently released bit of data shows, the zero-order validities of their personality scales were no better on average than were those for their cognitive tests (.05). And as David Jones told you last year at SIOP, a battery should make sense in terms of the job analysis data (that is, its content validity), not just the criterion data. This test does not.
I'll say a bit about how the project stripped its battery of crucial cognitive content, but I'd first note that I'm hardly the only critic of the Nassau test. Frank Schmidt (1996a), for example, wrote in the Wall Street Journal that the test is ''intellectually dishonest'' and will ''be a disaster.'' wherever it's used. I too believe that Nassau County faces the specter of having armed incompetents, black and white, patrolling its streets.
Now, if you want to limit the cognitive content of a predictor battery, the first step—one taken in Nassau County—is to exclude from your validation study all traditional cognitive tests and all highly g-loaded performance criteria, such as success in training and job knowledge. That's not hard to figure out. It does take some skill, however, to justify excluding those measures, because an enormous literature shows that all three are critical precursors to good job performance. Rather than confront that literature, the project's technical report simply ignores it and then creates the impression that we should have grave doubts about the value of cognitive tests due to their paper-and-pencil format. Not surprisingly, the report expresses no such concern about the paper-and-pencil format of the project's personality tests.
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Instead of using any traditional cognitive tests, the project created weaker video tests of cognitive ability which it extolled as ''innovative'' for their not requiring any reading or writing but otherwise bearing greater superficial resemblance to job duties. I'd note, however, that it's impossible to know much about the actual merits of those tests, because the 1995 technical report provides very little of the data that the Uniform Guidelines and professional test standards require, as Table 2 for the Uniform Guidelines, APA Test Standards, and SIOP Principles show. For example, the technical report provides no zero-order correlations of predictors with any criterion measure; no correlations of any sort of the predictors either with each other or with the composite criterion; no means, standard deviations, or disparate impact data for the 16 tests eliminated from the final battery; and no regression weights for the final battery.
With its 25-part experimental battery in hand, the Nassau project then administered it first—not to the validation sample-but to over 25,000 applicants. The twice-repeated and only reason its technical report gave for this reversal of standard procedure, which the report itself championed as ''unique,'' was that the project wanted to look at the impact data before deciding which tests to keep.
I don't have time to go through all the impact-driven decisions that shaped the Nassau test, but you can see discussions of them on the IPMAAC webpage (www.ipmaac.org/Nassau). Craig Russell (1996) summed them up nicely, however, when he wrote that ''we see the authors bending over backwards to eliminate cognitive test remnants from the predictor domain.''
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It's clear that by administering the experimental exam before validating it, the project had committed itself and Nassau County to a battery with much lower criterion validity than they had expected. The project avoided public embarrassment, however, by making a series of three statistical errors that inflated by over 100% the estimated true validity of its final battery. As Frank Schmidt (1996b) has shown, the project used the wrong shrinkage formula, applied it to the wrong multiple R. and then grossly over corrected for restriction in range in its most favored regression model. Although the project claims a true validity of .35, Schmidt re-estimates it at closer to .14. At .14, it's not clear that the new test is even as valid as the previous one that Jones had produced in 1987. Once again, however, we can't judge for ourselves because the project's technical report doesn't compare the two tests as required, and Aon (Jones' company) hasn't answered requests for the 1988 technical report.
The project's response to criticism has been as disturbing as its technical report. Its replies to date (see www.ipmaac.org/nassau/) give more ad hominem commentary than straight answers. It refuses to debate its critics unless, like today, it has virtual veto power over format and who speaks. It has offered to provide the missing data but doesn't actually do so, while suggesting that I would have gotten it long ago had I only made ''a simple phone call'' before making my criticism public. It has admitted making the one statistical error it could hardly deny (using the wrong shrinkage formula), considering that one of its members had published articles on avoiding that error. But the project has diverted attention from its other errors by showering us with irrelevancies and shifting, post hoc rationales that collapse upon inspection.
After hearing the talks today, I would add that the project members don't read rebuttals. Neal Schmidt just said that, besides being appropriate, the tenure adjustment made no difference anyway. However, the adjustment does indeed make a difference, as my earlier reply to the project had shown with the very same data that he exhibits today. The two cognitive and eight non-cognitive tests that were tried out for the final battery started out with equal average validities (.08), but when tenure was partialled out of the criterion and then both the ctierion and predictors, the validities for the cognitive tests fell and those for the non-cognitive rose. The tenure adjustments produced validities for the non-cognitive tests that ended up, respectively, 27% (criterion adjustment only) and 35% (both predictors and criterion adjusted) greater than those of the cognitive tests.
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In conclusion, the project's exam, technical report, and responses to criticism all suggest that test development in Nassau County was bent to the Justice Department's political will. Which brings me to what should concern SIOP most—the Justice Department. We should debate how this organization and its members can best protect themselves and their clients from Justice's much-flexed power to intimidate and corrupt. The seriousness of the matter is illustrated by Justice's apparent willingness to sacrifice public safety for racial balance in police hiring.
TABLE 2.—MAJOR TEST DEVELOPMENT AND DOCUMENTATION STANDARDS NOT MET BY TECHNICAL REPORT FOR NASSAU COUNTY EXAM
INFORMATION REQUIRED BY THE FEDERAL GOVERNMENT'S Uniform Guidelines (Equal Employment Opportunity Commission et al., 1978)
15.B.2—Description of existing selection procedures: No comparisons of new procedure with old. Tech report refers readers to 1988 report that is not attached.
15.B.8.—Means and standard deviations: Not reported for 16 tests winnowed out of experimental battery or by race for any test. Not reported for any of the trial batteries tested or used.
15.B.8—Intercorrelations among predictors and with criteria: Not reported for either applicants or incumbents.
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15.B.8—Unadjusted correlation coefficients: Not reported for any of the 25 tests.
15.B.8—Basis for categorization of continuous data: No basis given for 1st percentile reading cutoff.
15.B.10—Weights for different parts of selection procedure: Regression weights not reported.
PROCEDURES/DATA/EXPLANATIONS RECOMMENDED BY PROFESSIONAL TESTING STANDARDS
APA Test Standards (AERA/APA/NCME, 1985)
Primary
1.11—For criterion-related studies, provide basic statistics including measures of central tendency and variability, relationship, and a description of any marked nonnormality of distributions.
1.17—When statistical adjustments made, report both the unadjusted and adjusted results.
6.2—Revalidate test when conditions of test administration changed.
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10.9—Give clear technical basis for any cut score.
Secondary
3.12—Provide evidence from research to justify novel item or test formats.
3.15—Provide evidence on susceptibility of personality measures to faking.
STOP Principles (Society for Industrial and Organizational Psychology. 1987)
Procedures in Criterion–Related Study
4c—Test administration procedures in validation research must be consistent with those utilized in practice (p. 14).
5d—Regression equations should be adjusted using the appropriate shrinkage formula (p. 17).
5e—Criterion-related studies should be evaluated against background of relevant research literature (p. 17).
Research reports
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2—Deficiencies in previous selection procedures (p. 29).
9—Summary statistics including means, standard deviations, intercorrelations of all variables measured, with unadjusted results reported if statistical adjustments made (pp. 2g–30).
Summary
Provide enough detail in technical report to allow others to evaluate and replicate the study (p. 31).
Use of Research Results
12—Take particular care to prevent advantages (such as coaching) that were not present during validation effort. If present, evaluate their effect on validity (p. 34).
THE HOLLOW SHELL OF A TEST: COMMENT ON THE 1995 TECHNICAL REPORT DESCRIBING THE NEW NASSAU COUNTY POLICE ENTRANCE EXAMINATION
(LINDA S. GOTTFREDSON, UNIVERSITY OF DELAWARE)
The Nassau County technical report purports, in effect, to have found the Holy Grail of personnel selection, namely, a job-related test for a mid- to high-level job (in this case, police officer) that has virtually no disparate impact against blacks. A careful reading shows, however, that disparate impact was effectively eliminated from the County's new police examination by systematically stripping it of cognitive demands that are known to be important on the job.
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The test will buy racial balance at the cost of lowering the quality of police officers hired, whatever their race or gender. Blacks, Hispanics, and women who could have passed a more job-related test on the basis of their merit are now more subject to the laws of chance.
RACE-BASED TEST DEVELOPMENT AND RESCORING
The now-illegal practice of race-norming produced racial balance in employment test scores by converting individuals' raw test scores into percentile ranks, separately by race, which in effect gave all black and Hispanic test takers enough bonus points to boost their average scores to that among whites. The Nassau project took a different and more surreptitious route to racial balance. It appears to have substantially eliminated disparate impact in test scores by adjusting test content and scoring procedures to rig the results. Scores on Nassau's new police test battery need not be artificially boosted for blacks and Hispanics, because only tests on which blacks and Hispanics do about equally well as whites are actually counted toward applicants' test scores, regardless of whether those tests measure crucial job skills.
Both race-based testing procedures lower the quality of the persons hired, but the new procedure has a more devastating effect on workforce quality. Race-norming resulted in hiring less capable minority than majority individuals. However, race-based test rigging will often lower the standards for everyone, because it avoids testing for key job competencies that blacks more often lack. Race-norming was a fairly obvious decision to sacrifice merit in the name of racial parity. Race-based test rigging hides that same decision from public view behind an impenetrable wall of very sophisticated and obscure test development expertise and incomplete reporting of results.
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The Nassau report does not describe its strategy so baldly, of course. Indeed, it is long, complicated, exhausting, and confusing reading, even for employment testing experts. Contrary to professional standards and federal Uniform Guidelines requirements, the report does not provide enough data to know or evaluate fully what was done. However, it is precisely what is missing from the report (for example, appropriate data on test scores and validity, comparisons with Nassau's earlier police test) that confirms the suspicion that test development was guided by attention to the race, not the quality, of the applicants who would score well on the test. The concern for disparate impact trumped the concern for validity, which behavior accords with neither good practice nor the law.
THE SHOCKING END PRODUCT
There is much that is good in the report. It is the work of a highly knowledgeable team of nationally recognized experts. A glance at its end product is enough to suggest, however, that theirs was expertise bent to a political purpose, in particular, by the U.S. Justice Department, which contributed major funding to the study and hired its own consultant to oversee the work.
The report begins by providing a compelling portrait of the demands of police work as documented by the study's extensive job analysis. To quote just part of the report's summary description (p.15):
Patrol officers are regularly assigned to deal with a wide variety of complex emergency situations requiring specialized knowledge and training. These may include hazardous material incidents or disasters, child abuse or domestic violence incidents, and hostage or crime-in-progress scenes. In each situation, the assigned of officer must call upon both their (sic) training and their knowledge of laws and procedures to provide timely and effective response to the problems he or she encounters. In some cases, an immediate, decisive action on the part of the officer may be required to protect life or property, or to thwart criminal activity. Good judgment and quick reasoning are clearly critical in police work. Not surprisingly, ''reasoning, judgment, and inferential thinking'' was the single largest of the 18 categories of ''skills, abilities, and personal characteristics'' to emerge from the project's job analysis (p. 33). Expert police officers also judged this category to contain the greatest number of ''critical'' skills (p. 61) and, unlike all but one other skills category, to contain skills critical to all duty areas or ''task clusters'' (pp. 65–68).
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Reasoning, judgment, and inferential thinking represent a very general cognitive ability that turns out to be important in all kinds of mid- to high-level work. This fact is well known in personnel testing. As the report describes (Suppl. App. 4), virtually all large police departments test applicants for ''judgment/decision making skills.'' Not surprisingly, then, all three of the project's centerpiece ''video-based situation'' exercises, one of the two ''paper-and-pencil'' cognitive tests, and two of the 20 ''personality/temperament measures'' in the full experimental test battery were meant to measure reasoning and judgment (pp. 107–110).
Nonetheless, by the end of the project, only one of those measures remained in the test battery—the personality scale ''Openness to Experience.'' Moreover, that scale does not measure the capacity for reasoning and judgment, even according to the project's own definition (''job involvement, commitment, work ethic, and extent to which work is . . . an important part of the individual's life,'' App. S). The winnowed test battery that the project recommended for operational use—its ''refined'' model—consists of eight personality/temperament scales plus truly rock-bottom reading skills (being better than the worst one percent of readers on the police force). What was ascertained to be crucial early in the study—reasoning, judgment, and inferential thinking—had no place in the examination the project finally recommended.
HOW THE PROJECT CREATED AND JUSTIFIED A COGNITIVELY EMPTY TEST
At best, it seems odd for a test development procedure to exclude precisely that which seems most important to include. However, anyone familiar with the employment testing literature knows that the surest and easiest way to avoid disparate impact is to avoid testing for cognitive ability. Witting or not, that is just what the Nassau county study did.
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I highlight below only some of the project decisions that had the effect of stripping cognitive content from the Nassau test battery. Each decision can be questioned on technical grounds. Taken together, they reveal a clear pattern of race-driven choices in test development and scoring.
To preview what is detailed below, the project assembled an experimental battery of 25 measures that had limited promise, at best, for identifying applicants who possess the cognitive skills crucial for police work. Even that limited promise was stripped away as the validity of its already cognitively impoverished cognitive tests was minimized with skewed measures of test validity, allowing the project to eliminate those tests on the basis of their disparate impact. On the other hand, the low-impact non-cognitive tests were retained, despite evidence that their validity in the field might be illusory. In a final crescendo of statistical errors, the validity of the project's now cognitively-denuded test battery was overestimated by 100%, boosting it falsely into a respectable range.
1. Project omitted best cognitive tests. A voluminous literature, which was well known to the project team, shows that traditional cognitive tests are important in predicting performance in many or most jobs. It also shows, however, that such tests have considerable disparate impact. Despite their proven record in measuring key job demands, none was included in the experimental battery. (The one exception, ''Map Reading'' from the 1987 Nassau police test, was included in the experimental battery explicitly so that it could be used as a benchmark for comparing the ''psychometric and validity characteristics'' of the new test with the old [p.91], but—strikingly—no such comparisons were reported.) The report is written as if that literature on cognitive tests simply does not exist. However, the project clearly acted on that unmentioned knowledge, judging from its explicit rejection of traditional cognitive tests due to their disparate impact (''in the interest of minimizing adverse impact,'' p. 86). The project did not use validity as a criterion for including tests in the experimental battery; rather, it used disparate impact as a criterion for excluding them.
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2. Project developed weak substitutes for good cognitive tests. The project opted instead to develop its own ''innovative'' measures of judgment, reasoning, and reading that would have less disparate impact. While not described in this way, all the new measures imited or eliminated the need to reason, read, or write during the exam. Cognitive content was reduced to reduce disparate impact.
Three of the project's four new tests consisted of scenarios or situations acted out on video. They required no reading or writing of applicants during the examination, except to mark an answer sheet in response to video-administered oral questions. One of the three (''Remembering and Using Information'') required applicants to remember written material made available to them for study up to 30 days prior to the exam, material which they then had to apply in answering oral questions about scenes enacted in the video. (The research sample of full-time Nassau County police officers got the materials only one week before taking the exam.)
The fourth new test (''Understanding Written Material'') was intended specifically to measure reading comprehension and was administered in standard ''paper-and-pencil'' form. It required applicants to read short passages during the exam and answer questions about them. However, that material, too, was made available to applicants up to 30 days before the exam and then administered with relaxed time limits (so as ''not to penalize accurate, but slow readers''). ''Slow'' reading (which generally reflects slow comprehension) is widely known to be (negatively) correlated with general cognitive ability (that is, slow readers tend not to be very bright). Moreover, traditional practice is to keep the content of cognitive tests secret and to administer them under identical conditions in order to gauge people's ability levels more accurately. This minimizes the impact of extraneous factors, such as differences in motivation or the amount of help and time available to comprehend the material.
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All four of the project's ''innovative'' tests appear to have been intended to reduce disparate impact by relaxing their cognitive demands. That relaxation succeeded to some extent, because the disparate impact of the two tests for which the project reported disparate impact data was, in fact, only about half that normally expected of cognitive tests (p. 184). But a glass half empty is still a glass half full, and those two tests were in the end eliminated too.
3. Project retained non-cognitive tests despite evidence that they may be less valid for applicants than for the research sample. The other 20 scales in the experimental battery were ''non-cognitive'' measures of personality and temperament. Personality scales are generally thought to be valid for fewer occupations or at a lower level than are cognitive tests, but interest in them has grown as personnel selection has sought alternatives with less disparate impact than is typical of cognitive tests. Such scales typically have little, if any, disparate impact (which turned out to be true in this study too, p. 184). Many personality tests are available on the market. These particular 20 scales are from two proprietary job selection instruments (the LEAP and the WRAP) belonging to several consultants on the project team.
The project selected the personality and temperament measures because they lack the disparate impact of cognitive tests, not because they are equally valid or job-related, which they are not. The report presents considerable evidence that they have a degree of validity, but is silent about the more impressive evidence for cognitive tests. It also fails to mention the special weaknesses of the former, in particular, the possibility that job applicants may be able to ''fake good'' on them (unlike on ability tests, where doing well requires the actual ability to do well).
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The problem is this. The data for calculating validity come from the research sample, in this case, incumbent patrol officers. These data are used to estimate what the validity will be if the test is then used to test and hire from an applicant pool. The research-based estimate will be appropriate only if the research and applicant groups took the same test under the same conditions. That is not always the case. For example, if more applicants than incumbents cheat on a cognitive test or fake good on a non-cognitive test, then the test's operational validity will be lower than estimated in the research sample. It may be zero.
There is evidence of such problems in this study. Although it can happen for reasons related to tenure-linked differences in age, education, or motivation, the report never explains the following odd finding. Applicants (who have a strong incentive to fake) got better scores than did incumbent patrol officers (who were assured that their scores would be confidential and used only for research purposes) on all the personality scales retained in the final battery (but especially on ''Achievement Motivation,'' p. 185). In contrast, the applicants did substantially worse on the paper-and-pencil reading test (p. 185), as is normally found for ability measures, even though they had more incentive and three weeks longer than incumbents to study those test materials. (Applicants scored better on the ''Situational Judgment'' exam, which raises suspicions of widespread cheating on that video-administered ''cognitive'' exam.)
4. Project created opportunity to guide validation decisions by race. The experimental battery, which was administered to 500 incumbent patrol officers (the research sample) and to 25,000 job applicants included 25 tests. Fifteen of the tests were eliminated in the first round of validation research which looked at whether the 25 tests correlated with several dozen highly specific aspects of job performance in the pattern the project hypothesized. The project does not report the validity of any of the individual 25 tests in predicting the composite (summary) performance score, which is the study's crucial criterion measure.
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The remaining 10 measures were examined further in the second round of validation research, which assessed how well each of five different statistical equations or models (containing different subsets of the 10 measures) predict job performance. The five equations contained different subsets of the 10 measures, with four of the five including at least one cognitive test. As already noted, the project chose to recommend a sixth ''refined'' model, which includes eight personality scales plus a bare minimum score in reading. Like the one purely non-cognitive model, the ''refined'' one effectively eliminated disparate impact. It also, the report said, had distinctly higher ''true'' validity than all the others (although we shall see this is impossible).
I describe below some of the questionable procedures used to winnow the experimental battery in such a way as to strip it of any remaining meaningful cognitive content. Before doing so, however, it should be noted that the project provided itself with ample data by which to exclude all test material on which blacks would score less well, but to do so in a manner that would not seem to be guided by race.
Specifically, it administered the experimental battery to the applicant population before the research population on which the validation research was to be conducted. It thus reversed the usual order of administration, and it did so explicitly in order to have disparate impact data available during the validation research. However, disparate impact and test validity can and should always be measured completely independently. It is not unheard of for people to advocate a tradeoff between the two once they are accurately determined (say, by opting for a less valid test to obtain lower disparate impact). However, all would agree that it is entirely inappropriate to engineer or ''cook'' the validity statistics in order to accomplish the same ends more covertly. Because the project obtained information on race differences in performance before it assessed how predictive the tests were, it was able, if it chose, to do precisely that—to shape the results and reporting of the validity data in order to favor the tests with the least disparate impact. The following actions seem incriminating.
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5. Project miscalculated validity to favor non-cognitive tests (and failed to report the required statistics). The validation process began with correlating incumbents' job performance ratings with their scores on the 25 tests in the experimental battery. Such correlations (validities) are the basis for estimating how useful an employment test will be for predicting the job performance of prospective hires. The validities that the project team reported are calculated inappropriately. Moreover, they are miscalculated in a way that surely depressed the apparent validity of the cognitive tests and raised it for the non-cognitive ones. Inadvertently or not, the project thereby stacked the deck against finding the cognitive tests as useful as the non-cognitive ones.
It did so by reporting only ''adjusted'' (what it called ''simple'') correlations, not the usual unadjusted ''zero-order'' correlations which professional standards and the Uniform Guidelines require. The project had observed that performance levels rise with tenure on the job (which is typical), so they argued that tenure should be statistically ''partialled'' out of the performance ratings. This is not unusual. What is unusual was the project's unexplained decision to partial tenure out of both the predictors and the Criterion. It makes sense to assume that experience improves job performance, and therefore to remove the effects of experience on the performance criterion. However, there is ample reason to believe that job experience does not change incumbents' general personality and ability traits, which means there is no justification for ''partialling'' experience out of these incumbents' scores on the test battery as well.
The import of this strange decision to use doubly ''adjusted'' validities becomes clear by noting another troubling oddity in the test results. The project reports but does not explain it. Among incumbents, tenure on the job is positively correlated with scores on the two paper-and-pencil cognitive tests but negatively correlated with scores on virtually all the non-cognitive tests (p. 175). That is, more experienced (and better performing) officers scored better than less experienced ones on the cognitive tests but worse on the non-cognitive ones (which, recall, make up the new Nassau test).
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Partialling job tenure out of test scores on the predictor battery therefore had the consequence of partialling out cognitive ability to some extent. This would level the cognitive scores somewhat, which in turn could be expected to reduce their capacity to predict job performance. Just as the apparent predictive validity of the cognitive measures is depressed by this means, the apparent predictive validity of the non-cognitive ones is boosted. These adjustments to validity therefore amount to ''handicapping'' the cognitive tests in demonstrating predictive validity. The impact of this selective handicapping on validities is unclear, however, because the project violates professional standards and the Uniform Guidelines by never reporting the usual unadjusted ''zero-order'' correlations.
We may suspect, however, that this handicapping helps to account for why the four prediction models (scoring systems) that include both the non-cognitive and (admittedly impoverished) cognitive tests appeared to predict job performance only marginally better than the ones including only non-cognitive measures. (In contrast, the Army, in its big ''Project A'', found just the opposite pattern in predicting proficiency among its police—non-cognitive tests add virtually nothing to the [high] predictive validity of its [better] cognitive tests.) The report therefore concluded that the five models have ''nearly identical validity'' (p. 135), implying that all the project's cognitive tests could be ignored with virtually no effect on the quality of subsequent hires. This opened the way for eliminating them due to their higher disparate Impact.
In short, the inappropriate partialling procedure allowed the project to capitalize on an oddity in the data to suppress the apparent value of its already cognitively-impoverished ''cognitive'' tests. That oddity is troubling in itself, however, and should have acted as a red flag to stop all analyses until it could be explained. As already noted, the higher non-cognitive scores for applicants than for experienced police of ricers raise the possibility that many of the applicants ''faked good'' on those scales. This would mean, in turn, that the test validities calculated on the incumbent sample cannot be applied to the applicant population. In a word, the non-cognitive tests may have no validity in practice.
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The report does not provide the unadjusted correlations for the tests in its experimental battery, and it provides no data at all on the validity of the 1987 battery the new one is meant to replace. It is thus impossible to know what the experimental test battery validities truly are, either in absolute terms or relative to each other. It is thus also impossible to ascertain whether the new Nassau test did in fact ''maintain validity'' (as the Nassau County consent decree requires) while essentially eliminating disparate impact. The earlier test contained a test of reasoning (no doubt accounting for its higher disparate impact), so it is not unreasonable to assume that it also had higher validity as well (because more valid cognitive tests tend to have more disparate impact). But the report does not allow us to know. The report makes quite clear what the pattern of disparate impact is across the different tests; in contrast, it obscures the pattern of validities.
6. Project overstated validity of cognitively denuded test battery (used wrong ''shrinkage'' corrections). In addition to using inappropriate ''simple'' validity coefficients, project also grossly overestimated how valid five combinations of tests (''basic models'') are. As other reviewers have explained (but which I will not repeat here), the project made two mistakes. One was that it used the wrong statistical formula to ''shrink'' the five models' estimates of validity in the research population to compensate for their capitalization on chance factors in the data. The second mistake was in shrinking the wrong validities (for all five models, it used the same higher validity of another model using all 25 tests). Reviewers have estimated that the project's two errors together had the effect of inflating the ''true'' validities of the five equations by 100% (in the end, yielding a false value of .30 rather than a more accurate .15). Thus, even if one insists that the doubly adjusted validities are appropriate, the true validity of the new Nassau battery is much lower than claimed—and probably lower than both the earlier one it replaced in Nassau County and those which the Justice Department has started pressing other jurisdictions to replace.
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7. Project overstated, even further, the validity of its most favored (re)scoring system (made a mistake in correcting for for ''restriction in range''). The project did one final required correction (for ''restriction in range'') on the validities calculated from the research sample so that they would estimate more accurately the validity to be expected in the more heterogeneous applicant group. The project estimated the true validities of all the ''basic'' models (test rescoring systems) to be about .30, regardless of whether its cognitive tests were included with the non-cognitive ones. In contrast, it estimated that the true validity was .35 for the ''refined'' model (non-cognitive plus the first percentile cutoff for reading) it recommended for operational use. This validity is substantially higher than that for any of the three models that use the very same reading scores but which do not collapse them into two, much less informative categories (as did the refined model). It is statistically impossible for the less efficient use of the same reading scores in the same population to result in higher true validities. The project team apparently did not question its good fortune in finding this startling superiority for its favored model.
Some reviewers have suggested that the project must have made a computational error. Another possibility is that it used the wrong procedures in correcting for restriction in range. Once again, however, the report does not provide enough information to know what procedures the project used.
QUEASINESS AT ITS OWN RHETORIC
Others have rightly pointed out that there is no justification for the project having treating reading scores in a pass-fail manner, let alone setting the pass level so low. I would point instead to the project's motivation in even introducing this standard, as weak as it is. It hints that the project was well aware of the importance of cognitive ability and the consequences of omitting it altogether. The report spends hundreds of pages of text, tables, and appendices building up to its conclusion that no cognitive test, not even its own ''innovative'' ones, need be included in the new Nassau test battery. But then, as if not convinced by its own rhetoric, the report suddenly and virtually without explanation adds back the faint shadow of one (reading above the first percentile). This is the ''refined model'' whose obviously inflated validity has just been discussed. The report states simply in its closing text that implementation of the strictly non-cognitive test battery, although having ''nearly identical validity'' as the other options, ''could potentially admit applicants to Police Academy training who would fail in the training program'' (p. 139). Adding the minimum reading level, it assures us, ''would effectively limit selection of [such] individuals'' (p. 140). The report says nothing about whether the test would effectively select highly capable officers with a capacity for ''deal[ing] with a wide variety of complex emergency situations requiring specialized knowledge and training,'' often (as the job description continues) ''to protect life or property, or to thwart criminal activity.''
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NEED FOR CONGRESSIONAL INVESTIGATION
The Nassau County report appears to be technical camouflage, purchased at great expense by the U.S. Department of Justice, in order that its Division of Civil Rights might coerce police jurisdictions into what amounts to quota hiring. The issue of how to contend with disparate impact in selection is a vexing matter of social policy that should be debated publicly. It not a decision to be made behind the scenes by unelected government bureaucrats and enforced via intimidation, federal cash, and the misleading of District Court judges, as seems to be the case here. And it certainly should not be decided in such a way that threatens the public safety, as lowered police hiring standards are bound to do. A Congressional investigation could get at the truth of this important matter.
A Congressional inquiry might also consider whether race-based construction and scoring of employment tests is, or ought to be, illegal. Does excluding job-related tests on which whites score better, precisely because they do so, constitute intentional discrimination? Is it, or should it be, illegal to rescore an examination, after the fact, in order to reduce the percentage of high scorers among whites relative to blacks, either when that causes test validity (properly estimated) to drop or when evidence concerning validity remains unreported? Legal or not, should the Justice Department be underwriting and promulgating any particular employment test—especially one whose construction and scoring was (mis)shaped by racial considerations? Also, it ought to be determined how this kind of standards lowering comports with the standards raising goals of the C.O.P.S. and Police Corps programs and with the President's and Attorney General's pronouncements on the subject.
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SOME COMMENTS ON THE NASSAU COUNTY VALIDITY STUDY
(FRANK SCHMIDT, R.L. SHEETS PROFESSOR OF HUMAN RESOURCES, UNIVERSITY OF IOWA)
Although it is apparent that a great deal of work went into this research, there are technical and conceptual problems in the study. The biggest and most glaring conceptual problem is the complete failure to draw on the cumulative scientific literature in any way. This report assumes that the only scientific evidence relevant to the hiring of police officers is that produced by this study. It does not even mention the meta-analytic literature on validity, nor does it mention the findings of other large scale studies of police selection. To understand the implications of this, consider a medical doctor considering prescribing a certain antibiotic for patients of his/hers who have a certain illness. Suppose the doctor ignored all the previous research studies evaluating the effectiveness of this antibiotic and instead decided to conduct his own study of how well it worked among his own patients. This would rightly appear irrational to most people (and all doctors), but this is exactly what was done in this study.
Another problem in this study is its treatment of the various cognitive measures. We see in Exhibits 25 and 26 that the job analysis finds a strong link between the cognitive measures Reasoning/Judgment and Reading Comprehension and the performance of many important police tasks. In Exhibit 61, we see that both the Situational Judgment test (the measure of reasoning and judgment) and the Reading Comprehension test are found in this study to be empirically valid for predicting important police performances. These findings are consistent with previous research in the literature—ignored by the report, as noted above—showing the importance of cognitive abilities to job performance. Despite all these facts, the final selection battery recommended by the report contains no cognitive components—except for the requirement that the applicant be above the 1st percentile of incumbents in reading comprehension. It is hard to see how this recommendation can be justified except on the basis of an overriding emphasis on reduction of group mean differences on the battery. Based on past research and experience it can be predicted that use of this battery for hiring will lead to severe performance problems in the police academy, higher flunk out rates, and lower levels of job performance for those who do get through the academy. Some of these job performance problems could well endanger public safety.
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There are other such problems, and I trust that others with more time than I presently have will point them out. In the remainder of this comment, I want to focus on a technical (statistical) problem in the data analysis that results in a substantial overestimate of the validity of all the test batteries examined in the report. These overestimates result from erroneous corrections for the inflationary effects of capitalization on chance on the estimates of validity.
The report correctly recognizes (see p. 137) that if one examines the validities of a number of tests in one's sample and selects some of these tests for one's final battery based on these validities, all estimates of the validity of that battery derived from that same sample of people will be inflated. The usual solution for this problem is to have an independent cross validation group (not used in selecting the battery) and to estimate the battery validity on this group. This was not done on this study.
It is sometimes stated that an alternative is to use a statistical formula (shrinkage formula) to adjust for this inflation of validity. However, these formulas were not derived for cases in which one selects only some of the initial predictors for retention; they were derived for the case in which all the original predictors are retained. (In such a case, all the capitalization on chance is due to the fitting of the regression weights). However, these formulas can be used to provide an (lower bound) estimate of the validity of a battery selected expost facto if three conditions are met:
1. The value for the number of predictors entered into the equation is the original number, not the smaller number of predictors retained. This study meets that condition.
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2. The multiple correlation entered into the equation is that for the smaller battery of retained tests. This was not done here. We see on p. 137 that the multiple R of .30 used was that for the full battery of 25 tests. This means that the corrected estimates apply not to the battery actually used, but to the optimally weighted combination of all 25 tests—a battery not actually used or recommended for use.
3. Finally, the correct formula must be used. This study used the Wherry formula, which is not the correct one. The Wherry formula estimates how well the battery would work with the unknown population regression weights, not with our estimates of those weights. The correct formula, by contrast, estimates how well the tests will do given that we have to use our (imperfect) estimates of the optimal weights. These matters are discussed and the correct formulas are given in Cattin (1980) and in Schneider and Schmitt (1986).
The key estimates of battery validity are given in Exhibit 67 on p. 186. All batteries have nearly equal observed (uncorrected) validities, and Exhibit 67 gives .20 as the value of the validity for all these batteries after correction for capitalization on chance. However, as noted above the wrong multiple R was used: instead of .30, it should be .228 (the average of the observed battery validities). In addition, the correct formula (Cattin's equation 8) should be used. Making these two changes yields a value of .05 instead of the .20 reported. Corrected for criterion reliability and range restriction, this becomes .08. The validity values reported in Exhibit 67 are .29 and .30—which are over 3.5 times larger than the .08 value. However, the .08 estimate is a lower bound (conservative) estimate. When there has been ex post facto selection of predictors, there is no way to use shrinkage formulas to get a completely unbiased estimate of battery validity. However, in addition to the lower bound (conservative) estimate, we can obtain an upper bound estimate. This is obtained by entering for the multiple R value the value of .30 obtained for the complete battery of 25 predictors. In addition, we must use the correct formula rather than the Wherry formulas used in this study. These calculations yield a shrunken validity value of .14. Corrected for criterion unreliability and range restriction, this value is .20. The values of about .30 reported in Exhibit 67 are 50% larger than this upper bound value. So it is considerably inflated.
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Probably the best estimate of true or operational validity here would be the average of the upper and lower bound estimates. This average is .14, which is less than half the erroneous validity values reported in Exhibit 67. Hence, because of statistical error in the report, the reports overstates validity by over 100%.
Although an operational validity of .14 is not useless, and can have value in comparison with random selection, it would generally be considered a small validity. A validity this small would often, perhaps typically, lead to an attempt to develop a more valid procedure.
Finally, there is one battery in Exhibit 67 for which the claimed validity is even higher than the .30 reported for the otherbatteries. A true validity estimate of .35 is reported for the ''Non-cognitive plus Minimum Reading Standard at First Percentile'' battery, the battery the report ultimately recommends for operational use. However, even ignoring the errors in validity estimation discussed above, this value of .35 almost certainly reflects a computational error. Looking at the previous column in the Exhibit, we see that the validity of this battery adjusted for criterion unreliability is .25, the same value as reported for all the other batteries. The jump from .25 to .35 results solely from the correction for range restriction. The only difference between this battery and the ''Non-Cognitive'' battery is the addition of the requirement of being at or above the 1st percentile in reading comprehension. It is highly unlikely that this simple addition could cause a 100% increase in the correction for range restriction (from about .05 to .10). Although insufficient information is presented in the report to confirm this by checking the calculations, it is highly likely that there is a computational error here.
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However, even if we were to accept as correct a range restriction correction of this magnitude, the estimated validity of this test battery would still not be high. These estimates are as follows: Lower Bound = .09. Upper Bound = .24. Best Estimate = .17.
Again, the best estimate is an average of the upper and lower bound estimates.
So once again, it is apparent that none of these test batteries has high validity. A validity of .17 is almost certainly an overestimate. A more accurate estimate is .14. Although a validity of .17 is not useless, and in fact could have substantial practical value if the alternative were a method with zero validity, this level of validity is not impressive.
In summary, a major problem with this report stems from technical errors that result in inflated final estimates of operational validity for all the test batteries considered in the study. Actual operational validities are overstated by 100% or more.
Cattin, P. (1980). Estimating the predictive power of a regression model. Journal of Applied Psychology, 65, 407–414.
Schneider, B. & Schmitt, N. (1986). Staffing the Organization.
RACIALLY GERRYMANDERING THE CONTENT OF POLICE TESTS TO SATISFY U.S. JUSTICE DEPARTMENT: A CASE STUDY
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(LINDA S. GOTTFREDSON, DEPARTMENT OF EDUCATIONAL STUDIES, UNIVERSITY OF DELAWARE)
ABSTRACT
Employment discrimination law and its aggressive enforcement by the U.S. Department of Justice are based on the false assumption that, but for discrimination, all racial-ethnic groups would pass job-related, unbiased employment tests in equal proportion. Unreasonable law and enforcement create pressure for personnel psychologists to violate professional principles and lower the merit relatedness of tests in the service of race-based goals. This article illustrates such a case by describing how the content of a police entrance examination in Nassau County, NY, was stripped of crucial cognitive demands in order to change the racial composition of the applicants who appeared to be most qualified. In the process, the test was rendered nearly worthless for actually making such determinations. The article concludes by examining the implications of the case for policing in Nassau County, Congressional oversight of Justice Department activities, and psychology's role in helping its members to avoid such coercion.
The influence of politics and government on science has long been a concern in both science and society. I focus here on one aspect of that influence as it relates to psychology. What are the responsibilities of psychologists when federal law or its enforcement agencies press them to implement scientific theories that have been proven false or to violate their professional standards for political ends? Who bears responsibility if harm results from their acceding to such government pressure, especially without the client's knowledge? And how can psychology protect its members against such coercion in the first place?
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I do not have the answers to these questions. However, the following case study illustrates that the failure to address them harms both psychology and the society that law is meant to protect. I begin with an abbreviated account of events surrounding the development of a police entrance examination in Nassau County, NY, and then describe (1) the false assumption that the U. S. Department of Justice expects psychologists in such settings to implement and the professional dilemma it creates, (2) the various means by which personnel psychologists effect compliance with the false assumption, and (3) how compliance was achieved with the new Nassau County test. I conclude by looking at the implications of the new exam for the quality of policing in Nassau County; the questions Congress might ask about the Department of Justice's distorted enforcement of already unreasonable law and regulation; and the ethical guidelines psychology might provide its practitioners when enforcement agencies pursue objectives that are inconsistent with their profession's established standards and even support their violation.
It should be noted in fairness that the general path of compliance that I describe has been well-trodden in personnel selection during the last two decades. The Nassau County case stands out primarily for the skill and knowledge of the individuals involved, their unprecedented partnership with the Justice Department, and the national ramifications of that relationship.
A SHORT HISTORY
The Promise
During three days in 1994, over 25,000 people took Nassau County's new police entrance examination: Nassau County [NY] Police Officer Examination No. 4200. In late 1996, the county selected its first training class of under one hundred recruits. During the next few years, the county expects to screen the top 20% of scorers on the test and actually hire no more than about 3% of the applicants.
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In July 1995 an illustrious team of industrial psychologists released a technical report detailing their ''innovative'' procedures in developing the exam, which they said would ''improve on 'typical selection practices' '' (HRStrategies, 1995, p. 12). It thus appeared that the Nassau County Police Department was in an enviable position as an employer. With both a large pool of applicants and what was promised to be an effective tool for identifying the very best among them, the department could improve its already highly professional corps of police officers.
The Nassau County Police Department had been sued by the U.S. Department of Justice in 1977 for employment discrimination, and its subsequent recruiting and hiring was governed by a long series of consent decrees. The 1994 exam had been developed pursuant to a 1990 consent decree. That decree specified that Nassau County and the Justice Department agreed to jointly ''develop a new exam that either does not have adverse impact upon blacks, Hispanics and females, or has been validated [shown to be job-related]'' (U.S. v. Nassau, 1995a, p. 2). The new test's 1983 and 1987 predecessors, also developed under consent decrees, had both been litigated because they had substantial disparate impact. In contrast, the 1994 exam had no disparate impact on Hispanics and women and relatively little on blacks. It therefore seemed to promise that the county could finally end two decades of litigation.
The special counsels for both the county and the Justice Department lauded the test in seeking approval for its use from the U.S. District Court. William H. Pauley III, the county's special counsel to the police department over the many years of Justice Department litigation, stated that:
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The 1994 Examination is now recognized by DOJ [Department of Justice] and industrial psychologists as the finest selection instrument for police officers in the United States (Hayden v. Nassau, 1996a, pp. 15–16).
John M. Gadzichowski, Justice's representative in the 1977 suit and subsequent consent decrees, testified that ''it's beyond question that the examination . . . is valid'' and that ''it's the closest ['to a perfect exam, vis-a-vis the adverse impact'] that I've seen in my years of practice'' (U.S. v. Nassau, 1995b, pp. 22–24, 26).
Soon after the new exam received the District Court's approval in Fall 1995, the Justice Department began encouraging other police departments around the nation to consider adopting some version of the Nassau test. Aon Consulting, the consulting firm which had developed the test (at that time named HRStrategies), simultaneously issued a widely-circulated invitation in Spring 1996 (Aon Consulting, undated) urging other police departments to join a test validation consortium. It stated that the project's objective ''is to produce yet additional refinements to the Nassau County-specific test, and to reduce even further the level of adverse impact among minority candidates'' (p. 6). The announcement concluded by stressing the legal advantages of joining the consortium: ''Ongoing review of the project by Department of Justice experts will provide a device that satisfies federal law'' (p. 7).
Justice's role in this venture clearly suggests that there is legal risk for other police departments if they choose not to try out a Nassau-like test. Under civil rights law and regulation, when two selection devices serve an employer's needs equally well, the employer must use the one that screens out fewer protected minorities. The Justice Department now seems to consider the Nassau exam to be a model for valid, minimally-impactful alternatives for police selection. If so, police departments that fail to switch to Nassau-like tests risk being litigated as discriminatory.
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Indeed, just months after the court approved the Nassau County test, the NAACP threatened to sue the New Jersey State Police for discrimination, but suggested that litigation might be prevented if the State Police considered switching to the Nassau County test (letter from Joshua Rose, of the law firm representing the NAACP, to Katrina Wright, NJ Deputy Attorney General, February, 1996, p. 2). Although the test the New Jersey State Police currently uses had itself been developed and adopted several years earlier at the urging of the Justice Department, then represented by David Rose (father and now law partner of Joshua Rose), it screened out more minority applicants than did the Nassau test. The NJ State Police refused to change its test and was sued on June 24, 1996 (NAACP v. State of New Jersey, 1996).
The jointly developed Nassau County test was an instance where psychologists worked closely with Justice Department representatives to develop an entrance exam that would be as valid as but have less disparate impact than previous tests in Nassau County. As Justice Department special counsel Gadzichowski explained to the court:
[M]y department made a decision to break ground. . . . We thought that rather than coming in and challenging an exam every two and three years, so to speak, knocking it out, then coming back three years hence to look at another exam, we would participate in a joint test development project (U.S. v. Nassau, 1995b, p. 20).
The Reality
However, the Nassau County test was not what the county or the court were told.
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The first sign of discontent was local. It came immediately after the July 30 and 31, 1994, administrations of the new exam. There were complaints in local newspapers of inadequate proctoring and rampant cheating during the exam (e.g., Nelson & Shin, 1994), and later it would be reported that more than 40 applicants had been disqualified for cheating (Topping, 1995). The project's ''creative [video] examination format'' had required that the test be given in Madison Square Garden and the Nassau Goliseum, which posed far greater security problems than the small rooms in which such tests are usually administered.
The next sign of discontent emerged a year later when applicants received their test scores. Eighty-five white and Hispanic test takers, half the sons and daughters of police officers, filed a lawsuit alleging reverse discrimination in the test's development and scoring (Hayden v. Nassau, 1996b). Their suit had been stimulated by what seemed to them to be obvious peculiarities in who received high versus low scores. All the plaintiffs had done very poorly or failed the test despite usually doing well on such tests, yet many others who scored well had a history of poor performance.
The plaintiffs' suspicions about the test had been buttressed by reports leaking out of the police department's background investigation unit. Those reports, from officers afraid to go public, claimed that while some of the top scorers called in for further processing seemed quite good, a surprising number of others were semi-literate, had outstanding arrest warrants, declined further processing when asked to take the drug test, or could not account for years of their adult life. Those who had drug problems, previous convictions, or questionable results on the newly-instituted polygraph test would most likely be weeded out. However, the unprecedented poor quality of the candidates who scored well on the new test strongly suggested that something was amiss with the test.
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The Justice Department routinely denies that it promotes any particular test or test developer, but it has a history of doing just that (e.g., see O'Connell & O'Connell, 1988, on how the Department of Justice pressured the City of Las Vegas to use the firm of Richardson, Bellows, and Henry [RBH]). As reported by RBH President Frank Erwin, Justice also has a history of trying to coerce its favored developers into, among other things, giving less weight to the cognitive portions of their exams than warranted (personal communication on how RBH's unwillingness to accommodate inappropriate Justice Department requests ended that relation). With Justice's promoting the Nassau exam, members of the professional test development community became increasingly concerned about its interference in test development. To confirm their concerns, some of them called upon selected academics in June 1996 to evaluate the long technical report describing Nassau County's new test.
I was one of the academics called. We all read the report independently of one another, without prior knowledge of who the project consultants were, without prior information about the report's contents or origins, and without compensation offered, expected, or received. (I have never had any financial interest in any testing enterprise.) After reading the report, I obtained court records and interviewed a variety of people in Nassau County and test developers nationwide. In the following months three researchers wrote critiques of the new test (Gottfredson, 1996a, b, c; Russell', 1996; Schmidt, 1996a, b).
Those evaluations were all highly critical of the report and the test it described. The unanimous opinion was that the concern for hiring more protected minorities had overridden any concern with measuring essential skills. As explained below, the new test may be at best only marginally better than tossing a coin to select police officers—which would explain the mix of both good and bad candidates among the top scorers.
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The most distinctive thing about the test is what it omitted—virtually any measurement of cognitive (mental) skills. Although the project's careful job analysis had shown that ''reasoning, judgment, and inferential thinking'' were the most critical skills for good police work, the final ''implementation'' version of the exam (the one used to rank applicants) retained only personality (''non-cognitive'') scales such as ''Achievement Motivation,'' ''Openness to Experience,'' and ''Emotional Stability.'' The reading component of the ''experimental'' test battery (the version actually administered to applicants the year before) was regraded pass-fail; to pass that test, applicants only had to read as well as the worst one percent of readers in the research sample of incumbent police officers. Nor did failing the reading component disqualify an applicant, because the final exam score was determined by combining the scores from all nine tests. Not mincing words, Frank Schmidt (1996a, b) predicted that the test would be ''a disaster'' for any police force that used it.
The three commentators' suspicion that the test had been shaped more by Justice's expectations than professional considerations was confirmed by one of Aon's own vice presidents (quoted in Zelnick, 1996, pp. 110–111):
Through 18 years and four presidents the message from the Justice Department was clearly that there was no way in Hell they would ever sign onto an exam that had an adverse impact on blacks and Hispanics. What we finally came up with was more than satisfactory if you assume a cop will never have to write a coherent sentence or interpret what someone else has written. But I don't think anyone who lives in Washington [DC] could ever make that assumption (pp. 110–111).
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In referring to the aftermath of Washington DC's many years of lax hiring, Aon's representative was echoing Schmidt's prediction of disaster for Nassau County. Among other problems, Washington DC had developed a ''notorious record for seeing felony charges dismissed because of police incompetence in filling out arrest reports and related records'' (Zelnick, 1996, p. 111).
THE TESTING DILEMMA
The Justice Department's expectation, like employment discrimination law and regulation in general, is rooted in a false assumption: but for discrimination, all race and gender groups would score equally well on job-related, unbiased employment tests.
This presumption undergirds perhaps the most important element of employment discrimination law and regulation—disparate impact theory (Sharf, 1988). Disparate impact theory holds that an employer's failure to hire approximately equal proportions of all races and genders constitutes prima facie evidence of unlawful employment discrimination. The employer then bears the burden of demonstrating that the selection procedure in question is ''job related'' (merit related) or justified by ''business necessity.'' If the employer succeeds, burden then shifts to the plaintiffs, who prevail against the employer if they show that there is an alternative selection device that would meet the employer's needs equally well but have less disparate impact.
Disparate impact theory was introduced by two federal regulatory agencies in the late 1960s (see Sharf, 1988, for a history), incorporated into case law by the Supreme Court's 1971 decision in Griggs v. Duke Power, and made part of statutory law by the Civil Rights Act of 1991. The ways in which regulatory agencies interpret disparate impact law and the Justice Department enforces it are crucial, because these agencies can effectively ban all merit-related (valid) tests with disparate impact by making it difficult and costly to demonstrate job relatedness to those agencies' satisfaction. This has, in fact, been the game: drive employers away from valid tests with disparate impact by making it too costly to defend them. A key tool in this game has been the federal government's onerous and scientifically-outmoded set of rules for showing the job relatedness of tests, the Uniform Guidelines for Employee Selection Procedures (Equal Opportunity Employment Commission et al., 1978).
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Since the late 1960s, personnel psychologists have tried to help employers meet the dictates of disparate impact theory and its often unreasonable enforcement. They have become more successful in helping larger (wealthier) organizations to defend merit-related selection procedures in litigation, but their greatest efforts have gone into seeking good procedures that will not trigger litigation in the first place—that is, highly valid tests with little or no disparate impact. These efforts at finding highly merit-related tests with little impact have not been as fruitful as the psychologists had expected and hoped.
Research in the last two decades helps to explain why. The research has provided a fairly clear picture of what kinds of worker traits and aptitudes predict different aspects of job performance and how those traits differ across demographic subgroups (e.g., see the review by Russell, Reynolds, & Campbell, 1994). It has thus been able to explain why some selection devices have more validity or disparate impact than others, and begun to chart how much of both different selection batteries produce.
The major legal dilemma in selection is that the best overall predictors of job performance, namely, cognitive tests, have the most disparate impact on racial-ethnic minorities. Their considerable disparate impact is not due to any imperfections in the tests. Rather, it is due to the tests' measuring essential skills and abilities that happen not to be distributed equally among groups (Schmidt, 1988). Those differences currently are large enough to cause a major problem. U.S. Department of Education literacy surveys show, for example, that black college graduates, on the average, exhibit the cognitive skill levels of white high school graduates without any college (Kirsch, Jungeblut, & Kolstad, 1993, p. 127).
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This dilemma means that the disparate impact of cognitive tests can be reduced only by reducing their ability to predict job performance. In fact, this problem is so well known among personnel selection professionals that there is considerable research estimating how much productivity is lost by reducing the impact of cognitive tests by different degrees (e.g., Hartigan & Wigdor, 1989; Hunter, Schmidt, & Rauschenberger, 1984; Wigdor & Hartigan, 1988; see also Brody, this issue, for a more general discussion of the same dilemma). There are two general methods of reducing the impact of cognitive tests: lower the hiring standards only for the lower-scoring groups, or lower standards for all races and ethnicities. Double standards lower productivity less than low common standards because they maintain standards for the majority of workers. Their drawbacks are that they are obviously race-conscious and that they create disparate impact in future promotions. In contrast, low common standards have the virtue of being race-neutral, but they devastate workforce performance across the board.
Unfortunately, current racial disparities in skills and abilities are such that disparate impact can routinely be expected, at least for blacks, under race-neutral hiring in most jobs. Moreover, the disparate impact to be expected (and the levels actually found) worsens with the complexity level of the occupation in question (Gottfredson, 1986).
Litigation is very costly, so many employers, particularly in the public sector, prefer to settle out of court or sign consent decrees rather than fight an adverse impact lawsuit. Moreover, as has been observed in many police and fire departments over the last two decades, employers who resist are often litigated by the Justice Department or civil rights groups until they eliminate the disparate impact by whatever means.
Ways of Limiting the Disparate Impact of Cognitive Tests
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Showing the merit relatedness of tests with disparate impact, as the law requires, is a straightforward technical matter if the employer's purse is ample enough. Complying with unreasonable enforcement policy is not so simple, however. The Justice Department has been averse to accepting job relatedness data for tests with substantial disparate impact. In technical terms, Justice is effectively requiring employers and their selection psychologists to artificially limit or reduce the validity of many of their selection devices. Whether explicit or covert, witting or not, some psychologists have developed a variety of strategies for doing so.
There are times, of course, when considerations of cost or feasibility prevent employers from using what they know would be better systems for identifying the most capable job candidates. However, job relatedness is often intentionally reduced or limited solely in order to reduce disparate impact. There are three general ways of doing so with cognitive tests. The first and third decrease job relatedness, while the second increases it.
1. Use Double Standards
Race-norming, or ''within-group scoring,'' is the most technically sophisticated method for instituting double standards. It adjusts test scores by race (ranking individuals within only their own race) to eliminate any average differences in test scores between the races despite differences in skills. Race-norming was attractive to many employers because it lowers validity less (and thus harms productivity less) than do low standards for all. The Civil Rights Act of 1991 banned the practice because it was overtly race-conscious (Gottfredson, 1994; Sackett & Wilks, 1994).
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2. Enhance Standards
The second method is to combine a good cognitive test with less cognitive ones that measure job-relevant qualities that cognitive tests do not, for example, ''non-cognitive'' tests (of personality, interests, etc.) or biographical data blanks (which often contain both cognitive and non-cognitive elements). Such supplementation is recognized as the best way to reduce impact because it often raises validity at the same time (Pulakos & Schmitt, 1996). While cognitive tests best predict the ''can do'' component of job performance (what workers are able to do with sufficient effort), non-cognitive tests best predict the ''will do'' component of performance (what they are motivated to do).
The increase in validity gained by using both in combination may or may not be large, depending on how job related and independent of each other the particular cognitive and non-cognitive tests are. Disparate impact falls overall when cognitive tests are supplemented with less-cognitive ones because all races score about equally well on non-cognitive items, thus moderating their differences on cognitive tests. However, disparate impact generally does not fall enough to immunize the employer against a legal challenge.
3. Degrade Standards
The third way of lowering the disparate impact of cognitive tests is to reduce their job relatedness. Tests are not simply either valid or not valid. They vary in the degree to which they predict performance in different occupations. The same principle applies to job performance. Job performance is not just acceptable or not acceptable, but ranges on a continuum from abysmal to extraordinary. Successively more valid selection procedures result in successively better performing workforces. Lowering the validity of a hiring procedure thus lowers hiring standards. More valid tests are also fairer to candidates of all races because they more accurately pick the best performers, the most qualified individuals regardless of race.
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There are at least three ways of degrading cognitive standards.
(a) Avoid good cognitive tests altogether. This was a common reaction after the Griggs decision. The test might be replaced by another kind of selection device (say, biographical data inventories). Validity is usually sacrificed in the process, and the drop in workforce performance can be quite marked (Schmidt, Hunter, Outerbridge, & Trattner, 1986).
(b) Use a good cognitive test but in an inefficient way. There are many variants of this strategy. One is to set a low cutoff or pass-fail score, above which all scores are considered equal. This throws away most of the useful information obtained by the test and hence destroys most of its validity. The lower the cutoff, the less useful the test is for identifying the most capable job applicants. Test-score banding (Cascio, Outtz, Zedeck, & Goldstein, 1991) is a variant of this. It groups scores into three or more ''bands'' within which all scores are to be treated as equivalent. Disparate impact can be eliminated or reversed (disfavor the higher scoring group) if the bands are large enough and selection from within bands is race-conscious. The loss in validity will depend on the width of the bands and the manner in which individuals are selected from within them.
Another variant is to give a good cognitive test little weight when adding together scores in a battery of tests. Some validity will be preserved even with the inefficient use of a good cognitive test, but what remains is mostly the illusion of having measured cognitive skills.
(c) Substitute a poorer test of cognitive skills. Some personnel psychologists have argued that the paper-and-pencil format and abstract nature of traditional cognitive tests impose irrelevant demands on test takers that disadvantage minority test takers. They have therefore sought to develop more concrete tests of mental ability that also mimic what is actually done on the job. These are called ''high-fidelity'' tests. Hence the popularity at various times of replacing traditional cognitive tests with video-administered exams and job-sample tests. The assumption is that test format and abstractness constitute irrelevant test content, and that changing them will reduce disparate impact by removing that irrelevant test content.
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This assumption is wrong, however. First, paper-and-pencil format cannot be blamed for disparate impact. The cognitive tests with the greatest disparate impact—intelligence tests—vary greatly in format. Paper-and-pencil tests are only one; orally administered ones requiring neither reading nor writing are another. Moreover, some tests with little disparate impact, including the typical personality test, use the paper-and-pencil format.
Second, abstractness is a highly relevant, not irrelevant, aspect of cognitive tasks. It is the amount and complexity of information that tests require people to process mentally, not whether that information comes in written, spoken, or pictorial form, that creates their cognitive demands—and their disparate impact. Mental tasks increase in difficulty and complexity when there are more pieces of information to integrate, they are embedded in distracting information, and the information is more abstract. This is as true of everyday tasks such as filling out forms and understanding directions as it is of more academic or esoteric ones (e.g., see Gottfredson, 1997, on the Educational Testing Service's analysis of items on the National Adult Literacy Survey).
Thus, the more concrete or ''contextualized,'' well defined, and delimited the tasks on a test, the less complex—and easier—the tests will be. To the extent that high ''fidelity'' and other ''innovative'' tests do this, they constitute veiled ways of removing relevant demands from cognitive tests. Task difficulty can be leveled and job relatedness lowered in yet other ways, for example, by allowing test-takers to take test content home to study (with the help of friends and family) before the exam. The tests may superficially look like good cognitive tests, but they are poor substitutes.
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It is no surprise, then, that high fidelity is not necessary for job relatedness (Motowidlo, Dunnette, & Carter, 1990) and that ''non-traditional'' or ''alternate'' tests of cognitive ability can reduce validity at the same time they reduce impact (e.g., Pulakos & Schmitt, 1996).
Cognitive tests or their effective use can thus be degraded in various ways and thereby reduce disparate impact. There are many technical decisions in developing selection examinations, each of which can affect the validity of a test to some extent. When those decisions consistently degrade validity for the purpose of reducing disparate impact, the cumulative pattern might be called the racial gerrymandering of test content.
LIMITING TEST VALIDITY IN NASSAU COUNTY
The first and most obvious sign that the Nassau test had been racially gerrymandered was that it excluded precisely what both the literature and its own job analysis indicated it must include—good measurement of cognitive skills. At the same time, the project's technical report, curiously, excluded the information necessary to confirm the quality of the test. However, a close reading of the project's account of its technical decisions illuminates how the project had been pressed toward a political purpose.
A Cognitively–Empty Test for a Complex Job
The report begins by noting why it is especially important to have a good system for selecting police officers: it ''is critical to the safety of the public and reduction of turnover important to proper management of public funds'' (HRStrategies, 1995, p. 6). The report's summary of the job, based on the project's extensive job analysis, also makes clear why police work is complex (pp. 14–15):
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[P]atrol officers have primary responsibility for detecting and preventing criminal activity . . . and for enforcement of vehicle and traffic laws . . . Patrol officers also are charged with responsibility for rendering medical assistance to ill or injured citizens . . . [including] severely injured, mentally ill, intoxicated, violent or suicidal individuals. . . . [They] must pursue ['and take into custody'] individuals suspected of criminal activity. . . .[and] have knowledge of the laws and regulations governing powers of arrest and the use of force so as to avoid endangering the public, or infringing upon individuals' rights. . . . Patrol officers . . . [must] carry out a variety of responsibilities to manage the [crime] scene . . . includ[ing] the identification and protection of physical evidence, identification and initial questioning of witnesses or victims. . . .[and] often communicate information they obtain . . . to detectives . . . and others. [They] are regularly assigned to deal with a wide variety of complex emergency situations requiring specialized knowledge and training. . . . In some cases, an immediate, decisive action . . . may be required to protect life or property, or to thwart criminal activity. Patrol officers . . . document extensively their observations and actions . . . and provide statements and court testimony in criminal matters.
Expert police officers from Nassau County then identified 156 ''skills, aptitudes, and personal characteristics'' that are required for performing well the most important duties in police work. The project ascertained that 106 of them were ''critical,'' 59 of which were ''strongly linked'' to specific sets of job tasks. Those skills fall into the 18 clusters listed in Table 1. The first nine clusters are clearly cognitive in nature, the second nine less so.
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[Table 1 appears on p.—.]
The job analysis showed that a variety of skills is critical in police work. As might be expected, however, the category of ''Reasoning, Judgment, and Inferential Thinking'' turned out to be especially important. Of the 18 categories, it contained the greatest number of both ''critical'' skills (17, p. 61) and ''strongly linked'' ones (13, see Table 1). In addition, unlike all but one other skills category, this one contained skills critical to all duty areas or ''task clusters'' (pp. 65–68). As the report describes (Suppl. App. 4), virtually all large police departments test applicants for ''judgment/decision making skills.''
The project put together a 25-test experimental battery in order to measure the 18 types of skill (see Table 1). Not surprisingly, all three of the project's centerpiece ''video-based situation'' tests, one of its two ''paper-and-pencil'' cognitive tests, and two of the 20 ''personality/temperament measures'' in the experimental battery were intended to measure reasoning and judgment.
Nonetheless, as shown by the underscored entries in Table 1, only one of those six tests remained in the final implementation battery—the personality scale ''Openness to Experience.'' Moreover, that scale does not measure the capacity for reasoning and judgment in any way, even according to the project's own definition of the trait (''job involvement, commitment, work ethic, and extent to which work is . . . an important part of the individual's life. . . [It] includes willingness to work . . . and learn,'' App. S). In short, the project did not measure cognitive ability at all, unless one counts being able to read at the level of the bottom 1% of police officers in the research sample as an adequate cognitive test. In April 1996 David Jones, president of the consulting firm (HRStrategies) that headed development of the test, concluded a workshop for personnel psychologists (Aon Consulting, 1996) by stressing that:
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The touchstone [of validity] is always back to the job analysis [showing the skills required]. What's in the battery ought to make sense in terms of job coverage, not just the statistics [correlations with on-the-job performance] that come out of the . . . study . . .
By his own standard, the Nassau test does not measure the skills the job of police officer requires. Nassau County will now be selecting its officers on the basis of some personality traits with virtually no attention to their mental competence.1
Report's Silence on Satisfying the Law
The project had been run by a high-powered group of ten experts who were intimately familiar with both the technical and legal aspects of employee selection. The two leaders of the project's Technical Design Advisory Committee (TDAC) had been appointed by the 1990 consent decree, one to represent the county (Jones, of HRStrategies) and one to represent the Justice Department (Irwin Goldstein of the University of Maryland at College Park). The former had evaluated or created the county's two previous exams, and the latter is a long-time consultant to the Justice Department on such matters, including earlier litigation in Nassau County.
TDAC's July 1995 technical report (HRStrategies, 1995) is as notable for what it obscures and omits as for what it emphasizes. All such test validation reports should include sufficient information to allow an independent review. The first four pages of the technical report repeatedly stress that it was written to allow a ''detailed technical review of the project'' (p. 2) and even be ''understandable to readers not thoroughly familiar with the technology'' (p. 3). Hundreds of pages of appendices accompany the two-hundred page report to facilitate technical review.
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However, as shown in Table 2, the report omits most of the crucial information that is required by federal guidelines and recommended by psychology's two sets of professional employment testing standards. TDAC members were fully aware of those standards, many having helped to write them. For example, the report fails to state how well the tests correlated with each other in either the applicant or research groups or with job performance in the research sample of incumbent police officers. It also fails to report how heavily TDAC weighted each test when ranking job applicants. As Craig Russell (1996) noted, there is ''a clear selective presentation of information.''
[Table 2 appears on p.—.]
The lack of essential information makes it impossible to verify how well the test scores correlated with job performance and thus how job related or valid the exam is. Compliance with disparate impact law could have been accomplished with an exam that had either (1) equal validity but less disparate impact than the earlier one or (2) higher validity, whatever its impact. The project clearly set its sights on satisfying the consent decree via lowering impact rather than raising validity (p. 11):
While the degree of adverse impact for the 1987 examination was less than that experienced with earlier examinations for the position, further reduction in adverse impact, while maintaining examination validity, was seen as a key objective of the current project.'' (Emphasis added.)
However, the project never actually demonstrated that it met this standard either. The report fails to say what either the validity or disparate impact of the 1987 test was and so never demonstrates—or even states—that the 1994 test actually ''maintained validity'' compared to earlier tests. As seen in Table 2, the federal government's Uniform Guidelines (Section 15.B.2) require that ''existing procedures'' be described, but the report does not do so. Instead, it refers us to (but does not attach) an unavailable April 1988 report on the previous, 1987 exam. The project had even included one of the subtests from the 1987 exam (''Map Reading'') in its experimental battery, specifically to serve as ''a benchmark'' against which to compare the new test and applicant group (p. 91). Yet, the report never makes any such comparisons. The most the report actually claims is that the validity of the new test is ''statistically significant'' (p. 135), not that it is equal or superior to earlier tests.
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Project Skewed Test Content Away From Good Measurement of Cognitive Skills
Whether TDAC realized it or not, its decisions about which tests to include and its justifications for them all worked against cognitive tests and in favor of non-cognitive ones. The report pointedly ignores the large literature on the proven validity of cognitive tests. At the same time, by emphasizing unlikely or disproved threats to their validity and fairness (e.g., paper-and-pencil format), it implies that their use is questionable.
In contrast, a whole appendix was devoted to supporting the validity of personality tests, but no mention at all was made of possible threats to their validity (e.g., ''faking good''). Qualities that many cognitive and non-cognitive tests share (which is not pointed out in the report)—such as a paper-and-pencil format—were cited as problematic only in discussing the former. While cognitive tests of proven general value (''traditional'' ones) were portrayed as narrow and outmoded, the project's unproven substitutes for them were repeatedly extolled as ''innovative.''
No traditional cognitive test was included in the battery, even on a trial basis, except possibly the Map Reading test from the 1987 exam, which soon disappeared from view without comment. One critic complained that ''the biggest and most glaring conceptual problem [with the study] is the complete failure to draw on the cumulative scientific literature in any way'' (Schmidt, 1996b). Another critic was less charitable: ''It seems clear that the authors did use prior cumulative knowledge [but] in deciding to minimize the presence of cognitive ability in the predictor domain'' (Russell, 1996).
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The report listed TDAC's four considerations which guided its decisions about what to include in the experimental battery (pp. 85–86): personality tests, video-administered tests, alternative formats for cognitive tests, and maximum prior exposure to test content and format. All were adopted ''in the interests of minimizing adverse impact'' (p. 86), as Jones has elsewhere suggested that others might do (Aon Consulting, 1996). By augmenting breadth of coverage, the first could be expected to increase the validity but lower the impact of a test battery containing cognitive tests, but the last three can usually be expected to lower both validity and impact by degrading the validity of the cognitive portion of the exam.
(1) Personality tests. The project included 20 tests owned by several of the TDAC members (see Table 1): 12 from the Life Experiences and Preferences Inventory (LEAP) copyrighted by Personnel Decisions Research Institutes, and 8 from the Work Readiness and Adjustment Profile (WRAP) copyrighted by Performance Management Associates. The major unresolved question about personality and other non-cognitive tests is whether their validity is damaged by job applicants being more motivated to lie or ''fake good'' to raise their scores than are the research subjects on whom validity is estimated (e.g., Christiansen, Goffin, Johnston, & Rothstein, 1994; Hough, Eaton, Dunnette, Kamp, & McCloy, 1990; Lautenschlager, 1994; Ones, Viswesvaran, & Schmidt, 1993). The report does not mention the ''faking good'' issue despite noting a trend in its data that is sometimes thought to signal applicant faking (see Table 3): applicants got higher scores than police officers on the personality tests (on which lying or faking can raise one's scores) but lower scores, as is usual, on the reading comprehension test (on which lying is useless). Recent research suggests that faking may not typically be a problem (Ones, Viswesvaran, & Reiss, 1996), but the generalization may not apply to Nassau County where the position of police officer is widely coveted for its high pay ($80,000–$100,000 not being uncommon).
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[Table 3 appears on p.—.]
(2) Video-based exams. The project developed three. A ''Situational Judgment Exercise'' presented a series of vignettes which portrayed situations in which critical skills are required. Applicants rated how effectively the actor had dealt with the situations enacted. A ''Learning and Applying Information'' exercise consisted of a series of video ''lessons'' about work behavior, which were followed by applicants rating the correctness of an actor's application of that knowledge in pertinent situations. A ''Remembering and Using Information'' exercise required applicants to assess whether the behavior of the actor conformed to a fictitious company policy they had been asked to memorize in the month before the exam. None of the three required any reading or writing during the test.
The report described the video exams as having ''promise in evaluating applicants' perceptions of complex situations and their approach to dealing with interpersonal activities'' in a way that conveys those situations more effectively than a written format but with less disparate impact. No evidence was cited to support this claim. And as noted earlier, higher ''fidelity'' per se cannot be assumed to improve the valid measurement of cognitive skills.
(3) Alternative formats for measuring cognitive ability. Among the ''promising innovations'' the report suggested for reducing disparate impact without affecting the validity of cognitive tests were including ''written questions with multiple 'correct' answers or reaction-type responses such as 'agree-disagree' '' and ''relaxation of test time limits'' (p. 86). All the video exercises were intended to measure cognitive skills, and two (''Remembering . . . Information'' and ''Learning . . . Information'') used the agree-disagree format. Ten of the eighteen items on the paper-and-pencil cognitive test, ''Understanding Written Material'' (discussed below), used the multiple correct answers format. Once again, the project opted for the unproven over the proven in measuring cognitive skills for the purpose of reducing impact.
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(4) Maximum exposure of applicants to exam content, format, and requirements in advance of exam. This was intended to minimize the ''test-wiseness'' that higher-scoring groups are often presumed to possess and to benefit from on cognitive tests. Acquainting test-takers with test format and requirements is, in fact, good practice because it helps standardize the conditions for valid assessment and minimizes the influence of irrelevant differences among test takers.
Exposing applicants to the test content beforehand does the opposite. It creates nonstandard conditions which contaminate accurate assessment. Some people will study more or get more assistance from family and friends. It also makes the test much easier by allowing ample time and help for comprehending the materials. The project did this for two exams when it gave applicants the contents up to 30 days before the exam (p. 98). One was the video-based ''Learning . . . Information'' test, which required applicants to memorize a fictitious company policy. The second was the paper-and-pencil ''Understanding Written Material'' test that the project developed to measure reading comprehension. That exam asked applicants questions about reproduced passages of text that they had available for study up to one month before the exam.
Moreover, the validation sample of police officers, who were all working full-time and not likely to study much, had the materials for only a week. Thus, test-taking conditions were not standard among the applicants and they differed between the applicant and research groups too, which clearly violates both good practice and professional testing standards (e.g., standards 4c and 12 of the SIOP Principles; see Table 2).
Interestingly, when two TDAC members had been retained to evaluate the 1983 Nassau exam, they had recommended throwing out the scores for almost half the questions on that exam (its ''book'' questions) precisely because applicants had been given exam material to study two weeks before the test: ''A Pre–Examination Study Booklet with unknown influence on individual test performance was used, thus compromising standardization of a significant portion of this test'' (Jones & Prien, 1986, p. II.3).
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In summary, the project used two of the three procedures outlined earlier that reduce disparate impact by degrading the valid measurement of cognitive skills: omitting cognitive tests with proven validity and substituting ''non-traditional'' ones of uncertain validity. As we will see, the project would later use the third strategy too (inefficient use of cognitive scores) by regrading the reading comprehension test pass-fail with the passing score set at the lowest possible level. As Russell (1996) noted, the ''major impression . . . [is that] all decisions in the Nassau study were driven by impact adjustments.''
Project Tilted Validity Calculations Against Cognitive Tests and in Favor of Non–Cognitive Ones
The project next evaluated how well the scores on the 25 tests related to the job performance ratings of 508 Nassau County police officers. The objective was to identify the most useful tests for inclusion in a final ''implementation'' test battery for ranking applicants. The report states (but never shows) that all tests with significant validity were retained, for a total of 10: eight of the personality scales, the video-based ''Situational Judgment,'' and the paper-and-pencil ''Understanding Written Material'' test (see Table 1).
The project made some odd and unexplained decisions in this winnowing process. First, TDAC winnowed the 25 tests in a peculiar manner (pp. 130–133), too obscure to explain fully here. Briefly, it involved retaining only those tests that TDAC had predicted would be related in highly particular ways to different dimensions of job performance. While ostensibly intended to minimize a technical problem (''capitalizing on chance''), this procedure would have allowed TDAC prejudices and misconceptions about cognitive tests to influence its decisions about which tests to retain. The report provides data on neither the job relatedness nor the disparate impact of the 15 tests eliminated at this point, violating all three sets of test standards in the process (see Table 2).
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This curious procedure and the missing data are especially troubling in view of a second odd decision, which the report itself characterized as ''unique'': to administer the 25-test ''experimental'' exam to the 25,000 applicants before validating it (p. 7). This decision, which reverses the usual sequence of first establishing validity among incumbents and then administering the (valid) test to applicants, ''would afford noteworthy research advantages with regard to exploring and creating a 'potentially less adverse alternative' selection device'' (p. 119). Its advantage would be that ''the research team could view the operation of creative examination formats within a true applicant group, prior to eliminating components which might appear to work less effectively if viewed solely from the perspective of a concurrent, criterion-related [job performance-related] validation strategy'' (p. 7, emphasis added). Translated, this means that TDAC wanted first to see the disparate impact of different tests in its experimental battery so that it did not inadvertently commit itself to using tests with substantial disparate impact even if they had the highest validity or, conversely, to omitting less valid tests if they had favorable racial results. The report repeated this reason on the next page in implicitly justifying why applicants had been given tests (about four hours' worth) that did not actually count toward their scores.
Third, the correlations used in showing the job relatedness of different tests and test combinations were calculated in a way that could be expected to suppress the apparent value of cognitive tests relative to non-cognitive ones. The project did not report the usual unadjusted (''zero-order'') correlations required by all three sets of test standards, but instead twice-adjusted ones that the project called ''simple validities.'' 2
The report does not provide the unadjusted correlations that would verify the predicted differential tilting of results, although all three sets of test standards require that they be reported (see Table 2). However, when pressed, TDAC recently provided some of the missing unadjusted correlations (Dunnette et al., 1997), and they confirm the prediction of tilted results.3
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Those just-revealed unadjusted correlations also point up the foolhardiness of administering a battery of unproven ''innovative'' tests to 25,000 applicants before assessing their worth: their validities were shockingly low, for an average (absolute value) of only .05. Only three of the 25 tests had validities reaching .10. Worthless or not, the project had already committed the county and its applicants to the test.
Project Kept Little More than the Illusion of Testing for Cognitive Ability
The project next considered which of the remaining 10 tests it would use, and how, in the ''implementation'' battery. It tried out five ''basic'' prediction models with different combinations of the 10 tests, four of which included at least one of the two putatively cognitive tests (the video-based ''Situational Judgment'' and the paper-and-pencil ''Written Material''). Having apparently succeeded in degrading the job relatedness of the cognitive parts of the experimental battery, the project found that five models yielded ''nearly identical'' validities (p. 135) whether or not they contained a cognitive test (Table 4 in Footnote 3 shows the results for several). The project was now free to rest its decision entirely on the alternative batteries' disparate impact. The battery with the least impact was the ''Non–Cognitive'' model consisting solely of personality scales.
However, TDAC balked at recommending it—and rightly so—despite its being the only one to meet for blacks the federal government's ''four-fifths'' rule. (The federal government's rule of thumb is that disparate impact is present and can trigger litigation when the proportion of a minority group's applicants who are selected is less than four-fifths the proportion of whites selected.) The report states that ''TDAC was concerned that implementation of this battery, containing no formal measure of reading comprehension or other cognitive skills, could potentially admit applicants to Police Academy training who would fail in the training program'' (p. 139; see also Goldstein's court testimony, U.S. v. Nassau, 1995b, p. 65). Suddenly we get a glimpse of TDAC's knowledge of the literature concerning cognitive ability showing that general mental ability is the major determinant of ''trainability'' (e.g., Gottfredson, 1997; Hunter & Hunter, 1984; Rafilson & Sison, 1996) but that personality plays a smaller role (e.g., Ones & Viswesvaran, 1996; Schmidt & Hunter, 1997). TDAC's solution was to restore the reading test—but rescored with the passing score set at the first percentile of incumbent officers. This was the project's ''hybrid'' or ''Refined Model.''
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TDAC gives no rationale for dichotomizing the reading scores, as is required by the test standards (e.g., 15.B.8 of the Uniform guidelines and 6.9 and 10.9 of the APA Test Standards). Nor does it attempt to give a technical rationale for such a dramatically low cutoff, which no doubt minimized the reading test's disparate impact. The report says only that TDAC ''assume[d] that applicants scoring at or below this level [the incumbents' first percentile] might represent potential 'selection errors' '' (p. 139).4 As Russell (1996) had noted, ''we see the authors bending over backwards to eliminate cognitive test remnants from the predictor domain.''
Three Mistakes Inflated the Apparent Validity of the Cognitively Denuded ''Implementation'' Battery
Intentionally or not, TDAC had systematically denuded its test battery of most cognitive content. It then made three statistical errors that inflated the battery's apparent merit relatedness by over 100%. All three errors occurred in correcting the test battery's correlation with job performance for two of three statistical artifacts that distort this correlation in predictable ways. The first artifact (''capitalization on chance'') artificially inflates the apparent job relatedness of a battery of tests (its overall correlation with job performance ratings); the second and third artifacts (''criterion unreliability'' and ''restriction in range on the predictors'') artificially depress apparent job relatedness. Correcting for the three artifacts results in a more accurate estimate of how useful a test battery will be when it is actually used to hire new workers (what is technically called its ''true validity'').
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To correct for the first artifact, the project applied a ''shrinkage'' formula to the correlation calculated for the test battery in the research sample. This is the less preferred but sometimes necessary route when a project includes in its test battery only some of the tests it tried out. Although not necessary in this case, using a shrinkage formula allowed TDAC to make two errors that resulted in ''shrinking'' its correlation far too little. TDAC's first error was to shrink the wrong, much higher correlation—.30 (from the 25-test battery) instead of .23 (for the 9-test ''Refined'' battery). Second, it applied the wrong shrinkage formula, which shrunk that already too-high correlation by too little.5 This latter error was particularly puzzling, because one TDAC member had written an article some years earlier on avoiding the error (Schmitt, Coyle, & Rauschenberger, 1977). The SIOP Principles are explicit, moreover, in requiring the ''appropriate shrinkage formula'' (item 5d in Table 2). The same two errors were made for the other five combinations of tests that the project tried out.
Having failed to shrink the correlations for its six alternative batteries far enough downward to correct for the first artifact, the project then adjusted too far upward the correlation for its favored ''Refined'' battery when correcting for the third artifact.6 Thus, while TDAC had ballooned the apparent validity of all the alternatives it tested for the final battery, it inflated even further the apparent value of its preferred alternative.
Schmidt (1996b) estimates that the project's first two statistical errors improperly inflated the ''true'' validities for all six trial batteries by at least 100%. Lacking the data to recalculate them, he derived minimum and maximum estimates (see Table 4 in Endnote 5). TDAC had estimated the true validity of its recommended battery to be .35 (on a scale from 0 to 1.0), but Schmidt estimates it to be less than half that—about .14.
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Finally, it must be remembered that the foregoing estimates are based on the project's improperly doubly-adjusted ''simple'' correlations, which themselves are probably inflated for the noncognitive tests that dominate the final battery. In fact, one might wonder whether those improper ''simple'' correlations, by tilting the correlations against the cognitive tests and in favor of the non-cognitive ones, might have created some anomalies in how those prediction models weight the different tests. Those ''regression'' weights, however, are not reported as required by the Uniform Guidelines (15.B.10).
Incorrect Testimony Misleads Judge
Justice's Gadzichowski (U.S. v. Nassau, 1995b, p. 23) testified that the new exam not only had less disparate impact than the 1987 test, but was also twice as valid. His numbers were .35 for the new test vs. .12 (or .165 after ''modification'') for the earlier one. However, not only was the .35 a grossly inflated estimate, but it was the wrong statistic (and highly favorable) for the comparison at hand. Gadzichowski had compared the erroneously estimated true validity of the 1994 exam (.35) with the necessarily much lower observed validity of the 1987 exam (about .12–.16). Two TDAC members were present during Gadzichowski's testimony but did not correct his improper comparison. Although Gadzichowski did not report the 1987 exam's estimated true validity, it is probably higher than the new exam's because the latter's observed validity (.12–.16) is as high as the new test's true validity (.14) when properly estimated (see Table 4).
Gadzichowski also compared the new exam favorably with the 1983 exam. A decade earlier, two TDAC members (Jones & Prien, 1986, p. VIII.9) had reported the observed and true validities of the 1983 exam to be, respectively, .22 and .46 (.21 and .40 if the ''book'' questions were omitted as they recommended). Schmidt's best estimate of the 1994 exam's true validity (.14) indicates that it is far less job related than the 1983 exam (.40 or more).7
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Nevertheless, the Court, operating on what it had been told, approved the new exam for use in Nassau County at the conclusion of the hearing at which Gadzichowski testified.
IMPLICATIONS
The Nassau County police exam may be no more valid for selecting good police officers than flipping a coin. If at all valid, it is considerably less so than at least one of the county's two earlier tests and than ones now used by many other police departments around the country. The Justice Department has thus forced the county, perhaps unlawfully, to lower its standards in the guise of improving merit hiring. And TDAC has provided Justice with scientific cover for doing so.
Nassau County
The millions of dollars Nassau County was forced to spend for the new test are only the first of the costs the test will impose on the county. Because the test is less effective than earlier ones in screening for mental competence, Nassau County will either see a rising failure rate in training or else be forced to water down academy training. Job performance will also fall as new classes of recruits make up a bigger segment of the police force and move into supervisory positions. If Washington DC's experience with lax standards is any guide, complaints of police brutality will rise, lives and equipment will be lost at higher rates, and the credibility of the force will fall (Carlson, 1993).
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The county might once have been able to rely on educational credentials to maintain its standards, but it cannot now. Although not mentioned in TDAC's report, the Justice Department forced the county some years ago to abandon its requirement for two years of college. Justice's current consent decree with the county allows it to require only one year of college credits—and then only if that requirement has no disparate impact.
This twin lowering of cognitive standards comes, moreover, when the Nassau County Police Department has just introduced community policing into its eight precincts. Problem-solving or community policing is a new model for policing that is being adopted by progressive departments throughout the country (e.g., Goldstein, 1990; Sparrow, Moore, & Kennedy, 1990). Edwin Meese (1993, pp. 1) describes how the new policing changes the fundamental nature of police work:
Instead of reacting to specific situations, limited by rigid guidelines and regulations, the officer becomes a thinking professional, utilizing imagination and creativity to identify and solve problems . . . . [and] is encouraged to develop cooperative relationships in the community.
By maximizing individual officers' participation in decision-making, it creates even higher demands for critical thinking and good judgment. The new test, stripped of most cognitive content, will doom realization of this new vision of policing in Nassau County.
Nassau County loses not only the benefit of the many talented people it might otherwise have been able to hire, but also its legitimacy as a fair unit of government. Highly qualified people of all races lose job opportunities that should have been theirs under merit hiring. They learn that talent, hard work, and relevant experience no longer count for much. U.S. Justice Department
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This case study illustrates how Justice's Civil Rights Division is enforcing a political agenda of its own making, usurping for itself the powers arrogated to Congress. By degrading merit hiring, it also works against the administration's own programs (e.g., C.O.P.S and Police Corps) for improving the quality of policing nationwide.
Disparate impact may be the trigger for legal action, but it is not the ultimate standard for the lawfulness of a selection procedure. Validity is (Equal Employment Opportunity Commission et al., 1978, Qs. 51 and 52). Under the law, validity trumps disparate impact. Not so for the Justice Department, however, whose yardstick is clearly disparate impact and for whom validity has been mostly an impediment in pursuing its goal of no impact.
This case also raises a new question about civil rights law. Is it illegal to craft the contents of a test to favor some races or disfavor others when such procedures artificially cap or lower the test's validity? For example, does it constitute intentional discrimination to exclude good tests from a battery simply because proportionately more whites than blacks do well on them? Or to rescore and degrade a test battery, after the fact, solely to increase the number of blacks who pass it? Section 106 of the 1991 Civil Rights Act forbids the race-conscious adjustment of test scores, so it would seem to follow that race-conscious adjustment of test content to engineer racial outcomes would also be proscribed. In addition, another section of the act states that race cannot be ''a motivating factor'' in selecting employees.
A related matter that Congress might investigate is whether the Justice Department's involvement in developing and promoting tests compromises its ability to enforce the law impartially and impermissibly interferes with competition in the test marketing business. Is there not a conflict of interest when the Justice Department is asked to litigate a test that it helped develop? Was there not a conflict of interest for Justice's Gadzichowski to dispute the merits of the Hayden et al. v. Nassau County lawsuit alleging reverse discrimination in the new test?
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Despite its claims to the contrary, the Justice Department has been recommending particular tests and test developers over others. Its involvement with Aon Consulting, both in Nassau County and in Aon's recent test validation consortium, gives Aon an enormous advantage over other test developers, whatever the quality of its product. Test developers around the country report that they have begun to lose business because of Justice Department pressure on their clients to use some variant of the ''Nassau test.'' For many jurisdictions, a Justice Department suggestion is an offer they cannot refuse.
Psychology
Both employment discrimination law and Justice Department enforcement of it are premised on assumptions that contradict scientific knowledge and professional principles in personnel psychology. As some have said, psychometricians are expected to be psychomagicians—to measure important job-related skills without disparate impact against the groups who possess fewer of the skills.
Lacking magic, psychologists are tempted to appear to have worked it nonetheless. The Justice Department and many employers expect nothing less. The result may be compromise (reduce disparate impact by reducing validity) or capitulation (eliminate disparate impact regardless of what is required). But in either case, sacrificing validity for racial reasons constitutes a covert political decision on the part of the psychologist if done without reviewing all options with the employer.
Some psychologists have suggested that validity be lowered somewhat to reduce disparate impact in the name of balancing social goals (Dunnette et al., 1997; Hartigan & Wigdor, 1989; Zedeck, Cascio, Goldstein, & Outtz, 1996). This is a legitimate political position about which personnel psychologists possess relevant information. However, such positions, whether explicit or not, are political and not scientific. They need to be aired in the political arena, not enacted covertly or in the name of science. And only with public airing of the tradeoffs involved will unreasonable employment discrimination law and enforcement be revealed for what they are, perhaps relieving some of their corrupting pressure on selection psychologists to perform ''psychomagic.''
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Every test developer who manipulates content to reduce disparate impact lends credence to the egalitarian fiction that, but for discrimination, all demographic groups would be hired in equal proportion in all jobs. It does so by appearing to reduce or eliminate disparate impact without race-conscious selection, thus concealing the real dilemmas that bedevil work in this area. The illusion of easy success in substantially eliminating disparate impact makes it more difficult for honest developers to get business and for employers to withstand pressure to eliminate racial disparities at any price. The absence of overt race-consciousness also removes any obvious basis for alleging reverse discrimination, as Nassau County plaintiff William Hayden and his colleagues discovered.
The technical report for the 1994 Nassau County police test suggests that TDAC's efforts were bent to the political will of the Justice Department and provided technical camouflage for that exercise of will. Psychologists might ponder under what conditions they should even participate in such ''joint'' projects where there is confusion about who the client really is and where one partner has the power to harass and punish the other with impunity. The ethics of independent psychologists working jointly with the Justice Department (with Justice Department ''oversight'') become even murkier when the relation with Justice is a long-term, lucrative one spanning a series of not-entirely voluntary clients to whom Justice provides the firm ''access'' via its much-flexed power to intimidate.
Psychology could do at least two things to help its practitioners avoid becoming compromised in personnel selection work. One is to clarify the ethical considerations that should govern contracts involving both clients and the enforcement agencies to which they are subject. Another is to clarify—publicly—the counterfactual nature of employment discrimination law and the rogue nature of its enforcement by the Justice Department.
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General readers may skip these endnotes. They provide technical details for some of the matters discussed.
1 Criterion-related validation studies with police work have produced anomalously low validities for cognitive tests, even when corrected for restriction in range (Hirsch, Northrop, & Schmidt, 1986). The occupation is clearly moderately complex, and cognitive ability predicts performance moderately well at this complexity level of work (e.g., see Gottfredson, 1997). The failure of cognitive tests to correlate substantially with ratings of police performance is probably due largely to problems with the performance ratings. Supervisors have little opportunity to observe police officers performing their duties, meaning that their performance ratings probably are not very accurate.
Low validities of cognitive tests therefore are no basis for excluding or minimizing their use in police selection. As the STOP Principles (Society for Industrial and Organizational Psychology, 1987, p. 17) state, ''the results of an individual validity study should be interpreted in light of the relevant research literature.''
2 The project had statistically partialled tenure (length of experience on the police force out of both the predictors (test scores) and criteria (performance ratings). While not viewed favorably by some test developers, partialling tenure out of the criterion performance ratings is not unusual as a means of controlling for differences in job experience. More experienced workers tend to perform better because they learn on the job, and this suppresses the apparent validity of the useful traits (like cognitive ability) that they bring with them into the job but which do not change with experience. However, the project partialled tenure out of the predictors as well, but there is no theoretical reason to do so and the report gives none. The problem is this.
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As shown in Table 3, tenure is positively correlated with the more cognitive tests and negatively with all but one personality scale. The report itself suggested that the more experienced officers had been selected under different standards (p. 131), which helps explain why they did better on the cognitive tests than less experienced officers. (Nassau County's hiring standards have fallen in recent years because consent decrees degraded both its 1983 and 1987 exams.) Partialling tenure out of the predictors thus amounted to partialling some of the valid variance out of the cognitive tests. This would depress their apparent correlation with job performance. On the other hand, partialling tenure out of the predictors would raise the apparent value of the non-cognitive tests, because they were negatively correlated with tenure (see Table 3).
It might also be noted that partialling tenure out of the criterion may not have been entirely appropriate in the current situation. As noted above, more experienced officers tended to score higher on the cognitive tests, but this is unusual. Because ability was correlated with tenure among Nassau police officers, controlling for tenure in the criterion will necessarily at the same time partial out some of the valid covariance between the cognitive tests and the criterion, even though that was not its purpose. That is, some of the correlation of tenure with job performance is spurious due to tenure's correlation with a known cause of superior job performance—cognitive ability.
This problem can be better visualized by noting that today's tenure will correlate with yesterday's training performance in Nassau County simply because earlier trainees were brighter on the average than more recent ones. (Mental ability is a good measure of trainability.) Partialling tenure out of training grades would obviously be inappropriate because their relation with tenure is entirely spurious. While not entirely spurious, the correlation between tenure and today's job performance is partly so.
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3 Before the scores were adjusted, job-relatedness correlations were the same on the average for the two cognitive tests as for the eight personality tests—.08 (on a scale from 0 to 1.00). Adjusting the job performance ratings (the criterion) for tenure raised correlations for the non-cognitive tests (to .095) and lowered them for the cognitive tests (to .075). This made the apparent validity of the personality tests 27% larger than that of the cognitive tests. Controlling for tenure in the test scores too increased the gap to 35% by boosting the non-cognitive correlations a bit beyond .10. Since all the correlations were so very low, another advantage of the double adjustment was simply to raise the apparent validity of most of the tests.
4 Justice's Gadzichowski has dismissed criticism of the low reading minimum as ''uninformed and unfounded'' (July 25, 1996 letter from Gadzichowski to Frank Erwin). Justice, like TDAC recently (Dunnette et al., 1997), has defended the minimum by arguing that the five officers who scored lowest on the reading test must be competent because they all had at least two years of college. If police department anecdotes are correct, however, accumulating two years of college credits does not assure competence in filling out even the simplest incident forms. Nor would one expect it to in view of the fact that in the U.S. virtually anyone can take courses at some sort of college.
5 Regression models (for calculating the multiple correlation of a set of tests with job performance) always capitalize on chance by delivering the best fit possible to the data in hand, chance factors and all. This means that validities estimated in the research sample are always somewhat inflated. The best solution for deriving a more accurate (smaller) estimate is to apply the regression weights developed in the research sample to an independent ''cross-validation'' sample that was not involved in selecting the battery. The Nassau project instead used a ''shrinkage'' formula to adjust the observed validities of its six alternative prediction models.
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According to Schmidt (1996b), however, it used the wrong shrinkage formula (the Wherry–Dolittle correction instead of Cattlin's, 1980, equation 8), which provides too large an estimate when the validity to be shrunk is from a regression model excluding some of the original variables in the study. It then applied this mistaken formula to the wrong validity—the multiple correlation for the regression equation including all 25 variables (.30) which, as can be seen in Table 4 (column 1), is considerably larger than the validity observed for any of the models actually being tested (.22–.24). It then assigned that single, too-large shrunken validity (.20) to all the models.
[Table 4 appears on p.—.]
6 Observed validities are often corrected for criterion unreliability (third column in Table 4) and restriction in range on the predictors (fourth column). The project made these two corrections, as is appropriate in typical circumstances. However, the estimated true validity for its preferred ''Refined'' model (.35) is clearly mistaken. The ''Full'' model contains all nine tests that are in the ''Refined'' model (plus one more), and its observed validity (.24) is essentially the same as for the latter (.23). It makes no sense that the correction for restriction in range would boost the latter's estimated true validity by almost twice as much—.12 (from .23 to .35) vs. .07 (from .24 to .31)—when virtually the same data are involved. Nor does it make sense that the model with the less efficient (pass-fail) use of the reading test would produce the higher validity (.35 vs. .31). The report does not describe how it carried out the corrections, but the project probably made an error in correcting for restriction in range for the dichotomized reading scores in the ''Refined'' model. (Table 4 shows degree of restriction for all the predictors.)
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7 The Justice Department might argue that the validity of the 1983 exam was actually zero, not the .2 (observed) and .4(true) that Jones and Prien (1986) had estimated. The reason is that Justice had apparently allowed civil rights lawyers to pick apart the 1983 and 1987 exams so that they could (improperly) challenge their validity. By breaking a reliable test into its necessarily less reliable pieces or by breaking a research sample into many small groups, it is always possible to capitalize on chance factors to seem to show that some aspect of the test is not valid for some segment of the population. Such opportunistic data ransacking in fact enabled civil rights lawyers to convince the District Court that they should be allowed to rescore the 1983 and 1987 tests in order to reduce disparate impact (U.S. v. Nassau, 1995b, p. 15).
INSERT OFFSET RING FOLIOS 7 TO 11 HERE
TDAC'S DEFENSE OF ITS NASSAU COUNTY POLICE EXAM MAKES MY POINT
LINDA S. GOFFLREDSON, DEPARTMENT OF EDUCATIONAL STUDIES, UNIVERSITY OF DELAWARE
The Technical Development and Advisory Committee (TDAC), which had primary responsibility for developing and validating the 1994 Nassau County police entrance exam, responded in three documents to my criticisms of that project. I comment here on TDAC's three responses (12/31/96 letter submitted to the WALL STREET JOURNAL, 1/4/97 letter to me on HRNET, and 1/12/97 ''Response to Criticisms of Nassau County Test Construction and Validation Project'' on the IPMAAC web page (http://www.ipmaac.org/nassau/zedeck.html). The three responses come from nine of TDAC's ten members.
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I draw below on a 2/6/97 journal manuscript in which I provide a history of the Nassau County test, describe the law and enforcement policies that encourage personnel psychologists to sacrifice validity in order to increase minority hiring, and outline techniques for reducing disparate impact that either lower or artificially cap test validity. That manuscript, ''Racially Gerrymandering the Content of Police Tests to Satisfy U.S. Justice Department: A Case Study,'' is available at the IPMAAC web site (http://www.impsac.ora/nassau/gotttredson3.html) or from me. The paper has been submitted for a special issue of the journal PSYCHOLOGY, PUBLIC POLICY, AND LAW. It is still in the review process.
PERSONAL CRITICISMS
It is unfortunate that the debate over the Nassau County test has been marred by ad hominem criticism and innuendo. I answer such criticism below in the spirit of getting beyond it, for it only distracts attention from the substantive issues at hand.
Insinuation: Gottfredson acted on political or financial considerations, not professional ones
Contrary to what the U.S. Justice Department has suggested, I was not paid by any test developer to look into this matter. Nor did I act ''at the behest'' of anyone. I have never had any financial interest in any testing enterprise.
How did I become involved? After the District Court approved the Nassau test for use in Nassau County, the Justice Department began pressing other police departments around the country to switch to it. Psychologists associated with one such department became very concerned with the pressure and asked Frank Erwin, President of Richardson, Bellows, and Henry (RBH) to look at the Nassau technical report. Justice had some time back sent Erwin a copy of it for review. (RBH had developed its own police test a decade ago at the request of the Justice Department, which later became disenchanted with Erwin for resisting its pressure to reduce the test's cognitive component.)
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In turn, Erwin (whom I had not met before) asked me and several other SIOP members to provide independent evaluations of the report (from which he had expunged all indications of authorship). In addition to studying the report for several months, I looked into the history of litigation, test development, and test use in Nassau County as well as into how the Justice Department was using the new test to intimidate other jurisdictions. I published nothing until I had checked my facts and conclusions with relevant experts, including others who had read the technical report.
My pursuit of the issue should not surprise anyone who knows anything about my professional interests. I have focused in my career on, among other things, the interplay between science and politics, especially as it involves difficult racial issues (for example, ''Science and Politics of Race-Norming,'' AMERICAN PSYCHOLOGIST, 1994, 49, 955–963). Indeed, it was precisely for such work that I was elected a SIOP Fellow in 1994. In my view, the Nassau case illustrates the unreasonable legal and political pressure that personnel psychologists are under to do the impossible—to produce tests of essential skills that do not have adverse impact upon groups who possess fewer of those skills. That the Nassau case turned out to involve some people I respect highly only increased my concern about such pressure.
Criticism: Gottfredson failed to query Nassau consultants (TDAC) before publishing her criticisms
First, professional testing standards and federal guidelines both require that technical reports such as TDAC's provide enough information for others to conduct an independent technical review. The authors claim in their report that they provided it. Scientists and academics, like movie reviewers and food critics, are neither expected nor obliged to contact the individuals whose work they are reviewing. The work is supposed to stand on its own. The authors' complaint amounts to special pleading.
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Second, the only protection I could provide my informants was to publish the story before the Justice Department or others could take reprisals against them or their agencies. Providing such protection seemed far more important than extending the authors special courtesies.
Complaint: Gottfredson engaged in ''public attack with political innuendo and lack of professionalism which are very unhealthy for our field'' (TDAC, I/12/97, P. 2)
There is no innuendo involved because I say it explicitly. I believe that the Justice Department has been pursuing its own covert political agenda in the guise of improving merit hiring. I also believe that, wittingly or not, TDAC provided scientific cover for that exercise of political will. TDAC members may feel that I should have evaluated their work more tactfully or less publicly. However, they have yet to demonstrate that the criticisms of their work—or of the Justice Department's use of it—are unwarranted. Attempting to demonize me, as have both a TDAC member and the Justice Department's lawyer in the case, only gives the impression that TDAC prefers to evade rather than confront the criticism.
As for professionalism and health of the field, let us debate what they require. Both are undermined by the Justice Department's relentless pressure on personnel professionals to reduce or restrict test validity. Both would be enhanced by considering how to relieve or resist that pressure to degrade employment testing. One may, of course, legitimately argue that some validity should be sacrificed for greater minority hiring. My point is simply that such political decisions should be debated openly and not be disguised as scientific matters best left to technical experts.
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SUBSTANTIVE ISSUES
I take up TDAC's points in the order they are presented in its January 12, 1997, ''Response to Criticisms.'' The headings are TDAC's.
Zero-order correlations between predictors and criteria not provided in report
TDAC protests that it ''simply never thought in terms of the zero order correlations'' after deciding on the partial correlations. However, those correlations are required by all three major sets of employment testing standards. As Table 2 in the ''Gerrymandering'' manuscript shows, TDAC's technical report failed to provide many of the most essential data that those guidelines require (e.g., means, standards deviations, and correlations among variables; regression weights for tests in the battery).
TDAC has offered to make such data available ''if that is important to one's examination of the[ir] study'' (p. 2). I appreciate the offer, so I repeat here my unanswered e-mail and phone requests for such data. Table 2 in the ''Gerrymandering'' manuscript lists the categories of missing information that readers would find particularly useful. As explained there, that information includes the 1988 technical report for the 1987 Nassau exam, also developed by HRStrategies. TDAC could put the missing data and directions for ordering the 1988 report on IPMAAC's web page.
Inappropriate use of tenure corrected validity coefficients
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TDAC maintains that it was appropriate to partial tenure out of both predictors and criteria and that, in any case, it made no difference whether it did so or not. TDAC is wrong on both counts.
Appropriateness of double partialling. I had written that it was OK for TDAC to partial tenure out of the criteria (that it was ''not unusual'' to do so) but that there is no justification (and TDAC gave none) for partialling tenure out of the predictors. TDAC (1/12/97) seems to have taken me to task for both statements by arguing that (1) one seldom finds in the literature that tenure has been partialled out of EITHER criteria or predictors and (2) when tenure was controlled out of both in other studies, the validity for cognitive tests went up, not down as TDAC said I ''claim[ed] must be the case.''
Now, their first rebuttal would seem to weaken rather than strengthen their case. As for the second, I made predictions only for the NASSAU data based on the correlations (taken from the technical report) of tenure with the predictors and criteria in the validation sample. Now that TDAC has released the pertinent validities, we see that the correlations for its two ''cognitive'' predictors (situational judgment and understanding written materials) did NOT go up. On average, they went down: .08 when no partialling and .075 when partialling tenure out of either the criterion alone or both the criterion and the predictors. But more on that later.
The rationale TDAC offers for its double partialling procedure—that hiring standards have changed—makes no sense. One might (as I suggested in my 9/17/96 ''Hollow Shell'' analysis) argue that changes in hiring might justify partialling tenure out of the CRITERIA but certainly not out of the predictors too. However, I have since come to believe that partialling tenure out of even the criterion actually OVERcontrols for the effects of experience by partialling out some valid COvariance between cognitive ability and job performance. I explain this in endnote 2 of ''Gerrymandering.''
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Partialling tenure out of the PREDICTORS removes yet more of the valid covariance (i.e., validity) for the Nassau COGNITIVE tests. The reason is that the cognitive tests are POSITIVELY correlated with tenure (later recruits were hired under lower cognitive standards). On the other hand, the partialling procedure could be expected to BOOST the correlations between the criterion and the NON-cognitive predictors because the latter are NEGATIVELY correlated with tenure. In other words, partialling tenure out of the criteria would artificially lower the validities of the Nassau cognitive tests relative to the non-cognitive ones, and partialling tenure out of the predictors too would bias the validities yet further in favor ofthe personality tests. (See endnote 2 in ''Gerrymandering.'')
Impact of double partialling. TDAC argues that its data refute my prediction because ''it didn't matter which approach was used.'' More specifically, (1) ''the average validity of the zero-order correlations for non-cognitive measures was .01 less than the two sets of partial correlations'' (.01 vs. 02 and .02) and (2) the ''average of the two sets of partial correlations were almost exactly the same'' (.02). In some sense TDAC is right in claiming that ''tenure played a trivial role in the estimate of these validities,'' because the validities themselves turn out to be so trivial.
However, the more pertinent comparisons concern the ten tests that TDAC retained in trying out alternative batteries. Those comparisons are presented in the table below. The last panel of the table puts a lie to TDAC's claim that partialling had no impact.
The cognitive and non-cognitive (personality) tests have equal zero-order validities on the average (.08). However, partialling tenure out of the criterion produces validities that are 27% larger for the latter (.095) than the former (.075). The difference increases to 35% (.1015 vs. .075) when the double partialling is done. Double partialling did tip the scales in favor of the personality tests.
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However, the most important effect of the double partialling procedure, which no reader could have known without the recently-released data, may have simply been to allow TDAC to seek a bit more validity out of a pathetically weak set of predictors. TDAC says that my criticism about partialling was ''much ado about absolutely nothing.'' However, the phrase would seem to fit better the high praise that TDAC's technical report gave its weak new test battery.
Inappropriate cross–validity corrections
Schmidt identified three statistical errors in TDAC's estimation of true validities, which I explain in the ''Gerrymandering'' manuscript. Two of the errors involve corrections for capitalization on chance: using the wrong shrinkage formula and applying it to the wrong multiple R. Together the two errors had the effect of inflating the apparent validity of the different trial batteries by more than 100%.
TDAC's response (1/12/97) is oblique and confusing. However, it seems to concede the first error and deny the second. TDAC's response can be understood better by creating the following table, which illustrates three decisions in using a shrinkage formula: the shrinkage formula, the value to be entered into the formula for the number of predictors, and the multiple R to be shrunk. According to Frank Schmidt, TDAC used the wrong formula (Wherry), the correct number of predictors in the shrinkage formula (25), and the wrong multiple R (for 25 rather than 9 variables). TDAC's result, as seen below, is an estimated shrunken R of .20.
Correcting for TDAC's two errors, Schmidt provides a more accurate result by calculating minimum and maximum estimates and taking the average. He notes that a lower bound estimate of the validity of a battery selected ex post facto can be obtained by entering the appropriate multiple R (for the 9-test battery) into the Cattlin formula. His estimate, shown in the table, is .05. He provides the upper bound estimate by using the multiple R for the full set of 25 tests, which produces an estimate of .14.
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TDAC tacitly concedes that it used the wrong formula by producing ''revised'' estimates using the Cattlin formula. However, TDAC apparently sticks to its second mistake, which allows it to take Schmidt's MAXIMUM estimate (.14) as TDAC's new minimum, or ''conservative'' estimate. TDAC's second mistake had been to shrink the multiple R for all 25 variables (.30) rather than for the much smaller R for the test batteries actually tried out (average R of .228). How does TDAC defend the decision? It says in its 1/12/97 response that it (correctly) used the number 25 in the shrinkage formula (for the number of predictors), so ''we reasoned that we should also use the Multiple R that would result from use of the full set of 25 as the starting point for estimating shrinkage.'' This is a complete non-sequitar, as if a superficial parallelism could trump proper statistical reasoning.
TDAC then attempts to recover half the validity it lost in switching (correctly) to the Cattlin formula by now making the third possible mistake, which is to use the number 9 rather than 25 in the shrinkage formula for the number of predictors. This produces TDAC's ''liberal'' estimate of validity—.17. Why this new self-serving mistake? TDAC argues that it ''is conventional in personnel selection applications'' to use the lower value for the number of predictors ''likely because that is the value printed by various computer programs.''
However, errors are no less mistaken merely because they are conventional. The SIOP PRINCIPLES (p. 15) state that ''one should not choose a data analysis method simply because the computer package for it is readily available.'' Moreover, the PRINCIPLES specifically state (p. 17) that ''where a smaller number of predictors is selected for use based on sample validity coefficients from a larger number included in the study [as was the case in Nassau County], shrinkage formulas can be used only if the larger number is entered into the formula as the number of predictors.'' They also refer readers (p. 17) to Cattlin for ''the appropriate shrinkage formula.''
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If anything, TDAC's defense supports my criticisms by illustrating just the sort of illogic, obfuscation, and self-serving technical decisions that characterized its 1995 technical report.
Inappropriate corrections due to unreliability in the criterion
I never claimed that TDAC made any errors in correcting for unreliability in the criterion.
Inappropriate corrections for restriction in range
TDAC never explicitly answers Schmidt's and my claim that it made an (again self-serving) error in correcting for restriction in range for its recommended battery. Instead, TDAC creates the impression that Schmidt is mistaken by transmogrifying an accurate observation into a minor irrelevant error which it can then criticize, thus creating the general but false aura that Schmidt is not credible.
According to TDAC, ''he based his belief [that there must be some sort of error] on the fact that the battery that included the dichotomized cognitive ability test yielded a larger corrected validity than did the battery that included the continuous version of the same score.'' It continues, implying a mistake on Schmidt's part: ''No such direct comparison was possible with the data presented in that table.'' Why was no direct comparison possible? According to TDAC, ''the battery that included the continuous version of the test also included OTHER tests that were not included in our final battery'' (emphasis added).
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Now, this last statement actually SUPPORTS, not refutes, Schmidt's point. Batteries that (1) contain fewer of the same tests and (2) score some of them in a less efficient (pass-fail) manner (3) should, for BOTH reasons, have the lower validities. TDAC's technical report reported the opposite and impossible finding, which is what led Schmidt and others to suspect an error. TDAC attempts to defend itself by suggesting (falsely) that Schmidt failed to see that BOTH conditions (1) and (2) held and therefore that his conclusion, (3) above, must be flawed (although either condition alone would suffice to support it).
Once again, TDAC has used illogic to distract attention from the main issue. The question remains Does TDAC agree that it made an error in correcting for restriction in range?
Lack of data on the relationship with the map reading test
TDAC's 1995 technical report says that the Map Reading test from the 1987 Nassau battery was included in 1994 as a ''benchmark'' against which to compare the new test and applicant groups with the prior ones. However, the report provides no such comparisons. If ''considerable analyses of this test were conducted,'' as TDAC now says, why weren't any of them reported in the 1995 technical report? TDAC's 1/12/97 reply reports one correlation (Map Reading with Written Information), but nothing else. What were the ''significant time-related changes in the applicant pool between its initial use in 1987 and its re-use in 1994'' that the test was meant to gauge? And, will TDAC make available the 1988 technical report that it cites for the Map Reading test?
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Over-concern for adverse impact
We can all agree that disparate impact is a problem. The disagreement comes in how to deal with it. My concern, like Frank Schmidt's and Craig Russell's, was that TDAC made a series of impact-driven technical decisions which sacrificed potential validity to reduce impact. Some of these decisions concerned which kinds of tests to include in the experimental test battery in the first place, others concerned procedures for winnowing, scoring, and validating the tests that were tried out. TDAC's response touches explicitly only on the latter type of decision. I respond only briefly below as these issues are discussed at length in the ''Gerrymandering'' manuscript. The important point is that all of TDAC's decisions, minor or major, worked in the same direction—to cap or reduce validity in favor of reducing impact. It is this pattern, not any single decision, that most clearly reveals the priority TDAC gave to reducing disparate impact.
Winnowing procedure. TDAC lists in its response the three criteria it used to winnow the 25 tests to 10 for final validation trials. As I discuss in the ''Gerrymandering'' manuscript, it's not clear how this convoluted process prevents or corrects for capitalization on chance, but it's obvious how it would allow bias to enter the test winnowing process.
Testing applicants before winnowing and validating the battery. TDAC says in its 1/12/97 reply that it reversed the usual sequence of events (i.e., by testing applicants before validating the test) in order ''to ensure that the content of the test was not compromised in any way before the test was given to applicants.'' However, never once did the report give this rationale for what the report characterized as its ''unique'' reversal of standard procedure. Instead, it explained—more than once—that the order was reversed because that ''would afford noteworthy research advantages with regard to exploring and creating a potentially less adverse alternative' selection device'' (p. 119). See the ''Gerrymandering'' manuscript for another quotation to this effect.
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Fidelity. As I note in that manuscript, the technical report emphasizes that TDAC sought tests of high ''fidelity'' because it thought that they would lower disparate impact at the same time as raising validity. TDAC's 1/12/97 response makes the same point by describing its five putative tests of cognitive ability (only one of which remained, in pass-fail form, in the final battery). As I explain at length in the ''Gerrymandering'' manuscript, ''fidelity'' is but one of several unproven hypotheses or ''innovations'' that TDAC extolled while denigrating traditional cognitive tests of proven value—all in the name of reducing impact.
Literature supports minimizing role of cognitive tests in favor of personality tests (which has the effect of minimizing disparate impact). TDAC also seems to be making the foregoing claim, which is consistent with what it actually did in Nassau County. TDAC presses the point by citing Hirsch, Northrop, and Schmidt (1986), who found very small criterion-related validities for cognitive tests in their metaanalyses of police validation research. However, Schmidt has pointed out that these results are anomalous, because cognitive ability has been shown to be important in other moderate complexity work (but where performance could be more readily observed by supervisors); that cognitive ability is important in police training; and that job performance is contingent on job knowledge, which in turn depends heavily on cognitive ability. TDAC's own job analysis provided ample evidence that complex cognitive skills are important for good police work in Nassau County. One has to wear blinders to ignore all the pertinent data on the importance of cognitive ability in police work. As I note in the ''Gerrymandering'' manuscript, David Jones lectured SIOPlast April the dangers of just such a constricted view of validity. As he said then, ''the touchstone [of validity] is always back to the job analysis. What's in the battery ought to make sense in terms of job coverage, not just the statistics that come out of the . . . study.''
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Neither Schmidt nor I are against a ''balance'' of cognitive and non-cognitive tests in a test battery, as TDAC seems to imply. There is considerable evidence for the predictive validity of various personality traits, as Schmidt himself has shown. The problem with the Nassau battery is that it leaves cognitive ability almost completely out of the balance.
One of the most striking impact-reducing decisions that TDAC made (but which it does not discuss at this point in its reply) was to rescore the Written Materials test pass-fail with the passing level set at the first percentile of the incumbent sample. I deal with that issue further below.
Personality tests are flawed because they can be faked
Although TDAC had much to say in its technical report about the supposed flaws of valid cognitive tests, it said not a word there about faking despite its being, in TDAC's more recent words, a ''long-standing concern about personality measures.'' The technical report did provide data which it failed to explain but which could be expected to raise concerns about faking: the applicants in Nassau County scored better, often substantially so, than the incumbents on the (fakable) personality tests in its final battery but considerably worse on the (non-fakable) Written Materials test. (See Table 3 in ''Gerrymandering.'')
As an aside, I infer that more applicants than incumbents passed the final battery because it is dominated by the non-cognitive tests on which applicants outscored incumbents. The technical report does not, however, provide the required data that would either confirm or disconfirm this inference.
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TDAC implicitly justifies its failure to mention the faking issue in its technical report by arguing in its 1/12/97 response that (1) recent research has shown that faking does not significantly distort or moderate the criterion-related validities of personality tests, even in applicant samples, and (2) analyses of the impact of social desirability in the Nassau study (none of which are reported or cited in the technical report) showed that faking did not moderate validity (in the incumbent sample). However, neither of these sorts of evidence is compelling. Taking the second evidence first, the analyses in Nassau County are for the incumbent sample, who had no incentive at all to ''fake good.'' The applicants had special reason to fake, however, which also casts doubt on the generalizability of the first type of evidence that TDAC cites. Police work pays extraordinarily well in Nassau County. In 1995 the base salary for a patrol of ricer with two years of experience was $45,512. At the usual rate of increase, the figure would be about $50,000 for two years of experience in 1997. (The police union's 1992–95 contract also shows that personnel benefits are generous.) Many officers earn between $80,000 and $100,000 a year, which is why people of all educational levels (including a fair number of lawyers) avidly seek work as police officers in Nassau County.
TDAC criticizes one conflicting study on faking by noting that it studied students and not applicants. TDAC added that ''it should be noted that the title of the...study refers to applicants, rather than to the student sample actually used.'' This selective finger-pointing could as well be directed back at TDAC itself, for neither the 1990 Hough et al. or the Nassau research TDAC cites for support included applicants (the ''applicants' in the former study were actually just-inducted military recruits).
Inappropriate use of understanding written material test
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TDAC defends its incumbent first percentile cutoff for passing the reading comprehension test by arguing that (1) the Nassau County police department requires 32 college credits and many incumbents have more than that (the example TDAC gives is for individuals taking the sergeants exam), (2) incumbent officers passed the training academy,'' (3) dichotomized scores produced zero (i.e., failing) scores for 8% of blacks, 3% of Hispanics, and 2% of others, (4) cognitive tests, dichotomized or not, added little to observed validity, and (5) setting a low minimum reading score greatly reduced disparate impact. Stated another way, TDAC seems to be saying that non-test requirements can make up for lowering the test's own cognitive standard, and, in any case, lowering that standard didn't really hurt test validity but did substantially reduce disparate impact. None of these justifications obviates the fact that the test standards require such cut scores to be justified. TDAC's reply would have been more informative had it provided directly pertinent data, for example, the reading competence level actually represented by the low reading cutoff.
None of TDAC's five claims suffices to justify the low cutoff. As for reason (1), Nassau County can require 32 credits ONLY if they do not have disparate impact. Nor would this requirement assure that all incumbent officers are competent readers, as I describe in the ''Gerrymandering'' manuscript. Similarly, with regard to (2), passing the training academy does not assure that all officers will be good performers. (I doubt that TDAC would even claim so except in the current circumstance.) Some incumbent officers, including ones with more than 32 college credits, are incompetent at essential duties requiring reading and writing. Nor is it appropriate to expect the training academy to function as a fall-back cognitive selection test. Even if the academy can maintain its standards in the face of a big influx of cognitively weak trainees, the costs it incurs will be high both in financial terms (trainees earn half salary) and in damaged morale among recruits and instructors alike.
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I don't see (and TDAC does not explain) the relevance of (3), which relates solely to the percentages of minorities failing the low reading cutoff. Justifications (4) and (5) boil down to the claim that minimizing cognitive demands is a ''no-brainer'' because even totally eliminating the cognitive tests has little effect on the Nassau test's criterion-related validity. As already discussed, the failure of denuding a test of essential cognitive content to register any effects on validity casts doubt on the credibility of the validity statistics, not of the cognitive demands themselves. The only no-brainer here is the Nassau test.
TDAC concludes by adding another reason that tradeoffs (that is, some sacrifice in validity) are appropriate: ''We felt then (and still do) that police departments cannot function effectively in minority neighborhoods when virtually all police officers are white males.'' There was no mention of this reasoning in the technical report. Indeed, it was outside the stated scope of the study to consider such matters. However, TDAC's reliance on it here only confirms what I have suggested based on TDAC's pattern of impact-driven decisions: it responded to political preferences. Opting for racial representation at the cost of validity is a strictly political decision. It is not the province of test developers and validators to make those political decisions as if they were technical ones.
TDAC might also examine its tacit premise that police force performance is enhanced by greater racial representativeness. From what I have been able to discern, that claim is without empirical foundation but has been popularized by advocates of affirmative action. (If I am wrong, show me the evidence.) There is evidence, however, that ''problem-solving'' policing enhances life in minority communities—but that new form of policing requires cognitive standards to be maintained or increased. Black communities don't need black police officers. White communities don't need white officers. What all communities need is good police officers.
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Some excellent candidates failed and poor candidates passed
I am well aware of the Taylor–Russell tables and the high rate of false positive and negatives there will be with most tests. My point was that the background checks in Nassau County were revealing what appears to be an UNUSUALLY high rate of obvious selection errors. For example, the county is not used to finding so many borderline illiterates among its top scorers.
I am also aware that the background checks and not the entrance exam are used to identify individuals with arrest records. (I would note that only felony convictions, not previous arrests, are grounds for actually rejecting candidates.) However, it is troubling—especially with the presence of a ''non-delinquency'' scale in the Nassau test—to hear of an increase in the proportion of top scorers with traits normally considered antithetical to good police work. Would TDAC disagree?
Overpromotion of the nassau county test
TDAC notes quite correctly that the Nassau test ''is not portable'' without further research. But did it tell that to the Justice Department, which quickly began trying to intimidate jurisdictions nationwide into adopting it?
Justice has now switched horses to the newest HRStrategies/AON test (developed for the Louisiana state police) in its pursuit of no-impact police tests. That test, developed by half the original TDAC members, was said to be based on insights from the Nassau test. Perhaps so, because the Louisiana test bears scant resemblance to its failed Nassau predecessor. But regardless of whether or not the Louisiana test is any better, it is no more portable (indeed, its validation sample is much smaller). Justice nonetheless seems to be promoting it about as aggressively.
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As I note in the ''Gerrymandering'' manuscript, the Nassau case points up some difficult ethical questions, not all of which have clear answers. For example, TDAC speaks in its response of having worked for ''two clients'' (Nassau County and the U.S. Justice Department), which, I would note, are actually legal adversaries but with one being infinitely more powerful than the other. What are the ethical issues in working simultaneously for two opposed clients? Court papers actually indicate that about half the TDAC members worked for Justice and half for Nassau. Should consultants in such positions be expected to advocate for the interests of their separate clients? What if, as was the case here, some of the consultants have their own financial interests at stake, for example, by owning tests that TDAC decided to use or that Justice decided to ''overpromote''?
CONCLUSION
TDAC concludes by suggesting that it is anxious to make available information to get the truth out but that I, in contrast, have been uninterested in ''ascertaining the facts of the case.'' Let readers judge for themselves who has most assiduously pursued the truth. TDAC worries that I have damaged the field's influence among ''policy makers and heads of corporations.'' I, in contrast, am concerned that TDAC members' reputations and expertise, and by extension the field's too, may have been prostituted to Justice's political interests. I believe that such political exploitation of technical expertise promises to hurt the field (and society) more than does its exposure.
INSERT OFFSET RING FOLIOS 12 TO 47 HERE
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[THE WALL STREET JOURNAL, TUESDAY, DEC. 13, 1994]
MAINSTREAM SCIENCE ON INTELLIGENCE
Since the publication of ''The Bell Curve,'' many commentators have offered opinions about human intelligence that misstate current scientific evidence. Some conclusions dismissed in the media as discredited are actually firmly supported.
This statement outlines conclusions regarded as mainstream among researchers on intelligence, in particular, on the nature, origins, and practical consequences of individual and group differences in intelligence. Its aim is to promote more reasoned discussion of the vexing phenomenon that the research has revealed in recent decades. The following conclusions are fully described in the major textbooks, professional journals and encyclopedias in intelligence.
THE MEANING AND MEASUREMENT OF INTELLIGENCE
1. Intelligence is a very general mental capability that, among other things, involves the ability to reason, plan, solve problems, think abstractly, comprehend complex ideas, learn quickly and learn from experience. It is not merely book learning, a narrow academic skill, or test-taking smarts. Rather, it reflects a broader and deeper capability for comprehending our surroundings—''catching on,'' ''making sense'' of things, or ''figuring out'' what to do.
2. Intelligence, so defined, can be measured, and intelligence tests measure it well. They are among the most accurate (in technical terms, reliable and valid) of all psychological tests and assessments. They do not measure creativity, character, personality, or other important differences among individuals, nor are they intended to.
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3. While there are different types of intelligence tests, they all measure the same intelligence. Some use words or numbers and require specific cultural knowledge (like vocabulary). Others do not, and instead use shapes or designs and require knowledge of only simple, universal concepts (many/few, open/closed, up/down).
4. The spread of people along the IQ continuum, from low to high, can be represented well by the bell curve (in statistical jargon, the ''normal curve''). Most people cluster around the average (IQ 100). Few are either very bright or very dull: About 3' of Americans score above IQ 130 (often considered the threshold for ''giftedness''), with about the same percentage below IQ 70 (IQ 70–75 often being considered the threshold for mental retardation).
5. Intelligence tests are not culturally biased against American blacks or other native-born, English-speaking peoples in the U.S. Rather, IQ scores predict equally accurately for all such Americans, regardless of race and social class. Individuals who do not understand English well can be given either a nonverbal test or one in their native language.
6. The brain processes underlying intelligence are still little understood. Current research looks, for example, at speed of neural transmission, glucose (energy) uptake, and electrical activity of the brain.
GROUP DIFFERENCES
7. Members of all racial-ethnic groups can be found at every IQ level. The bell curves of different groups overlap considerably, but groups often differ in where their members tend to cluster along the IQ line. The bell curves for some groups (Jews and East Asians) are centered somewhat higher than for whites in general. Other groups (blacks and Hispanics) are centered somewhat lower than non–Hispanic whites.
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8. The bell curve for whites is centered roughly around IQ 100; the bell curve for American blacks roughly around 85; and those for different subgroups of Hispanics roughly midway between those for whites and blacks. The evidence is less definitive for exactly where above IQ 100 the bell curves for Jews and Asians are centered.
PRACTICAL IMPORTANCE
9. IQ is strongly related, probably more so than any other single measurable human trait, to many important educational, occupational, economic, and social outcomes. Its relation to the welfare and performance of individuals is very strong in some arenas in life (education, military training), moderate but robust in others (social competence), and modest but consistent in others (law-abidingness). Whatever IQ tests measure, it is of great practical and social importance.
10. A high IQ is an advantage in life because virtually all activities require some reasoning and decision-making. Conversely, a low IQ is often a disadvantage, especially in disorganized environments. Of course, a high IQ no more guarantees success than a low IQ guarantees failure in life. There are many exceptions, but the odds for success in our society greatly favor individuals with higher IQs.
11. The practical advantages of having a higher IQ increase as life settings become more complex (novel, ambiguous, changing, unpredictable, or multi-faceted). For example, a high IQ is generally necessary to perform well in highly complex or fluid jobs (the professions, management); it is a considerable advantage in moderately complex jobs (crafts, clerical and police work); but it provides less advantage in settings that require only routine decision making or simple problem solving (unskilled work).
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12. Differences in intelligence certainly are not the only factor affecting performance in education, training, and highly complex jobs (no one claims they are), but intelligence is often the most important. When individuals have already been selected for high (or low) intelligence and so do not differ as much in IQ, as in graduate school (or special education), other influences on performance loom larger in comparison.
13. Certain personality traits, special talents, aptitudes, physical capabilities, experience, and the like are important (sometimes essential) for successful performance in many jobs, but they have narrower (or unknown) applicability or ''transferability'' across tasks and settings compared with general intelligence. Some scholars choose to refer to these other human traits as other ''intelligences.''
SOURCE AND STABILITY OF WITHIN-GROUP DIFFERENCES
14. Individuals differ in intelligence due to differences in both their environments and genetic heritage. Heritability estimates range from 0.4 to 0.8 (on a scale from 0 to 1), most thereby indicating that genetics plays a bigger role than does environment in creating IQ differences among individuals. (Heritability is the squared correlation of phenotype with genotype.) If all environments were to become equal for everyone, heritability would rise to 100% because all remaining differences in IQ would necessarily be genetic in origin.
15. Members of the same family also tend to differ substantially in intelligence (by an average of about 12 IQ points) for both genetic and environmental reasons. They differ genetically because biological brothers and sisters share exactly half their genes with each parent and, on the average, only half with each other. They also differ in IQ because they experience different environments within the same family.
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16. That IQ may be highly heritable does not mean that it is not affected by the environment. Individuals are not born with fixed, unchangeable levels of intelligence (no one claims they are). IQs do gradually stabilize during childhood, however, and generally change little thereafter.
17. Although the environment is important in creating IQ differences, we do not know yet how to manipulate it to raise low IQs permanently. Whether recent attempts show promise is still a matter of considerable scientific debate.
18. Genetically caused differences are not necessarily irremediable (consider diabetes, poor vision, and phenal ketonuria), nor are environmentally caused ones necessarily remediable (consider injuries, poisons, severe neglect, and some diseases). Both may be preventable to some extent.
SOURCE AND STABILITY OF BETWEEN–GROUP DIFFERENCES
19. There is no persuasive evidence that the IQ bell curves for different racial-ethnic groups are converging. Surveys in some years show that gaps in academic achievement have narrowed a bit for some races, ages, school subjects and skill levels, but this picture seems too mixed to reflect a general shift in IQ levels themselves.
20. Racial-ethnic differences in IQ bell curves are essentially the same when youngsters leave high school as when they enter first grade. However, because bright youngsters learn faster than slow learners, these same IQ differences lead to growing disparities in amount learned as youngsters progress from grades one to 12. As large national surveys continue to show, black 17-year-olds perform, on the average, more like white 13-year-olds in reading, math, and science, with Hispanics in between.
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21. The reasons that blacks differ among themselves in intelligence appear to be basically the same as those for why whites (or Asians or Hispanics) differ among themselves. Both environment and genetic heredity are involved.
22. There is no definitive answer to why IQ bell curves differ across racial-ethnic groups. The reasons for these IQ differences between groups may be markedly different from the reasons for why individuals differ among themselves within any particular group (whites or blacks or Asians). In fact, it is wrong to assume, as many do, that the reason why some individuals in a population have high IQs but others have low IQs must be the same reason why some populations contain more such high (or low) IQ individuals than others. Most experts believe that environment is important in pushing the bell curves apart, but that genetics could be involved too.
23. Racial-ethnic differences are somewhat smaller but still substantial for individuals from the same socioeconomic backgrounds. To illustrate, black students from prosperous families tend to score higher in IQ than blacks from poor families, but they score no higher, on average, than whites from poor families.
24. Almost all Americans who identify themselves as black have white ancestors—the white admixture is about 20%, on average—and many self-designated whites, Hispanics, and others likewise have mixed ancestry. Because research on intelligence relies on self-classification into distinct racial categories, as does most other social-science research, its findings likewise relate to some unclear mixture of social and biological distinctions among groups (no one claims otherwise).
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IMPLICATIONS FOR SOCIAL POLICY
25. The research findings neither dictate nor preclude any particular social policy, because they can never determine our goals. They can, however, help us estimate the likely success and side-effects of pursuing those goals via different means.
The following professors—all experts in intelligence and allied fields—have signed this statement: Richard D. Arvey, University of Minnesota;
Thomas J. Bouchard, Jr., University of Minnesota;
John B. Carroll, Un. of North Caroline at Chapel Hill;
Raymond B. Cattell, University of Hawaii;
David B. Cohen, University of Texas at Austin;
Rene V. Dawis, University of Minnesota;
Douglas K. Detterman, Case Western Reserve Un.;
Marvin Dunnette, University of Minnesota;
Hans Eysenck, University of London;
Jack Feldman, Georgia Institute of Technology;
Edwin A. Fleishman, George Mason University;
Grover C. Gilmore, Case Western Reserve University;
Robert A. Gordon, Johns Hopkins University;
Linda S. Gottfredson, University of Delaware;
Robert L. Greene, Case Western Reserve University;
Richard J. Haier, University of Callifornia at Irvine;
Garrett Hardin, University of California at Berkeley;
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Robert Hogan, University of Tulsa;
Joseph M. Horn, University of Texas at Austin;
Lloyd G. Humphreys, University of Illinois at Urbana–Champaign;
John E. Hunter, Michigan State University;
Seymour W. Itzkoff, Smith College;
Douglas N. Jackson, Un. of Western Ontario;
James J. Jenkins, University of South Florida;
Arthur R. Jensen, University of California at Berkeley;
Alan S. Kaufman, University of Alabama;
Nadeen L. Kaufman, California School of Professional Psychology at San Diego;
Timothy Z. Keith, Alfred University;
Nadine Lambert, University of California at Berkeley;
John C. Loehlin, University of Texas at Austin;
David Lubinski, Iowa State University;
David T. Lykken, University of Minnesota;
Richard Lynn, University of Ulster at Coleraine;
Paul E. Meehl, University of Minnesota;
R. Travis Osborne, University of Georgia;
Robert Perloff, University of Pittsburgh;
Robert Plomin, Institute of Psychiatry, London;
Cecil R. Reynolds, Texas A & M University;
David C. Rowe, University of Arizona;
J. Philippe Rushton, Un. of Western Ontario;
Vincent Sarich, University of California at Berkeley;
Sandra Scarr, University of Virginia;
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Frank L. Schmidt, University of Iowa;
Lyle F. Schoenfeldt, Texas A & M University;
James C. Sharf, George Washington University;
Herman Spitz, former director E.R. Johnstone Training and Research Center, Bordentown, N.J.;
Julian C. Stanley, Johns Hopkins University;
Del Thiessen, University of Texas at Austin;
Lee A. Thompson, Case Western Reserve University;
Robert M. Thorndike, Western Washington Un.;
Philip Anthony Vernon, Un. of Western Ontario;
and Lee Willerman, University of Texas at Austin;
(See related letters: ''Letters to the Editor: Get Smart''—WSJ Dec. 30, 1994.)
(See related letters: ''Letters to the Editor: 'Bell Curve' Attacks Ring False''—WSJ Jan. 9, 1995.)
44–002 CC
1997
CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE
HEARING
BEFORE THE
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SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
MAY 20, 1997
Serial No. 46
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
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HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
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ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
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MELVIN L. WATT, North Carolina
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
C O N T E N T S
HEARING DATE
May 20, 1997
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Carvin, Michael A., attorney, Cooper & Carvin
Flick, Wayne, attorney, Latham & Watkins
Gottfredson, Linda S., professor, University of Delaware
Karlan, Pamela S., professor of law, University of Virginia School of Law
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Latham, Weldon H., general counsel, National Coalition of Minority Businesses, and senior partner, Shaw, Pittman, Potts & Trowbridge
Pinzler, Isabelle Katz, acting assistant attorney general, Civil Rights Division, Department of Justice
Stratton, Lawrence M., J.D., Research Fellow, Institute for Political Economy, Washington, DC
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Carvin, Michael A., attorney, Cooper & Carvin: Prepared statement
Flick, Wayne, attorney, Latham & Watkins: Prepared statement
Gottfredson, Linda S., professor, University of Delaware: Prepared statement
Karlan, Pamela S., professor of law, University of Virginia School of Law: Prepared statement
Latham, Weldon H., general counsel, National Coalition of Minority Businesses, and senior partner, Shaw, Pittman, Potts & Trowbridge: Prepared statement
Pinzler, Isabelle Katz, acting assistant attorney general, Civil Rights Division, Department of Justice: Prepared statement
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Stratton, Lawrence M., J.D., Research Fellow, Institute for Political Economy, Washington, DC: Prepared statement
APPENDIX
Material submitted for the hearing
(Footnote 1 return)
Pursuant to House Rule XI, clause 2(g)(4), I state that, with the exception of approximately $3500 that I have received on a subcontract from the Office of Continuing Education at the University of Virginia for lecturing on right to counsel and sentencing issues at the Federal Bureau of Investigation's National Academy for state and local police, no entity I represent at this hearing has received any federal grant, contract, or subcontract in the current or preceding two fiscal years.
(Footnote 2 return)
Like Akron's section 137—which also reached fair housing ordinances directed at discrimination on the basis of religion—Proposition 209 also forbids discrimination on the basis of some, but by no means all, of the other characteristics that, if relied on by the government, would also trigger heightened scrutiny. Cf. Hunter, 393 U.S. at 391 (noting that Akron's section 137 did not preclude simple legislative enactment of bans on ''housing discrimination on sexual or political grounds'').
(Footnote 3 return)
115 S.Ct. 2097 (1995).
(Footnote 4 return)
For example, the Small Business Administration (''SBA'') Section 8(a) program was first created in its current format, as a ''black capitalism'' program by Republican President Richard Nixon. He deemed the program as a means of providing the African American community (then the predominant minority group) with a ''business stake in America.''
(Footnote 5 return)
See Fullilove v. Klutznick, 448 U.S. 448, (1980) and Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990).
(Footnote 6 return)
115 S.Ct. 2097, 2117.
(Footnote 7 return)
448 U.S. 469 (1989).
(Footnote 8 return)
National Address on Affirmative Action (July 19, 1995).
(Footnote 9 return)
61 FR 26042. During the course of its review, DOJ recommended the suspension of the ''Rule of Two'' for setting aside contracts at the Department of Defense (''DoD''). Under the Rule of Two, contracts would be set-aside for Small Disadvantaged Businesses (''SDBs'') whenever the contracting officer could expect offers from two or more qualified SDBs and the award could be made at a price not to exceed 10% above the fair value. The Rule of Two was suspended on October 23, 1995.
(Footnote 10 return)
''Affirmative Action: Opening Doors of Opportunity for All Americans,'' published by Lawyer's Committee for Civil Rights Under Law.
(Footnote 11 return)
''Affirmative Action: Opening Doors of Opportunity for All Americans,'' published by Lawyer's Committee for Civil Rights Under Law.
(Footnote 12 return)
''Affirmative Action: Opening Doors of Opportunity for All Americans,'' published by Lawyer's Committee for Civil Rights Under Law.
(Footnote 13 return)
National Address on Affirmative Action (July 19, 1995).
(Footnote 14 return)
Federal Glass Ceiling Commission, ''Good for Business: Making Full Use of the Nation's Human Capital'' (March 1995).
(Footnote 15 return)
''Do Minority Owned Businesses Get a Fair Share of Government Contract,'' Urban Institute (November 1996).
(Footnote 16 return)
Affirmative Action Review: Report to the President, p.58 (July 19, 1995).
(Footnote 17 return)
United States Commission on Minority Business Development, Final Report (1992) developed from data provided by the U.S. Department of Commerce, Bureau of the Census.
(Footnote 18 return)
Affirmative Action Review: Report to the President (July 19, 1995).
(Footnote 19 return)
''Do Minority Owned Businesses Get a Fair Share of Government Contract,'' Urban Institute (November 1996).
(Footnote 20 return)
For example, Section 806 of Public Law 100–180 specifically prohibits the reduction of awards to small business in order to achieve Section 1207 SDB goals.
(Footnote 21 return)
Note that this is not strictly a race-based program, since no person is excluded based on race, and membership in a particular race never provides automatic qualification. The racial character of the program is two-fold: first, the program will predominantly benefit minorities; and second, there is a rebuttable presumption that members of certain ethnic and racial groups are socially and economically disadvantaged. Further, with respect to economic disadvantage, there is a ceiling on personal net worth of $750,000.
(Footnote 22 return)
Proposed 48 C.F.R. 19.305.
(Footnote 23 return)
62 Fed. Reg. 25,786 (proposed May 9, 1997).
(Footnote 24 return)
61 Fed. Reg. 26,042 (May 23, 1996).
(Footnote 25 return)
Adarand Constructors, Inc. v. Peña, 115 S. Ct. 2097 (1995) (strict scrutiny required to justify federal government setasides); Richmond v. J.A. Croson. Co., 488 U.S. 265 (1978) (strict scrutiny required to justify state and local government setasides).
(Footnote 26 return)
If identical form letters, memoranda, etc., were sent out, then one copy of each such form letter, memoranda, etc., is sufficient. Alumni names and other personally identifying information may be excerpted.
(Footnote 27 return)
Presented at the IPMA Assessment Council Conference on Professional Personnel Assessment, Newport Beach, CA, 6/25/97/.