SPEAKERS CONTENTS INSERTS
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THE CIVIL RIGHTS ACT OF 1997;
H.R. 1909
THURSDAY, JUNE 26, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:08 a.m., in room 2141, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.
Present: Representatives Chares T. Canady, Henry J. Hyde, Bob Inglis, Ed Bryant, Bill 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: Robert J. Corry, counsel; Kathryn Lehman, chief counsel; John Ladd, counsel; Brett Shogren, staff assistant; Michael Connolly, staff assistant; and Julien Epstein, minority staff director, Brian Woolfolk, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
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Mr. CANADY. The subcommittee will come to order. We are here today to consider H.R. 1909, the Civil Rights Act of 1997, which I introduced last week on behalf of myself and over 60 House cosponsors. Senator McConnell and Senator Hatch have introduced companion legislation in the Senate.
Since the 104th Congress, this subcommittee has held eight in depth hearings on the general topic of Government-sponsored race and gender preferences. By now, we have heard arguments from many sides of the issue. We have conscientiously and respectfully considered all viewpoints.
The Civil Rights Act of 1997 is a principled yet measured approach to the issue of race and gender preferences. Those who heard the President's commencement speech two weeks ago at the University of California San Diego know that he professed allegiance to diversity and affirmative action. I notice that he did not mention equal protection of the law. He did not mention civil rights. He certainly did not mention preferential treatment. But his administration's actions and inaction speak much louder than his words. The Clinton Administration has consistently and unerringly defended each and every brick in the pervasive wall of preferential Government programs that the Civil Rights Act of 1997 would end. After pledging nearly 2 years ago to study this matter prior to acting, the wall of preferences still stands as tall and insurmountable as ever. The only concrete proposal from the administration on this issue would build this wall of preferences even higher. It is obvious that legislation securing civil rights for all Americans is urgently needed.
This bill is titled the Civil Rights Act of 1997 because the present system of discriminatory preferential treatment based upon race and gender is the opposite of civil rights. It is the opposite of equal protection. It is the opposite of the self-evident truth upon which this Nation was forged, that all people are created equal. This legislation presents Congress with a stark and unavoidable choice in formulating public policy. Either the Federal Government will treat people equally without regard to race and gender, or it will treat them unequally by granting preferential treatment to some. This is a choice we in Congress must make.
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The American people have already made their choice. In our Nation's most racially diverse State, the adoption of the California Civil Rights Initiative shows that we, as a people, are preparing to finally move beyond divisive Government-sanctioned discrimination and preferences. Unfortunately, the President went to California to pontificate on this topic about six months too late, since Californians had already spoken loud and clear at the ballot box that Government must get out of the special preference business. The courts have already made their choice as well. In recent years, courts at all levels have struck down Government preference programs as unconstitutional. It is irresponsible for Congress, sworn to uphold the Constitution, to allow these blatantly unconstitutional programs to continue to exist. Although the administration fought it, all the President's words cannot change the fact that the California Civil Rights Initiative is now enshrined in California's supreme law, the State constitution.
I believe that some day, Americans will look back at our time and wonder why our Government continued these immoral and unconstitutional preference policies on such a grand scale. Our grandchildren will be ashamed that our Government denied equal protection to some because of the color of their skin just as we are ashamed that our Government once denied equal protection to others for the same reason.
With this legislation, the debate can continue in Congress over the true meaning of the equal protection of the law. Which way should America be headed as we approach the 21st century? Should the Federal Government be engaged in the hurtful and divisive business of counting, sorting, and preferring people because of their race, or should the Government treat all people equally without regard to these characteristics we are given at our birth.
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I am pleased today that the subcommittee will hear from distinguished Members of Congress, scholars, and members of the bar, all experts on this issue. But perhaps most relevant, we will hear from numerous witnesses who have personally tasted the sting of Government-sanctioned discrimination. These people were discriminated against solely because of the color of their skin or their sex. Clever platitudes mean little to real citizens hurt by Government preferences. These witnesses have another characteristic in common. They sued to vindicate their civil rights in court. They have appeared in court at every level, from a State trial court to the United States Supreme Court. After long legal battles, proved their cases on the merits and struck down unconstitutional governmental preference programs. But the most compelling thing these witnesses have in common is that despite the fact that they demonstrated Government preference programs to be unconstitutional for various reasons, none of the unconstitutional preference programs they challenged have been rescinded by the Government. This proves that the present system of laws is inadequate to fully protect the civil rights of all Americans, and demonstrates the urgent need for the Civil Rights Act of 1997. Stories like these are all too common in America today.
The Civil Rights Act of 1997 is simple, direct, and clear. It prohibits Federal Government discrimination and preferences on the basis of race and sex. The subcommittee would greatly appreciate if testimony and arguments addressed to this legislation and would specifically address whether Federal Government discrimination and preferences on the basis of race and sex are wise policies, consistent with American legal and moral principles.
Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I appreciate the fact that you are holding the hearing so that we can air the various differences of opinion about the legislation. Once again, the subcommittee is meeting to consider another attack on a modest bundle of rights available to victims of discrimination. Instead of addressing issues of discrimination against the disabled, we choose to poke holes in the Americans with Disabilities Act. Instead of considering ways to more effectively address the extensive housing discrimination that still adversely affects millions of families, we're poised to carve away parts of the Fair Housing Act.
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Now, despite the recently revealed discrimination at Texaco, Circuit City, Mitsubishi, and the Department of Agriculture, we are assembled here to consider the repeal of the most effective instrument available in remedying discrimination. Affirmative action is a remedy. It's only legal if narrowly tailored to remedy discrimination. H.R. 1909 would not only prevent the Federal Government from taking affirmative action to remedy still widespread and persistent discrimination in employment, contracting, and education, it also creates a civil cause of action against the Federal Government or any of its agents that take affirmative steps to remedy discrimination.
This bill so extremely ensures that discrimination will go unremedied that it is deserving of a title which more appropriately reflects its ultimate results. My suggestions for a new title for the bill would include The Bigotry Protection Act, or the Racial Status Quo Extension Act.
Discrimination is still rampant and Government still has a moral obligation to remedy this discrimination. A recent study conducted by the Fair Housing Council found that minorities are discriminated against 40 percent of the times that they attempt to rent apartments. A similar study conducted by employment testers at the Fair Employment Council and Urban Institute has revealed that African American and Latino job applicants suffer blatant and easily identifiable discrimination one out of every five times they apply for a job. In addition, women still make only 70 cents for every dollar made by men in the same professions. It is unbelievable that our response to such discrimination is repealing the major tool for remedying discrimination without even discussing other remedies.
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Whether intended or unintended, H.R. 1909 will have the practical effect of re-segregating America. This country has an ugly history of racial separation that I would hope most of the Members of Congress would not be anxious to revisit. The repeal of affirmative action programs in both Texas and California give us a peak of what this country will be like without affirmative action. So we must ask the opponents of affirmative action if they have achieved their goals when only 10 African Americans were admitted to this year's class at the University of Texas Law School, down from 65 last year. Are we surprised at the reports that none of these 10 applicants has expressed any interest in coming to the re-segregated University of Texas. Did they get what they wanted because the UCLA Law School suffered an 80 percent drop in African Americans included in their admitting class, the lowest number since at least 1970. Why are they not satisfied that women and minorities combined get less than 10 percent of Federal contracting dollars, despite the fact that they make up over 60 percent of the population.
So I ask how far do we have to turn the clocks back to appease those who are disgruntled because discrimination may be remedied. H.R. 1909 overturns the Supreme Court's decision in Adarand v. Pena. Justice Sandra Day O'Connor, writing for the majority in Adarand, states that the unhappy persistence of both the practice and lingering effects of racial discrimination against minority groups in this country is an unfortunate reality. Government is not disqualified from acting in response to it. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the narrow tailoring test this court has set in previous cases.
H.R. 1909 in contrast, represents the official disqualification of the Government's ability to act in response to the discrimination in which Justice O'Connor referred. Even a Government agency such as the Department of Agriculture, that has admitted discrimination, under 1909 would be prohibited from effectively remedying this admitted discrimination. H.R. 1909 would prevent the use of goals and timetables to determine the USDA's measurable progress in ridding itself of discrimination. Such a prohibition is particularly egregious considering that even after admitting discrimination the USDA will remain the same institution with the same people having the power to make discriminatory decisions. Without the ability to gauge accountability, we can only cross our fingers and hope that those who have been discriminated against in the past will not be discriminated against again in the future. These black farmers deserve more than our hopes and desires, they deserve a substantial remedy that will ensure that they are given equal opportunities to participate in this Government's programs. The goals and timetables systems of management by objective was suggested to former President Lyndon Johnson by over 300 business leaders because of its effectiveness in leveling the playing field. Despite this mechanism's modest goals and record of success in integrating both Government agencies and private contractors, H.R. 1909 would eliminate this remedy to historic discrimination. Federal agencies and contractors would be prevented from holding themselves accountable to any assurances that they would treat all Americans equally. This would be a great step backward that we should not take.
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I look forward to the testimony of Members and witnesses offering testimony in today's hearing. This is one of the most important hearings we will have in this Congress, and I hope that we will have ample time to address this issue.
Mr. Chairman, I ask unanimous consent that the record be kept open for another week. There are a number of organizations which have expressed an interest in submitting testimony for the record.
Mr. CANADY. Without objection. Thank you.
On our first panel today, we will hear from six distinguished Members of Congress. Testifying first will be Senator Mitch McConnell. Senator McConnell, who currently serves the State of Kentucky, is chairman of both the Foreign Operations Subcommittee and the Nutrition Subcommittee, as well as serving on the Agriculture Appropriations, Labor, Rules and Joint Committees on Printing. He is also chairman of the National Republican Senatorial Committee.
Following Senator McConnell will be Representative Tom Campbell. Representative Campbell represents the people of the 15th district of California. He currently serves on the Banking and Financial Services and the International Relations Committees.
The next witness will be Congressman Eleanor Holmes Norton. Delegate Norton serves the people of the District of Columbia. She is a member of the Committee on Transportation and Infrastructure, and the Committee on Government Reform and Oversight, of which she is the ranking Member of the District of Columbia Subcommittee.
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Congresswoman Norton will be followed by Representative Marge Roukema, the congresswoman from New Jersey's fifth district. Congresswoman Roukema is currently a member of the Economic and Educational Opportunities Committee. She also serves as a member of the Banking Committee and is chairwoman of the Subcommittee on Financial Institutions.
Representative Patsy Mink will be the next witness to testify before this subcommittee. Congresswoman Mink currently sits on the Budget and Education and Workforce Committees and represents the people of the second district of Hawaii.
Next we will hear from Representative Sheila Jackson Lee. Ms. Jackson Lee is a member of the Judiciary Committee, and represents a district in the Houston, Texas, area.
Rounding out our congressional panel is Representative Tillie Fowler from the 4th district of Florida. Congresswoman Fowler is a member of the National Security Committee and the Transportation and Infrastructure Committee, where she is vice chairman of the Subcommittee on Coast Guard and Maritime Transport.
I want to thank each of you for being with us today. I appreciate your participation in this hearing. We are looking forward to your testimony. I would ask, given the length of the panel and the following panels, that each of you do your very best to summarize your testimony in no more than 5 minutes. We would appreciate that very much. Of course your full statements will be made a part of the permanent record of the hearing. Thank you very much.
Senator McConnell.
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STATEMENT OF HON. MITCH MCCONNELL, A SENATOR IN CONGRESS FROM THE STATE OF KENTUCKY
Senator MCCONNELL. Thank you, Mr. Chairman. You will be pleased to know that we have a number of votes in the Senate beginning at 9:30, so I will be out of here rapidly. Thank you for your leadership on this important issue.
The Constitution provides that all persons are guaranteed equal protection under the law regardless of race, national origin or sex. Throughout our Nation's long history, we have fought to establish these immutable traits should be irrelevant in life. In fact, it was President Kennedy who declared that race has no place in American life or law.
This constitutional guarantee of equality is the foundation of the Civil Rights Act of 1997, which declares that the Federal Government shall not discriminate against or grant a preference to any individual or group based on race, color, national origin or sex. The fact of the matter is, during the debate on the Civil Rights Act of 1964, no one envisioned that 30 years later, the Federal Government would engineer over 150 programs to award dollars, jobs, and contracts based on a person's skin color or sex. Even Senator Humphrey, the champion of the landmark 1964 Act, emphasized that ''nothing in the bill'' Senator Humphrey said, ''would permit any official or court to require preferential treatment to any minority group.'' Humphrey explained that he did not ''want a society that is nothing but an endless power struggle among organized groups[.]''
Government-sponsored set-asides and quotas have produced precisely the divided world from which Senator Humphrey and all those who marched in the streets sought to escape in 1964. Racial classifications and preferences pit Americans against each other. African-Americans against Hispanic Americans against Asian Americans against Caucasian Americans. Most Americans resent the Government forcing them into little boxes and then using the boxes to decide which contracts they can be awarded, which jobs they can be hired for, and which schools their children can attend.
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Poll after poll indicates that large majorities of Americans oppose preferences, including a large percentage of minorities. For example, a recent Washington Post/ABC News survey showed that not even a majority of African Americans favor preferences. Another poll by the Joint Center for Political and Economic Studies found that African Americans opposed preferential treatment by a margin of 50 to 43 percent. A recent Zogby poll asked Americans about their view of the Civil Rights Act of 1997. An overwhelming 83 percent of Americans, including 79 percent of African-Americans, stated that they would support ''a Federal law to ban discrimination and preferential treatment in the Government.''
The American people understand that every time the Government grants a preference to one person based on race or gender, it discriminates against another based on race or gender. Discrimination by any other name is still discrimination. And, it still strikes at the heart of the person being discriminated against.
Let me put a face on this discrimination that was reported recently in the Wall Street Journal. Michelle Doe is a 16-year-old girl and a straight A student from a humble background in Corpus Christi, Texas. She decided that she wanted to go to summer camp. The camp was called Camp Planet Earth and was funded by the Federal Government's National Science Foundation. Michelle applied and became a finalist. Her hopes were dashed, however, during the interview stage when it became clear that she wasn't eligible for the camp. Why wasn't she eligible? Was it her grades? No, she was a straight A student. Was it her application form? Did she forget to answer a question on her application? No. Michelle was denied the opportunity to go to summer camp because of her race. You see, the program was for minorities only. Michelle was not a minority. In the words of the Wall Street Journal, ''[w]hen Michelle went looking for some productive way to spend her summer, she soon discovered that the Government divides people according to skin color.''
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The Civil Rights Act of 1997 is the next step in our Nation's struggle to overcome discrimination and to achieve unity as a Nation of individual Americans, not groups. We must provide genuine opportunities to all disadvantaged individuals, regardless of race or gender. These opportunities can become reality through a comprehensive empowerment strategy that includes strict enforcement of the laws against discrimination, court-ordered remedial action for victims of specific acts of discrimination, and targeted outreach and recruiting efforts to encourage all qualified minorities to apply for Federal employment and contracts.
We must also improve our educational system through parental involvement and school choice, provide economic opportunities through enterprise zones and tax breaks, move more and more persons from the welfare roll to the payroll, and finally, make our streets safer.
Again, Mr. Chairman, thank you very much for inviting me to testify here today. I congratulate you for your leadership on this. I thank you very very much for the opportunity to participate.
[The statement of Senator McConnell follows:]
PREPARED STATEMENT OF HON. MITCH MCCONNELL, A SENATOR IN CONGRESS FROM THE STATE OF KENTUCKY
Thank you Mr. Chairman for allowing me to testify today on the Civil Rights Act of 1997. This is a very significant piece of legislation and I want to thank you for your leadership.
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The Constitution provides that all persons are guaranteed equal protection under the law—regardless of race, national origin, or sex. Throughout our nation's long history, we have fought to establish that these immutable traits should be irrelevant in life. In fact, it was President Kennedy who declared that ''race has no place in American life or law.''
This constitutional guarantee of equality is the foundation of the Civil Rights Act of 1997, which declares that: the federal government shall not discriminate against or grant preference to any individual or group based on race, color, national origin, or sex.
The fact of the matter is, during the debate on the Civil Rights Act of 1964, no one envisioned that—thirty years later—the federal government would engineer over 150 programs to award dollars, jobs, and contracts based on a person's skin color or sex. Even Senator Humphrey, the champion of the landmark 1964 Act, emphasized that ''nothing in the bill would permit any official or court to require . . . preferential treatment to any minority group.'' Humphrey explained that he did not ''want a society that is nothing but an endless power struggle among organized groups[.] ''
Government sponsored set-asides and quotas have produced precisely the divided world from which Senator Humphrey and all those who marched in the streets sought to escape in 1964. Racial classifications and preferences pit Americans against each other—African Americans against Hispanic Americans against Asian Americans against Caucasian Americans. Most Americans resent the government forcing them into little boxes and then using the boxes to decide which contracts they can be awarded, which jobs they can be hired for, and which schools their children can attend.
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Poll after poll show that large majorities of Americans oppose preferences including a large percentage of minorities. For example, a recent Washington Post-ABC News survey showed that not even a majority of African Americans favor preferences. Another poll by the Joint Center for Political and Economic Studies found that African Americans are opposed to preferential treatment by a margin of 50 percent to 43 percent.
A recent Zogby poll asked Americans about their view of the Civil Rights Act of 1997. An overwhelming 83% of Americans, including 79% of African Americans stated that they would support ''a federal law to ban discrimination and preferential treatment in the government.''
The American people understand that every time the government grants a preference to one person based on race or gender, it discriminates against another based on race or gender. Discrimination by any other name is still discrimination. And it still strikes at the heart of the person being discriminated against.
Let me put a face on this discrimination, as reported in The Wall Street Journal:
Michelle Doe is a 16-year old girl and a straight-A student from a humble background in Corpus Christi, Texas. She decided that she wanted to go to summer camp. The camp was called Camp Planet Earth, and was founded by the federal government's National Science Foundation.
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Michelle applied and became a finalist. Her hopes were dashed, however, during the interview stage where it became clear that she wasn't eligible for the camp. Why wasn't she eligible? Was it her grades? No, she was a straight-A student. Was it her application form? Did she forget to answer a question on her application? No.
Michelle was denied the opportunity to go to summer camp because of her race. You see, ''the program was for 'minorities' only,'' and Michelle was not a minority.
In the words of The Wall Street Journal, ''[w]hen Michelle went looking for some productive way to spend her summer, she soon discovered that the government divides people according to skin color.''
The Civil Rights Act of 1997 is the next step in our nation's struggle to overcome discrimination and to achieve unity as a nation of individual Americans, not groups. We must provide genuine opportunities to all disadvantaged individuals, regardless of race or gender.
These opportunities can become reality through a comprehensive empowerment strategy that includes: strict enforcement of the laws against discrimination, court-ordered remedial action for victims of specific acts or discrimination, and targeted outreach and recruiting efforts to encourage all qualified minorities to apply for federal employment and contracts. We must also: improve our education system through parental involvement and school choice, provide economic opportunities through enterprise zones and tax breaks, move more and more persons from the welfare roll to the payroll, and finally, make the streets safer for every American child.
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Again, Mr. Chairman, thank you for inviting me to testify today. I look forward to working with you on this legislation as it moves forward.
Mr. CANADY. Thank you, Senator.
Representative Campbell.
STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CAMPBELL. Thank you, Mr. Chairman, for the chance to testify. At the start, let me just make a clear distinction between the victim of discrimination and a member of a group that has traditionally suffered discrimination. There is nothing in this bill that prohibits or impedes in any way the granting of relief to a victim of discrimination. I draw attention to that because our good friend and colleague, the ranking minority Member in his opening remarks, suggested perhaps that that was not the case. It is the case. This bill permits any individual victim of discrimination to have full remedy for that discrimination. That should not be in doubt.
There is a fundamental and very interesting important question that is in doubt. That is, whether once we have treated the individual who has suffered discrimination and that individual has received remedy, is it appropriate for the Federal Government to use race in offering benefits or distinguishing among citizens for the purposes of achieving other social ends. For example, a diverse student body at a university, or for example, to give opportunity to those who in the past as a member of a group have not been as represented in particular Government contracts. But if I make nothing else clear, this distinction must be clear. The Civil Rights Act of 1997, which we are discussing today, does not impede upon remedies for individuals suffering discrimination.
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How far we have come? Let me just take a moment of history. In 1978, the Supreme Court decided University of California v. Bakke. I was privileged to be law clerk to Justice Byron White the year Bakke was decided. I served as a law clerk on the United States Supreme Court. That decision was four to one to four. It's fascinating to recognize today that eight of the justices, four in the majority and four in the dissent, eight of the nine believed that any use of race by Government was the same as a quota. The distinction on which so much is focused, that well we can ''mend affirmative action but not end it,'' that I'm for the use of race but not quotas, was rejected by eight of the nine justices. Four of them said look, it's all the same and it's all all right. If your purpose is to remedy, if your purpose is to do good, if your purpose is to help a race that has traditionally been excluded, then it's okay. Those were the four who sided with Justice Powell, which made the fifth vote to make it five to four.
The other four were in dissent. Justice Stevens, Justice Stewart, Justice Berger, and Justice Renquist. They said look, call it what you like, if the Government uses race, it's wrong. Eight of those justices, it's fascinating to me, recognized the use of race by Government is the issue. It is the same whether you say it's a plus factor at the margin that helps a little bit in the consideration, or whether we say this position is reserved to you because of that.
Why is it the same? It's the same because to the individual kept out, that individual who didn't get the plus factor, that individual who was in balance except for the additional element, it's the same, whether he or she was the victim of a quota or the victim of a plus factor that he or she did not have. The Bakke case became the law. It's been followed. It allows this distinction to continue. But I emphasize it was four to one to four, and eight of the nine rejected the notion that there was a logical distinction between a plus factor and a quota.
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One other great regrets of Bakke is that once the use of race was permitted by a university, in this case the University of California, other alternatives were no longer pursued. That to me is a great sadness. At 10:00 this morning, I'll be introducing a bill to suggest to those who would wish to consider alternatives possible routes for doing so. Low income, restricted opportunity, individual instances of discrimination actually suffered. Let me repeat that—individual instances of discrimination actually suffered; low percentage graduation from high school that you attended. In the State of California, I suggested when I was a State senator, that we give a principle of every high school that didn't send a student to the U.C. system the opportunity of a ''silver bullet'' to designate a student who could go to the U.C. This is not done on the basis of race. This is done on the basis of creating opportunity for those for whom opportunity was not available.
Because Bakke made the use of race possible, we never went this other route. That's my answer to those who look today and they say the numbers aren't right. Well, we have never tried the alternatives. All we have done is to use race. So we have ignored the others.
With your indulgence, I just have about 30 more seconds, Mr. Chairman, if I may. The present system is unfair to those who don't have the preference criteria. When I was a law clerk the year Bakke was decided, I read briefs by B'nai B'rith, and briefs submitted by the Sons of Italy. They were briefs submitted on behalf of Alan Bakke. They said look, don't think that you are just giving a preference to African-Americans and Hispanics in the case of Bakke, in the case of University of California at Davis, and taking it from an amorphous group. You are taking it from me. That was the point of view of the B'nai B'rith and the Sons of Italy. Which points out the fundamental truth, that you cannot grant a preference on the basis of race without taking something away from somebody on the preference of race. Even if you tell me that it does some good, you cannot explain the good that it does to the individual who is kept out, who is not given the opportunity because of his or her race.
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I conclude by citing Justice William Douglas, not a rightwing loony. Justice William Douglas said in dissent from the dismissal as moot of Defunis v. Odegard in 1974, ''there is no constitutional right for any race to be preferred. There is no superior person by constitutional standards. A Defunis who was white is entitled to no advantage by reason of that fact, nor is he subject to any disability, no matter what his race or color, whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.'' Thank you, Mr. Chairman.
[The prepared statement of Mr. Campbell follows:]
PREPARED STATEMENT OF HON. TOM CAMPBELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Discrimination on the basis of race, creed, color, sex, age or religion must not be tolerated, even if the government attempts to use such criteria to end existing discrimination. Creating discrimination to end discrimination is not an acceptable solution. Only through the rigorous enforcement of our civil rights laws can we end this scourge, and ensure equal opportunity for all in our society.
I would like to focus my comments on the general proposition that the Civil Rights Act of 1997 addresses; namely, that it is morally wrong for the government to discriminate among its citizens on the basis of their race. Everything else is secondary. I can give you examples showing that affirmative action has been counterproductive, and the supporters of it can point to people they claim who have benefited from it. But if we never depart from the fundamental issue of whether it is right or wrong, we will have the guidance we need to answer this question.
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I had the exceptional honor to clerk for Justice Byron White in 1978, the year California v. Bakke was decided. I was given the task of reading the entire history of the 1964 Civil Rights Act. It took me over three months. Then I briefed the Justice on what I found. What I found was a commitment to the principle I have stated today—that the government must not discriminate against its citizens on the basis of race. No one argued that you can use race provided, on balance, it did more good than harm in creating role models. No one said that you can use race to distinguish among its citizens if it creates a diverse work place and mirrors the diversity of America. Hubert Humphrey, Senator Clifford Case, Congressman Morris Udall—heroes of the civil rights movement to a person argued that it was morally wrong for the government to distinguish among citizens on the basis of race. That is why Title VI was put into the Civil Rights Act in 1964. and which was at issue in Bakke.
Let me turn to the Bakke decision. Do you recognize how very narrowly we decided to go down this path? It was a four-to-one-to-four decision. Four Justices said it was acceptable for the University of California at Davis to use racial considerations in its admission policy. Four Justices said it was never acceptable to use racial considerations, and only one, Justice Powell, said it was acceptable to use race, but just a little bit; an intellectually indefensible position, rejected by the eight other Justices. Among the four who rejected the use of race were Justices Stewart, Stevens, Chief Justice Burger and Rehnquist, now Chief Justice. Our liberal friends tend to dismiss decisions by Burger and Rehnquist; they are wrong to do so. But to them I point to Justices Stewart and Stevens. No one accuses the late Justice Stewart as being a far right conservative. Justice Stevens is probably the most liberal member of the Supreme Court today.
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When I was reading the legislative history of the Civil Rights Act, I was also given the task of reading all of the briefs in the Bakke case. They go uncommented upon today, but if you go back and look at those who submitted amicus curie briefs and read them you get a strong sense of the danger many felt at the notion of the government using race. For example, B'nai B'rith submitted a brief which said that it is all well and good for the University of California at Davis Medical School to create 15 places for blacks only, which they did, until you realize that those who don't get into this pool of applicants even to be considered were more likely to be Jewish than gentile.
The Bakke case held that you could use racial considerations, a little bit, five-to-four. If one Justice had held to the principle the other four Justices did, we would have never gone down this road, and what we would have had is a pragmatic and effective program to help those people in need regardless of their race. Had this happened, I'm convinced that the history of race relations in our country over the last 20 years would have been changed for the better.
Because of the position I take, I do not devote much time in my remarks as to how affirmative action has done harm. There are many others who can make this case very well. And there are others who can come back and say it does good. Abstract from that: You cannot do good by doing bad. But in my State of California I had one experience as a Congressman that I thought I would conclude with.
When I first served in the House of Representatives, I received a letter in my office from a constituent who had applied to Boalt Hall, the University of California's Law School at Berkeley. She had received a response from the University of California saying that, ''you are on the top 1/3 of the Asian waiting list.'' This is not 1949, not 1899, this is 1989 when I was a freshman congressman. There was a blank in the letter where the number '' 1/3'' was written in and another blank where the word ''Asian'' was written in before the words ''waiting list'' to tell her where she stood in the eyes of the state. Is there is any purported good that can justify that? To tell her that she is viewed by her state as top 1/3 for an Asian? This state that did not give Chinese-Americans the right to sue in civil court until the later part of the Century? My state that went along with the internment of Japanese-Americans purely on the basis of their race during the Second World War? My state that coined the hideous phrase, ''Chinaman's chance'' because it was the Chinaman who was sent to put the explosives in the Sierra Nevada when building the railroads, and if the Chinaman came back after the explosives went off, that was alright, but if he did not, well, that was the ''Chinaman's chance''? My state told a citizen that she was in the top 1/3 on the Asian waiting list. You can't do right by doing wrong.
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I believe the Civil Rights Act of 1997 successfully addresses this proposition by seeking to do away with preferences, set-asides and quotas in any kind of federal employment, contracting, programs, and activities. That is why I am happy to stand with my colleagues as a cosponsor of this bill today.
Mr. CANADY. Thank you, Representative Campbell.
Delegate Norton.
STATEMENT OF ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM WASHINGTON, DC
Ms. NORTON. Thank you, Mr. Chairman. I appreciate the opportunity to testify and will do so by summarizing my testimony. I will speak today not theoretically or even anecdotally the way this subject is usually discussed. I will not even speak from my experience as a constitutional lawyer. It will be most useful, it seems to me, to this committee if I spoke in light of my own actual experience enforcing anti-discrimination laws of the kind that the bill before you would seem to bar.
I would ask this committee to ask itself another question. That is, if the bill before you passes, how will the Government of the United States cure systemic discrimination that shields countless instances of individual discrimination? I want to speak today from my own experience as chair of the Equal Employment Opportunity Commission in the late 1970s, and as chair of the New York City Commission on Human Rights. Attached to my testimony will be affirmative action guidelines that we developed at the EEOC to help employers avoid discriminating against others while eliminating discrimination against women and minorities.
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I refer particularly to my experience in New York City, the toughest environment in which to do affirmative action. There, I used goals and timetables in a city where the major Jewish organizations are headquartered. That experience is noteworthy because American Jews are perhaps the largest group that has been victimized by invidious exclusionary quotas. Not only did the major Jewish organizations support my work in affirmative action, they also supported the use of goals and timetables there. Almost all of those organizations are on record today as supporting goals and timetables and affirmative action.
After the Adarand decision in 1995, Mr. Chairman, I believe it is a fair question to ask why anyone would come forward with this bill at this time. That decision so tightens affirmative action that the question this subcommittee ought to ask itself is what is left of affirmative action, not how can we get rid of what little is left of affirmative action.
The Clinton Administration has already moved to eliminate the only set-aside program, one that was in the Department of Defense. I am on the Transportation Committee. I look at the administration's disadvantage business enterprise regulations. My heavens, the regulations all but eliminate most of what has passed for affirmative action: Race neutral alternatives must be used first; only a good faith effort is necessary; use factors other than race, such as social and economic advantage in determining a program's eligibility; periodic review of the program to make sure there is not reverse discrimination; Graduation from the program.
When you take Adarand and combine it with the administration's approach, one is left to ask what possible purpose does the Canady bill serve? We now have new safeguards, tight restrictions, potential liability for abuse, and a daunting new strict scrutiny standard leaving the proper question to be in my judgement, what is left of affirmative action.
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Without any showing that affirmative action is no longer needed, without any showing that affirmative action has been significantly abused, the Canady bill essentially disarms legitimate efforts to eliminate discrimination. The small number of outreach mechanisms left are those that have a documented history of failure for more than a century. No one who is serious about eliminating discrimination in the United States today would say, particularly to blacks, you are repaired to the remedies that left your fathers and grandfathers in the backwaters of the labor force. No one would say to women, you are once again in a pool from which you were systematically not chosen. The Supreme Court has a whole set of measures that constrict affirmative action. Many of them mirror the DBE regulations that the administration has produced.
Moreover, affirmative action is illegal automatically once the system is operating to bring in members of the excluded groups and long before that system has in fact corrected the discrimination. When I became chair of the New York City Commission, most real estate agents in the United States were men. Today, most are women. Long before that complete reversal, the veneer of discrimination had been removed and it would have been illegal to engage in goals and timetables, and for that matter other outreach, because you had turned the system so that it was doing it on its own.
It is important to note that business has long supported affirmative action. This is because goals and timetables, the early warning, through the work of the Office of Federal Contract Compliance, have put them on notice that they had practices that were discriminatory. They had moved early in self-remediation, the best way to do law enforcement. You take that away from them, then of course they don't have that warning and they continue to discriminate.
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Let me give what I believe is the ultimate evidence that we do not have reverse discrimination in America today. I submit that this is not anecdotal evidence. This is the kind of statistical evidence that this committee, it seems to me, has the burden to produce on the other side.
At the EEOC, white men filed 1.7 percent of discrimination complaints on the average between 1987 and 1994. Yet neither at the EEOC or in other administrative or court procedures, have white males shown a reluctance to pursue their rights. White men file the great majority of age discrimination cases. They filed 6,541 out of 8,026 age discrimination cases in 1994. The reason they filed age discrimination cases is that this is the kind of discrimination they experience, because employers often go after experienced and management employees when they want to reduce the costs of wages and benefits.
The experience which age discrimination tellingly shows us, that white males know how to pursue their rights, and they know where the discrimination is. Their record of failing to pursue other forms of discrimination, including so-called reverse discrimination, is compelling evidence that affirmative action has not significantly discriminated against them.
I thank you, Mr. Chairman.
[The prepared statement of Ms. Norton follows:]
PREPARED STATEMENT OF ELEANOR HOLMES NORTON, A DELEGATE IN CONGRES FROM WASHINGTON, DC
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For more than three centuries, in one form or another, race has been both this country's deepest flaw and its cheapest shot. Every period has produced its own version of each, depending upon the quality of our leadership and the shape of events. Today, Presidential and Congressional leadership is once again being tested, but this time not on race alone but on gender and ethnicity as the country moves rapidly in becoming a multi-racial nation.
Today I want to discuss H.R. 1909 and its potential effects on affirmative action. I think that I would be most useful if I did so by bringing to bear my own experience as a former chair of the Equal Employment Opportunity Commission (EEOC) and a former chair of the New York City Commission on Human Rights. While I was at the EEOC, we developed Affirmative Action Guidelines for the purpose of helping employers avoid discriminating against some while eliminating discrimination against others. These Guidelines are attadhed to my testimony. Affirmative action in employment, which has been developed and ratified by the courts, is the generic model and the most instructive in discussing this subject in other areas.
The New York City law encompassed all forms of discrimination. In New York, I worked not only to remedy discrimination but, in doing so, used mechanisms that avoided racial preference, polarization, and tension among New York City's numerous and extraordinary array of racial and ethnic groups. As chair of the New York City Commission, I used strong and effective affirmative action, including goals and timetables, in a city where the major Jewish organizations are headquartered. My experience in New York is noteworthy because American Jews perhaps have been the group most victimized by invidious, exclusionary discriminatory quotas. Virtually all the Jewish groups supported my affirmative action work, including goals and timetables, and later supported my candidacy when President Carter nominated me to chair the EEOC. My experience in New York as well as the documented support of most of the major Jewish organizations supporting affirmative action in general, and goals and timetables in particular, is persuasive evidence that goals and timetables do not generally lead to quotas.
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After the Supreme Court decision in Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995), applying strict scrutiny to affirmative action remedies, it is fair to ask why anyone would come forward with the bill before you today? No one can doubt that Adarand has tied the knot as tightly as anyone in good faith could desire. That decision has caused the Clinton Administration to undertake large changes tightening all affirmative action programs. As a result, the only set-aside program (a sheltered program at the Department of Defense) has been eliminated.
To illustrate how affirmative action has been narrowed to meet even the most stringent of requirements following Adarand, one need only look at the Department of Transportation Disadvantaged Business Enterprise (DBE) regulations including use of race-neutral alternatives as a priority in meeting DBE goals; waivers of race-conscious goals altogether if good faith efforts fail to find qualified subcontractors; use of factors other than race (such as social and economic disadvantage) in determining program eligibility; periodic review of the program through the reauthorization process and graduation of DBE firms out of the program, among others.
Given the Adarand strictures imposed by the Supreme Court and the narrowing of affirmative action by the Clinton Administration, ask what possible purpose could the Canady bill serve? If anything, the catalogue of new safeguards, tight restrictions, potential liability for abuse, and an alarming new strict scrutiny standard threaten most remaining affirmative action programs and leave little room or need for Congressional action.
Today, far from being a threat, affirmative action is surrounded by a plethora of proven safeguards, challenging new Supreme Court restrictions, and administrative limitations that should lead this Committee to inquire whether the nation's antidiscrimination effort has not already been severely undermined. Without any showing that affirmative action is no longer needed or that it in fact has been significantly abused, the Canady biti disarms legitimate efforts to eliminate discrimination. What the bill leaves is a small number of benign outreach mechanisms that have almost a century of documented failure.
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It was the courts that led in requiring affirmative remedies, such as numerical indicators of progress, because they found that the methods in use (such as outreach, the central feature of the Canady bill) had produced almost no progress. Today, no one who is serious about eliminating ancient and recalcitrant patterns of discrimination would return to the remedies of the 1950s, as this bill does. The 1964 Civil Rights Act, in succeeding the benign 1957 Civil Rights Act, deliberately opened the way for the modem remedies now in use. Nothing would increase the cynicism of blacks more than to be told to repair to the old remedies that kept their fathers and grandmothers in the backwaters of the labor force. Nothing would punish women and their families more than outreach techniques that allow employers to recruit women to a pool but continue to hire as before.
The careless and undocumented assertion that quotas result from goals and timetables has no basis in fact. The bill's author has not even tried to meet the burden of demonstrating the extent of abuse. He cites no statistical evidence. The usual anecdotal evidence is unpersuasive, especially when measured against the countless millions of instances of legitimate and systematic use of affirmative action in the workplace and the great strides women and minorities have made only as a result of strong affirmative action.
The same courts that are chiefly responsible for developing affirmative remedies have also built strong safeguards. The Supreme Court has required that neutral measures be considered before using race- or sex-based remedies; that remedies not be used to maintain a balance, even if layoffs immediately undo remedial hiring or promotion; that remedies be time- limited; that remedies be tightly tailored to the particular problem; that remedies be flexible; that numerical remedies reflect the number of qualified minorities and women in the applicable pool; that race or sex can be one but not the exclusive factor; that remedies not ''unnecessarily trammel'' on others or discharge them from their positions, even if the existing workers received their positions because of discriminatory practices; and that only good faith efforts, not actual hiring of excluded individuals, be required, even where there has been deliberate segregation.
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Beyond the safeguards developed by courts are others that operate as a matter of law. For example, because goals are remedial, they automatically become illegal once the employment system is operating effectively to bring in members of the excluded groups on its own, even if the employer has not fully corrected discrimination. This stage normally is reached when a critical mass of individuals from the excluded group has been recruited, because then the system can revert to word-of-mouth recruitment. Particularly, after the system is corrected, the use of numerical remedies is itself discriminatory. For example, when Title VII of the 1964 Civil Rights Act was enacted, the majority of real estate agents were men; today the majority are women. Long before the point of complete reversal of the discrimination, affirmative action would have been inappropriate once it was clear that the veneer of discrimination had been wiped away and women were coming into the real estate profession as a matter of course. Further, goals and timetables play an important role in protecting against ''reverse discrimination.'' An employer who engages in the appropriate outreach and makes a good faith effort to find minorities and women may cite these efforts when not finding qualified applicants.
This may be one of the reasons that business and the most effective user of affirmative action, our own Armed Forces, have successfully embraced affirmative action by including goals and timetables, as well as a more farsighted desire to do the right thing we see from business and the Services today. Business has been spared billions of dollars in litigation because goals and timetables have encouraged self-remediation, the best and most cost efficient law enforcement.
Business support of affirmative action has been largely responsible for its survival since 1980. When the Reagan administration tried to eliminate affirmative action, it was the business community and, ironically, Senator Bob Dole (who opposed affirmative action in the last Presidential campaign) who saved goals and timetables. Business had come to rely on the assessments by the Labor Department's Office of Federal Contract Compliance, which uses goals and timetables to help identify and correct exclusionary but often unintentional practices, an early warning that has saved countless amounts of money and time that would otherwise have gone into litigation. Goals have been essential to understanding whether discriminatory practices and tests are actually being eliminated. For example, if an employer is using a new test or advertising in new sources, goals that result in employees from new groups tell him that the new techniques are removing exclusionary barriers and protecting him from litigation.
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Finally, let me offer perhaps the most persuasive evidence that white males are not victims of affirmative action. At the EEOC, on average, white men filed only 1.7% of discrimination complaints between 1987 and 1994 alone. Neither at the EEOC nor in other administrative agencies or courts have white males showed a reluctance to pursue their rights against discrimination. By comparison white men filed the great majority of age discrimination cases at EEOC—6,541 of 8,026 age complaints filed in 1994. The reason, of course, is that age discrimination is the most common form of discrimination white men face—and they pursue their rights with a vengeance. They are objects of age discrimination in particular because employers often seek to eliminate experienced and management level employees because of the cost of their wages and benefits. The record on age discrimination shows that white males understand discrimination. Their record of failing to pursue other forms of discrimination, including ''reverse discrimination,'' is compelling evidence that affirmative action has not significantly discriminated against them.
This is not the time for a bill to kill affirmative action. President Clinton is about to take the country through a much needed dialogue on racial relations. This bill invites confrontation, not dialogue, racial, ethnic and gender discord, not reconciliation. Do not pass this bill. Pass it by.
Mr. CANADY. Thank you. Representative Roukema.
STATEMENT OF HON. MARGE ROUKEMA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY
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Ms. ROUKEMA. Thank you, Mr. Chairman. I certainly appreciate the opportunity to be here today, and want to congratulate you for your leadership on this particular issue. It's interesting that we're here just a week after President Clinton in a widely quoted call for a national conversation or dialogue about race. I fully expect, Mr. Chairman, that H.R. 1909 will be prominent in that national debate.
The Civil Rights Act of 1997 is straight-forward legislation, and is based in my opinion, on sound decisions of law. I reference here the recent court decision of the Ninth Circuit Court of Appeals, which found that Proposition 209 voted for by the people of California, in which our colleague Mr. Campbell played a prominent role in that proposition, called for the elimination of affirmative action programs, and that it did not violate the United States Constitution.
I won't get into the specific holdings of the court, but I would like to speak to you about some of the rationale that the court relied upon. The court stated that the ultimate goal of the Equal Protection Clause is to do away with all governmentally imposed discrimination based on race or gender. When the Government, and I'm quoting here, ''when the Government prefers individuals on account of their race or gender, it disadvantages individuals who belong to another race or gender.'' That is exactly what is happening. Government has been imposing quotas, preferences, and set-asides in the name of title VII.
The court continued to state, ''today students are being rejected from public universities because of their race. Job applicants are turned away because their race does not meet some goal or timetable. That's just plain wrong and unjust. Government should not discriminate.'' I believe that the court was right.
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The legislation we're discussing here today would make such a proposition national law and would go even further. It would prohibit the Federal Government from granting preferences based on race, national origin or sex in employment, procurement, and the admission of federally contracted programs. It also prohibits the Federal Government, as I read it, from requiring or encouraging Federal contractors to grant such preferences. I won't go on with the other provisions of the bill. I think we are all familiar with them. The assessment is as to whether or not it does so in a legal way.
Over the course of my career, I have been a strong supporter of affirmative action. Its goals of equal opportunity, diversity, and a color-blind society are not only laudable, but I have supported them, and those goals are supported by the vast majority of Americans. However, I have watched as other Americans have, and I believe as the chairman has, the implementation of affirmative action to amount to the use of discriminatory quotas, set-asides, preferences, and time tables based on sex and race. There exists literally hundreds of Federal laws and regulations involving race and gender that implement these set-asides and preferences.
Mr. Chairman, DOD sets aside five percent of its total procurement, R&D, maintenance and operation contacts to minorities on the presumption that they are all socially and economically disadvantaged. Using the same presumption, DOT, Department of Transportation, sets aside 10 percent of the total amounts authorized in ISTEA and the Airport Improvement Act. Small Business Administration is probably the best known, and SBA 8(a) presumes that businesses owned by Native Americans, African Americans, Hispanics, Asian Pacific Americans are socially disadvantaged, and Federal agencies frequently set aside contracts for bidding only by 8(a) firms. The list goes on.
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But I would conclude here by saying race and sex should not matter in the hiring equation. Our Government makes it matter of counting, labeling, and ultimately dividing Americans. I believe it is dividing Americans. Today's affirmative action is flatly inconsistent with our national commitment to the principle of non-discrimination. Our founding fathers and principles, I might add, of our current laws, require that the Government should treat all of its citizens equally without regard to race and sex. I believe this legislation continues that and underscores it.
But I know that discrimination exists in America. There is no denying it. But we can not attack discrimination with a different kind of discrimination. Discrimination in the name of equal treatment, I believe has become a modern day oxymoron. I believe in its day, affirmative action, as interpreted, did its job. But it has become quotas and less than equal opportunity for all. Mr. Chairman, I think that it is in its current context, dividing America. It is not giving equal opportunity. We should be affirming outreach programs. We should be affirming equal protection and non-discrimination, but that should not translate into set-asides, quotas, and reverse discrimination, which is my assessment of what it has become.
In referring back to the President's call for a national debate or conversation or dialogue, we should have a substantive dialogue, not a conversation, but a substantive dialogue. I would fully expect and hope, Mr. Chairman, that this legislation will be in the forefront of that national debate.
[The prepared statement of Ms. Roukema follows:]
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PREPARED STATEMENT OF HON. MARGE ROUKEMA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Chairman, I want to thank you for the opportunity to appear here this morning. I also want to thank you for your leadership on this issue and extend my gratitude to Mr. Canady for his vision.
I am pleased to be part of this distinguished panel of lawyers and law school professors. I am not a lawyer. But I am a Member of Congress who cares deeply about the direction of this country.
We gather here just a week after Presiident Clinton launched his famous national dialogue about race. I hope that Mr. Canady's legislation, H.R. 1909 will take a very prominent role in this debate.
The Civil Rights Act of 1997 is straightforward legislation, and is based on sound decisions of law.
While I am not an attorney, I have read the recent court decision from the Ninth Circuit Couirt of Appeals, (decision of April 8, 1997) which found that a Proposition voted for by the people ot the State of California, which called for the elimination of affirmative action programs, did NOT violate the United States Constitution. I won't get into,the specific holding of the courts but I would like to speak to you about some of the rationale that the court relied on.
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The court stated that ''The ultimate goal of the Equal Protection Clause is to do away with all governmentally imposed discrimination based on race or gender. When the government prefers individuals on account of their race or gender, it disadvantages individuals who belong ''to another race or gender.''
That is exactly what has been happening. Governments have been imposing quotas, preferences and set-asides in the name of Title VII.
The Court stated that ''Today, students are being rejected from public universities because of their race. Job applicants are turned away because their race does not meet some ''goal'' or ''timetable.'' That's just plain wrong and unjust. Government should not discriminate.
And that court was right.
The legislation we are discussing today would make such a proposition national law, and would go even further. It will prohibit the federal government from granting preterences based on race, national origin or sex in employment, procurement, and the administration of federally- contracted programs. It also prohibits the federal government from requiring or encouraging federal contractors to grant such preferences.
The legislation also reaffirms the original concept of affirmative action through vigorous and systematic outreach, recruitment and marketing efforts among qualified women and minorities.
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Before opponents of this bill raise their voices, let me also add that this legislation absolutely maintains this nation's existing anti-discrimination laws. If it did not, I would not be here this morning.
So why am I here this morning?
Over the course of my public service career, I have been a strong supporter of affirmative action. Its goals of equal apportunity, diversity and a ''color-blind'' society are laudable and supported by the vast majority of thinking Americans.
However, over the course of my career, I have watched the implementation of affirmative action amount to the use of discriminatory quotas, set asides, preferences and timetables based on sex and race.
There exist literally hundreds of federal laws involving racial and gender quotas, set-asides and preferences. For example:
DOD sets aside 5 percent of its total procurement, R&D and maintenance and operation contracts to minorities on the presumption that they are all socially and economically disadvantaged;
Using the same presumption, DOT sets aside 10 percent of the total amounts authorized for ISTEA and the Airport and Airway Improvement Act;
The Small Business Administration—through its SBA 8(a)—presumes that businesses owned by Native Americans, African Americans, Hispanics and Asian-Pacific Americans are socially disadvantaged. Federal agencies frequently set aside contracts for bidding only by 8(a) firms;
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And the list goes on and on.
I am here to say that the list should not go on and on.
Americans are tired of checking off boxes. They are tired ot suffering the consequences when they don't check off boxes. And they are tired of the consequences when they do check off boxes—the wrong box—the box the prospective employer is not looking for.
Race and sex should not matter in the hiring equation but our government makes it matter by counting, labeling and, ultimately, dividing Americans.
Today's affirmative action is flatly inconsistent with our national commitment to the principle of non-discrimination. Our founding principles, and I might add, our current laws, require that the government treat all of its citizens equally and without regard to race and sex.
I know that discrimination exists in today's America. There's no denying it. But we cannot attack discrimination with a different style of discrimination. Discrimination in the name of equal treatment is a modern-day oxymoron.
Mr. Chairman, affirmative action did its job in its day.
But the day it became more quotas than opportunity is the day it became part of the problem and not part of the solution.
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This issue is dividing America. This issue should be part of a meaningful debate and substantive legislative action—not a ''national conversation.''
The Chairman's legislation is an important next step toward true equal opportunity. Equal opportunity has always been at the core of the American spirit. It's time we return it to the core of federal law and practice.
I thank you for the opportunity to testify here this morning.
Mr. CANADY. Thank you, Representative Roukema.
Representative Mink.
STATEMENT OF HON. PATSY MINK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII
Ms. MINK. Thank you, Mr. Chairman and Members of the Subcommittee. I appreciate the opportunity to testify on affirmative action and on our country's commitment to uphold the principles of equity for all of our citizens.
I am opposed to H.R. 1909 and other efforts to eliminate or weaken affirmative action. Affirmative action was necessary 30 years ago because positive efforts were required to question and correct the discriminatory habits and practices that had closed off opportunities to more than half of the U.S. population. Sadly, it remains necessary still because race and gender discrimination continues to be a barrier in attaining the American dream.
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Affirmative action serves many purposes. It is a recruitment mechanism that makes good on the country's promise to incorporate women and people of color into the social institutions that have historically excluded them. It offers individuals whose race and gender too often stamp them as inferior, to have a chance to demonstrate their abilities. It recognizes and cultivates talents that create role models of hope and aspiration in our younger generations. It creates diversity in schools and work places that reflect the diversity of our multi-cultural society, and so prepares us, all of us to respect one another for our differences as well as our similarities. It honors heterogeneity and invigorates society by calling upon everyone to contribute to it.
Affirmative action establishes goals and timetables for diversifying schools and work places. In no case does it mandate individual outcomes. Goals and timetables give universities and employers a framework for developing recruitment strategies for under-represented populations. This framework adds race and gender to the range of criteria that determine admissions and hiring decisions.
Universities have long balanced admissions by academic ranking against their larger educational goal of diversity. A diverse student body is one that brings together individuals with varied gifts and social experiences. Such diversity enriches the exchange of ideas that is the core of university life. Thus, universities have always admitted students whose grades and test scores may not be the highest rank, but whose travel, musical talents, athletic prowess, or triumph over hardship poise them to make unique contributions to the academy and to the world as they enter as adults.
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Affirmative action in undergraduate admissions has added race to the mix of supplemental considerations universities employ to assure heterogeneity within their communities of scholars and citizens. Oddly, opponents of affirmative action single out race and gender at the graduate level as corrupting the rule of merit in colleges and universities. It seems that extensive traveling or parents as being alumni or children, of athletic prowess are suitable reasons to suspend admissions on the basis solely of academic ranking.
Hypocrisy aside, opponents of affirmative action are misjudged in their defense of meritocracy itself. They insist that individuals be judged on their track record. But to be hired to a job, to be admitted to a school, is to be given an opportunity to create a track record. How can we determine the merit of individuals, their talent, their integrity, their discipline, their motivation, their potential before they have had a chance to prove themselves, before they have had a chance to do anything? Can we confidently sort people into the better and lesser tracks of life when they are only 18 years of age? Do we really want to tell young people of color that since their parents didn't go to college or didn't give them music lessons, or didn't move them into a rich suburb to attend fine public schools, that although they are qualified for admission to the best universities, they are not qualified enough? Do we want to tell young people of color that although they persevered despite racism and earned credentials for admission to college, to take note of their triumph of racial adversity would be a discriminatory glorification of their race?
Affirmative action does not promise results, but it does promise opportunity for individuals, the opportunity to enter schools and work places, the chief American avenues of social mobility, a society of the opportunity to enjoy the contributions for the full range of Americans.
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Affirmative action has not ended discrimination in education or employment, but it has opened doors, beginning the slow process of democratizing opportunity in the United States. It is changing the face of our professions in law, in medicine, and in managerial positions. It has begun to change education, extending the first rung of the ladder of opportunity for women and minority men, or black and Latinos. Enrollments at the University of California and so forth have increased, but without affirmative action minority enrollment demonstrably decreasing.
Everyone hopes that there will one day be no need for affirmative action, for that will mean that race and gender discrimination no longer circumscribe the opportunities of women and minority men. That day has not yet come. So we must strengthen affirmative action as a tool for meeting the promises of title VII of the Civil Rights Act, and title IX of the Education Act's amendments. Thank you very much.
[The prepared statement of Ms. Mink follows:]
PREPARED STATEMENT OF HON. PATSY MINK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII
Mr. Chairman and Subcommittee Members, thank you for the opportunity to testify on affirmative action and our country's commitment to uphold the principles of equity for all those witihin our borders.
I am opposed to H.R. 1909 and other efforts to eliminate or weaken affirmative action.
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Affirmative action began thirty years ago to supplement this country's abstract commitment to equality with practical means to acheieve it. It called upon those in control of schools and workplaces to open their doors to women and people of color and so to make opportunity available to all. Affirmative action was necessary thirty years ago because self-conscious, positive efforts were required to question and correct the discirminatory habits and practices that had closed off opportunities to more than half of the U.S. population. Sadly, it remains necessary still because race and gender discrimination continues to be a barrier in attaining the American dream.
Affirmative action serves many purposes. It is a recruitment mechanism that makes good on the country's promise to incorporate women and people of color into the social institutions that have historically excluded them. It offers individuals whose race and gender too often stamp them as inferior a chance to demonstrate their abilities. It recognizes and cultivates talents that create role models for hope and aspiration in younger generations. It creates diversity in schools and workplaces that reflects the diversity of our multicultural society and so prepares us all to respect one another for our diferences as well as our similarities. It honors heterogeneity and invigorates society by calling upon everyone to contribute to it.
But affirmative action is only a means, not an end. It does not entitle an individual to a job or to admission to college because of her sex or her/his race, anymore than whiteness or maleness entitle white men to a particular job or a place in a particular school. In most cases, affirmative action establishes goals and timetables for diversifying schools and workplaces; in no case does it mandate individual outcomes. Goals and timetables give universities and employers a framework for developing recruitment strategies for underrepresented populations. This framework adds race and gender to the range of criteria that determine admissions and hiring decisions.
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Opponents of affirmative action argue that to take race and gender into account violates the rule of merit. This argument is pure pretense. Let's take university admissions. Opponents of affirmative action suggest that taking race and gender into account means admitting unqualified or less qualified students. The admissions practices of the University of California are instructive here. Fully 95 percent of undergraduates admitted as freshpeople meet the University's criteria for admissions: they are among the top 12.5 percent of high school graduates. The remaining 5 percent of undergraduate slots go to students whose grades and scores do not qualify them for admissions, but whose athletic achievement or whose persistence despite economic or social adversity suggest promise.
Of the 95 percent of students who meet the University's academic criteria, the majority are admitted on merit alone (grades and test scores). A substantial, but smaller, proportion of students is admitted on the basis of grades and test scores in combination with other considerations, including race. It is in this range of admissions that the University of California—like most other colleges and universities—crafts is university community. That universities should decide that the rigid rule of numbers (grades and test scores) does not guarantee excellence should come as no surprise. Universities have long-balanced admissions by academic ranking against their larger educational goal of diversity. A diverse student body is one that brings together individuals with varied gifts and social experiences. Such diversity enriches the exchange of ideas that is the core of university life. Thus universities have always admitted students whose grades and test scores may not be the highest rank, but whose travels, or musical talents, or triumph over hardship poise them to make unique contributions to the academy and to the world they will enter as adults. Affirmative action in undergraduate admissions has added race to the mix of supplemental considerations universities employ to assure heterogeneity within their communities of scholars and citizens.
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Oddly, opponents of affirmative action single out race (and gender, at the graduate level) as corrupting the rule of merit in colleges and universities. It seems that extensive traveling or parentage (of alumnae children) or athletic prowess are suitable reasons to suspend admissions on the basis of academic ranking. Hypocrisy aside, opponents of affirmative action are misguided in their defense of meritocracy itself. They insist that individuals be judged on their track record. But to be hired to a job or admitted to a school is to be given an opportunity to create a track record. How can we determine the merit of individuals—their talent, integrity, discipline, motivation—before they've had a chance to prove themselves, before they've had a chance to do anything.
In the education context, meritocracy means making decisions about potential on the basis or grades and test scores, measures that depend on the income and education levels of parents, not to mention the quality of elementary and secondary schools attend. Can we confidently sort people into the better and lesser tracks of life when they are only 18-years old? Do we really want to tell young people of color that since their parents didn't go to college, or didn't give them music lessons, or didn't move them to a rich suburb with fine public schools—that although they qualified for admission to the best universities, they are not qualified enough? Do we want to tell young people of color that although they persevered despite racism and earned credentials for admission to college, to take note of their triumph over racial adversity would be a discriminatory glorification of their race?
Affirmative action does not promise results, but it does promise opportunity: for individuals, the opportunity to enter schools and workplaces, the chief American avenues to social mobility; for society, the opportunity to enjoy the contributions from the full range of Americans. Affirmative action also presents us with the opportunity to prevent discrimination. While clearly a remedy for long-lived racist and sexist practices, affirmative action also invites employers and universities to resist repeating those practices in the present day. In the employment arena, Executive Order 11246 does this by requiring firms with federal contracts to: develop goals and timetables for hiring women and minority men where they are under represented; file affirmative action plans; report annually on their progress. This keeps employers aware of the prejudices and practices that constrain diversity; in the best cases it induces employers to consciously work against those prejudices and practices; in the very best circumstances it teaches employers that the best qualified workforce is the diverse workforce, for only in a diverse workforce is the broadest range of human talent made available.
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Affirmative action has not ended discrimination in education or employment. But it has opened doors, thereby beginning the slow process of democratizing opportunity in the United States. It is changing the face of the professions: in 1980, 13 percent of all doctors and 14 percent of all lawyers were women; today the number are 23 percent and 31 percent. It is changing the face of managerial jobs; in 1980, white men occupied 65 percent of all management jobs; today, they occupy 50 percent. And it has begun to change education, extending the first rung of the ladder to women and minority men; where black and Latino enrollments at the University of California-Berkeley were 4 percent and 3 percent in 1970, today the numbers are 6 and 14 percent.
Everyone hopes that there will one day be no need for affirmative action, for that will mean that race and gender discrimination no longer circumscribe the opportunities of women and minority men. That day has not yet come, however. And so we must strengthen affirmative action as a tool for meeting the promises of Title VII of the Civil Rights Act of 1964 and Title IX of the Education Act Amendments of 1972.
Mr. CANADY. Thank you.
Representative Jackson Lee.
STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Ms. JACKSON LEE. Mr. Chairman, thank you very much. Thank you in particular to the committee and Mr. Scott for this honor. I say honor because this room has come to symbolize a room of fairness and justice. It is particularly important that we hold this hearing today to talk about questions of justice and fairness. I guess I am somewhat, though I am not the last speaker or the clean-up batter. If I might, with all due respect to my colleagues who have come today because they believe in their position in support of H.R. 1909, I come to vigorously oppose this legislation, and to somewhat respond to some of the comments that have been made.
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Yes, African Americans have voted enthusiastically against polling data or inquiries about discrimination. We are told that some 25 to 30 percent of African Americans in California voted for the California Civil Rights Initiative, Proposition 209. When ultimately queried, they were not aware that it eliminated affirmative action. African Americans and Hispanics and women have traditionally extended themselves to embrace the concepts of open and equal opportunity. So why do we take this time to pull the rug from underneath those who have constantly stood to stand up for what is right?
It is interesting that we speak about the fact that we need to move forward. Might I cite for you an example of a bright and well-dressed young African American male who sat in the office of a business some years ago in a northern city, Philadelphia, Pennsylvania. He sat and sat and sat, as white applicants passed him time after time after time. He was answering a newspaper ad. Until the end of the day when they finally brought him in after a series of embarrassing inquiries by him, and said ''we don't hire you here.''
What about the partner who was in a Washington law firm who now practices and represents corporations across the Nation, recruited with his wife in New York at a law firm, dressed well, wined and dined, talked to for a long period of time by a very prominent law firm, one of the Wall Street numbers that we are familiar with, until at the end of the day, he was told ''let me send you to another place where they might hire you.''
It is very important to characterize affirmative action for what it is. That is, it is a remedial tool. It is to eliminate or to prevent prospective discrimination, but to recognize that past discrimination can be remedied. No matter what my friends and colleagues may say today, they cannot rid us of past discrimination. They can not rid us of the fact that this Nation held for more than 300 years African Americans as slaves in this country. We can not get rid of that. This is not a time to testify on apologies or other types of legislation. But this is certainly a time to recognize that past discrimination has existed and in fact, today as we look at the backlog of EEOC cases, we recognize that discrimination still exists.
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We will also look at case laws and we will find statistically that we are not prevailing when cases are being brought on the issues of race discrimination. Might we use Texaco as an example. Not as an example of what occurred in the corporate setting, but the long and tedious litigation that was proceeding with no attention until what lawyers called the smoking gun was found by some comments that were racially charged. This is disappointing. Of course this legislation speaks to Federal law.
But as I heard a hearing or held a hearing in Houston just a couple of weeks ago, what over 100 citizens, women, men, Hispanics, African Americans, Anglos, testifying in support of affirmative action. One who did business with the private sector said, I realize if the Federal Government did not have affirmative action laws, my private sector business would not be in place. White women stood up and said I would not be in business if it was not for affirmative action.
Your legislation goes at the very heart of remedying the problem dealing with discrimination. It takes away from us the tools of numerical goals, timetables. It doesn't give us any opportunity to test results and aspirations. Might I say to you that this Government stands as the moral tester, if you will, for preventing discrimination. It is clearly this particular position to remedy past discrimination and to provide this as a tool, that you take away from us.
Let me say something as I come to a conclusion, and give you a suggestion that I am too looking forward to a color-blind society. One, let me raise for you the analogy. Medicare is an affirmative action. It is an action to have corrected the very terrible and unequal setting that senior citizens found themselves in in this Nation with healthcare. So now, we still have medicare. Why? Because we want to make sure that our seniors who have worked or may not have been in jobs that created the kind of coverage in their senior years, that they have the kind of health care and good life. Yes, medicare is affirmative action. I know there will be great debate and disagreement with that, but I believe we need to begin to stretch our imaginations about what we are doing this day with this legislation.
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In closing, let me simply say to you that this legislation leads us to where you think it may lead you, but it does not lead us there. The Honorable Barbara Jordan said as she sat many times in this room, ''America's mission was and still is to take diversity and mold it into a cohesive and coherent whole that would espouse virtues and values as central to the maintenance of civil order. There is nothing easy about that mission, but it is not impossible. It is not an impossible mission.'' I believe we can come to a color-blind society, but as General Colin Powell has said, ''There are those who say we can stop now, America is a color-blind society. But it isn't yet. There are those who say we have a level playing field, but we don't yet.''
Mr. Chairman, as I close and ask you to allow me to provide a more extended statement into the record, let me say that we do not have a color-blind society now and we still need the remedy in affirmative action. Thank you very much, Mr. Chairman.
Mr. CANADY. Thank you.
Representative Fowler.
STATEMENT OF HON. TILLIE K. FOWLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Ms. FOWLER. Thank you, Mr. Chairman. I believe I must be the clean-up batter today. I appreciate the opportunity to testify before you in this subcommittee in support of H.R. 1909, the Civil Rights Act of 1997. I think the question we need to be asking as we debate this legislation is not does discrimination exist in America today, because we all know that it does. The question we really need to be asking rather is, is granting preferences based on race or gender the way to eliminate discrimination?
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I strongly believe that the answer to that question is no. Now Webster's dictionary, I looked it up. It defines discrimination as a difference in treatment or favor on a basis other than individual merit. Yet isn't that what current affirmative action programs are all about? Making decisions based primarily on something other than individual merit.
The central tenet of affirmative action programs is to give preferential treatment to someone based not on individual merit, but on considerations of race or gender. It is clear that today's affirmative action programs fit nicely under the word, this is the definition of discrimination. That brings us to the crux of this argument. Does it make sense to fight discrimination with discrimination? Or if you will, do two wrongs make a right? In my opinion, they answer is no.
This Nation was built on the ideal of equal opportunity for all. The original intent of affirmative action programs was to help provide equal opportunity for those who were not getting it. Unfortunately, once the Government got hold of this program, and it started out with the highest good in mind, it became a hire by the numbers system involving quotas, set-asides, preferences, numerical goals and timetables. What we ended up with was an equation which did not include individual merit and which forgot to ask the question is this the best qualified person for this job.
This kind of affirmative action harms our society. Both by lowering standards and by leaving the beneficiaries of the programs to doubt their own ability. I think it actually reinforces negative stereotypes because it assumes that members of certain groups can not measure up to an objective standard and must be given special treatment in order to succeed.
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I have got to tell you, I find the assumption that women need preferential treatment in order to succeed really to be condescending. Have I experienced discrimination because I'm a female? Certainly. Many women, particularly of my generation, have had a harder time advancing up the educational ladder or up the corporate ladder. We have had a harder time getting access to some of these opportunities than our male counterparts. But my own experience has not led me to believe that employers should be forced to accept female employees who don't meet their needs or measure up to their standards. Rather, it's led me to believe that we should be focusing on removing the barriers that keep women from advancing on their own.
Now you know, in a previous administration, the Labor Department created a commission called the Glass Ceiling Commission that used just such an approach. It identified the barriers in the work place that keep qualified women from moving up the corporate ladder. Then it set about working with companies to find ways to remove those barriers, allowing women to advance on their own merit and qualifications.
The Civil Rights Act of 1997 provides for equal protection under the law. It prohibits discrimination and preferential treatment within the Federal Government on the basis of sex, race, color and national origin. There is nothing in this Act that would weaken or eliminate the important protections of the Civil Rights Act of 1964. Now although this Act prohibits affirmative action as it presently exists, it does not prohibit the Federal Government from making affirmative efforts targeted at minorities and women to increase the size of the applicant pool for Federal jobs and for Federal contracts. All the candidates would then be judged on the same standards and requirements.
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I think it is time to stop dividing our country along race and gender lines. Let's get back to traditional forms of affirmative action involving non-discriminatory outreach, recruitment and marketing efforts, and empower all Americans by providing equal opportunity that's in an atmosphere of strong economic growth.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Fowler follows:]
PREPARED STATEMENT OF HON. TILLIE K. FOWLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF DISTRICT, FLORIDA
Mr. Chairman and Members of the Subcommittee, I appreciate this opportunity to testify today in support of H.R. 1909, the Civil Rights Act of 1997.
The question we need to be asking as we debate this legislation is not ''does discrimination exist in America today?'' —because we all know that it does. The question we need to ask, rather, is: ''is granting preferences based on race or gender the way to eliminate discrimination?'' I strongly believe that the answer to that question is ''no.''
Webster's Dictionary defines discrimination as ''a difference in treatment or favor on a basis other than individual merit.'' Yet, isn't that what current affirmative action programs are all about? Making decisions based primarily on something other than individual merit? The central tenet of all affirmative action programs is to give preferential treatment to someone, based not on individual merit, but on considerations of race or gender.
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It is clear that today's affirmative action programs fit nicely under the definition of the word ''discrimination.'' . . . And that brings us to the crux of this argument. Does it make sense to fight discrimination with discrimination? Or, if you will, do two wrongs make a right? The answer to both, in my opinion, is no.
This nation was built on the ideal of equal opportunity for all, and the original intent of affirmative action programs was to help provide equal opportunity for those who were not getting it . Unfortunately, once the government got hold of it, that program—which started out with only the highest good in mind—became a hire-by-the-numbers system involving quotas; setasides; preferences; numerical goals and time tables. What we ended up with was an equation which did not include individual merit, and which forgot to ask the question—''is this the best-qualified person for the job?''
This kind of affirmative action harms our society, both by lowering standards and by leaving the beneficiaries of the programs to doubt their own ability. It actually reinforces negative stereotypes because it assumes that members of certain groups cannot measure up to an objective standard and must be given special treatment in order to succeed.
For example, I find the assumption that women need preferential treatment in order to succeed, to be condescending. Have I experienced discrimination because I am a female? Certainly. Many women, especially women of my generation, have had a harder time advancing up the corporate ladder and gaining access to educational opportunities than their male counterparts. But my own experience has not led me to believe that employers should be forced to accept female employees who don't meet their needs or measure up to their standards. Rather, it has led to me to believe that we should be focusing on removing the barriers that keep women from advancing on their own.
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In a previous administration, the Labor Department created the Glass Ceiling Commission that used such an approach. This Commission identified the barriers in the workplace that keep qualified women from moving up the corporate ladder. It then set about working with companies to find ways to remove those barriers, allowing women to advance on their own merit and qualifications.
The Civil Rights Act of 1997 provides for equal protection under the law and prohibits discrimination and preferential treatment within the Federal Government on the basis of sex, race, color or national origin. The Federal Government would be prohibited from requiring or encouraging federal contractors, subcontractors, or recipients of federal assistance to grant preferences to individuals on the basis of their race, color, national origin, or sex. Nothing in this act would weaken or eliminate the important protections of the Civil Rights Act of 1964.
Although the Act prohibits affirmative action as it presently exists, it does not prohibit the Federal Government from making affirmative efforts targeted at minorities and women to increase the size of the applicant pool for Federal jobs and contracts. All candidates, however, would then be judged on the same standards and requirements.
It is time to stop dividing our country along race and gender lines. Let's get back to traditional forms of affirmative action involving nondiscriminatory outreach, recruitment and marketing efforts, and empower all Americans by providing equal opportunity in an atmosphere of strong economic growth.
Mr. CANADY. Thank you, Representative Fowler. I want to again thank all the other Members of this panel. Your contribution to our hearing today has been very important. We are very grateful. Thank you.
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I would like to ask the members of the second panel to come forward. We want to welcome each of you to our hearing today.
On our second panel we will first hear from the president and owner of Atlantic Coast Communications, Tom Lamprecht. Mr. Lamprecht constitutionally challenged the Federal Communications Commission's gender preference program. In 1992, Judge Clarence Thomas' ruling in the Lamprecht's case represented the first Federal court ruling to declare a preferential program unconstitutional.
The second panel's next witness will be Susan Prager, Dean of the UCLA School of Law. Dean Prager was active in the campaign against proposition 209 in California.
Dean Prager will be followed by Michael Cornelius, vice president of Malcolm Drilling, Incorporated. Mr. Cornelius lost a contract with the Los Angeles County Metropolitan Transportation Authority because the agency was enforcing race and gender preferences in the Federal ISTEA statute.
Karen Narasaki, the executive director of the National Asian Pacific American Legal Consortium, will be the next witness to testify on this panel.
Professor Gail Heriot, a professor at the University of San Diego School of Law will be next to testify. She was active in the Proposition 209 campaign in California and specializes in civil rights law.
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I want to thank each of you for testifying today. I would ask that you do your very best to summarize your testimony in no more than 5 minutes. Without objection, your full written statements will be included in the permanent record of the hearing.
Mr. Lamprecht.
STATEMENT OF JEROME THOMAS LAMPRECHT, PRESIDENT, ATLANTIC COAST COMMUNICATIONS
Mr. LAMPRECHT. Thank you, Mr. Chairman and Members of the Committee. I am pleased to be here this morning to share on this subject. My story does span 15 years. I'll do my best to get it into 5 minutes.
I am president and owner of Atlantic Coast Communications in Greenville, North Carolina, a radio production and broadcast consulting firm. In 1982, I applied for an application with the FCC to build a radio station in Middletown, Maryland. At the time I was 28, raising a young family, managing a station outside of Baltimore and finishing my degree at the University of Maryland. Three other applicants also filed for the station. The FCC had to decide among us which was the best qualified to operate the license.
The FCC evaluated our applications in two general areas. First, they looked to see if any of us owned other broadcast property. If we did, that would pretty much eliminate us as they wanted to have a diversity of ownership. Second, it awarded each applicant a so-called quantitative integration credit, a term which reflects how much time we would spend in the day to day management of the broadcast station.
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The Commission then enhanced this credit based on qualitative factors, such as the owner's character and the service he proposed to offer. In addition, the quantitative integration score was increased when the applicant was a racial minority or a woman. It was said that such preferences were granted in order to attempt to increase the diversity of viewpoints heard on the radio broadcasts.
My chief competitor for the license was a Mrs. Barbara Marmet. She was given such gender enhancement. She scored the highest and was awarded the construction permit to build a station. My application ranked second in the initial review. Here is what the initial administrative law judge said concerning the minority or female enhancement as it applied to me. ''On this criterion, Lamprecht suffers from a birth defect. He was born a white Anglo-Saxon male. They are not in demand under the Commission's present deregulatory comparative scheme. There was a day in the dim and distant past when Lamprecht might have well prevailed in this comparative contest. His educational background is broadcast-oriented. He has both management and non-management broadcast experience. He is a young man who appears aggressive enough to make a substantial contribution to his chosen career. In short, he is ready for an ownership role. But in this day and age, it is doubtful that he could win any comparative proceeding.'' I appealed the FCC's use of gender preferences first to the Commission's review board, and then to the full Commission, and finally to the U.S. Court of Appeals of the D.C. Circuit.
What is relevant for our discussion today is whether gender preferences are legal under the Constitution. As it turns out, the court of appeals in the 1992 Lamprecht v. FCC decision said they were not. A major issue of concern ought to be the subsequent inability of the FCC to promptly and forthrightly remedy the discrimination once the court of appeals made its decision. My experience with the FCC in the more than 5 years since my case was decided, points to the need for Congress to reform affirmative action programs through legislation rather than depending upon bureaucrats to comply with court decisions.
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After deciding that the FCC had discriminated against me, the court of appeals remanded the case back to the FCC with instructions to determine but for the existence of the FCC's openly discriminatory gender preference program, would I have received the license. Typically a judicial finding that the Government has engaged in invidious discrimination leads to the victim being made whole. Following the remand, however, the FCC again awarded the station construction permit to Mrs. Marmet. Although they had been relatively minor factors in the original decision, the FCC now stated that Mrs. Marmet's part-time local residence and community activities now out-weighed my broadcast experience. I again appealed this decision to the court of appeals on the grounds that the FCC didn't even attempt to show that its decision would have been the same absent its unconstitutional discrimination.
The FCC simply re-weighted its evaluation criteria in order to justify its original tainted decision. In 1994, the court of appeals remanded my case back to the FCC a second time, in light of the Bechtel decision. In that case, it said that local residence was not as important a factor. It also said that broadcast experience was a major factor. That helped in my application.
But instead of reformulating its criteria for evaluating the license in light of the Bechtel decision, the FCC instead froze all new pending comparative license proceedings beginning in February 1994. To date, no new rules have come out from the FCC and my application remains in limbo.
In May of 1994, the FCC ordered Administrative Law Judge Joseph Stirmer to serve as a settlement judge in my case. At that conference, attorneys for Barbara Marmet, my attorney and Judge Stirmer were present. Judge Stirmer told the representatives for Mrs. Marmet that it would be in her best interest to settle this, as she would not receive a final license. She would only have a construction permit until it was settled.
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On February 6, 1996, I was astonished to learn that the FCC turned around and granted the license to Mrs. Marmet in the midst of its freeze order. This license was granted without any notice to me or my attorneys. Upon inquiry, it turned out that the license had been granted 2 years earlier, December 20, just after Judge Stirmer said that she couldn't receive it. Incredibly, 1 year later, the FCC granted its consent to Mrs. Marmet to assign her a license again without any notice to me or my lawyers. I have now spent over 14 years trying to get a fair hearing.
Although the court of appeals held that the FCC violated my constitutional rights, I have been unable to get the Commission to remedy its discrimination. Under well-settled law, the FCC must show its original decision would have been the same absent discrimination. Instead, the FCC flagrantly seems to think it is permissible to devise a new rationale for its original lawless decision. My experience shows how difficult it is for individuals who have been discriminated against by Federal affirmative action programs to get redress. After exhausting my personal savings in defending my constitutional rights, I was fortunate enough to persuade the Center for Individual Rights, a non-profit public interest law firm, to take up my case on a pro bono basis and to find skilled constitutional attorneys such as Shaw, Pittman, Potts and Trowbridge, and Hunton and Williams, to cooperate in this litigation. I estimate that the time and expense that the CIR has spent is well over $200,000 since 1992.
The defense of my basic constitutional rights has cost me years of time and tens of thousands of personal dollars. Ironically, Government agencies who violate these constitutional rights have merely increased the job security of their staff attorneys at tax payers expense when dragging out cases like mine for years. As my case illustrates, there is a compelling need for Congress to act now to eliminate all unconstitutional affirmative action programs across the board. Congress can not count on the Federal bureaucracy to reform itself in this regard. It is simply too expensive and risky to continue to leave this important issue to the whims of civil litigation. Even when the court finds a clear violation of constitutional rights, it is almost impossible to obtain meaningful redress.
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These Federal agencies and employees knowingly continue unconstitutional discrimination practices unscathed while hiding in the sanctuary of sovereign immunity. Regardless of what Federal agencies such as the FCC call their policies and programs, these unelected bureaucrats have in essence, appointed themselves without any authority to be lawmakers as they force unconstitutional policy upon American citizens. It is unrealistic and unfair to ask individual litigants to bear the expense and uncertainty of trying to remedy these unconstitutional programs that Congress could easily do away with with carefully crafted legislation.
For these reasons, I heartily endorse H.R. 1909, the Civil Rights Act of 1997. Thank you, Mr. Chairman. I would be happy to answer any questions you might have.
[The prepared statement of Mr. Lamprecht follows:]
PREPARED STATEMENT OF JEROME THOMAS LAMPRECHT, PRESIDENT, ATLANTIC COAST COMMUNICATIONS
Mr. Chairman and Members of the Committee, I am pleased to be here this morning to testify about the impact of racial and gender preference programs administered by the federal government. I have a short written statement, which I would like to read and, with the permission of the Chair, submit for the record.
My name is Jerome Thomas Lamprecht and I am the President and owner of Atlantic Coast Communications, a radio production and broadcast consulting firm.
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In 1982, I filed an application with the FCC to build a radio station that would broadcast out of Middletown, MD—a town located about 40 miles northwest of Washington, DC. At the time I was 28, managing a radio station in Towson, Maryland and completing my B.S. degree in radio, television and film at the University of Maryland. Three other competitors also filed applications and the FCC had to decide among us which was best qualified to operate the license.
The FCC evaluated our applications according to two general criteria. First, it examined each of our applications to determine what other media properties we owned, with the idea of trying to maximize the diffusion of ownership of media properties. Second, it awarded each applicant a so-called ''quantitative-integration credit,'' a term of art that describes the degree to which the prospective owners would be actively involved with their stations' day-to-day management.
The Commission then ''enhanced'' the ''quantitative-integration credit'' based on ''qualitative'' factors, such as an owner's broadcasting experience, local residence, and local civic involvement. In addition, the ''quantitative-integration'' scores were enhanced in cases where the applicant was owned by a racial minority or a woman. According to the Commission, such preferences were granted in order to increase the diversity of viewpoints heard on radio and television broadcasts.
My chief competitor for the license, Ms. Barbara Marmet, was accorded such gender enhancement, scored highest, and was awarded the license. My application was ranked second in the initial review. Here is what the initial Administrative Law Judge had to say concerning the Minority or Female Enhancement:
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''On this criterion, Lamprecht suffers from a birth defect: he was born a white, Anglo-Saxon, male. They are not in demand under the Commission's present deregulatory, comparative scheme. There was a day in the dim and distant past, when Lamprecht might well have prevailed in this comparative contest. His educational background is broadcast oriented. He has both management and non-management broadcast experience. He is a young man who appears aggressive enough to make a substantial contribution to his chosen career. In short, he's ready for an ownership role. But, in this day and age, it is doubtful that he could win any comparative proceeding.''
I appealed the Commission's use of sex preferences, first to the Commission's Review Board, then to the full Commission and finally to the U. S. Court of Appeals for the D.C. Circuit. I felt then and I feel now that the use of sex preferences is not rationally or even substantially related to the Commission's stated goal of increasing broadcast diversity.
In my opinion, women are just as divided amongst themselves in their social and political opinions as are men and it is not reasonable to think that granting an additional number of broadcast licenses to women will affect broadcast diversity one way or the other.
Certain members of the committee no doubt will disagree with me and with each other on this point. What is relevant for our discussion today, however, is whether such gender preferences are legal under the U.S. Constitution. As it turns out, the Court of Appeals in the 1992 Lamprecht v. FCC decision said they were not. This was the first, and until recently, the only time that a Federal court found a federal set aside program to be unconstitutional.
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Although I am not a lawyer, the legal standard for evaluating gender preferences is straightforward. According to the Supreme Court, gender preferences are constitutional only if they are ''substantially'' related to some ''important'' government objective.
In my case, the Court determined that the FCC had not borne its burden of showing how granting extra numbers of broadcast licenses to women was likely to increase broadcast diversity. Indeed, the only study that the Court could find on the subject—a study conducted by the Congressional Research Service—showed the opposite: stations owned by women typically broadcast about 35% of what the study called ''women's programming'' whereas stations owned by men broadcast only a slightly lower percentage—28%.
A major issue of concern ought to be the subsequent inability of the FCC to promptly and forthrightly remedy the discrimination once the Court of Appeals made its decis