SPEAKERS       CONTENTS       INSERTS    
 Page 1       TOP OF DOC
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

 Page 2       PREV PAGE       TOP OF DOC
    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.
 Page 3       PREV PAGE       TOP OF DOC

    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.

 Page 4       PREV PAGE       TOP OF DOC
    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.
 Page 5       PREV PAGE       TOP OF DOC

    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.

 Page 6       PREV PAGE       TOP OF DOC
    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.
 Page 7       PREV PAGE       TOP OF DOC

    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.
 Page 8       PREV PAGE       TOP OF DOC

    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.
 Page 9       PREV PAGE       TOP OF DOC

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.
 Page 10       PREV PAGE       TOP OF DOC

    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.''
 Page 11       PREV PAGE       TOP OF DOC

    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.

 Page 12       PREV PAGE       TOP OF DOC
    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.
 Page 13       PREV PAGE       TOP OF DOC

    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.

 Page 14       PREV PAGE       TOP OF DOC
    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.

 Page 15       PREV PAGE       TOP OF DOC
    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.
 Page 16       PREV PAGE       TOP OF DOC

    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.
 Page 17       PREV PAGE       TOP OF DOC

    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.
 Page 18       PREV PAGE       TOP OF DOC

    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.
 Page 19       PREV PAGE       TOP OF DOC

    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.

 Page 20       PREV PAGE       TOP OF DOC
    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.
 Page 21       PREV PAGE       TOP OF DOC

    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.
 Page 22       PREV PAGE       TOP OF DOC

    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.
 Page 23       PREV PAGE       TOP OF DOC

    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.
 Page 24       PREV PAGE       TOP OF DOC

    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

 Page 25       PREV PAGE       TOP OF DOC
    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.
 Page 26       PREV PAGE       TOP OF DOC

    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.
 Page 27       PREV PAGE       TOP OF DOC

    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.
 Page 28       PREV PAGE       TOP OF DOC

    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.
 Page 29       PREV PAGE       TOP OF DOC

    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

 Page 30       PREV PAGE       TOP OF DOC
    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.
 Page 31       PREV PAGE       TOP OF DOC

    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.
 Page 32       PREV PAGE       TOP OF DOC

    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:]

 Page 33       PREV PAGE       TOP OF DOC
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.

 Page 34       PREV PAGE       TOP OF DOC
    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.

 Page 35       PREV PAGE       TOP OF DOC
    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;
 Page 36       PREV PAGE       TOP OF DOC

    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.
 Page 37       PREV PAGE       TOP OF DOC

    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.
 Page 38       PREV PAGE       TOP OF DOC

    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.

 Page 39       PREV PAGE       TOP OF DOC
    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.
 Page 40       PREV PAGE       TOP OF DOC

    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.
 Page 41       PREV PAGE       TOP OF DOC

    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.
 Page 42       PREV PAGE       TOP OF DOC

    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.
 Page 43       PREV PAGE       TOP OF DOC

    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.
 Page 44       PREV PAGE       TOP OF DOC

    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.
 Page 45       PREV PAGE       TOP OF DOC

    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.
 Page 46       PREV PAGE       TOP OF DOC

    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.
 Page 47       PREV PAGE       TOP OF DOC

    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?
 Page 48       PREV PAGE       TOP OF DOC

    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.
 Page 49       PREV PAGE       TOP OF DOC

    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.

 Page 50       PREV PAGE       TOP OF DOC
    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.
 Page 51       PREV PAGE       TOP OF DOC

    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.
 Page 52       PREV PAGE       TOP OF DOC

    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.
 Page 53       PREV PAGE       TOP OF DOC

    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.

 Page 54       PREV PAGE       TOP OF DOC
    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.
 Page 55       PREV PAGE       TOP OF DOC

    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.
 Page 56       PREV PAGE       TOP OF DOC

    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.
 Page 57       PREV PAGE       TOP OF DOC

    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.
 Page 58       PREV PAGE       TOP OF DOC

    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.

 Page 59       PREV PAGE       TOP OF DOC
    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:
 Page 60       PREV PAGE       TOP OF DOC

  ''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.
 Page 61       PREV PAGE       TOP OF DOC

    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 decision. Sadly, my experience with the FCC in the more than five years since the constitutional question was decided points to the need for the Congress to reform affirmative action programs through legislation, rather than relying on bureaucrats to comply with court decisions about what is and what is not legally permissible.

    After deciding that the FCC had unconstitutionally discriminated against me, the Court of Appeals remanded the case back to the FCC with instructions to determine whether, but for the existence of the FCC's openly discriminatory gender preference program, I would have received the license. Typically, a judicial finding that the government has engaged in invidious discrimination lead to the victim being made ''whole.''
 Page 62       PREV PAGE       TOP OF DOC

    Following the remand, however, the FCC again awarded the license to Ms. Marmet. Although they had not been dispositive or even dominant factors in the original decision, the FCC now stated that Ms. Marmet's part-time, local residence and community activities outweighed 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 in the absence of its unconstitutional discrimination. The FCC simply re-weighted the evaluative 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 its decision in another case, Bechtel v. FCC. Following that case, it became questionable whether the local residence of the owner continued to be relevant to the decision of whether to grant a license. In Bechtel, the Court also ordered the FCC to give greater weight to broadcast experience, a major factor in my application.

    Instead of reformulating its criteria for evaluating construction applications in light of the Bechtel decision, the FCC instead ''froze'' all pending comparative licensing proceedings beginning in February, 1994 while it considered new regulations. To date, none have been issued, and my application remains in limbo.

    On May 9, 1994 the FCC ordered that Chief Administrative Law Judge Joseph Stirmer serve as a ''Settlement Judge'' in my case. At this conference, attorneys for Barbara Marmet, my attorney and Judge Stirmer were present. According to a sworn declaration signed by my attorney, during this conference Judge Stirmer stated to Ms. Marmet's representatives that she should have an incentive to settle the case because she would not be awarded the contested license until this comparative proceeding was resolved. Judge Stirmer expressly stated that all Ms. Marmet was entitled to while awaiting the appeal was a construction permit and that she would not be allowed to sell or transfer the station. On February 6, 1996, I was astonished to learn that the FCC had actually granted the license to Ms. Marmet, notwithstanding the terms of its ''freeze'' order, which precluded any agency action while it was contemplating new regulations. This license was granted without any notice to me or my lawyers. Upon inquiry, it turned out that the license had been granted over two years earlier, on December 20, 1994, while the remand was pending following the second appeal. Then, incredibly, one year later, the FCC granted its consent to Ms. Marmet to assign her license, again without any notice to me or my lawyers.
 Page 63       PREV PAGE       TOP OF DOC

    I have now spent over 14 years of time and energy trying to get a fair evaluation of my application for an FM broadcast license. 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 that 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. This is typical, I fear, of the attitude of federal government agencies toward ''reverse'' discrimination cases.

    More fundamentally, however, my experience shows just how difficult it is for individuals who have been unconstitutionally discriminated against by federal affirmative action programs to get redress. I was fortunate in that I was able to persuade the Center for Individual Rights—a non-profit public interest law firm—to take my ongoing case on a pro-bono basis and to find such skilled constitutional attorneys as Shaw, Pittman, Potts & Trowbridge and Hunton & Williams to cooperate with it in the litigation.

    Unfortunately, there are few public interest law firms willing to handle cases such as mine. As far as I know, CIR is the only public interest firm that would even entertain a reverse discrimination lawsuit on a pro-bono basis.

    Had CIR been unable to take my case, I would have been forced to litigate it at my own expense. As the Committee can imagine, litigating such a case for over fourteen years is very expensive. After exhausting my personal savings in defending my constitutional rights, I estimate that this litigation, in time and expense, has cost CIR and its cooperating counsel, between $250,000 and $300,000 since 1992, and it is by no means over yet.
 Page 64       PREV PAGE       TOP OF DOC

    It is unfair to ask individuals to bear the expense and uncertainty of reforming federal affirmative action plans through litigation. The defense of my basic constitutional rights has cost years of time and tens of thousands of dollars. Ironically, government agencies who violate these constitutional rights have merely increased the job security of staff attorneys at taxpayer's expense while dragging out cases like mine for years. I might have a different view if these issues could be settled once and for all by one or two precedent-setting cases. Unfortunately, the attitude of most federal bureaucracies makes this impossible. As my case illustrates, there is no point at which federal agencies concede that there has been a violation of constitutional rights and no point at which they try to make whole the victims of such discrimination.

    There is a compelling need for Congress to act now to eliminate all unconstitutional affirmative action programs across the board. Congress cannot 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 courts find a clear violation of constitutional rights, it is almost impossible to obtain meaningful redress. 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 un-elected 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 do away with through carefully crafted legislation.

 Page 65       PREV PAGE       TOP OF DOC
    For these reasons, I heartily endorse HR 1909, the Civil Rights Act of 1997.

    Thank you Mr. Chairman. I would be glad to answer any questions you or the other members of the Committee might have.

    Mr. CANADY. Thank you, Mr. Lamprecht.

    Dean Prager.

STATEMENT OF SUSAN WESTERBERG PRAGER, DEAN, UCLA SCHOOL OF LAW

    Ms. PRAGER. Thank you. At the outset, I want to thank the Chair and the ranking minority Member of the committee for including me in these discussions. I want to acknowledge that as a person who experienced the earliest years of affirmative action as a student and who has been now for 15 years responsible for the administration of affirmative action efforts as a dean of the UCLA Law School, I acknowledge that engaging in affirmative action is not without problems, although I think we have improved significantly over the decades in educational affirmative action programs.

    The appeal of the proposal before you, like that of Proposition 209 in California, is clear and simple. There are two related strands. First there is the individual rights theme, which runs something like this. Shouldn't we consider only the merits of each individual and not group characteristics. Isn't that the right thing to do in our democracy.
 Page 66       PREV PAGE       TOP OF DOC

    The second theme I term the theme of the color-blind society. I remember so vividly hearing for the first time the initial radio spot advocating the anti-affirmative action initiative. There it was, short, simple, calm, the story of two individuals, two friends who never focus on race, one black, one white. Their friendship symbolizes the color-blind society. My predominant reaction I realized was one of profound sadness.

    I was sad because the society that Mr. Connerly was depicting, the colorless society where race truly did not matter, was something that I and I suspect every person in this room desires, wishes for. We wish for it for a complex of reasons. Among them, the society would reflect our democratic ideals, our conception of this country as a place where people rise through their individual merit because there is true equality of opportunity. Ideals of individualism and equality would be in harmony, not in conflict. Both would be served. The society would be a safer society, wouldn't it? No race-based hate crimes, no suspicions or assumptions based on superficial factors of a distinguishing characteristic, the color of skin.

    The source of my profound sadness was my absolute conviction that we are very far away from the ideal of a color-blind society. That those who would end affirmative action want us to believe is here or want us to believe can be produced by eliminating affirmative action.

    Remember in the educational context our theory, and it has been born out by experience, is that education in a diverse setting is different. Everyone learns more than they do in a homogenous environment. Part of what they learn is how to contribute to the building of a better functioning multi-racial society.
 Page 67       PREV PAGE       TOP OF DOC

    I think I was asked to come here because of our recent experience with the devastation that the anti-affirmative action winds are working in our law schools. You know about the statistics from Texas. They have already been mentioned today. At the University of California's law school in Berkeley, at best there will be two African Americans in the class which enters in the fall. At UCLA, there will be eight to 10. This is in tremendous contrast to the past three decades.

    Interestingly, the response of some has been the assertion that students admitted under affirmative action were unqualified. Yet the actual experience under affirmative action in education calls into question that assumption. It also calls into question the over reliance on grades and test scores. Our highly positive experience proves that most of the students admitted under the framework set forth in the Bakke case have been highly successful professionals. I can give you example after example. There are some in my written testimony.

    I would like to conclude today by asking each white individual in this room to search his or her mind in complete private with the following two possibilities. First, ask yourself if you could determine the race of your only grandchild, would it matter to you if that grandchild be white or black? If our world is truly color-blind, if true equality has indeed arrived or can be so easily produced as by enacting these anti-affirmative action statutes, it should not matter to you the race of this grandchild. But those of you who are candid with yourselves will come to only one conclusion. If you allow yourself to probe your worries, you will likely find that they lie in the territory of unequal opportunity, of unfair treatment. Indeed, they even reach a concern for physical safety.
 Page 68       PREV PAGE       TOP OF DOC

    Second, I ask you to examine yourself on the following assumption. If you were absolutely guaranteed that affirmative action would continue for your lifetime and you were now under the age of 20, would you prefer to be black or Latino or would you prefer to be white? In other words, does affirmative action confer such a benefit that you would trade your whiteness for it?

    There is, ladies and gentlemen of the committee, an unreality about creating a structure where we must pretend that the factor of race does not make a difference when we know by our experience, by our regrettable experience, that race does continue to make a difference in our society. Wishing that race does not matter will not make it so. Legislating that race is irrelevant in our culture will not create the world of equal access that we all wish had arrived, that we all fervently hope for.

    In my final conclusion, I want to do something that I have not ever done in my 15 years as dean. That is, to tell you, and I know that this will surprise some of you, that I am a lifelong Republican who has worked for three different legislators, two in the Congress, one in the California legislature.

    Thank you very much for this opportunity.

    [The prepared statement of Ms. Prager follows:]

PREPARED STATEMENT OF SUSAN WESTERBERG PRAGER, DEAN, UCLA SCHOOL OF LAW

 Page 69       PREV PAGE       TOP OF DOC
    Members of the subcommittee, I am Susan Westerberg Prager, Dean and Frances Fearing Miller Professor at the UCLA School of Law. Thank you for allowing me to address the important issue before you. I do so from the vantage point of an educational institution which has been for three decades one of the national leaders in attempts to diversify the legal profession. We have come to see a diverse student body as a central feature of our capacities and qualities as an outstanding law school, and students of all races repeatedly tell us that they chose to study law in a highly diverse environment. Indeed we have come to believe that our graduates of all races will supply the leadership capable of working across racial lines that this society so desperately needs if we are to further our democratic values in an increasingly complex world.

    As you all know, my state will soon be one in which there is no racial majority. Yet the legal profession in California, despite 30 years of affirmative action on the part of the 4 public law schools and most of the state's private ones, is (extrapolating from 1990 census data) more than 95% white. In 1990 Latinos consituted 26% of the state's population, yet were just under 5% of those licensed to practice law. 7.4% of California's population, but only 2.4% of its lawyers were African American.

    At the outset, as a person who experienced the early years of affirmative action as a student, and who has been for 15 years now responsible for the administration of affirmative action efforts, I want to acknowledge that engaging in affirmative action is not without problems, although I think we have improved significantly over the decades.

    In my remarks, I am going to try to do justice to the arguments that lie at the core of the support for legislation such as Representative Canady and his co-authors have proposed. The appeal of the proposal like that of Proposition 209 in California, is clear and simple. There are two related strands. First, there is the individual rights theme, which runs something like this: ''Shouldn't we consider only the merit of each individual. and not group characteristics, isn't that the right thing to do in our democracy?''
 Page 70       PREV PAGE       TOP OF DOC

    The second theme is that of the colorblind society, I remember so vividly, hearing for the first time, the initial radio spot advocating the anti-affirmative action initiative. There it was, short, simple, calm—a story of two individuals, two friends, who never focus on race, one black, one white. Their friendship symbolizes the colorblind society, and my predominant reaction was one of profound sadness. It was, I realized, that the society that Mr. Connerly was depicting—the colorless society where race truly did not matter—was something that I, and I suspect every person in this room desires, wishes for . . .

    And we wish for it for a complex of reasons, among them the society would more reflect our democratic ideals, our conception of this country as one great melting pot, where people rise through their individual merit because there is true equality of opportunity. Ideals of individualism and equality would be in harmony in this world, not in conflict—and both would be served.

    And the society would be a safer society, wouldn't it? No race- based hate crimes, no suspicions or assumptions based on superficial factors of a distinguishing characteristic—the color of skin.

    And the source of my profound sadness—was my absolute conviction that we are very far away from the ideal of the colorblind society that those who would end affirmative action want us to believe is here.

    And if you conclude that the society is already truly colorblind, then individual rights may dominate. And, if in fact the era of colorblindness has arrived (or can be produced by eliminating affirmative action), then there would truly be no need to, for example, create racially diverse environments for education.
 Page 71       PREV PAGE       TOP OF DOC

    Remember, our theory, and it has been borne out by experience, is that education in a diverse setting is different-everyone learns more than they do in a homogenous environment. And part of what they learn is how to contribute to the building of a better functioning multi-racial society.

    I think I have been asked to testify because of our recent experience with the devastation that the anti-affirmative action winds are working on our society.

    In July of 1995, the University of California Regents, by a closely divided vote, acted to preclude the consideration of race (and other factors) in hiring and in individual admissions decisions. The impact of this action will be felt for the first time in graduate and professional programs in our University with the classes to enter this fall, and for undergraduate programs in the spring of 1999. As has been widely reported in the national news, the removal of legal affirmative action under the Supreme Courts standards set forth in Bakke v. Regents of the University of California as an avenue to diversity, has now been felt in the law schools in Texas (in response to the Hopwood case) and in California in response to the UC Regents action. The University of Texas in Austin has announced there will be no African American member of its huge entering law class. In my own multi-campus system, the law school on the Berkeley campus, will have at most 2 African Americans enroll this fall and these will be students who were admitted under earlier policies and deferred their admission from last year. At UCLA, a total of 10 African American students have indicated their intent to enroll, of these 8 were admitted under the new policies and two were admitted in earlier years. This is in contrast to the 19 to 46 African Americans who entered UCLA law in recent first year classes.
 Page 72       PREV PAGE       TOP OF DOC

    Interestingly, the response of some has been the assertion that students admitted under affirmative action seldom were ''unqualified.'' Yet the actual experience under affirmative action in education calls into question over-reliance on grades and test scores. Our highly positive experience proves that most of the students admitted under the framework set forth in the Bakke case have become highly successful professionals. UCLA's most dramatic example is the African American student who would not have been admitted without affirmative action, and who graduated 41st in his class, went on to clerk for one of the most demanding judges in the federal circuit court. Judge Alex Kozinski federal circuit courts, and then served as law clerk to Justice Ruth Bader Ginsberg on the United States Supreme Court. Our affirmative action graduates have distinguished themselves and proven the merit of our admissions policies in a broad range of settings, from Judges in every level of our state court system, to partners in major law firms, to executives in our region's leading industry, to law faculty members and even a Dean of a state law school, to leadership of the most distinguished public interest law agencies, to service as government lawyers in myriad settings. And we should not forget that many of the products of affirmative action, are practicing lawyers who serve clients and Communities that would be even more underserved without them.

    Substantively, affirmative action programs make a difference in the nature and quality of the education that takes place. Professor Peter Arenella who is great teacher feels very strongly on this point. Professor Arenella explains:

  ''There is a tendency on the part of many law students to see criminal law issues in stark and categorical terms: they frequently focus on whether the law is aiding the ''law abiding'' segment of the population [eg. polite, prosecutors, or victims of crimes] at ''the criminal element.'' Most of my minority students reject such simplistic thinking because they have experienced the abuse of police power first hand while living in communities ravaged by crime. They see the police as both protector and victimizer, they appreciate that ''criminals'' are human beings, they have compassion for victims of crimes because they have been victimized by crime themselves, and they know that constitutional limits on police powers protect the innocent as well as the guilty. In short, they see the nuances and complexities of most criminal justice policy issues and they are willing to share their stories and perspectives with other students. I can't imagine teaching criminal law classes without their invaluable assistance.''
 Page 73       PREV PAGE       TOP OF DOC

    In and out of the classroom diversity leads to discussion and law reform. Sometimes, the reform comes through the insight a particular individual's experience generates. I do not think it is coincidence that the young woman who became the first judge in the nation to sentence a slumlord to live in his own building was an African American product of affirmative action.

  Given the divisions in our society, we need to worry about the overall social fabric and the transmission of democratic values. It was not a coincidence that the night much of central Los Angeles was in flames during the worst urban riot in our nation's history, the Latino fire commissioner who pled for calm and the support of citizens to assist the fire crews was a leader who had benefited from affirmative action. Education leaders of all races who can translate societal values broadly is as critical now as when the civil rights movement was at its inception.

  In closing, I would like to ask each white individual in this room to search his or her mind in complete private, with the following two possibilities.

  First, ask yourself, if you could determine the race of your only grandchild would it matter to you if that grandchild be white or black. If our world is truly colorblind, if true equity has indeed arrived, it should not matter, but those of you who are honest with yourselves will come to only one conclusion. And if you allow yourself to probe your worries you will likely find that they lie in the territory of unequal opportunity, of unfair treatment, indeed they even reach a concern for physical safety.

  Second, I ask you to examine yourself on the following assumption: If you were absolutely guaranteed that affirmative action principles would continue for your lifetime, and you were now under the age of 20, would you prefer to be black or would you prefer to be white. In other words, does affirmative action confer such a ''benefit'' that you would trade your whiteness for it?
 Page 74       PREV PAGE       TOP OF DOC

  There is, ladies and gentlemen of the subcommittee, an unreality about creating a structure whom we must pretend that the factor of race does not make a difference when we know, by our experience, by our regrettable experience, that race does continue to make a difference in our society. Wishing that race does not matter will not make it so; legislating that race is irrelevant in our culture will not create the world of equal access that we all wish had arrived.

  I hope we will continue to strive for that more perfect world that we will build a consensus that it is a high national priority for us to make progress in doing so, recognizing that the use of the imperfect tool of affirmative action is a more productive course than the alternative.

    Mr. CANADY. Thank you, Dean Prager.

    Mr. Cornelius.

STATEMENT OF MICHAEL CORNELIUS, VICE PRESIDENT, MALCOLM DRILLING, INC.

    Mr. CORNELIUS. Thank you, Mr. Chairman. My name is Michael Cornelius. I appreciate this opportunity to address this Committee on the Constitution. I hope that this Congress will have the courage to reclaim it for all Americans.

    Over 100 years ago, a man named Homer Plessy boarded a passenger train in New Orleans and took his seat in the very coach that the Government had designated for white passengers only. Mr. Plessy was an American of African ancestry. For that fact alone, he was summarily kicked off the train.
 Page 75       PREV PAGE       TOP OF DOC

    Three years ago, I was a constituent part of a team of construction firms who as qualified bidders submitted the lowest bid to build part of a new federally funded passenger train system in Los Angeles. I am an American of Irish ancestry. For that fact alone, we got summarily kicked off the job.

    As vice president of an engineering and foundation company, I used to think that it was merit, hard work, and a low bid that got you a job in the publicly funded construction arena. Over the past 12 years however, after lost job after lost job, I have learned that neither of these three attributes are required. What is required however, is membership or the ability to show ancestral membership, no matter how faint, to specific races of peoples designated by the United States Government for preferential treatment.

    In 1993, my firm submitted a bid as a subcontractor to construct a subway station for the Los Angeles County Metropolitan Transit Authority, otherwise known as the MTA. They are one of the largest publicly funded public work agencies in the country. The low prime contractor teamed with the lowest bidding subcontractors, of which I was one, under bid our nearest competitor by $3 million—by over $3 million. The MTA's governing board initially recommended that we be awarded the project. We prepared to start construction, but we got kicked off the train. After the next highest bidder complained to the MTA that our bid did not use enough minority or women-owned subcontractors, the MTA rescinded the award and gave it to the next highest bidder.

    The MTA was enforcing the Intramodal Surface Transportation Efficiency Act of 1991, otherwise known as ISTEA. The name of this Act is in itself a contradiction because to be efficient means to lower costs, not to raise them. In implementing the race and gender quotas contained in ISTEA, the MTA required that 29 percent of all construction work go to firms whose majority shareholder is minority or a woman, irrespective of the workforce. Our bid had 26.5 percent of the work going to firms owned by minorities and women. Even though ours was a low bid, it was still higher than what it otherwise would have been, absent the race and gender quotas because the MTA allows a 10 percent bid preference for minority contractors.
 Page 76       PREV PAGE       TOP OF DOC

    For over $3 million in additional taxpayer funds, the MTA fulfilled their Government-sponsored race and gender quota system. This scenario plays itself out daily across the United States, costing taxpayers billions of dollars in additional funding. In this particular instance, the prime contractor sued the MTA, but quickly dropped the case after it was pointed out that doing business with a multi-billion dollar agency would be difficult in the future. Having lost this and many other taxpayer-funded jobs on race and gender criteria, I became so concerned that I decided to sue the MTA myself as a taxpayer. I felt that the funneling of additional taxpayer dollars to business owners of the appropriate race or gender classification was bad for business, was bad for the taxpayers, and was bad for America.

    My lawsuit was a David versus Goliath clash. The MTA has an annual budget over $2 billion. They employed all sorts of tactics to thwart my challenge. My resources paled in comparison. My attorney was from the Pacific Legal Foundation, fresh out of law school the summer before, and had just passed his bar. This was his first case as a lawyer. After my financial resources were sapped by the MTA, he provided his services pro bono.

    The MTA argued that the Federal ISTEA law required them to operate their quota system. We argued that that system was unconstitutional. The Los Angeles County Superior Court held that the MTA's program was indeed unconstitutional and further enjoined them from practicing it or enforcing it. But then the well-entrenched preference industry, and believe me, it is an industry, kicked into high gear. The MTA appealed the decision and argued that if they abide by the trial court's decision, the Federal Government would deny billions of dollars in funding to the MTA. The United States Department of Transportation under President Clinton weighed in with a legal brief backing MTA's position. The appeals court stayed the enforcement of the trial court's decision, allowing an blatantly unconstitutional program to go forward.
 Page 77       PREV PAGE       TOP OF DOC

    Subsequently, the United States Justice Department, again under President Clinton, filed a legal brief arguing that I had no right to be in court, regardless of the merits of my arguments. The appeals court saw their escape and summarily kicked me out of court on standing grounds, without even addressing the merits of the case. This, despite the fact that I am and was a registered civil engineer in the State of California, and had I been a minority or woman, my participation would have counted toward meeting the quota for the prime contractor. Kicked off the job and kicked out of court. So here I am in an effort to get consistency and equity into the publicly funded procurement landscape.

    Just like Homer Plessy's case a century ago, the decision in my case made no legal sense and even less common sense. The only explanation for the appellate court's refusal to hear the merits of my case was their belief that the issues involved were too politically controversial for them. It proves that the current system of legal protections is insufficient, and that is why we need the Civil Rights Act of 1997.

    At an absolute minimum, Members of Congress should realize the inherent constitutional contradictions embedded in ISTEA, and thereafter decline to reauthorize it. If an average person read our Constitution and was then presented with the facts surrounding this debate, that person could only make one conclusion. That the actions of this Government are not at all consistent with those outlined within the Constitution, the one document whose sole purpose is to prescribe the allowable actions of this Government. You can not look into a mirror and come to any other conclusion. It is time to fix the contradictions.

    If it is the will of this great Nation, as I believe it should be, to help disadvantaged Americans, then I submit that the means to affect that end are greatly flawed, and in fact they perpetuate the disparity between those who have and those who have not.
 Page 78       PREV PAGE       TOP OF DOC

    I further submit that the additional billions of dollars we give away to adult business owners because of their race should be redirected to the primary education system, where the disadvantaged come in all colors. Had this happened 30 years ago, we would not be sitting here today. Armed with an education, those who have not have only themselves to blame and not our great-grandparents. I stand ready to help with this task in any way I can. Thank you for your time, and I urge you to pass this legislation.

    [The prepared statement of Mr. Cornelius follows:]

PREPARED STATEMENT OF MICHAEL CORNELIUS, VICE PRESIDENT, MALCOLM DRILLING, INC.

    Good morning. I appreciate this opportunity to address this subcommittee on the Constitution, and I hope that this Congress will have the courage to reclaim it for all Americans.

    Over 100 years ago, a man named Homer Plessy boarded a passenger train in New Orleans and took his seat in the very coach that the government had designated for white passengers only. Mr. Plessy was an American of African ancestry and for that fact alone, he was summarily kicked off the train.

    Three years ago, I was a constituent part of a team of construction firms who, as qualified bidders, submitted the lowest bid to build part of a new, federally funded, passenger train system in Los Angeles. I am an American of Irish ancestry, and for that fact alone, we were summarily kicked off the job.
 Page 79       PREV PAGE       TOP OF DOC

    As Vice President of an engineering and foundation company, I used to think that it was merit, hard work, and the low bid that got you a job in the publicly funded construction arena. Over the past twelve years however, through lost job after lost job, I have learned that neither of these three attributes are required. What is required however, is membership, or the ability to show ancestral membership, no matter how faint, to specific races of people, designated by the United States Government, for preferential treatment.

    In 1993, my firm submitted a bid as a subcontractor to construct a subway train station for the Los Angeles County Metropolitan Transportation Authority's (MTA) Metro Red Line, one of the largest federally funded, public works agencies in the United States. The low prime contractor, teamed with the lowest bidding subcontractors (of which I was one), underbid our nearest competitor by over 3 million dollars. The agency's governing board recommended that we be awarded the contract, and we prepared to start construction.

    But we got kicked off the train. After the next highest bidder complained to the MTA that our bid did not use enough minority or women owned subcontractors, the MTA rescinded the award and gave it to the next highest bidder. The MTA was enforcing the Intermodal Surface Transportation Efficiency Act of 1991 otherwise known as ISTEA. The name of this Act is, in itself, a contradiction because to be efficient means to lower cost not to increase it.

    In implementing the race and gender quotas contained in ISTEA, the MTA required that 29 percent of all construction work go to firms whose majority shareholder is a minority or a woman. Our bid had 26.5 percent of the work going to firms owned by minorities and women. Even though ours was the low bid, it was still higher than what would otherwise have been absent the race and gender quota, because the MTA allows a 10% price premium for minority contractors. So for over 3 million dollars in additional taxpayer funds, the MTA fulfilled their government sponsored race and gender quota system. This scenario plays itself out daily across the United States costing taxpayers billions in additional funding.
 Page 80       PREV PAGE       TOP OF DOC

    In this particular instance, the prime contractor sued the MTA but quickly dropped the case after it was pointed out that doing business with the multibillion dollar MTA would be difficult in the future. Having lost this and many other taxpayer funded jobs, on race and gender criteria, I became concerned so I decided to sue the MTA as a taxpayer. I felt that the funneling of additional taxpayers dollars to business owners of the appropriate race or gender classification was bad for business, bad for the taxpayers, and bad for America.

    My lawsuit was a David vs. Goliath clash. The MTA has an annual budget of over 2 billion dollars, and they employed all sorts of dilatory tactics to thwart my challenge. My resources paled in comparison. My attorney was from the Pacific Legal Foundation, fresh out of law school the summer before and had just recently passed his bar. This was his first case as a lawyer, and after my financial resources were sapped by the MTA, he provided his services pro bono. The MTA argued that the federal ISTEA law required them to operate their quota system. We argued that the system was unconstitutional. The Los Angeles County Superior Court held that the MTA's program was unconstitutional and further enjoined them from practicing or enforcing it.

    But then the well entrenched preference industry (and believe me, it is an industry) kicked into high gear. The MTA appealed the decision and argued that if they abide by the trial court's decision, the federal government would deny billions in federal funding to MTA. The United States Department of Transportation, under President Clinton, weighed in with a legal brief backing MTA's position. The appeals court was persuaded and stayed the enforcement of the trial court decision, allowing a blatantly unconstitutional program to go forward. In addition, the United States Justice Department filed a brief arguing that I had no right to be in court, regardless of the merits of my arguments. The appeals court saw their escape, and summarily kicked me out of court on standing grounds, without even addressing the merits of the case. This despite the fact that I am and was, a registered Civil Engineer in the State of California, and had I been a minority or a woman, my participation would have counted toward meeting the quota for the prime contractor. Kicked off the job and kicked out of court. So here I am in an effort to get consistency and equity to the publicly funded procurement landscape.
 Page 81       PREV PAGE       TOP OF DOC

    Just like Homer Plessy's case a century ago, the decision in my case made no legal sense and even less common sense. The only explanation for the appellate court's refusal to hear the merits of my case was their belief that the issues involved were too politically controversial for them. It proves that the current system of legal protections is insufficient and that is why we need the Civil Rights Act of 1997. At an absolute minimum members of Congress should recognize the inherent Constitutional contradictions imbedded in ISTEA, and thereafter, decline to reauthorize it.

    If an average person read our Constitution, and was then presented with the facts surrounding this debate, that person could make only one conclusion: that the actions of this government are not at all consistent with those outlined within the Constitution, the one document whose sole purpose is to prescribe the allowable actions of the government. You cannot look into the mirror and come to any other conclusion. It is time to fix the contradictions.

    If it is the will of this great nation, as I believe it should be, to help disadvantaged Americans, then I submit, that the means to effect that end are greatly flawed and, in fact, they perpetuate the disparity between those who have and those who have not. I further submit that the additional billions of dollars we give away to adult business owners because of their race, should be refocused to the primary education system where the disadvantaged come in all colors. Armed with an education, those who have not, have only themselves to blame, not our great grandparents.

    I stand ready to help with this task in any way I can. Thank you for your time and I urge you to pass this legislation.
 Page 82       PREV PAGE       TOP OF DOC

    Mr. CANADY. Thank you, Mr. Cornelius.

    Ms. Narasaki.

STATEMENT OF KAREN NARASAKI, EXECUTIVE DIRECTOR, NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM

    Ms. NARASAKI. Thank you, Mr. Chairman, for inviting me to testify on behalf of the National Asian Pacific American Legal Consortium. We believe that H.R. 1909, while it might be well-meaning, is extreme and would end progress America has made in moving toward the principle of equality for all.

    My testimony describes how affirmative action has worked to help me and countless other Asian Pacific Americans to narrow the gaps caused by discrimination. I, myself, am a proud product of affirmative action. When I was growing up in Seattle, property covenants were still in effect that prevented minorities from living in most of the middle class areas with better schools. So despite the fact that my father was a Boeing engineer, we lived in a blue collar suburb where I attended an aging and under-resourced high school. Few of the graduates went on to any kind of 2 or 4 year college.

    My father was interned in Topaz, Utah during World War II because he was of Japanese descent, even though he and his mother had been born in the United States. He fought with the famed 442 regimental combat team while his mother remained behind barbed wire. He did not attend college until he was 30 because he saw that his college graduate friends were being denied good jobs because of their race. He dreamed that his children would one day attend an Ivy League institution, but these schools only sent recruiters to the local private school. I was initially wait-listed at Yale, and am convinced that I was admitted because of affirmative action. I graduated magna cum laude with distinction in my major, while holding down a part-time job throughout my 4 years. Moreover, I believe that in educating me, Yale did fulfill part of its mission, to educate America's leaders. Well, their actual charter says to graduate 1,000 male leaders each year. But even Yale has to change with the times.
 Page 83       PREV PAGE       TOP OF DOC

    I attended UCLA Law School in the early 1980s, and the largest L.A. firm came onto campus to interview for summer jobs. I was one of the top three students at UCLA. I had 2 years of corporate full-time work experience under my belt and my Yale degree. Yet it was obvious from the moment I stepped into the room that the people interviewing had no interest in seriously considering me. Instead, they made an offer to one of my white male friends who had absolutely no work experience.

    When it came time to seek a job after graduation, affirmative action again gave me a chance to prove myself. The largest Seattle firm with almost 300 attorneys had launched an affirmative action effort. Even though Seattle's population was 10 percent Asian, it had only one Asian-Pacific American attorney, and one black attorney, and few women. Traditionally, the firm had only recruited at the top private law schools and the Washington State universities. The affirmative action effort led them to recruit at UCLA. I proved to be one of the top billing associates for the 6 years I was with my firm. Yet without affirmative action, they would have never even given me the opportunity for an interview.

    That is how affirmative action works. It encourages academic institutions, employers and contractors to look beyond their traditional networks and methods, which often intentionally or unintentionally shut out women and minorities.

    My experience is not unique. It would be foolish to say that this is only in the past, that outreach and anti-discrimination laws are enough. Just last year, Brij Bargova, a South Asian vet who had worked at the U.S. Department of Agriculture for 20 years was awarded $1 million by a Federal jury who found that he had been repeatedly denied promotions because of discrimination. He won because he proved that highly qualified Asian-Pacific Americans in the Government receive fewer promotions than their less well-qualified white counterparts, and that discrimination against Asian-Pacific American veterinarians were widespread. However, while he received a monetary compensation, the problem of discrimination was clearly an institutional problem and will not be solved unless the USDA is allowed to enact an effective affirmative action program.
 Page 84       PREV PAGE       TOP OF DOC

    Similar problems exist at the EPA, the State Department, and the Library of Congress. H.R. 1909 would prohibit these agencies from adopting such a remedy that could address systemic discrimination that is not about lack of outreach or differences in paper qualifications.

    Currently, Congress often urges Government to learn from the private sector. Well, I am here to say that the Ford Motor Company, Boeing, Dupont, Goodyear, and many other corporations have already announced their strong belief in the importance of affirmative action.

    The problems exist not just in employment. Discrimination is rampant for minority entrepreneurs. One South Asian American structural engineer with his own consulting firm testified that he was unable to get an unsecured line of credit until an Asian Pacific American loan officer at another white-owned bank told him he should be eligible. He maintained that line for several years with a clean record. Yet when a white loan officer took over, she refused to renew his credit line.

    Minority contracting programs are critical because of these systemic problems. Affirmative action is one of the few tools we have that has worked to change our society to give minorities and women a fair chance to live up to their potential and to contribute their skills on an equal footing. That is why a vast majority of Asian Pacific Americans join other Americans in support of affirmative action.

    In Orange County, where Vietnamese Americans are registered two to one Republican, 73 percent of the Republican Asian Americans voted against Proposition 209, a measure very similar to H.R. 1909. A Gallup poll earlier this week said 51 percent of whites said we need to increase or keep the same affirmative action efforts.
 Page 85       PREV PAGE       TOP OF DOC

    As the statistics in my written testimony show, Asian Americans, like other minorities, still face barriers created by discrimination. When a white male South Carolina State Board of Education member is allowed to keep his job after saying ''screw the Buddhists and kill the Muslims'' at an official State Board of Education meeting, Asian Pacific Americans seeking employment there can not expect that the doors will be open to them. The same people who burned a cross on the lawn of a Korean American woman's home last October are not going to be giving her a fair shake at Government contracts.

    I urge the subcommittee not to turn its back on the Nation at a time of need, to turn back to a time where we're covering our eyes to discrimination and denying ourselves the benefits of the talents of many solely because of their gender or race. Bills like H.R. 1909, which totally eliminate affirmative action, threatens our ability to compete in the global marketplace and to become the America we all dream it can be. Ending affirmative action will not just hurt women and minorities, it will hurt all Americans. Thank you.

    [The prepared statement of Ms. Narasaki follows:]

PREPARED STATEMENT OF KAREN NARASAKI, EXECUTIVE DIRECTOR, NATIONAL ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM

    The National Asian Pacific American Legal Consortium (the ''Consortium'') is a non-profit, non-partisan organization dedicated to advancing and protecting the civil rights of the nation's approximately 9.3 million Asian Pacific Americans. The Consortium and its three affiliates the Asian Law Caucus in San Francisco, the Asian American Legal Defense and Education Fund in New York City, and the Asian Pacific American Legal Center of Southern California in Los Angeles collectively have over fifty years of experience in providing legal services, community education, and advocacy on race and national origin discrimination issues.
 Page 86       PREV PAGE       TOP OF DOC

I. INTRODUCTION

    The Consortium opposes H.R. 1909 because we believe affirmative action is a vital tool for ensuring that all Americans have access to equal opportunities in education, employment, and public contracting. We believe that the current opposition to affirmative action comes from misconceptions about how it works, and from ignorance about the realities of past and present discrimination.

    My testimony describes how affirmative action has worked to help me and countless other Asian Pacific Americans to narrow the gaps caused by institutionalized discrimination. It also outlines the need for continued action because of present day discrimination experienced by Asian Pacific Americans and other minorities.

    The Consortium follows the Civil Rights Commission definition of affirmative action as ''encompass[ing] any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future.'' Thus affirmative action includes ''active efforts that take race, gender, and national origin into account for the purpose of remedying discrimination.'' 1

A. My Experience

    I, myself, am a proud product of affirmative action. When I was growing up in Seattle, property covenants were still in effect that prevented Asian Pacific Americans and other minorities from living in most of the middle and upper class areas. So my father, a Boeing engineer, moved us out of the city to a blue collar suburb where I attended a small and under-resourced public elementary school, and then an aging and under-resourced high school. My school sent few graduates to any kind of two or four year college.
 Page 87       PREV PAGE       TOP OF DOC

    My father was interned with his family during World War II because he was of Japanese descent, even though he was a third generation American born in California. He had attended the University of Washington at the age of 30 on the G.I. bill because of his service with the famed 442nd Battalion during World War II. He had dreams that his children would one day attend an Ivy League school. But my high school counselor only knew how to deal with delinquent kids and had never heard of most of the private schools suggested by my father's supervisor—schools like Smith and Radcliffe. The Ivy League schools routinely sent recruiters to the local private school, but did not send recruiters to my high school which was considered to have a less rigorous academic program.

    I was initially wait-listed at Yale. I know that I finally received admittance because of Yale's affirmative action program. While I was a National Merit Semi-Finalist and had almost a 4.0 average, my grades would have been discounted because I had not attended one of the traditional private feeder schools. Yale had opened its doors to women less than a decade before and was still struggling to build a diverse student body after virtually shutting out African Americans, Latinos, Native Americans and Asian Pacific Americans until the 1960's.

    I later helped with recruitment and learned how the alumnae legacy program benefitted children of alumnae, who at the time were almost all white.2\ As an alumnae recruiter, I was assigned as the only person to cover five inner-city Seattle area high schools while seven alumnae were assigned to Seattle's private high school. Some of the high school counselors told me they wouldn't let me come to give a presentation because it was a waste of their time. These counselors denied their students any opportunity because none of their students had ever gone onto an Ivy League school, and they assumed that none ever would.
 Page 88       PREV PAGE       TOP OF DOC

    I am grateful that affirmative action gave me an equal opportunity to compete with kids from wealthy white families. My education at Yale has opened many doors for me. While I might have lost out on a competition based totally on grades and test scores, I believe that I have proved myself worthy of the opportunity affirmative action afforded me, graduating magna cum laude with distinction in my major while holding down a part-time job throughout my four years. I like to think I also added to the education experience of my classmates, having shared my culture and experiences with them. I know the diversity of Yale's student body was an important part of my personal education. I have used the opportunities Yale provided to me and returned to help those who did not have the same opportunities given to me. I believe that in educating me, Yale did fulfill part of its stated mission—to educate America's leaders.

    Being a Yale alumnae also gave me the inside track on jobs after graduation. Many corporations and government agencies recruited only at a few select schools. You could be the top graduate at a top ranked public university, but not even have the opportunity to interview for these plum jobs. These jobs then become the basis of admission into the top graduate and professional schools. This is the old boys' network at work. Since minorities are often not part of this network, they are totally shut out of these opportunities in the absence of affirmative action.

    Affirmative action programs have also helped me to break down additional barriers. I attended U.C.L.A. law school in the early 1980s. Many firms I interviewed with for summer jobs had never hired a woman or a minority. The largest firm in Los Angeles interviewed on campus for second year summer jobs and even though I came into the interview with my Yale degree, ranked as one of the top three law school students, it was obvious from the beginning of the interview they had no interest in seriously considering me. They made an offer on the spot to one of my white male friends who had attended Brown and had scores close to mine. The only summer job offers I received were from firms who had formal affirmative action programs.
 Page 89       PREV PAGE       TOP OF DOC

    When it came time to seek a permanent job, affirmative action again gave me an opportunity to prove myself. The largest firm in Seattle, with almost 300 attorneys, had realized it was sorely lacking in women and minorities and had launched an affirmative action effort. Even though Seattle's population was 10% Asian, the firm had only one Asian Pacific American attorney. Traditionally, the firm had only recruited at the top private law schools and Washington state universities. While I had been offered admittance to these schools, I could not afford to attend them. The affirmative action effort led the firm to recruiting at other top public law schools like U.C.L.A. Was I qualified? The answer is clearly yes and I proved to be one of the top billing associates for the six years I was at the firm. Yet without affirmative action, they would have never even given me the opportunity for an interview.

    That is how affirmative action works. It encourages academic institutions and employers to look beyond their traditional methods and networks which often, unintentionally, shut out minorities and women. It tells admissions officers, employers and contractors that they cannot just reach out to the people they know, but must give others a fair and equal opportunity.

B. Other Personal Experiences

    My experience is not unique. U.C. Berkeley Professor Elaine Kim tells a similar story.3\ Her father had a Ph.D. in economics, but because of discrimination had to work as a waiter until he was able to start his own business. Professor Kim was a straight ''A'' student at the University of Pennsylvania, but when she graduated in 1963, before affirmative action programs existed, she was unable to find appropriate employment. She ended up working as a typist at an insurance company, the only college-educated woman with that job. All of the other typists had a high school education. She was not given equal opportunities until affirmative action opened the doors for her.
 Page 90       PREV PAGE       TOP OF DOC

    Just last year, Brij Bhargava, a South Asian immigrant veterinarian who had worked at the U.S. Agriculture Department (U.S.D.A.) for 20 years was awarded $1 million by a federal jury who found that he had been repeatedly denied promotions because of discrimination based on his national origin.4\ He won after proving that highly qualified Asian Pacific Americans received fewer promotions than their less well qualified white counterparts and that discrimination against immigrant veterinarians was wide-spread. While the discrimination laws worked for him, the problem is an institutionalized one and will not be solved for the other minorities working at U.S.D.A., unless an effective affirmative action program is instituted there. H.R. 1909 would prohibit U.S.D.A. from adopting such a remedy.

    In 1991, Circle K, then the nation's second largest operator of convenience stores, settled a race discrimination charge after two white supervisors charged that in 1986 their boss had ordered them to fire all of their Vietnamese employees and replace them with white people.5\ They were told, ''Find any reason—large or small—to get rid of them.'' Circle K went into bankruptcy to avoid the class action suit and agreed with the EEOC to enroll at least one qualified Vietnamese employee a year during the next three years in its management development program in Houston.

    H.R. 1909 could compromise the ability of EEOC to obtain such agreements.

    There are some legislators who argue that affirmative action is not necessary because existing anti-discrimination laws are sufficient on their own. This litigation is instructive as to why anti-discrimination laws alone are not enough. First, the company's intentions only came to light because of two white supervisors who were courageous enough to refuse to implement Circle K's instructions to discriminate against their Vietnamese American employees. Most of the time, job applicants are not aware of why they were not hired and employees do not know the real reasons why they did not win promotions.
 Page 91       PREV PAGE       TOP OF DOC

    Second, one of the white supervisors was blackballed by the industry in which he had worked for 14 years. It took one of them two years to find another job that paid only one-third of his former salary and he lost his house because he could not pay the mortgage. Not many workers would be quick to follow his courageous example.

    Third, three years after this settlement, Vietnamese American employees were back in court charging that Circle K again systematically and deliberately set about to terminate all Vietnamese employees in their stores. The former employees claim that the company has fired, most, if not all, Vietnamese American managers, and transferred, demoted and refused to hire other Vietnamese Americans.6\ The company apparently did not learn anything from the first lawsuit. Affirmative action improves the workplace for all workers and is much more cost-effective than punitive litigation.

    The problems exist not just in employment. Discrimination is also rampant for minority entrepreneurs. That is, why minority contracting programs and other such initiatives remain important. H.R. 1909 would compromise these programs.

    One South Asian American businessman, a structural engineer with his own consulting firm, told Alameda county officials about lending discrimination he had faced.7\ He was able to get an unsecured line of credit only after an Asian Pacific American loan officer at another white owned bank told him that he would be eligible. He maintained that line for several years with a clean record, yet when a white loan officer took over, she refused to renew his credit line. He finally took his business to a minority owned bank.

 Page 92       PREV PAGE       TOP OF DOC
    Other Asian Pacific American business owners have reported that they do not get adequate notice or information about bid requirements because they do not have access to government procurement officers. 65% of Asian Pacific American professional services firms reported encountering discrimination during the process of meeting pre-qualification conferences in a 1992 study of Alameda County which contains Oakland, California.8\

    As the statistics below show, Asian Pacific Americans, like other minorities, still face barriers created by discrimination, institutional and otherwise. Often, they are barriers that no amount of education or income can completely overcome. Asian Pacific Americans are painfully well aware of this. When a white male South Carolina State Board of Education Member is allowed to keep his job after saying ''Screw the Buddhists and Kill the Muslims'' at an official State Board of Education meeting, Asian Pacific Americans seeking employment there cannot expect that the doors will be open to them. The same people who burned a cross on the lawn of a Korean American woman's home in California last October are not going to be giving her a fair shake at the employment office. A society in which Asian Pacific Americans campaigning for local elective offices have their campaign signs painted with swastikas and their campaign literature returned to them marked, ''Go home gook,'' is not one in which people are being judged by the content of their character and not the color of their skin.

    Affirmative action, while not perfect, is one of the few tools we have that has worked to change our society to give minorities and women a fair chance to live up to their potential and contribute their skills on an equal footing with nonminority men.

    That is why a vast majority of Asian Pacific Americans support affirmative action and oppose measures like Proposition 209 in California, which is very similar to H.R. 1909. As part of a Consortium Voting Rights project, the Asian Law Caucus and the Asian Pacific American Legal Center conducted exit polls in San Francisco, Oakland, Los Angeles and Orange County for the November General Election. These exit polls showed that an overwhelming majority voted against Proposition 209. In Orange County, where Asian Pacific Americans are registered two-to-one Republican, 73% of Republican Asians voted against Proposition 209, despite the fact that presidential candidate, Senator Bob Dole, spoke at two events there stressing his support.
 Page 93       PREV PAGE       TOP OF DOC

    The need to have affirmative action programs to address existing discrimination is also why all of the major national Asian Pacific American organizations and many community and corporate leaders support affirmative action and oppose measures like H.R. 1909 that would end affirmative action. See Exhibit 1 (Affirmative Action advertisement).

II. AFFIRMATIVE ACTION IS A NECESSARY TOOL TO REMEDY PAST AND CURRENT DISCRIMINATION AND TO PREVENT FUTURE DISCRIMINATION

    Asian Pacific Americans, similar to other minorities, have faced a long history of racial and national origin discrimination, often by the state and federal government. Today, Asian Pacific Americans continue to face both intentional and institutional discrimination. Affirmative action opens doors of opportunity previously closed to Asian Pacific Americans, women and other minorities. By including minorities and women in areas traditionally barred to them, the nation has benefitted and will continue to benefit from previously untapped human resources. If H.R. 1909 were enacted, the doors of opportunity would be slammed shut, and we would return to a society in which minorities and women are again excluded from many areas.

A. Asian Pacific Americans Face Current Discrimination

    There continues to be palpable racial discrimination against Asian Pacific Americans that manifests itself overtly in the form of anti-Asian violence. In the Consortium's 1995 Audit of Violence Against Asian Pacific Americans, there were 458 incidents reported. This number reflected a 14% increase in aggravated assaults and an 11% increase in assaults. These numbers are striking when compared to the FBI report that overall violent crime had dropped by 4%.
 Page 94       PREV PAGE       TOP OF DOC

    We expect to report even higher numbers for last year. A few examples of recent incidents show some of the people directly affected by these types of incidents:

  In January 1996, a Georgetown masters degree graduate was attacked in California while rollerblading in a tennis court and then, was brutally stabbed and kicked to death by two perpetrators who are white supremacists.

  In February 1997, 700 Asian Pacific American students at Indiana University of Bloomington received hate e-mail messages on three separate occasions.

  Last April in Syracuse, New York, a group of Asian Pacific Americans and a white friend were refused service at a Denny's restaurant and then were attacked and beaten in a parking lot by a group of white men, who were patrons of the restaurant, while Denny's security guards stood by and did nothing.

1. Affirmative Action is Necessary in Employment

    While minorities and women have increased their participation rate in the labor force, entry barriers still remain and a glass ceiling impedes their progress. Rarely, if ever, do women and minorities, including Asian Pacific Americans, reap the same benefits and earnings from a college education as white men do, suggesting the lingering effects of racial, ethnic, and gender discrimination. If passed, H.R. 1909 would further exacerbate these problems.

    Of concern to Asian Pacific Americans and other minorities is the rise in incidents of discrimination. The Equal Employment Opportunity Commission's (EEOC) charge receipts grew by 35.9% during 1987–1994. In 1994, the most cited basis for discrimination remained race, which was up by 16.4% from 1989 levels.9\ At the same time, a Rutgers University study found that, from mid-1990 to mid-1994, ''reverse discrimination'' was alleged in fewer than 100 of over 3,000 reported, federal court decisions on discrimination suits. The courts found that many of these cases lacked merit, with the plaintiff prevailing in only six cases of employment discrimination favoring women or minorities.10
 Page 95       PREV PAGE       TOP OF DOC

a. Discrimination Continues to be an Entry Barrier for Asian Pacific Americans

    Asian Pacific Americans are under-represented in many sectors of the American workplace. For instance, 45% of American newspapers employ no ethnic minority journalists, and ethnic minorities constitute only 7.7% of all newsroom managers. Asian Pacific Americans represent only 1.83% of all newspaper journalists (983 out of a total of 53,711).11 This dearth of Asian Pacific American perspectives translates into cursory explorations of the Asian Pacific American community by the mainstream media.

    The construction industry, where many Americans have made their fortunes, has largely been closed to Asian Pacific Americans. Nationwide, Asian Pacific Americans constituted less than 1% of construction unions in 1990, although they were 3% of the population.12

    Asian Pacific Americans are still absent from many public sector jobs where their presence would greatly enhance the quality of public services to the community. For example, only 1.4% of public school teachers in the country are Asian Pacific American.13 The Federal Bureau of Investigation, the Department of Justice, Bureau of Alcohol, Tobacco, and Firearms and other federal law enforcement agencies also have too few Asian Pacific Americans in their ranks.

    The low numbers of Asian Pacific Americans elected and appointed into office at all levels of government is also a matter for concern. Without representation, Asian Pacific American voices remain unheard. As a result, social policies and institutions do not reflect Asian Pacific American concerns accurately or adequately.
 Page 96       PREV PAGE       TOP OF DOC

b. Discrimination Also Has Created a Glass Ceiling for Asian Pacific Americans

    Even where Asian Pacific Americans gain entrance to the workforce, they still face a very real glass ceiling despite their education and qualifications. Studies by the U.S. Commission on Civil Rights, the Equal Employment Opportunity Commission, and the Federal Glass Ceiling Commission have found that while Asian Pacific Americans, as a group, achieved higher levels of education than other groups, this did not translate into good upward mobility, in terms of higher income or promotions. Disproportionately few Asian Pacific Americans rise into executive or managerial positions in both public and private sectors of the economy.14

    For instance, less than 0.3% of senior executives in the United States are of Asian descent.15 Specifically, a 1992 survey showed that, in the boards of directors of 806 public Fortune companies, Asian Pacific American women held less than 0.01% of the seats while Asian Pacific American men held less than 0.2% of the seats.16 U.S.-born Asian Pacific American men were between 7% and 11% less likely to be in managerial occupations than white men with the same education, work experience, English ability, region, marital status, and industry work.17 National Science Foundation findings even suggest that Asian Pacific Americans are less likely to hold managerial positions than other minorities.18

    Wage disparities still abound between whites and Asian Pacific Americans having the same educational backgrounds and the same type of job. College-educated whites earn almost 11% and white high-school graduates earn 26% more than their Asian Pacific American counterparts.19 In 1989, U.S.-born Asian Pacific American doctoral scientists and engineers earned only 92% of the income of their white colleagues.20
 Page 97       PREV PAGE       TOP OF DOC

    A glass ceiling exists even for minorities in the federal work force, with minority representation varying inversely with grade level. All minorities, including Asian Pacific Americans, are under-represented in higher-paying Senior Executive Service (SES) positions, as compared to their respective overall employment participation rates in all employment sectors. Simultaneously, minorities are over-represented in lower-paying, non-managerial positions.

    For example, in 1993, whites constituted 52.5% of one of the entry level positions nationwide, but filled 87.4% of positions at the highest non-managerial level. In contrast, Asian Americans/Pacific Islanders comprised 4.9% of the lower level employees, but only 2.7% of the highest non-managerial level positions.21 As of January 1994, whites comprised 92% of those at the SES managerial level (annual salary of $96,830–$120,594), and Asian Pacific Americans held only 1% of those positions.22

    Many Asian Pacific Americans facing such discriminatory obstacles find another employer or start their own businesses. In fact, the prosperous area of Silicon Valley near San Jose, California is filled with numerous Asian Pacific American entrepreneurs who did exactly that. These Asian Pacific American entrepreneurs started their own businesses when they hit the glass ceiling on the corporate ladder and were unable to fully capitalize on their talents.

c. Affirmative Action Works to Improve Opportunities for Asian Pacific Americans

    Affirmative action has helped to improve employment opportunities for Asian Pacific Americans and is still needed. For example, since California's adoption of its civil service affirmative action program in 1977, Asian Pacific Americans have achieved labor force parity in 11 out of 19 state job categories (compared to 16 out of 19 categories for African Americans, and 7 out of 19 categories for Hispanic/Latino Americans).23 Conversely, disparity remains for Asian Pacific Americans in eight job categories. The City of Chicago was able to overcome the exclusion of Asian Pacific American through affirmative action, and as a result, the hiring of Asian Pacific Americans grew from 1% to 4%.24
 Page 98       PREV PAGE       TOP OF DOC

    Affirmative action has improved the representation of all racial and ethnic groups in law enforcement and other social services which has led to better understanding and cooperation between minority communities and the police, better protection of the community at large, and less friction on all sides. For instance, in a 1988 court-ordered consent decree, the San Francisco Fire Department agreed to a race-conscious hiring and promotion policy, with hiring goals, to remedy past discrimination against women, Asian Pacific Americans, and other minorities.25 Before that order, the San Francisco Fire Department had virtually no Asian Pacific American firefighters; now, Asian Pacific Americans make up approximately 9% of its labor force. This increase represents a roughly five-fold increase of Asian Pacific Americans during the last 7 years. However, this 9% figure is still far below the 30% Asian Pacific American population in San Francisco.

    The problems of racism and police brutality besetting the Los Angeles Police Department (LAPD) are well documented. At present, 54% of the LAPD force are white; 26% are Latino American; and 15% are African American. Only 4.5% of LAPD officers are Asian Pacific American, whereas Los Angeles's 1990 census showed that Asian Pacific Americans represent about 10% of the population. As well, in 1992, while Asian Pacific Americans constituted 11% of Los Angeles County's overall population, they made up only 2.8% of the Los Angeles County Sheriff's Department employees.26 One promising development is the LAPD's recent adoption of a more comprehensive affirmative action program targeted at recruiting more Asian Pacific Americans into the police force. At the same time, effective efforts to hire Asian Pacific Americans resulted only after years of educating and pressuring the LAPD, the Chief of Police, the Mayor, the City Council, and the Police Commission, by the Asian Pacific American Legal Center of Southern California, and other Asian Pacific American community organizations.27 Affirmative action has also diversified and improved the San Francisco Police Department, resulting in the recent appointment of its first Asian Pacific American police chief, Fred Lau.
 Page 99       PREV PAGE       TOP OF DOC

    H.R. 1909 would bar the creation of affirmative action programs in federal agencies, even though they have been proven to help minorities and women enter fields in local law enforcement and social services, making these agencies better able to respond to the needs of our communities.

2. Affirmative Action Helps Remedy Discrimination that Asian Pacific Americans Face in Contracting

    Systemic discrimination in government and social institutions have hampered the full participation of Asian Pacific Americans in the American economy. Asian Pacific Americans and other minorities need affirmative action in the arena of business development, including public contracting and procurement.

    Overall, although minorities represented about 24% of the population, minority businesses comprised less than 9% of all U.S. firms in 1987.28 However, while Asian Pacific American businesses represented 2.6% of all U.S. businesses in 1987, they only received 1.7% of the total National Gross Receipts.29 The effects of discrimination in the marketplace has capped minority earning potential, and limited their growth. Thus, in 1987, white-owned firms had an average employee payroll of $85,786 while that for minority-owned businesses was only $38,318.30

    By and large, Asian Pacific Americans still are excluded from the ''old boys' networks'' that provide access to good jobs and business opportunities, especially in public contracting. Many cities have awarded some of their lucrative contracts based on political patronage rather than on a bidder's qualifications or price quotes. As well, both blatant and subtle discrimination have affected the award of public contracts. Many disparity studies document major barriers for minority- and woman-owned firms, including:
 Page 100       PREV PAGE       TOP OF DOC

  (1) ''Old boys' networks'' of white-owned firms controlling the construction industry;

  (2) White contractors using the unfair practice of ''bid shopping'' particularly often against minority and women subcontractors, whereby, after bidding closes, the prime contractor secretly discloses the lowest bid to competing subcontractors to solicit a lower bid;

  (3) The practice of white contractors carrying white but not minority subcontractors on their insurance policies; and

  (4) The application of double standards by government officials in the selection or evaluation of minority-owned businesses, to the advantage of white-owned businesses.

    After reviewing 95 state and local disparity studies on the utilization of minority and women-owned firms in public procurement programs, the authors of a report published by the Urban Institute found that Asian Pacific Americans encountered underutilization in all areas of government procurement and particularly in the categories of construction, goods or commodities purchasing, and professional and other services.31

    In California, over twenty studies by local governments since 1989 have concluded that Asian Pacific American and other minority businesses still confront systemic discriminatory barriers in competing for government contracts. These studies have generally recommended providing remedial affirmative action to women, Asian Pacific American and other affected minority contractors, to ensure that they can compete for these contracts on an equal basis with other contractors.32
 Page 101       PREV PAGE       TOP OF DOC

    These finding of underutilization are borne out by experience. In 1995, the Department of Defense accounted for 59.1% of all federal procurement actions. Defense spending totaled $132 billion dollars.33 Asian Pacific American firms received less than 1% of total federal defense contract dollars in 1995.34

    In the 1980s, San Francisco's public contracting system largely excluded Asian Pacific American and other minority businesses. While Asian Pacific American firms made up about 20% of the available pool of construction firms in San Francisco, they received less than 1% of the city's total construction contracts, and only approximately 5% of the total dollars awarded for the San Francisco Unified School District's construction contracts.35 These Asian Pacific American firms stated that, despite their competence to undertake school district projects, many were unfairly excluded from those opportunities because the School District staff or prime contractors steered contracts to people they knew. At the request of Asian Pacific American and other minority contractors, the School District obtained an independent review of its procurement practices and confirmed the minority contractors' allegations.

    This review found that prime contractors frequently rejected the bids of minority contractors, even when they had submitted the lowest bids. The School District staff employed inconsistent bidding and contracting procedures, and were able to manipulate the procedures to the detriment of minority contractors. The staff also withheld information from minority contractors and failed to conduct any significant outreach to minority contractors, particularly for smaller contracts for which there were many qualified minority contractors.36

 Page 102       PREV PAGE       TOP OF DOC
    The San Francisco Unified School District's disparity study also indicated that actual contract awards for small construction projects were still significantly lower than expected for all ethnic minority contractors and for women contractors, based on their availability in the relevant market. On average, subcontract dollar amounts were substantially smaller for ethnic minority contractors than for majority subcontractors. Specifically, Asian Pacific American contractors received only 5.5% of award dollars, despite receiving winning 19% of construction contracts for projects over $15,000.37

    Experience with affirmative action programs and policies has been proven to give Asian Pacific American the chance to compete more equally. Based on their findings, the San Francisco Unified School District implemented an affirmative action program that, among other things, required prime contractors to make good-faith efforts towards meet subcontracting goals for minorities and women. Only after the School District adopted an affirmative action plan with women and minority subcontracting goals, did Asian Pacific American participation in the District's construction contracts increase three-fold by 1993.38 Affirmative action was required in San Francisco just to open up the playing field for Asian Pacific American contractors.

    Moreover, the suspension of many minority contracting programs immediately after the Richmond v. Croson decision in 1989 shows the dramatic effect of affirmative action programs on minority participation in state and local government contracts. For instance, Asian Pacific American participation in San Francisco's contracts was 4.7% of prime contracts and 15.4% of subcontracts in 1988, when that city had an affirmative action plan providing bid preferences to minority business enterprises and requiring prime contractors to meet minority business enterprises subcontracting goals. When San Francisco dropped its subcontracting program, Asian Pacific American participation in city contracts dropped down to 0.6% during fiscal year 1989–90.39
 Page 103       PREV PAGE       TOP OF DOC

    New York also showed a significant decline in minority-owned firm participation in government contracts between 1988 and 1992 when minority-owned business' share of state contract dollars went from 11.6% to 3.7% because affirmative action efforts were only voluntary during that period.40

    Philadelphia is another city that eliminated its affirmative action program in public contracting after the decision in Richmond v. Croson. As a result, minority participation in state and local contracting decreased precipitously. For instance, minority and women-owned business participation in Philadelphia's public works subcontracts in May 1990 had fallen by 97% from May 1989 levels, and continued to drop down to less than 2% by November of 1990.41

    One anecdotal example comes from the experience of a Bay Area consulting firm owner and officer of the Association of Asian Indians, upon the suspension of local minority contracting programs after the Supreme Court's Richmond v. Croson ruling. Before the ruling, he had been negotiating and nearing an agreement with several large companies to subconsult on some projects. Once state agencies stopped requiring minority participation, those companies terminated their negotiations with him.42

    Asian Pacific American businesses have also benefited from affirmative action programs for federal contracts, such as the Small Business Administration's Minority Small Business and Capital Ownership Development or ''Section 8(a)'' program. Asian Pacific American businesses have received approximately 19–20% of Section 8(a) contract awards for fiscal years 1992–94.43
 Page 104       PREV PAGE       TOP OF DOC

    H.R. 1909 would eliminate those programs that have helped minorities and women obtain government contracts that have been controlled by ''old boys' networks'' and dominated by practices such as giving contracts to friends. H.R. 1909 would even prohibit those programs that merely encourage the use of goals and timetables for hiring or subcontracting to minorities and women.

3. Affirmative Action is Necessary in Education

    The ''model minority'' myth masks the real problems and disadvantages faced by many Asian Pacific Americans in the area of education.44 For example, due to language and cultural barriers, poverty, and inadequate social services and support systems, many Asian Pacific Americans suffer from undetected learning disabilities, illiteracy, and poor English language proficiency.45 Over 22% of Asian Pacific Americans attend inner-city public schools, in which per-pupil expenditures amount to $5,200 per child on average, versus an average of $6,073 per child in suburban schools.46 Nearly one-fifth of adult Asians in America have not completed high school.47

    In terms of higher education, certain subethnic groups of Asian Pacific Americans have a significantly lower proportion of college graduates than the norm. In 1990, college graduates represented only 17.4% of Vietnamese, 11.9% Hawaiian, 8.0% of Samoan, 5.7% of Cambodians, 5.4% Laotians and 4.9% of Hmong.48 Asian Pacific Americans also remain under-represented in the arts, social sciences, health, education, and humanities fields.49

 Page 105       PREV PAGE       TOP OF DOC
    At the same time, the relatively high education attainment of many Asian Pacific Americans, as compared to other groups, has not translated into adequate representation of Asian Pacific Americans in our academic institutions. Only 1.4% of our nation's school teachers are Asian Pacific American.50 In California, while 11.2% of the students at K–12 public school are Asian Pacific American, they comprised only 4.3% of full-time instructors, which fell below the available Asian Pacific American labor pool.51

    Employment of Asian Pacific Americans in higher education is also not commensurate with the numbers of Asian Pacific Americans receiving postgraduate training and advanced degrees. For instance, despite a strong Asian Pacific American student presence in the University of California system at 28% of all students, only 9.6% of the ladder rank faculty there are Asian Pacific American.52 Disproportionately few Asian Pacific Americans hold tenured positions. National EEOC data show that Asian Pacific American faculty have one of the lowest tenure rates of all minority groups 41% versus an overall tenure rate of 52%.53 Therefore, affirmative action remains essential to ensuring that Asian Pacific Americans have the same, equal opportunities as other Americans to pursue successful academic careers. It is also essential to diversifying our educators and scholars.

    Affirmative action programs in education have directly helped and continue to help many Asian Pacific Americans. For instance, at the University of California at Berkeley, affirmative action helped to increase Filipino American representation in its student body until 1992. In contrast, after Berkeley dropped Filipino Americans from its affirmative action list, their admissions rate plummeted from 32% in 1992 down to 19% in 1993, and then down to 18% in 1994.54

 Page 106       PREV PAGE       TOP OF DOC
    A study by Professor Linda Wightman, formerly the vice president for testing, operations and research at the Law School Admissions Council, showed that nationwide Asian Pacific American enrollment at accredited law schools is much higher as a direct consequence of affirmative action, With affirmative action, 26% of Asian Pacific Americans who applied to American Bar Association-approved law schools in fall of 1991 were admitted. If selection to these schools had been based only on ostensibly race-neutral factors such as LSAT scores and grade point averages, Asian Pacific American admissions would have dropped to 15%.55

    Affirmative action outreach programs have also assisted Asian Pacific Americans. A 1990 study of the California Postsecondary Education Committee found that Asian Pacific American students made up 9.3% of the students served by outreach and mentoring programs that recruit and help minority and disadvantaged white students prepare for college. It also concluded that those programs successfully increased the number of students who became eligible for higher education. In one particular program, 69% of Asian Pacific American program participants became eligible to attend a University of California school, as opposed to 40.4% of Asian Pacific Americans statewide.56 Moreover, many recruitment and financial assistance programs that help to overcome the under-representation of Asian Pacific Americans in academic graduate programs and faculty would be eliminated if affirmative action were prohibited.

    Affirmative action in education enriches the educational experience for all students, by bringing together the many diverse perspectives that make up America. Affirmative action also leads to better understanding of, and respect for, other cultures, including the many different Asian and Pacific Islander cultures. Through affirmative action, the University of California system has achieved one of the most diverse student populations while also dramatically improving the quality of its education and students.
 Page 107       PREV PAGE       TOP OF DOC

    Dr. Chang-Lien Tien, the Chancellor of the University of California at Berkeley, staunchly supports affirmative action efforts to integrate American society, as having benefitted women and minorities, including Asian Pacific Americans.57 Specifically, he ''remain[s] firmly convinced that diversity is the key to the continued academic excellence that is Berkeley's hallmark . . . The numbers dispel the notion that diversity has somehow sacrificed the quality of our institution. In fact, the diversity has been coupled with rising standards.'' 58

    H.R. 1909 would put at risk the gains affirmative action has brought in education, particularly as it has helped to create intellectually challenging and enriching environments in which to learn.

B. Historic Discrimination

    The current experience of Asian Pacific Americans with discrimination should be considered in the context of the history of institutionalized discriminatory laws enforced by the government.

1. U.S. immigration and naturalization policies have discriminated against Asians and Pacific Islanders

    The long-held discriminatory views against Asians and Pacific Islanders are strongly evidenced by America's history of suppressing their immigration from Asia and the Pacific Islands, and then withholding citizenship from those who were allowed to immigrate.
 Page 108       PREV PAGE       TOP OF DOC

    The Chinese Exclusion Act of 1882, which prohibited the immigration of Chinese laborers, was among the first to epitomize this country's racist immigration laws.59 Anti-Asian sentiment again arose in 1907, culminating in the Gentleman's Agreement that limited Japanese immigration. Asian immigration was further restricted by the Immigration Act of 1917, which banned immigration from almost all countries in the Asia-Pacific region. The Immigration Act of 1924 banned immigration of persons who were ineligible for citizenship, which at that time only included Asians. In addition, the Tydings-McDuffie Act of 1934 placed a quota of 50 Filipino immigrants per year. The last of these exclusionary laws was not repealed until 1952.60

    In 1790, the 'United' States of America passed a law allowing only ''free white persons'' to become citizens. Even after the 1790 law was changed to include African Americans, similar legislation to include Asian Americans was rejected.61 The Supreme Court upheld these laws making Asian immigrants ineligible for citizenship and naturalization.62 The last of these laws was not repealed until 1952, allowing citizenship status to be used as a pretext for discrimination against Asian Pacific Americans.

2. Federal and state government imposed discriminatory laws against Asian Pacific Americans

    Asian immigrants who did manage to enter the U.S. became the victims of other forms of discrimination. As early as the 1850s, states enacted various laws that inherently targeted Asians by taking advantage of the discriminatory nature of naturalization laws. California imposed a ''foreign miner's tax'' on any non-citizen miner.63 As intended, virtually all of the $1.5 million collected under the ''foreign miner's tax'' came from Chinese miners. In the same vein, in 1922, the Supreme Court upheld a law that prohibited aliens who were ineligible for citizenship from forming corporations.64 In 1945, California enacted legislation denying commercial fishing licenses to persons ineligible for citizenship.65 At that time, Asians were the only racial group ineligible for citizenship.
 Page 109       PREV PAGE       TOP OF DOC

    Other laws were blatantly discriminatory. In 1862, California levied a tax against only Chinese residents of the state. California also enacted laws prohibiting California corporations and governmental entities from hiring any Chinese employees. San Francisco also enacted special taxes targeted at Chinese laundries and, between 1873 and 1884, fourteen regulations targeting Chinese laundries alone.66 In a similar vein, San Francisco passed the ''Cubic Air Ordinance,'' requiring that living spaces have at least 500 cubic feet of space per person, which was enforced only in Chinatown.67

    The California Alien Land Law Act of 1913 was another striking example of discriminatory laws aimed at preventing Asian Pacific Americans from realizing the American dream. This law, primarily aimed at Japanese immigrant farmers, prohibited persons ineligible for citizenship from purchasing land. In 1920, the law was amended to bar long-term leases and land purchases through American-born children. In 1923, California again amended the law to prohibit non-citizens from entering into contracts to grow and harvest crops. Twelve other states adopted similar laws, the last being Utah, Arkansas and Wyoming in the 1940s. Upheld as constitutional, the last law was not repealed until 1962.68

    During World War II, the government moved over 110,000 Japanese Americans, mostly living in California, from their homes and incarcerated them without due process in internment camps solely based on their race. The U.S. Supreme Court upheld the Japanese American internment based on what subsequently proved to be doctored evidence of the purported ''wartime necessity'' argued by the government.

    More recently, in California in 1988, the Coast Guard began enforcing a long-abandoned statute, which restricted aliens from operating commercial fishing vessels, solely against Vietnamese immigrants.69
 Page 110       PREV PAGE       TOP OF DOC

3. Asian Pacific Americans have faced racial hurdles in education

    Like African Americans, Asian Pacific Americans were segregated in this country's public school system. In 1860, California barred Asian Pacific Americans and other minorities from attending its public schools entirely. After the California Supreme Court ruled in 1884 that this action was unconstitutional, the State set up a system of ''oriental'' schools, beginning with one in San Francisco's Chinatown in 1885.70

    In 1902, the California Supreme Court upheld the constitutionality of ''separate but equal'' schools for Asian Pacific American students.71 San Francisco's Board of Education catered to anti-Asian sentiments in 1906 by trying to segregate Japanese children into the Oriental School, but abandoned their plan after the Japanese government's protest and President Roosevelt's intervention.72 In 1927, the U.S. Supreme Court upheld Mississippi's exclusion of Asian American students (as persons of ''Mongolian'' race) from white schools, as long as separate facilities were provided for them.73 Thus, Asian Pacific American children in many parts of the U.S. had to attend segregated schools up until World War II.74 Even after World War II, racial exclusion covenants in real property developments kept Asian Pacific Americans segregated in inferior schools.

    Schools also failed to address the linguistic needs of Asian immigrant students. In the early 1970s, frustrated Chinese American parents brought a class action suit against the San Francisco Unified School District, alleging that unequal educational opportunities resulted from the District's failure to establish a program to address the limited English proficiency of students of Asian ancestry. In Lau v. Nichols,75 the Supreme Court ruled that the District's failure to provide such English-language instruction was ''a mockery of public education'' and violated the Civil Rights Act of 1964, because English proficiency was required for graduation. In effect, the District had denied the students a meaningful and equal educational opportunity.
 Page 111       PREV PAGE       TOP OF DOC

    These past discriminatory laws in conjunction with current discrimination have served to prevent Asian Pacific Americans from having equal opportunities to compete and succeed in most aspects of society. H.R. 1909 would be yet another law imposed to hinder the progress and full integration of minorities into all aspects of American society.

III. CONCLUSION

    Constitutional guarantees and anti-discrimination laws on their own have not achieved true equality of opportunity for all Americans. Discrimination still persists within our society and our social institutions, including our government. Affirmative action programs over the past thirty years have helped to lower some of the discriminatory barriers confronting women, Asian Pacific Americans, and other minorities. To eradicate those barriers completely, we need to continue those programs, such as affirmative action, that have already proven effective against both intentionally and unintentionally discriminatory practices.

    Opponents of affirmative action have offered no concrete, viable alternative for combating the very real problems of gender and racial/ethnic discrimination. Any valid criticism regarding instances of abuse does not justify the wholesale elimination of affirmative action that considers race, ethnicity, or gender, among many other factors, in creating truly equal opportunities for people from diverse backgrounds. At most, these critics' concerns only point out that, just like any other program, affirmative action must be implemented carefully to avoid abuse and unintended adverse consequences. In fact, the Clinton Administration has finished conducting a review of federal affirmative action programs and is instituting reforms, in view of Adarand Constructors v. Pena, Sec'y. of Transportation (June 1995).76
 Page 112       PREV PAGE       TOP OF DOC

    Race- and gender-conscious, federal affirmative action programs have not only benefitted all women and minorities, including Asian Pacific Americans, but also American society as a whole. Affirmative action removes barriers such as the ''old boys' networks'' that exclude not only women and individuals of racial or ethnic minorities, but also white men who do not belong to such networks of privilege. It has also worked to ensure that our schools, workplaces, and other social institutions become more diverse and better able to serve their communities. Diversity in our workforce and our businesses has also enriched the American marketplace and our competitiveness in the global marketplace.

    The experience of the past 30 years is clear. Affirmative action is an effective tool against discrimination, and is still needed. H.R. 1909 is a drastic measure that would eliminate those programs and policies that have been proven to be effective in increasing representation of minorities and women in areas in which they have been traditionally excluded. To the extent Congress finds abuses, it should address them without ending affirmative action.

INSERT OFFSET RING FOLIOS 1 TO 6 HERE

    Mr. CANADY. Thank you.

    Ms. Heriot.

STATEMENT OF GAIL HERIOT, PROFESSOR, UNIVERSITY OF SAN DIEGO SCHOOL OF LAW

 Page 113       PREV PAGE       TOP OF DOC
    Ms. HERIOT. I would like to thank the Members of the Subcommittee for inviting me here today. My name is Gail Heriot. I am a professor of law at the University of San Diego. Last year, I co-chaired the Yes on Proposition 209 campaign. I am here to urge a speedy passage of the Civil Rights Act of 1997.

    A generation ago, a number of well-meaning people thought that racial and gender preferences might be a useful temporary solution to this Nation's history of racial and gender inequity. These preferences first became widespread on college campuses both in student admissions and in faculty hiring. But they soon became common even beyond campus in employment and contracting generally, particularly in Government. I must confess that when I first heard about the practice, my instinct was against it. It seemed to me to turn the color-blind and gender-blind principle of the United States Constitution and the 1964 Civil Rights Act on its head. Nevertheless, despite my misgivings, I was persuaded to support preferences or at least to remain silent. I should have known better. But I do take some comfort in the fact that I was about 9 years old at the time. I say that to emphasize the point that these solutions were supposed to be temporary.

    Fortunately, most Americans were not so quick as my 9 year old self was to compromise their principles. Polls indicate that preferences have been unpopular right from the start. Yet in most part of the country and in the Federal bureaucracy, they are firmly entrenched. It took a popular initiative to put the State of California back on the right track. It will take Federal legislation to do the same for the Federal Government.

    Preferences don't work. Just look at our college campuses. That is where preferences are the most deeply entrenched. Yet no one would hold out our universities today as a model for our Nation to follow. To the contrary, they are a model of what not to do. Take the University of California at San Diego, the site of President Clinton's recent race relations speech. Up until recently, if you happened to be African American or Mexican American, you got an extra 300 points added to your undergraduate application score, worth the equivalent of 300 SAT score points on a composite that is math and verbal score. It didn't matter if you were rich or poor. All that mattered was skin color. The African American son of an investment banker would get those 300 points. The Vietnamese American daughter of a dishwasher would not get those points.
 Page 114       PREV PAGE       TOP OF DOC

    Rather than creating racial harmony, these preferences have engendered racial division. They have created a group rights mentality that will take decades to erase. For each group that receives a preference, three more spring up and demand similar treatment. For those groups who receive preferences, demands for separate student lounges, separate student dormitories, even separate student graduation ceremonies have become commonplace. All too often, university administrators have spinelessly acceded to those demands.

    The argument is made that preferences are beneficial because they bring diversity to campus, and diversity is indeed an important goal. Yet I know of no more effective engine for conformity, the very opposite of diversity than the group entitlement mentality that preferences have led to. Each group that currently receives a preference knows that in order to maintain that preference, they have to recruit people who will stand up for that preference, that group entitlement ideal. They know that their claim to a special perspective is threatened by the existence of non-conformist members. Consequently, the African American faculty candidate who doesn't believe in preferences doesn't get the job offer. The conservative women faculty members are told they are not real women. The Asian American student group lobbies on one campus I know of against the admission of a Korean immigrant who happens to be an evangelical Christian. The Hispanic student group lobbies against a conservative Mexican American. Such people are thought not to be diverse in the right way because they are not willing to toe the group line.

    The last thing anyone should want to do is perpetuate this spoil system in Federal employment and Federal contracting. Yet unless the Civil Rights Act of 1997 is passed, that is exactly what will happen. Meanwhile, preferences have been diverting attention away from our real problems. Americans everywhere should be focusing on the sorry condition of our schools at the kindergarten through 12th grade level. If we could remedy that problem, the pressure to create preferences would disappear. But instead, we are allowing preferences in higher education and in employment to paper over this problem. We should be focusing on the problems of the inner city, but instead, we grant preferences to mostly middle and upper middle class students, job applicants and contractors, who happen to share the same skin color with many inner city residents.
 Page 115       PREV PAGE       TOP OF DOC

    The Civil Rights Act of 1997 can help us redirect that attention where it belongs, where the real problems are. In California, thanks to proposition 209, it's already happening. Debate is shifting away from preferences and towards solutions that just might work, charter schools, school vouchers, welfare reform, getting excessive regulation off the backs of inner city enterprises. The list will no doubt expand as the debate unfolds. But the sooner the national debate can shift along with the California debate, the better.

    [The prepared statement of Ms. Heriot follows:]

PREPARED STATEMENT OF GAIL HERIOT, PROFESSOR, UNIVERSITY OF SAN DIEGO SCHOOL OF LAW

    I would like to thank the members of the subcommittee for inviting me here today. My name is Gail Heriot. I am a professor of law at the University of San Diego, and last year, I co-chaired the Yes on Proposition 209 campaign. I'm here to urge the speedy passage of the Civil Rights Act of 1997.

    A generation ago, a number of well-meaning people thought that racial and gender preferences might be a useful, temporary solution to this nation's history of racial and gender inequity. These preferences first became widespread on college campuses—both in student admissions and in faculty hiring. But they soon became common even beyond the campus, in employment and contracting generally, particularly in government.

    I must confess when I first heard of the practice, my instinct was against it. It seemed to me to turn the color- and gender-blind principle of the United States Constitution and the 1964 Civil Rights Act on its head. Nevertheless, despite my misgivings, I was persuaded to support preferences—or at least to remain silent. I should have known better. I take some comfort in the fact that I was about nine years old at the time—a point I make to underscore how long this supposedly temporary solution has been in place.
 Page 116       PREV PAGE       TOP OF DOC

    Fortunately, most Americans were not nearly so quick to compromise their principles. Polls indicate that preferences have been unpopular from the start. Yet in most parts of the country and in the federal bureaucracy, they are firmly entrenched. It took a popular initiative to put the State of California back on the right road. It will take federal legislation to put the federal government on that path.

    Preferences don't work. Just look at our college campuses. That's still where preferences are most deeply entrenched. Yet no one would hold them out as a model for our nation to follow. To the contrary, they are a model of what not to do.

    Take the University of California at San Diego, the site of President Clinton's recent race relations speech. Up until recently, if you happened to be African–American or Mexican–American, you got an extra 300 points added to your undergraduate application score, worth the equivalent of 300 SAT points on a composite (math and verbal) score. It didn't matter whether you were rich or poor. All that mattered was skin color. The African-American son of an investment banker would get those 300 points. The Vietnamese-American daughter of a dishwasher would not.

    Rather than creating racial harmony, these preferences have engendered racial division. They have created a group rights mentality that will take decades to erase. For each group that receives a preferences, three more spring up and demand similar treatment. From those groups who receive a preference in admissions, demands for separate student lounges, separate student dormitories, even separate student graduation ceremonies have become commonplace. All too often, university administrators have spinelessly acceded to those demands.
 Page 117       PREV PAGE       TOP OF DOC

    The argument is made that preferences are beneficial because they bring ''diversity'' to campus. Yet I know of no more effective engine for conformity—the very opposite of diversity—than the group entitlement mentality that racial and gender preferences have lead to on campus. Each group that currently receives a preference knows that in order to maintain its entitlement it needs people who are committed to the group entitlement ideal. They know that their claim to a ''special perspective'' is threatened by the existence of non-conformist members. Consequently, the black faculty candidate who doesn't believe in preferences doesn't get a job offer. The conservative woman faculty member is told she's not a real woman. The Asian-American student group lobbies against the admission of a Korean immigrant who is an Evangelical Christian. The Hispanic student group lobbies against a conservative Mexican American. Such people are thought not to be diverse the ''right'' way, because they are not willing to toe the group line.

    The last thing anyone should want is to perpetuate this spoils system in federal employment and contracting. Yet, unless the Civil Rights Act of 1997 is passed, that is exactly what will happen.

    Meanwhile, preferences have been diverting attention away from our real problems. Americans everywhere should be focusing attention on the sorry condition of our schools at the Kindergarten through 12th grade level. If we could remedy that problem, the pressure to grant preferences would disappear. Instead, we are allowing preferences in higher education and employment to paper over the problem. We should be focusing on the problems of the inner city. Instead, we grant preferences to mostly middle and upper-middle class students, job applicants and contractors, who happen to share the same skin color with many inner city residents.
 Page 118       PREV PAGE       TOP OF DOC

    The Civil Rights Act of 1997 can help us redirect that attention where it belongs. In California, thanks to Proposition 209, it's already happening. Debate is shifting away from preferences and to solutions to our problems that just might help—charter schools, school vouchers, welfare reform, getting excessive regulation off the backs of inner city enterprises. The list will no doubt expand as the debate unfolds. The sooner the national debate can shift as well, the better.

    Mr. CANADY. Thank you, Ms. Heriot.

    The gentleman from South Carolina, Mr. Inglis.

    Mr. INGLIS. Thank you, Mr. Chairman. Recently I had a minority affairs council meeting in Greenville and then one in Spartanburg. We had some interesting discussions. At one, we talked about colleges. I had the privilege recently of nominating a student that scored 1580 on his SAT to one of the service academies. We discussed the fact that he happens to be black. Of course he is a very, very talented young man. So I asked him a little bit, we had a discussion about whether maybe what we should do is eliminate any reference on the application to race, maybe that would be a way of eliminating any bias. Simply not ask the question. So that on his application, nobody would know who he was or what he looked like. Everybody agreed that he would have gotten in with nobody knowing who he was, just reading his application.

    Then we had a discussion about making sure that the test instrument actually reflects abilities. There are some observations about whether tests do in fact discriminate against people of lower socio-economic levels and experiences. That may be true, in which case that's an argument for improving the test. But everyone agreed that he was going to get in no matter what.
 Page 119       PREV PAGE       TOP OF DOC

    Then we had a discussion about whether it was appropriate to just remove any indication of race on his application. The discussion was very interesting. Basically, the conclusion was no, that would not be appropriate. In fact, we need to focus on race. We need to make sure that we have the appropriate number of people in various slots to ensure diversity.

    So then I asked the question and tried to move it, and this is sort of a question really for Ms. Narasaki, is we discussed, we tried to move it out of the—normally in the south we have black-white tensions. So we tried to move it out of that vein and talk about a completely different situation. Let's assume there's a college in South Carolina that in the graduate levels of engineering graduated 12 people, 10 of whom were of Asian descent. Does that become then an observation that we don't have appropriate diversity in the engineering department at that university?

    So the question I would ask for Ms. Narasaki is, does that mean that South Carolina, if that were the case, should make the slots at the engineering Ph.D. level reflect the population of South Carolina? If so, there may be one slot for an Asian American maybe every other year, the rest would go to five or seven, or seven or eight white South Carolinians, three or four black South Carolinians, and every other year a Mexican American and every other year an Asian American. I wonder if you have any response to that, Ms. Narasaki?

    Ms. NARASAKI. Well, I would think that South Carolina probably would like to see itself as a national university as opposed to a regional one, but you would be more aware of what they consider to be their pool to be.

 Page 120       PREV PAGE       TOP OF DOC
    I would say that if you have a situation where you have 12 positions and you didn't tell me who the other two were, but it sounds like they were white, and given——

    Mr. INGLIS. I don't know.

    Ms. NARASAKI. Given the large African American population, I would be asking what's happening in South Carolina that there aren't more African Americans getting into the graduate program.

    Mr. INGLIS. So then in other words, you would think that it would be appropriate to say to an Asian student who had worked very hard undergrad, maybe skipping football games that I might choose to go to, to work extremely hard, that they decide to—that we basically say to that Asian student you can't be here. Do you think that's an appropriate outcome?

    Ms. NARASAKI. I guess I should first say that to my chagrin that in fact many Asian Americans are very interested in football, although I myself am not. So I don't know if that is an accurate hypothetical. But I would say to you that particularly in the Japanese American community——

    Mr. CANADY. The gentleman's time has expired. The gentleman will have one additional minute.

    Ms. NARASAKI. Particularly in the Japanese American community, Japanese Americans are not considered in many of the affirmative action programs today. I feel that is perfectly appropriate, given the educational and income level that Japanese Americans have reached.
 Page 121       PREV PAGE       TOP OF DOC

    You are talking about a quota. No one believes in quotas. That would clearly be unconstitutional——

    Mr. INGLIS. Let me interrupt you right there.

    Ms. NARASAKI. Would we ask South Carolina to look at other factors besides just grades and test scores? Yes. Absolutely.

    Mr. INGLIS. Let me ask you what we're talking about, you see, in this discussion we talked about eliminating any indication of race on the applications and just seeing who makes it. But that was seen as unacceptable. It's apparently unacceptable to you. So even though we try to maintain this distinction between quota and preference, I would submit it's not the real world. The real world is you can't distinguish between a preference and a quota. The real world is if you want diversity in that engineering program, you are going to have to make slots. You are going to have to say there are only so many slots for Asian Americans, Mexican Americans, black Americans, white Americans.

    I would submit to you the founding fathers would roll in their graves at that thought.

    Mr. CANADY. The gentleman's time has expired.

    Mr. Scott.

 Page 122       PREV PAGE       TOP OF DOC
    Mr. SCOTT. Thank you, Mr. Chairman. Mr. Lamprecht, what percentage of the broadcast stations are owned by minorities and women in America today?

    Mr. LAMPRECHT. I don't know.

    Mr. SCOTT. Does two or three percent sound about right?

    Mr. LAMPRECHT. I have no idea.

    Mr. SCOTT. Let's assume it's two or three percent.

    Mr. LAMPRECHT. I would not assume that, no.

    Mr. SCOTT. Okay. If white males have 97 percent of the broadcast stations, do we have a compelling need to eliminate the three percent so that those white males who are being discriminated against because they don't get all the stations can get stations?

    Mr. LAMPRECHT. The fact of the matter is, when our case was going on, that was looked into. There is no history of discrimination at the FCC. That came out in our case.

    Mr. SCOTT. What is the statistical likelihood that 97 percent of the stations would be owned by a group that represents less than 40 percent of the population, that that 40 percent would end up with 97 percent of the broadcast stations by chance, but not by an unlevel playing field?
 Page 123       PREV PAGE       TOP OF DOC

    Mr. LAMPRECHT. All I know, Mr. Scott, is an injustice was done in our case. The court of appeals said that it was an injustice and we are just looking to get proper redress. I don't know the statistics that you are referring to. I find it somewhat hypothetical, your question.

    Mr. SCOTT. Well, it's hypothetical, but I think it's closer to—I think it's very close to reality.

    Mr. LAMPRECHT. That 97 percent of the stations are owned by white males? I don't think that's close at all.

    Mr. SCOTT. Okay.

    Well, let me ask Mr. Cornelius what portion of the contractors in your business who get contracts are white males?

    Mr. CORNELIUS. I don't know the statistics behind that, sir. I can tell you that there is a plethora of minority owned—the definition of owning by the way, is 51 percent of the shareholding of any corporation.

    What is interesting is that the focus is on who owns the firm as to who works with the firm. Your employee base, if you owned a construction company like 51 percent, your whole employee base could be 100 percent caucasian white males, and me being a white male if I had owned 51 percent of it, my whole employee base could be 100 percent black males or even black females. You would get the job for more money than me because you happen to own a business. Take the focus away. Take the focus away from business owners. They don't need the help. The little kids need the help. Take the money you are spending on the bridge and put it in the primary education system.
 Page 124       PREV PAGE       TOP OF DOC

    Mr. SCOTT. Are you suggesting that there is a level playing field for owners, black owners of businesses competing with white owners of businesses?

    Mr. CORNELIUS. In the public arena, yes, sir.

    Mr. SCOTT. That the playing field is level?

    Mr. CORNELIUS. Yes, sir. Excuse me. I didn't mean to cut you off.

    But in the public arena, yes, sir, definitely.

    Mr. CANADY. The gentleman's time has expired. The gentleman will have one additional minute.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. CORNELIUS. If you did not have to check the box on the form, on the bid form that you were white, black, Asian, Indian, whatever, the Government entity opening up those bids would just look at a number. They would say Jim Jones bid a million dollars, he gets the job. That's it. I mean the Government does not know who you are unless you are forced to tell them.

    Mr. SCOTT. Are you testifying that the playing field is level and that black owned businesses have the same access to capital that white owned businesses have? That there's no discrimination in lending?
 Page 125       PREV PAGE       TOP OF DOC

    Mr. CORNELIUS. I can't—I don't know. I don't know about the lending profession.

    Mr. SCOTT. Is it your testimony that there is no discrimination in bonding?

    Mr. CORNELIUS. I would submit if there is, that the Government should kick in and say that the Government will bond these people instead of making private industry bond them. There are multitudes of ways to go about dealing with this injustice, as you call it, for capital without giving the contractor irrespective of capital, more money to do the same job that I would.

    Mr. CANADY. The gentleman's time has expired.

    Mr. Bryant.

    Mr. BRYANT. Thank you, Mr. Chairman. Thank you for recognizing me, and also for hosting these hearings. I do support your bill, and I do want to thank each very distinguished member of this panel for testifying today, realizing that we have indeed a true diversity.

    I guess the question comes to mind, and I won't ask for an answer, but Dean Prager, if you would be willing to hire law professor Gail Heriot at your law school, but I'm sure you would. She certainly has a different perspective than you. I know you would, I trust that. You are a Republican, so——
 Page 126       PREV PAGE       TOP OF DOC

    Ms. PRAGER. We actually have on our faculty one of the highly visible and strong proponents for Proposition 209. So I can say with conviction that our diversity in our intellectual traditions on our faculty runs in all directions and with respect to our graduates as well. One of your coauthors, Jim Rogan, is a graduate.

    Mr. BRYANT. As it should.

    I think one of the major concerns I have, and I know we visited already the debate on distinguishing between affirmative action and preferences. I think most of us on this side do get hung up on the term preferences. We certainly think that there ought to be equal opportunity and those things, but when you get to the point where indeed it comes down to a decision based on the color of one's skin, that to me seems to be discrimination. I have always had difficulty understanding how someone could be against discrimination, yet be for preferences. That's going to be reserved for much more debate I'm sure over the years.

    I guess the question I am concerned with is how long do we keep doing this? How long do we keep these preferences in place? At what point do we reach a level, what is that point? What is that standard that we're trying to achieve? Is it a percent? Does that percent mirror exactly the population of this country? Do we have to eternally shift that every time we have a census each 10 years. In addition, to redesigning our congressional districts, do we have to go in and reapportion those percentages, that we have got to have 10 percent of this population made up or so forth?

    Who sets those standards? Who measures those standards? When do we get to that point when we are truly a color-blind society? Are we there in terms of a particular industry? Are we there or not there in other industries? These kinds of things I think are inevitable when you get into this very very slippery slope of setting preferences.
 Page 127       PREV PAGE       TOP OF DOC

    Do we have to go into our prisons and say this prison is out of proportion to our overall population. We're hearing it on the debate on the death penalty already. We're executing too many of one race. Something is not right here. Do we have to go out and find somebody of another race to execute before we can execute this person, assuming you accept the death penalty. So it is a very very slippery slope.

    I guess my question is to anyone that wants to answer as briefly as possible, because my time is going to be up shortly, who sets these standards? Who measures these standards? And when do we decide that it's done?

    Ms. PRAGER. Obviously in this culture, different institutions participate in the setting of the standards. The Supreme Court, the Congress, the president. None of us prefer I think the world that we are living in. So the question will become at what point has progress been sufficient to cause us to change our public policy. I wish I could say with great clarity that I could envision the future and know when that will be. I can only say much in the way that Potter Stewart said in a famous obscenity case, ''I know it when I see it, and this isn't it.'' Well, I do not believe that we are ready to do this yet.

    If I can just mention in my own profession, in my own State, the legal profession in California is still more than 85 percent white in a State that is going to be without a racial majority very soon. Given the discrimination——

    Mr. BRYANT. If I might, because I want to get another response too.
 Page 128       PREV PAGE       TOP OF DOC

    Mr. CANADY. The gentleman's time has expired. The gentleman will have one additional minute.

    Mr. BRYANT. I want to ask, one of you might suggest more use of the death penalty in the case of white lawyers in California would help that situation very quickly, white male lawyers. [Laughter.]

    Mr. BRYANT. Would anyone like to take the other side of this in terms of when do we end these things. Ms. Heriot. Professor Heriot.

    Ms. HERIOT. I think it is clear that this system, and I think that Mr. Cornelius was quite right to call it an industry, the preference industry is not going to stand up and say okay we're done. It is going to have to be ended by legislation. This is our opportunity to do it now. It is already firmly entrenched, but it will become only more entrenched if action is not taken immediately.

    Mr. BRYANT. Thank you, Mr. Chairman.

    Mr. CANADY. Thank you. The gentlelady from California, Ms. Waters.

    Ms. WATERS. Thank you very much. Let me just focus those in this room on this committee. When we talk about a color-blind society, take a look at this committee up here. Look on that side and look on this side. What do you see? You see all white males for the most part on the other side. Look behind them at their staffs. Look over here, where you see the larger number of blacks on this committee, and look at our staffs behind us. You know why that is so? Because it is not a color-blind society. Blacks and other minorities have difficult times getting hired by white Members of Congress. So that's why you see this kind of division. As long as you see it in Congress, you better understand this is reflecting what is going on in this Nation.
 Page 129       PREV PAGE       TOP OF DOC

    Now, let me ask Ms. Heriot, based on all of the affirmative action and preferences you have described at the university, what is the number of African American faculty in your law school?

    Ms. HERIOT. My law school is a private institution. It's not covered by Proposition 209.

    Ms. WATERS. I don't care what it is. I just want to know the numbers.

    Ms. HERIOT. The answer to that is on the tenured faculty, there are two. At the instructor level, I don't know the number. I think it's two.

    Ms. WATERS. Out of a total of?

    Ms. HERIOT. Forty.

    Ms. WATERS. Mr. Lamprecht, how big is your firm?

    Mr. LAMPRECHT. How big is my firm?

    Ms. WATERS. How many employees do you have?

    Mr. LAMPRECHT. Myself and four others.
 Page 130       PREV PAGE       TOP OF DOC

    Ms. WATERS. Do you have any minorities?

    Mr. LAMPRECHT. We have three males and two females none are minorities.

    Ms. WATERS. Let me just read you some statistics. Ninety seven percent of the senior managers of fortune 1000 industrial and fortune 500 companies are white, with 95 percent to 97 percent being white males. Only 5 percent of the senior managers in fortune 2000 industrial and service companies are women. Eighty five percent of tenured professors, 86 percent of law firm partners, 80 percent of the U.S. House of Representatives, and 96 percent of the U.S. Senate are all white.

    In testing studies, white males generated 50 percent more job offers than minorities with the same qualifications applying for the same jobs. African American men with professional degrees earn 21 percent less than their white counterparts holding the same degrees in the same job categories. Only 0.4 percent of managers are Hispanic, although Hispanics make up 8 percent of America's work force. Asian and Pacific Islander Americans earn less than whites in comparable positions and receive fewer promotions, despite more formal education than other groups.

    In the construction industry, white business owners receive over 50 times as many loan dollars per dollar of equity capital than African American business owners with identical barring characteristics. White business owners are 15 percent more likely to get a loan and generate on average 3 times as many loan dollars per dollar of equity capital as African American business owners with identical barring characteristics. Only 46 percent of all women faculty——
 Page 131       PREV PAGE       TOP OF DOC

    Mr. CANADY. The gentlelady's time has expired. The gentlelady will have one additional minute.

    Ms. WATERS. Thank you. Only 46 percent of all women faculty are tenured in the United States of America, compared to more than 70 percent of male faculty. Women constitute only 15 percent of full professors and 12 percent of college presidents. In 1995, all minorities received 5.6 percent of all of the Federal contract awards in America. This is all minorities collectively. Women received only about 2 percent of all Federal contract awards.

    We need affirmative action. We have got to have affirmative action in order to even try to get to a color-blind society. What's important about what we have cited to you is with all of the affirmative action we have supposedly had, look at these numbers, look at these statistics. We need ways by which to equalize the playing field.

    White preferential practices have created such an imbalance, the preferences have been on the side of white America for so long, you get the kind of results that I have just cited to you. Yes, we have to have programs that will try and equalize the playing field. That is what affirmative action is all about.

    When you talk about what happened to you in the court system, if you don't think the laws work for you, think what happens as we look at all of the cases that are backed up in EEOC.

 Page 132       PREV PAGE       TOP OF DOC
    Mr. CANADY. The gentlelady's time has expired.

    Ms. WATERS. We take our problems to the criminal justice system to try and get redress for discrimination. If you think you have had problems, let me tell you what has happened to us.

    Mr. CANADY. The gentlelady's time has expired.

    The gentleman from Georgia, Mr. Barr is recognized.

    Mr. BARR. Thank you, Mr. Chairman. I had the opportunity to review the written testimony of the witnesses. I was really hoping that we could tackle a very important and very sensitive topic without resorting to the currency of the day which is to label any of these sorts of proposals on either side as extreme or mean-spirited. Unfortunately, we couldn't get through the oral part of the testimony without somebody calling the proposal extreme.

    Ms. Narasaki, I have before me H.R. 1909, which I know you have read. Even though in your written testimony you didn't call it extreme, you did in your oral testimony. What is there, point out to me, please, the language, not the concept with which you disagree. You favor affirmative action and preferences, I understand that. But aside from the disagreement that we have over whether we like or think those are appropriate, what is there, what language, specific language is there in H.R. 1909 which is ''a bill to provide for equal protection of the law and to prohibit discrimination and preferential treatment on the basis of race, color, national origin, or sex in Federal actions and for other purposes'' that you find extreme language?
 Page 133       PREV PAGE       TOP OF DOC

    Ms. NARASAKI. Well, I don't think you can look at the language in the bill and not look at what it actually does to cover the issue.

    What this does is it eliminates almost all of the Government's affirmative action programs. I note it's very careful not to say that. I think it is because the drafters are well aware that the American public supports affirmative action.

    Mr. BARR. No. I think that it's very clear that it does that. It doesn't shy away from it at all. That is the purpose of it. Is there any language——

    Ms. NARASAKI. Well, it doesn't say that in the language.

    Mr. BARR. Hold on, please. Is there any language here that you find extreme or is it just that you find the position of saying we should not have those sort of preferences extreme?

    Ms. NARASAKI. No. I think that what the language tries to do is to hide the fact that it's ending affirmative action programs. That is a very extreme result.

    None of us think affirmative action is perfect. I think the President's Mend It Don't End It perfectly captured how most of us feel. Yes, it was time to look at all these programs, see if they are actually working as intended, see if they are in fact becoming quotas by the numbers. No one supports that. But, the American public does support the need to do something to make sure that in fact there is a level playing field. All of the statistics that Representative Waters cited I think tells us, answers the question that Congressman Bryant asked, which is, is it time to end affirmative action. Clearly you only have to look at what is happening around us to know that no, it is not time.
 Page 134       PREV PAGE       TOP OF DOC

    Mr. BARR. Are there any other—I presume that every other member of this panel has read H.R. 1909. Is that correct? Have you all read it? And you all understand that it is ''a bill to provide for equal protection of the law and to prohibit discrimination and preferential treatment on the basis of race, color, national origin, or sex in Federal actions and for other purposes.''

    Is there any other member of the panel that finds that position and that language extreme? I didn't think so.

    I am a little bit confused though, Ms. Narasaki. Also in your written testimony, and I think you read over this but if not let me draw your attention to it. On page 3, you have lectured us in here about how affirmative action works. Then you say it encourages academic institutions and employers to look beyond their traditional methods and networks, et cetera. I certainly have no problem with either that language or what it represents. But I am somewhat curious why you find H.R. 1909, which does precisely that. It uses the word encourage and makes clear that the Federal Government can continue and should continue to encourage precisely this same thing, why you find that extreme in H.R. 1909, but not in your testimony?

    Mr. CANADY. The gentleman's time has expired. The gentleman will have one additional minute.

    Mr. BARR. Thank you, Mr. Chairman.

    Ms. NARASAKI. What we are seeking, my understanding is that the proponents of the bill believe that it does not end outreach. My point that I have been trying to make in my testimony, that outreach does not solve the problem of race.
 Page 135       PREV PAGE       TOP OF DOC

    There is discrimination that has nothing to do with your numbers on your test scores, your grades, how well you have done at work. That is the problem we face in America. There is discrimination based on your group, your race. Trying to pretend that we can solve a problem that is in fact based by group identity without looking at remedies that address that issue is unrealistic.

    Mr. BARR. Now I am not really so sure that you have read H.R. 1909. I would encourage you to read it, particularly section 3, which provides that affirmative action is permitted. It expressly provides that the act does not prohibit or limit the Federal Government from encouraging businesses and so forth. I would urge you to consider that because I think it is consistent with your written words. Although I suspect after listening to you that your written words really don't mean encourages, but rather forces, because as you are using these terms, I think that's what you have in mind as forcing something as opposed to encouraging.

    Ms. NARASAKI. Can I point out two——

    Mr. BARR. Hold on. I know you are an attorney and like to talk.

    Mr. CANADY. The gentleman's time has expired.

    Mr. BARR. I was just winding up and thanking the chair for the additional time and thanking the members of the panel for being here and testifying.

 Page 136       PREV PAGE       TOP OF DOC
    Mr. CANADY. Thank you.

    Mr. SCOTT. Mr. Chairman.

    Mr. CANADY. The gentleman from Virginia.

    Mr. SCOTT. Mr. Chairman, I would like the record to reflect as the gentleman from Georgia asked if anyone thought that this was extreme, that Professor Prager had turned on her light just as he was saying, ''I don't think so.'' So I think that ought to be reflected in the written testimony so that it is not suggested everyone was in agreement with that statement.

    Mr. BARR. If she finds it extreme, I would certainly like the record to reflect that. I didn't hear her say that, but if she thinks it's extreme, then that's fine.

    Mr. CANADY. Thank you.

    The gentleman from Michigan, Mr. Conyers, has asked that his time be yielded to the gentlelady from Texas, Ms. Jackson Lee.

    Ms. JACKSON LEE. I thank the gentleman, the chairman very much. I thank Mr. Scott, and also the ranking Member for both their indulgence and their kindness.

 Page 137       PREV PAGE       TOP OF DOC
    I offered this morning my humble appreciation for being able to testify in this room. For many of us as African Americans in particular, this room held for us a lifeline. Albeit that all has not been corrected, we approach these hallowed halls and this hallowed room with a great deal of respect. So I come with a personal sadness that we are here today because we are really trying to address individualized and personalized grievances.

    Interestingly enough, H.R. 1909 has premised itself that we can eliminate goals and preferences, and let me correct myself because quotas obviously are illegal and preferences have not been adhered to under affirmative action. We respond to goals and timetables. But they raise a point that you can litigate your personal grievance. So some of the witnesses have expressed a personal grievance of which they have litigated. They have been able to prevail. So it begs the question as to why we're even here, when the proponents of this legislation have already acknowledged that if you feel aggrieved, whether you feel there's been reverse discrimination you can go to the courts.

    Now let me raise some issues and try to glean the facts from the testimony of those who are here. In an article that was written by Newt Gingrich and Ward Connerly, as typically is done by proponents of 209 and other such legislation like H.R. 1909, interestingly enough has nines in it, stay away from those numbers. But they cite again Dr. Martin Luther King's reflection upon his vision and desire for his children to be judged by the content of their character. They cite Lyndon Johnson and his Great Society. Then they go onto say unfortunately three decades and $5.4 trillion later, that has not occurred.

    Professor from—is that Gail? I can't see what her last name is. Professor.
 Page 138       PREV PAGE       TOP OF DOC

    Ms. HERIOT. Heriot.

    Ms. JACKSON LEE. Is your last name what?

    Ms. HERIOT. Heriot.

    Ms. JACKSON LEE. Heriot.

    Ms. HERIOT. Yes.

    Ms. JACKSON LEE. Indicated that we should start educating people, and that will help create an equal playing field.

    Would you be so kind as to cite for me in this body, since this body will be the one acting on this legislation, to your knowledge, how many white women congresspersons were in this body in 1964?

    Ms. HERIOT. You probably know more about that than I do.

    Ms. JACKSON LEE. Do you have any idea?

    Ms. HERIOT. No.

    Ms. JACKSON LEE. Then I would venture to say 20 or less.
 Page 139       PREV PAGE       TOP OF DOC

    How many Hispanics?

    Ms. HERIOT. I don't know.

    Ms. JACKSON LEE. I would say maybe 10 or less.

    How many blacks or African Americans were in this Congress in 1964?

    Ms. HERIOT. I don't know.

    Ms. JACKSON LEE. Would you happen to give us a guess of how many white men might have been here?

    Ms. HERIOT. Four hundred?

    Ms. JACKSON LEE. Maybe almost 432 and a half. But I would say to you just on those sheer numbers, your issue of——

    Mr. CANADY. Who was the half? [Laughter.]

    Ms. JACKSON LEE. I'm going to let you determine that.

    I would say to you that the raising of the question, I would like your response to this, the raising of the response let us educate people to create an equal playing field is a straw woman or man of an argument. For those of you who have had——
 Page 140       PREV PAGE       TOP OF DOC

    Mr. CANADY. The gentlelady's time has expired. The gentlelady will have one additional minute.

    Ms. JACKSON LEE. I thank the gentleman for his indulgence. I'll finish my question in hopefully 15 seconds.

    But have had hundreds of years to remedy discrimination and educate those of us who need educating. So my question to you is what would make 1997 different when the power has been either in the hands of white men and to a lesser degree others, and I would not say white women but white women standards were a little different from ours, and you happen to be a white woman. Why haven't you remedied the problem of an equal playing field that you now argue should cause you to eliminate affirmative action?

    Ms. HERIOT. Never lose sight of the fact that the preference programs we are talking about were indeed instituted by people who were interested in helping women and minorities. Those people are not going to disappear from the face of the earth if preference programs are banned. I think the preference programs have in fact distracted people of good will who want to remedy those.

    Ms. JACKSON LEE. But if I might interrupt you just for a moment.

    Ms. HERIOT. And think that in fact preference programs will help, and they have not helped.
 Page 141       PREV PAGE       TOP OF DOC

    Ms. JACKSON LEE. Affirmative action, the legislation eliminates goals and timetables. You keep talking about preferences. You are trying to eliminate goals and timetables which are remedies.

    Mr. CANADY. The gentlelady's time has expired.

    Ms. WATERS. Mr. Chairman.

    Mr. CANADY. The gentlelady from California.

    Ms. WATERS. May I have unanimous consent I suppose I need to submit my opening statement for the record.

    Mr. CANADY. Without objection.

    Ms. WATERS. Thank you very much.

    Mr. CANADY. The gentleman from Arkansas, Mr. Hutchinson.

    Mr. HUTCHINSON. I thank the Chair. I appreciate the testimony of each of the witnesses on this very difficult subject, but a very important subject in our culture today. I wanted to ask a couple of questions to Ms. Heriot. Please, if I might, I looked at your testimony and you stated that at the University of California at San Diego that there were additional, extra points awarded to undergraduate applications of African American or Mexican American descent. I think it was equivalent of 300 SAT points.
 Page 142       PREV PAGE       TOP OF DOC

    Were there any other racial minorities who received additional points on their scores?

    Ms. HERIOT. It is possible that there was a category for Latino. I don't recall at this point. I looked over that program a little while ago. I do know that white and Asians did not receive points based on race.

    Mr. HUTCHINSON. And of course you might not have been in the decisionmaking process, but, on what basis does the USCA determine which racial minorities receive preferences?

    Ms. HERIOT. Usually they engineer it backwards. They start out with the racial composition they would like to see and determine how many points they need to award in order to get that composition.

    Mr. HUTCHINSON. It would appear that Native Americans, if there were going to be some award, might be a group?

    Ms. HERIOT. I forgot that. There may well be points for Native Americans.

    Mr. HUTCHINSON. But Asian Americans or Vietnamese Americans, they did not receive any points?

 Page 143       PREV PAGE       TOP OF DOC
    Ms. HERIOT. They did not, that's correct.

    Mr. HUTCHINSON. So someone in the decision making body at the University of California has to decide which racial group will receive preferences and which ones will not?

    Ms. HERIOT. Pardon me.

    Mr. HUTCHINSON. Someone there at the University of California at San Diego must make the decision which group is going to receive a preference and which groups will not receive a preference.

    Ms. HERIOT. That's right.

    Mr. HUTCHINSON. Now I think we all have an interest in some diversity. My son went to a public school and benefitted by the fact that there were Asian Americans there, there were African Americans there—a broad diversity.

    How can we in looking at law schools and colleges is there any way to assure some diversity without granting racial preferences, Ms. Heriot?

    Ms. HERIOT. First of all, I think some racial diversity occurs even when scores, when applications are judged just based on GPA and SAT scores. For example, Asian Americans do extremely well at the University of California. The preference system in fact harms Asians most.
 Page 144       PREV PAGE       TOP OF DOC

    In addition, there are all sorts of other things that can be considered, like economic disadvantage. Under proposition 209, if the University of California wants to give special consideration to people based on economic disadvantage, they can do so. They just can't presuppose that based solely on skin color or gender.

    Mr. HUTCHINSON. Are there not opportunities for diversity on other bases other than race?

    Ms. HERIOT. Absolutely.

    Mr. HUTCHINSON. For example, geography. If you wanted to have a diverse student body or if you had economic guidelines or criteria, are there not other criteria, other than race, that would assure diversity?

    Ms. HERIOT. I think there are all sorts of criteria that the universities may want to try out. I think that many universities are doing that. They may be interested in people who have familiarity with other cultures. They may be interested in people with musical talent or athletic talent or whatever. Many of these things are already being considered by schools.

    Mr. HUTCHINSON. Thank you. I have one more question I would like to address to Ms. Prager. I wish you could comment on what I have already asked, but I think I am going to run out of time.

 Page 145       PREV PAGE       TOP OF DOC
    My son that I mentioned went to a diverse public high school and benefitted from that. He has friends of every culture. I don't think he has ever done anything discriminatory in his life. He's going to the University of Arkansas law school. He is an outstanding student.

    Mr. CANADY. The gentleman will have one additional minute.

    Mr. BRYANT. Thank you, Mr. Chairman. My son is interested in going into the FBI. But I, as a former Federal prosecutor, know from my experience with the FBI that they moved into an arena where they granted preferences. They reach out and they really in essence give priority to the minority. My point is he doesn't' have much of a chance of getting into the FBI.

    What do I tell my son who has never discriminated against anyone, to my knowledge anyway, that he is not going to be treated equally in his application with the FBI?

    Ms. PRAGER. I think that one of the things that example points up is that we are all living with the consequences of our history. Because had the FBI been able to diversify its workforces gradually over time, there would not now be this very understandable concern that it needs to do so.

    Mr. BRYANT. For my sins and your sins or our parents' sins?

    Ms. PRAGER. I would say that we are paying as a society for our history. One of the problems that I have with this current debate is that it has such an ahistorical character to it.
 Page 146       PREV PAGE       TOP OF DOC

    Mr. CANADY. The gentleman's time has expired.

    Ms. WATERS. Mr. Chairman.

    Mr. CANADY. The gentlelady from California.

    Ms. WATERS. I would like unanimous consent to place in the record an answer to the gentleman's question based on fact about the FBI.

    Mr. CANADY. The gentlelady has unanimous consent to place any statement in the record.

    Ms. WATERS. Thank you very much. Let me just for the record very quickly say——

    Mr. CANADY. The gentlelady is not recognized at this point for a further statement.

    Ms. WATERS. Thank you very much. He needs to know the FBI is a discriminatory agency under consent decree. [Laughter.]

    Mr. CANADY. We have a vote on the floor. The subcommittee will have to recess so that we can go vote. We will come back. But before that, I am going to finish with this panel so we can dismiss you. I think I am the only Member who has not yet had 5 minutes. Some have had a little more.
 Page 147       PREV PAGE       TOP OF DOC

    I want to thank all of you for being with us today. We appreciate your testimony. I think on both sides of the issue, you have really made some of the best arguments that can be made. I want to particularly thank Mr. Lamprecht and Mr. Cornelius for being here. I think your testimony highlights the reality of what is going on now.

    I believe that the Supreme Court has gone a long way toward establishing the right principles in this context. But I think what we are seeing is that although the Supreme Court may have established—may have gone a long way toward establishing the right principles, those principles are not being implemented in an effective way that is fair to the parties involved. So citizens all over this country are being forced to go to court and fight against the Government which is defending the status quo, not withstanding the decision of the Supreme Court, which has held that these preferential programs are presumptively unconstitutional. Individual citizens are forced to go to court, expend their resources to try to get justice. It is long and hard and coming. That is not fair. That is why I think it is very important for the Congress to address this.

    The Congress has put in place this system or we have acquiesced in the creation of this system in some cases. It is our responsibility, I believe, to do justice and to make certain that individuals are not being discriminated against under the programs of the Federal Government. Obviously that is why I have filed the legislation that we are considering here today.

    Now, Dean Prager, I want to ask you a question because in your comments you indicated that you believe that the implementation of affirmative action programs, and I understand that you include preferential programs within that description, is not without problems. What do you see as those problems? What are the problems that come from the implementation of these programs?
 Page 148       PREV PAGE       TOP OF DOC

    Ms. PRAGER. Well, I think one of the problems has really been at the core of this discussion today. It has to do with the fact that in an ideal world, we would all like to behave so that we could just assess each individual without looking at these other factors. I think we have because of our democratic ideals, a discomfort, an understandable discomfort with doing anything that does violation to that. So I think that's one of the problems.

    I think another one of the problems frankly, is that there is a great deal of misperception. I can speak only directly about education because that is the area that I know about. There is a misperception that we are running around admitting unqualified people. That is not the case. Now that does damage to lots of things when you have that perception out there. Right? Because it suggests that then people who are coming along through the system are being thought of by many people as unqualified to be where they are. Yet our experience proves that they are indeed very qualified.

    So this is some of the territory that I find, and the third——

    Mr. CANADY. Well, I understand that argument. But the reality is, reclaiming my time here. The reality is that different standards are applied to people based on their biological characteristics. We have heard examples of that. This 300 extra points. Nothing could be more discriminatory than to tell someone you are going to get extra points in this process, which has some element of objectivity because numbers are being used. You are going to get extra points simply because you belong to a particular ethnic group or you are of a particular gender. That is the essence of discrimination. I don't see how anybody can escape that reality. We can talk around that, but that is the fact of the matter.
 Page 149       PREV PAGE       TOP OF DOC

    The committee will be in order.

    That is something that we have to come to terms with. Now I understand that a case can—that some people will make a case that we need to do that to overcome past discrimination. I simply believe that that is a deadend. It is my firm belief that this system of preferences which we have in place is a system which actually reinforces the very prejudice that we want to transcend. Your comments I think acknowledge that there could be an element in this system that reinforces prejudice and stereotypes. That is a terrible result of this system. I think that is one of the most compelling reasons that we need to eliminate the system of race and gender preferences.

    With that, my time has expired.

    Ms. PRAGER. Recognizing that we are out of time, I would just like to write you something further about this.

    Mr. CANADY. I will be happy to receive any additional statement you would have on this.

    I want to thank all of you for your contribution to our hearing today. The subcommittee will stand in recess so that the Members can vote. We'll reconvene at the hour of 12:30.

    [Whereupon, the subcommittee recessed to reconvene at 12:30 p.m., the same day.]
 Page 150       PREV PAGE       TOP OF DOC

    Mr. CANADY. The subcommittee will be in order. We will now proceed with the third and final panel of today's hearing. I wanted to thank each of the members of this panel for being with us today.

    Randy Pech will be the third panel's first witness. In Adarand Constructors, Inc. v. Pena, Mr. Pech challenged the Department of Transportation's race and gender preferences and prevailed at the U.S. Supreme Court. He recently won his case on remand in the U.S. district court in Colorado demonstrating that the preferences in ISTEA are unconstitutional.

    Next will be Marina Laverdy, executive director of the Latin American Management Association.

    The last witness to testify before this subcommittee today will be Anita K. Blair. Ms. Blair is the general counsel for the Independent Women's Forum and has written extensively on the subject of race and gender preferences.

    Thank you each for appearing with us 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 made a part of the permanent record of this hearing. Thank you very much.

    Mr. Pech.

 Page 151       PREV PAGE       TOP OF DOC
STATEMENT OF RANDY PECH, ADARAND CONSTRUCTION, INC.

    Mr. PECH. Thank you, Mr. Chairman. My name is Randy Pech. I am cofounder and general manager of Adarand Constructors, Inc. We started Adarand in 1976 to be a construction company specializing in the installation of guardrail systems. In 1989, we lost yet another job, not because of a poor reputation, not because our price was too high, and not because our bid was submitted too late. We lost this job for one reason and one reason only: that I, as owner and operator of Adarand Constructors, was a white male.

    Thankfully, at that time we found out about Mountain States Legal Foundation. In 1990, Mountain States Legal Foundation agreed to represent us against the Federal Department of Transportation. Five years later, they argued our case before the United State Supreme Court. On June 12 of 1995, the U.S. Supreme Court ruled in our favor, holding that even Congress must meet the Constitution's toughest test: that is, strict scrutiny when it adopts race-based programs. The Supreme Court then returned our case to Colorado for determination of whether the program adopted by Congress meets that test of strict scrutiny. On June 2, 1997, just 24 days ago, and nearly 2 years after the Supreme Court ruling, a Colorado Federal district court determined that program to be unconstitutional. In his ruling U.S. Senior District Court Judge, the Honorable John L. Kane, Jr., ruled that the various Federal statutes, the regulations written to implement those statutes, and the program developed by the Federal Highway Administration were all unconstitutional.

    As a result of Judge Kane's ruling, today Mountain States Legal Foundation will file a lawsuit on behalf of Adarand Constructors against Governor Romer of the State of Colorado to require Colorado in its award of highway contracts under this Federal program to obey Judge Kane's ruling that these statutes are unconstitutional and cannot be applied. A copy of the press release to this effect accompanies my testimony.
 Page 152       PREV PAGE       TOP OF DOC

    Adarand has been injured, and I personally have been denied my civil rights because of your race-based Government programs. Adarand loses approximately 8 to 12 jobs per year solely because I am a white male. Is the fact that I am a white male a justifiable reason not to award Adarand a contract? Is it justifiable to deny the other employees of Adarand their paycheck just because of my race and gender? Is the fact that one of my competitors happens to be a white female or a hispanic male a justifiable reason to award their companies the contract and to give their employees a paycheck? I don't think so, but yet it happens to this day.

    Just last Thursday after returning from testifying before the Senate Judiciary Committee, I received a fax from Elam Construction Company. The fax referenced a job we had recently bid. It showed all of our bid items and our prices along with the prices of the company they used. Our total bid was approximately $137,000. They used a price submitted by Ideal Fencing for $139,000. A handwritten note below the prices said that they used Ideal's price to meet the DBE goals for the job. I called Elam to ask if they even tried to submit their bid with our numbers. They said, no, the prices were too close to justify the fight they would ultimately lose.

    So this week, Ideal Fencing Company that has been in business for at least 10 years and has revenues that match or exceed Adarand's, is awarded a job solely because Ideal is owned and operated by a female. Let me repeat that: the only reason they received this job is because it is owned by a white female. Do you suppose for one second that her white male husband is not going to reap the benefits, and that my white female wife won't suffer the loss due to this unjustifiable, unconstitutional, and immoral decision solely based on somebody's race or gender?

 Page 153       PREV PAGE       TOP OF DOC
    Adarand has been the only non-DBE guardrail company in the State out of the five in the State of Colorado, always—sorry, let me start over. Adarand has been the only non-DBE guardrail company out of the five in the State, and is always the one that feels the sting of this Government-sanctioned discrimination. Last week, Ideal was the beneficiary of your programs. Next month, maybe Cruise Construction will be the lucky one or maybe Gonzalez will turn out to be the lucky one, but every time Adarand takes the turn of repaying—paying the price for a wrong I never committed.

    Everyday I wake up wondering, knowing that the success of my business lies much more in the hands of the Government than in mine. I know someday—I know somebody or some committee is determining what parts of a project should be included in DBE goals. Will this be the week that Adarand—that the State will let Adarand have a job when we're only 7 percent low or maybe I'll need to be 8.5 percent low or maybe 12 percent low this week. Nobody really knows; it's determined at the time of the bid.

    I wonder if what I say here or what I do at home and in public will upset those that make those decisions about my company? I wonder if I upset them, how far can they go to run me out of business? I wonder if I'm crazy or just plain stupid when I have the politicians, the business people, and even my own friends asking me why am I putting up this fight. ''Just play the game,'' they tell me. Why should I have to? I started this business; I have worked the business, and my wife, Val, benefits from the business along with my daughter, Kendra, my son, Ted, and the many employees both white—both minority and non-minority; female and male.

    What is your program doing for the new businesses that are starting out? It goes without saying your programs do absolutely nothing if the owners happen to be a white male. I contend that even if the owner is of a favored race or gender your programs do little or nothing for them. It does little as long as Adarand is in the business, because the only time being a DBE will have any value is if Adarand happens to be the lower bidder and the new DBE happens to be a close second. If any one of the four well-established, well-funded, knowledgeable, and experienced DBE firms is the low bidder, what will encourage the prime contractor to use the new untested DBE firm? If Adarand was out of the picture, your programs would offer no benefits to the DBE firms, because then everybody would be a DBE firm, and the job would simply go to the lowest bidder.
 Page 154       PREV PAGE       TOP OF DOC

    Where are we going to go from here? Ten years from now is my son Ted going to be trying to compete against Ricky, the son of Joe Cruise, with Cruise Construction, then a second generation company still with the Federal Government as its silent partner? Or maybe my daughter will try to take over Adarand. Maybe she will decide to play your game, and if she does, your game will be over, because then everybody again would be a minority contractor, and it would just go to the lowest bidder.

    Congress has an obligation to determine whether or not to continue funding race-based programs that have failed to meet the strict scrutiny test announced by the Supreme Court. Since the Adarand decision, Federal courts have stricken race-based programs in Atlanta; Dade County, Florida; the city of Philadelphia, and most recently our case in Colorado. That's the question before Congress beginning with this hearing, is whether the burden will be placed upon the Randy Pechs and Val Pechs of the world to ask the Federal judiciary to consider these programs on a case-by-case, client-by-client, courtroom-by-courtroom basis, with the enormous cost in money and time that's involved or whether Congress will shoulder its burden. I believe Congress should perform its constitutional duty by zeroing-out these unconstitutional programs and adopting legislation to put an end to race-based decisionmaking in the Federal Government.

    The American people I know—the American people know that judging people by their race is wrong. They know it is wrong for them personally, and they know it is wrong for their Government. As U.S. Supreme Court Justice Brandeis once wrote, ''Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.'' I join with the millions of Americans who believe that our Federal Government should stop teaching the wrong lesson about race. Thank you.
 Page 155       PREV PAGE       TOP OF DOC

    [The prepared statement of Mr. Pech follows:]

PREPARED STATEMENT OF RANDY PECH, ADARAND CONSTRUCTORS, INC.

    My name is Randy Pech. I am Co-Founder and General Manager of Adarand Constructors Inc. We started Adarand in 1976, to be a construction company specializing in the installation of highway guard rail systems. In 1989 we lost yet another job, not because of a poor reputation, not because our price was too high, not because we submitted our bid late, not for any reason but one, I as owner and operator of Adarand was a white male and still am incidentally. Thankfully at that time we found out about Mountain States Legal Foundation. In 1990, Mountain States Legal Foundation agreed to represent us against the Federal Department Transportation. Five years later they argued our case before the United States Supreme Court. On June 12th of 1995, the Court ruled in our favor and remanded our case back to the lower courts for further consideration in light of the new principles described in their decision. Then on June 2nd of this year, Colorado Federal District Court also ruled in our favor saying that the program in question was in fact unconstitutional.

    Adarand has been injured and I personally have been denied my Civil Rights because of your race based government programs. Adarand loses approximately 8 to 12 jobs per year solely because I am a white male. Is the fact that I am a white male a justifiable reason not to award Adarand a contract? Is it morally correct to deny the other employees of Adarand a paycheck just because of MY RACE AND GENDER. Is the fact that one of my competitors happens to be a white female or a hispanic male a justifiable reason to award their companies the contract and to give their employees a paycheck? I don't think so, but yet it happens to this day. Just last Thursday after returning from testifying before the Senate Judiciary Committee I received a fax from Elam Construction Company. The fax referenced a job we had recently bid. It showed all of our bid items and our prices along with the prices of the company they used. Our total bid was approximately $137,000 but they used the bid submitted by Ideal Fencing for $139,000. A hand written note below the prices said they used Ideals price to meet the project DBE Goals. I called Elam and asked if they even tried to submit their bid with our numbers? They said no, the prices were too close to justify a fight they would ultimately lose. So this week Ideal Fencing a company that has been in business for at least 10 years and has revenues that match or exceed Adarand's is awarded a job solely because Ideal is owned and operated by a white female. Do you suppose for one second that her white male husband is not going to reap the benefits and that my white female wife won't suffer the loss due to this unjustifiable, unconstitutional and immoral decision based on someone's gender?
 Page 156       PREV PAGE       TOP OF DOC

    Adarand being the only Non DBE guard rail company out of the five in the State is ALWAYS the one that feels the sting of this government sanctioned discrimination. Last week Ideal was the beneficiary of your programs, next month maybe Cruz Construction will be the lucky one or maybe it will be Gonzales Construction's turn, but EVERY TIME its Adarand's turn to pay the price for a wrong I never committed. Everyday I wake up knowing that the success of my business is much more in the hands of the government than in mine. I know somebody or some committee in Denver is predetermining what parts of a project should be included in the DBE Goals for that project. Will this be the week that we will let Adarand have a job when they are only 7% low instead of having to be 8.5% low like they had to be last week to get the job? I wonder if what I say here or in public at home in Colorado upset those that make these decisions about my company. If I do upset them, just how far can they go to run me out of business? I wonder if I'm crazy or just plain stupid when I have politicians, other business people and even my friends wonder why I bother with this fight, just play the game they tell me, but why should I have to? I started the business, I have worked the business and my wife, Val, benefits from the business along with my daughter, Kendra, my son, Ted, and many white and minority employees. We will continue to stand on the principle of the Declaration of Independence, that ALL people are created equal.

    What is your program doing for new businesses that are starting out? It goes without saying your programs do absolutely nothing if the owner happens to be a white male, they never need help. I contend that even if the owner is of the favored race or gender, your programs do little or nothing for them also. Its does little as long as Adarand is in business because the only time being a DBE will have any value is when Adarand is the low bidder and the new DBE business happens to be a close second. If any one of the four well established, well funded, knowledgeable and experienced DBE firms is the low bidder, what would encourage the prime contractor to use the second place new DBE firm? If Adarand was out of the picture your programs would not offer the new DBE firm any help what so ever. Now everybody would be a DBE. The only way the new DBE would get any work would be the same way Adarand got work when it started, by being the low bidder on small jobs.
 Page 157       PREV PAGE       TOP OF DOC

    Where are we going to go from here? Ten years from now, is my son Ted going to be trying to compete against Ricky, the son of Joe Cruz, with Cruz Construction then a second generation company with the Federal Government as its silent partner? Or maybe my daughter Kendra would like to take over Adarand, maybe she would decide to play your game, though I seriously doubt it, but if she did your game would be over because every body would be a DBE company then. Val and I sincerely hope this will not be the case. We believe that someday soon, Congress and the Senate will pass legislation such as ''H.R. 1909, The Civil Rights Act of 1991'' to eliminate the preferential treatment some groups are receiving at the expense of others. We believe it is time for our government to take care of its business as spelled out by the Supreme Court in the Adarand and Croson cases. Since the Adarand decision, Federal District Courts have stricken race-based programs in Atlanta, Georgia, Dade County Florida, the City of Philadelphia and in Colorado. How many cases do we have to win? How much money and time do we have to spend? How many States will have to pass their own Proposition 209s? Many of us have ''Broken the Ice'', come on in the water is warm!

    Mr. CANADY. Thank you, Mr. Pech. Ms. Laverdy.

STATEMENT OF MARINA M. LAVERDY, EXECUTIVE DIRECTOR, LATIN AMERICAN MANAGEMENT ASSOCIATION

    Ms. LAVERDY. Thank you, Mr. Chairman and the distinguished members of the committee, for the opportunity to submit testimony on H.R. 1909. My name is Marina Laverdy. I am the executive director of the Latin American Management Association, LAMA, a national trade association of Hispanic and Minority-owned small businesses. LAMA's mission is to promote Hispanic and Minority enterprise industry and technology through education, networking, and advocacy. Our primary goal is to increase Federal contracting opportunities for our member firms.
 Page 158       PREV PAGE       TOP OF DOC

    Today, I represent LAMA's member companies as well as the opinions of many of the other national minority business associations who express the interests of tens of thousands of minority-owned companies across the Nation. I am here in complete opposition to H.R. 1909 and the anti-affirmative action sentiments it promotes. We strongly believe, if passed, H.R. 1909 would be harmful to current and future minority and women-owned businesses, and in turn, to the national economy and America's place in the global market.

    H.R. 1909, the misnamed Civil Rights Act of 1997, would make it illegal to grant any preferential treatment based in whole or in part on race, color, national origin, or sex. The areas that would be most affected are Federal employment, contracts, and subcontracts. The bill places an emphasis on recruitment and encouragement as a means to achieving an egalitarian society, but does away with concrete, measurable objectives such as numerical goals, set-asides, timetables, and preferences.

    The proponents of the bill have concluded that the modest gains made by women and minorities under affirmative action have amounted to reverse discrimination. They feel that affirmative action has unfairly disadvantaged white males, though statistics prove otherwise. And, as those of us in the minority know, the only true gain for the recipient of remedial measures is the opportunity to compete. Just examine the under-representation of minorities in Federal procurement, upper management, and decisionmaking positions in corporate America and our own Government, and there is little doubt that a level playing field does not yet exist.

    Federal procurement statistics indicate that reverse discrimination is hardly the rule in Government contracting. According to statistics from the General Services Administration, Federal contract dollars awarded in Fiscal Year 1996 amounted to $197.5 billion, of which $123.6 billion, 62.6 percent, went to large primarily majority-owned businesses; total small business awards were $41.1 billion, or 20.8 percent; and total SDB awards were $10.9 billion, or 5.5 percent. Non-8(a) was $4.5 billion, or 2.3 percent of that small business number—or SDB number, and 8(a) business was $6.4 billion, or 3.2 percent. Since the 8(a) program was the only set-aside contracting vehicle utilized by SDBs in 1996, because of the moratorium placed on the DOD SDB program by the Department of Justice over a year ago, we are talking about a very minute share of the Federal contracting pie. Yet, without the 8(a) set-aside, all minority contracting would have probably mirrored the non-8(a) SDB awards of 2.3 percent. Additionally, I strongly suspect that much of the 5.5 percent awarded to SDBs was in the form of subcontracts, not prime contracts. Ladies and gentleman, we are competing against each other for crumbs. Perhaps it would be better served to work together to increase contracting to all small businesses.
 Page 159       PREV PAGE       TOP OF DOC

    I would also like to point out that the 8(a) program is not—is a business development program with an important technical training component. It is not a race-based program, but one based on economic and social need. Minority group members are presumed to be economically and socially disadvantaged for admittance to the program because of ongoing and past racial discrimination. However, white males who can prove economic and social disadvantage as well as white females may participate in the program. In fact, in the past 2 years the SBA has admitted more white females and males to the program than ever before. In addition, the Supreme Court found in Adarand that the 8(a) program was not race-based and met the strict scrutiny standard.

    At this point I'd like to quickly digress to offer the history of the 8(a) program. The program was developed by the Nixon administration in the 1970's as an answer to the riots that plagued American cities in the late 1960's. President Nixon wanted a remedy for the economic ills that plagued the innercities and to provide a way to foster minority entrepreneurship. At the time the program began, anecdotal evidence suggests that minority contracting accounted for slightly more than 1 percent of Federal contracting awards. I shutter to think that by eliminating such programs we could take a giant step backward 30 years.

    Now, to get back to the matter at hand, as a loyal American who believes in capitalism and free enterprise, I am shocked by the inequity in Federal acquisition. There is hardly equal opportunity when 29 percent of the 62.6 percent of contracts awarded to large business were awarded non-competitively, or sole source, or when seven large prime contractors together received more contract dollars than all small businesses combined. While it may be true that no small minority firms currently manufacture missiles or airplanes, these statistics indicate a need for small business and minority business set-asides.
 Page 160       PREV PAGE       TOP OF DOC

    In addition to the inequities in Federal contracting between large and small businesses, without affirmative action remedies such as set-aside contracting programs, SDBs face barriers embedded in the contracting process that can severely impede most minority firms from winning Government contracts. These barriers include Government failure to break large contracts down into smaller projects for the smaller minority firms, and extensive granting of waivers for minority subcontracting requirements to prime contractors; also limited notice of contract competitions, not to mention persistent problems with access to capital, bonding, and insurance.

    In short, eliminating affirmative action programs would have a devastating effect on the minority business community. The Federal Government is the largest procurer of goods and services in the entire world. The minority business community cannot be cut off from such a large segment of the market. The old boy contracting officers community still prevails; affirmative action's contracting programs have been able to force open their network to include minority firms.

    Affirmative action programs are the mechanism to monitor the progress or the failure of voluntary inclusion. Our Government must learn what corporate America has learned: diversity and inclusiveness in hiring practices and procurement make good business sense. Thank you.

    [The prepared statement of Ms. Laverdy follows:]

PREPARED STATEMENT OF MARINA M. LAVERDY, EXECUTIVE DIRECTOR, LATIN AMERICAN MANAGEMENT ASSOCIATION
 Page 161       PREV PAGE       TOP OF DOC

    Thank you, Chairman Hyde, and members of the Subcommittee on the Constitution for the opportunity to submit testimony on H. R. 1909, the Civil Rights Act of 1997.

    My name is Marina Laverdy. I am the Executive Director of the Latin American Management Association (LAMA), a national trade association of Hispanic and Minority owned small businesses. LAMA's mission is to promote Hispanic and Minority enterprise, industry and technology through education, networking and advocacy. Our primary goal is to increase Federal contracting opportunities for our member firms.

    Today, I represent LAMA's member companies, as well as the opinions of many of the other national minority business associations, who express the interests of tens of thousands of companies across the nation. I am here in complete opposition to H. R. 1909 and the anti- Affirmative Action sentiments it promotes. We strongly believe, if passed, H.R. 1909 would be harmful to current and future minority and women-owned businesses, and in turn, to the national economy and America's place in the global market.

    H.R. 1909, the misnamed ''Civil Rights Act of 1997'', would make it illegal to grant any preferential treatment based in whole or in part on race, color, national origin or sex. The areas that would be most affected are federal employment, contracts and subcontracts. The bill places an emphasis on recruitment and encouragement as a means to achieving an egalitarian society, but does away with concrete, measurable objectives such as numerical goals, set-asides, time tables and preferences.

    The proponents of the bill have concluded that the modest gains made by women and minorities under affirmative action have amounted to ''reverse discrimination''. They feel that Affirmative Action has unfairly disadvantaged white males, though statistics prove otherwise. And, as those of us in the minority community know, the only true gain for the recipient of remedial measures is the opportunity to compete. Just examine the under representation of minorities in Federal procurement, upper management and decision making positions in Corporate America and government, and there is little doubt that a level playing field does not yet exist.
 Page 162       PREV PAGE       TOP OF DOC

    Federal procurement statistics indicate that reverse discrimination is hardly the rule in government contracting. According to statistics from the General Services Administration, Federal contract dollars awarded in fiscal year 96 amounted to $197.5 billion, of which $123.6 billion, or 62.6% went to large primarily majority-owned businesses; total Small Business Awards were $41.1 billion, or 20.8% and total SDB Awards were $10.9 billion, or 5.5% (Non-8(a) was $4.5 billion, 2.3% and 8(a) Business was $6.4 billion, 3.2%). Since the 8(a) program was the only set-aside contracting vehicle utilized by SDBs in 1996, we are talking about a very minute share of the Federal contracting pie. Yet, without the 8(a) set-aside, all minority contracting would have probably mirrored the non-8(a) SDB awards of 2.3%. Additionally, I strongly suspect that much of the 5.5 % awarded to-SDBs was in the form of subcontracts. Ladies and gentlemen, we are competing against each other for ''crumbs''.

    I would also like to point out that the 8(a) program is not a race-based program, but one based on economic and social need. Minority group members are presumed to be economically and socially disadvantaged for admittance to the Program because of ongoing and past racial discrimination. However, white males who can prove economic and social disadvantage may participate in the program also. In fact, in the past two years, the SBA has admitted more white females and males to the program than ever before. In addition, the Supreme Court found in Adarand that the 8(a) program was not race-based and met the strict scrutiny standard.

    As a loyal American who believes in capitalism and free enterprise I am shocked by the inequity in federal acquisition. There is hardly equal opportunity when 29% of the 62.6% of contracts awarded to large business were awarded to large business were awarded non-competitively (sole source), or when seven large prime contractors together received more contract dollars than all small businesses combined. While it may be true that no small minority firms currently manufacture missiles or airplanes, these statistics indicate a need for small business and minority business set-asides. According to Jere Glover, Chief of Advocacy at SBA, small firms, including women and minority-owned, promote competition and save taxpayers money''.
 Page 163       PREV PAGE       TOP OF DOC

    In addition to the inequities in Federal contracting between large and small businesses, without Affirmative Action remedies, such as set-aside contracting programs, SDBs face barriers embedded in the contracting process that can severely impede most minority firms from winning government contracts. These barriers include government failure to break large contracts down into smaller projects so that minority firms, which tend to be smaller, can compete; extensive granting of waivers from minority subcontracting requirements to prime contractors; and limited notice of contract competitions.

    In short, eliminating Affirmative Action programs would have a devastating effect on the minority business community. Affirmative Action programs are the mechanism to monitor the progress, or the failure of voluntary inclusion. Our government must learn what Corporate America has learned: diversity and inclusiveness, in hiring practices and procurement, make good business sense.

    I urge the cosponsors of this bill to consider the many benefits to fostering minority owned businesses through the use of Federal Affirmative Action programs, including: the development of business owners with long-term commitment to economic growth; the encouragement of diversity, innovation and competitiveness in the industrial base; and the development of role models for other women and minorities to emulate. Additionally, Affirmative Action programs in business help to bridge the economic disparity gap in our nation. These programs produce taxable income and facilitate the development of a talent pool of entrepreneur and free market capitalists. They also stimulate local economies and help the U.S. compete in the global market.

 Page 164       PREV PAGE       TOP OF DOC
    Thank You.

    Mr. CANADY. Thank you. Ms. Blair.

STATEMENT OF ANITA K. BLAIR, GENERAL COUNSEL, INDEPENDENT WOMEN'S FORUM

    Ms. BLAIR. Mr. Chairman, distinguished members of the committee, ladies and gentleman, thank you for inviting me to participate in the hearing today, testifying on behalf of the Independent Women's Forum concerning H.R. 1909, The Civil Rights Act of 1997.

    The Independent Women's Forum has conducted programs, published articles and studies, and participated in many public debates on the subject of affirmative action. We agree with individuals like Ward Connerly and organizations like the American Civil Rights Institute that preferences and quotas must be removed from our laws, because discrimination, especially Government sponsored discrimination, is wrong.

    Here is why we believe as we do. What if over 25 years ago President Nixon's men had obeyed the law? I refer, of course, to the 1964 Civil Rights Act which prohibited discrimination on the basis of race, color, sex or national origin. Beginning in the early 1970's, the President's men set the Federal Government on a collision course with the 1964 Civil Rights Act when they defined affirmative action in terms of goals and timetables, preferences, set-asides, and quotas. Today, over 130—and I will accept Senator McConnell's number of 150; you guys have been awfully busy—Federal programs, distribute contracts, jobs, and benefits on the basis of race, color, sex, and national origin, exactly what the 1964 Civil Rights Act forbids.
 Page 165       PREV PAGE       TOP OF DOC

    Let's suppose the President's men, instead of talking about categories and numbers, had instead actually acted affirmatively. Suppose they had acted to affirm the values that are truly relevant to success and happiness in life for all people—values like strong families, sound schools, safe streets, and growing opportunities. We wouldn't be here still talking today.

    The 1964 Civil Rights Act was right: race, color, sex, and national origin shouldn't matter. When our Federal Government persists in counting and dividing Americans in those ways, it violates the spirit and the letter of our civil rights laws. It also violates the Constitution. The United States Supreme Court has ruled unambiguously that race and ethnicity can be considered by Government only when necessary to remedy specific instances of past discrimination. The same rule applies to sex except in the narrow case when enduring male/female physical differences are at issue.

    The Civil Rights Act of 1997 will require the Federal Government hereafter to comply with the Constitution and the civil rights laws enacted by Congress. It will prevent the Federal Government from adopting rules and regulations that discriminate and grant preferential treatment to individuals and groups on the basis of race, color, national origin or sex. A huge majority of Americans endorses these principles.

    Last November, Californians voted overwhelmingly to add the principle of non-discrimination to their State Constitution in language essentially identical to that used in the Civil Rights Act of 1997. At that time the Independent Women's Forum conducted a nationwide survey of adults, including voters and non-voters. According to our survey, 85 percent of people said they would vote for a nationwide measure incorporating the words used in the California Civil Rights initiative, the very words used in the Civil Rights Act of 1997. An astonishing 67 percent said they strongly supported those words.
 Page 166       PREV PAGE       TOP OF DOC

    Americans support the principle of non-discrimination, because we are fundamentally Americans. We hate checking off the boxes on every Federal form, because they don't describe who we really are; individuals with abilities, talents, energy, and hope. What if 25 years ago our Federal Government had acted affirmatively, in harmony with the 1964 Civil Rights Act to let all Americans enjoy the advantages of strong families, sound schools, safe streets, and growing opportunities? Had that been done in the past 25 years, we could have seen two generations of advantaged children of all colors outside their boxes, exercising their individual talents, abilities, energy, and hope.

    This very day is not too soon to set Americans free from their boxes. This very day is not too late to start to accomplish what the Civil Rights Act of 1964 was meant to do by enacting the Civil Rights Act of 1997.

    [The prepared statement of Ms. Blair follows:]

PREPARED STATEMENT OF ANITA K. BLAIR, GENERAL COUNSEL, INDEPENDENT WOMEN'S FORUM

    Mr. Chairman, distinguished members of the Subcommittee, and ladies and gentlemen. Thank you for inviting the Independent Women's Forum to testify today concerning the Civil Rights Act of 1997. My name is Anita Blair, and I am Executive Vice President and General Counsel of the Independent Women's Forum (''IWF'').

    The Independent Women's Forum is a nonprofit, nonpartisan organization dedicated to research and public education on policy issues concerning women. The Independent Women's Forum neither solicits nor accepts government funds. Pursuant to House Rule XI, clause 2(g)(4), I confirm that IWF has at no time received any federal grant, contract, or subcontract.
 Page 167       PREV PAGE       TOP OF DOC

    The Independent Women's Forum has conducted programs, published studies and participated in many public debates on the subject of ''affirmative action.'' 1We agree with individuals like Ward Connerly and organizations like the American Civil Rights Institute that preferences and quotas must be removed from our laws, because discrimination, especially the government-sponsored kind, is wrong. Here is why we believe as we do.

    What if . . .? What if, over twenty-five years ago, President Nixon's men had obeyed the law? I refer, of course, to the 1964 Civil Rights Act, which prohibited discrimination on the basis of race, color, sex or national origin.

    Beginning in the early 1970s, the president's men set the federal government on a collision course with the 1964 Civil Rights Act when they defined ''affirmative action'' in terms of goals and timetables, preferences, set-asides and quotas. Today over 130 federal programs distribute contracts, jobs and benefits on the basis of race, color, sex and national origin—exactly what the 1964 Civil Rights Act forbids.

    But suppose the president's men, instead of talking about categories and numbers, had actually acted affirmatively? Suppose they had acted to affirm the values that are truly relevant to success and happiness in life for all people—values like strong families, sound schools, safe streets, and growing opportunities?

    We wouldn't be here still talking today.

    The 1964 Civil Rights Act was right: Race, color, sex and national origin shouldn't matter. When our federal government persists in counting and dividing Americans in those ways, it violates the spirit and the letter of our civil rights laws.
 Page 168       PREV PAGE       TOP OF DOC

    It also violates the Constitution. The U.S. Supreme Court has ruled unambiguously that race and ethnicity can be considered by government only when necessary to remedy specific instances of past discrimination; the same rule applies to sex except in the narrow case when ''enduring'' male-female physical differences are at issue.

    The Civil Rights Act of 1997 will require the federal government hereafter to comply with the Constitution and the civil rights laws enacted by Congress. It will prevent the federal government from adopting rules and regulations that discriminate and grant preferential treatment to individuals and groups on the basis of race, color, national origin or sex.

    A huge majority of Americans endorses these principles. Last November Californians voted overwhelmingly to add the principle of non-discrimination to their state constitution, in language essentially identical to the Civil Rights Act of 1997. At that time the Independent Women's Forum conducted a nationwide survey of adults, including voters and non-voters.

  According to our survey, 85 percent of people overall said they would vote for a nationwide measure incorporating the language used in the California Civil Rights Initiative (essentially the same used in the Civil Rights Act of 1997). An astonishing 67 percent said they were ''strongly'' for it. More than two-thirds (68 percent) of African-Americans said they would vote for the same language, as did 83 percent of those who describe themselves as ''Liberals.''

    Americans support the principle of non-discrimination because we are, fundamentally, Americans. We hate checking off the boxes on every federal form, because they don't describe who we really are—individuals with abilities, talents, energy and hope.
 Page 169       PREV PAGE       TOP OF DOC

    What if twenty-five years ago our federal government had acted affirmatively, in harmony with the 1964 Civil Rights Act, to let all Americans enjoy the advantages of strong families, sound schools, safe streets and growing opportunities? In the past twenty-five years we could have seen two generations of advantaged children, of all colors, outside the boxes, exercising their individual abilities, talents, energy and hope.

    This very day is not too soon to let Americans out of their boxes. This very day is not too late to start to accomplish what the Civil Rights Act of 1964 was meant to do, by enacting the Civil Rights Act of 1997.

INSERT OFFSET RING FOLIOS 7 TO 11 HERE

    Mr. CANADY. Thank you, Ms. Blair.

    Mr. CANADY. The gentleman from Georgia, Mr. Barr.

    Mr. BARR. Thank you, Mr. Chairman. I'd like to ask the entire panel the following question, and if each one of you could just answer, ''yes,'' if you believe the answer to this question I'm going to pose is ''yes.'' I'm not really searching for an explanation at this point. Is there anything that any of the three of you find in the language of H.R. 1909, ''A bill to provide for equal protection of the law and to prohibit discrimination and preferential treatment on the basis of race, color, national origin or sex in Federal actions and for other purposes,'' to be extreme? Do any of the three of you find anything in the wording of the legislation to be extreme?
 Page 170       PREV PAGE       TOP OF DOC

    Mr. PECH. No, I don't.

    Ms. BLAIR. No.

    Ms. LAVERDY. Not in the actual wording, but in the intent, yes.

    Mr. BARR. Okay. So, if it is Congress' intent ''to provide for equal protection of the law and to prohibit discrimination and preferential treatment on the basis of race, color, national origin or sex in Federal actions and for other purposes,'' you find that intent as reflected in those words to be extreme?

    Ms. LAVERDY. Yes, in that it does away with preferences and set-asides, yes, I do.

    Mr. BARR. Okay, and you find that to be extreme?

    Ms. LAVERDY. Yes.

    Mr. BARR. Thank you.

    Ms. Blair, I have read, as I presume that you have, H.R. 1909 and looked at its general wording as well as its specific wording. I find nothing in there, and I'd like to know if you did, that removes the jurisdiction and power of United States attorneys under the Department of Justice to, as vigorously as any administration wants to, enforce the laws prohibiting discrimination in this country such as are found in titles 42 and titles 18. Do you find anything in this legislation that in any way, shape, or form diminishes the authority, jurisdiction, and power of United States attorneys as the prosecution arm of this Government to vigorously enforce the laws of this country against discrimination?
 Page 171       PREV PAGE       TOP OF DOC

    Ms. BLAIR. No, sir. I don't, and to the contrary, I find much in the words and intent of the bill to encourage United States attorneys and others to combat discrimination as strongly as possible.

    Mr. BARR. Does anybody on the panel find that extreme?

    Mr. PECH. No, sir.

    Mr. BARR. Okay, thank you. Thank you, Mr. Chairman.

    Mr. CANADY. Thank you. Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Ms. Blair, it's good to see you. I was interested in your comment in your testimony that says that ''The U.S. Supreme Court has ruled unambiguously that race and ethnicity can be considered by Government only when necessary to remedy specific incidences of past discrimination.'' By citing that, do you suggest that it is appropriate to remedy specific instances of past discrimination?

    Ms. BLAIR. Yes. I am referring to the Adarand case, which we have the plaintiff here, which came down from the Supreme Court 2 years ago, and that's the holding that I'm referring to in that part of my testimony.

 Page 172       PREV PAGE       TOP OF DOC
    Mr. SCOTT. So, you agree with that?

    Ms. BLAIR. For specific instances of past discrimination, remedies that look to the race, color, ethnic origin of—or sex, I will add that—of a particular individual or group are appropriate.

    Mr. SCOTT. Is it your understanding that this bill would or would not prohibit use of affirmative action even to remedy specific instances of past discrimination?

    Ms. BLAIR. As I read the bill, the bill would not interfere with the holding of the Supreme Court in the Adarand case, which is that it would not prohibit the Federal Government or, you know, a court from imposing a remedy that is a remedial action—I hate to use the word ''affirmative action,'' if you don't like; it's got such a lot of meanings.

    Mr. SCOTT. Let's get away with what we think the bill does. Your testimony is that it would be appropriate to use affirmative action, or whatever you want to——

    Ms. BLAIR. A remedy—a remedy that considers race may be appropriate if there has been proven a specific instance of past discrimination, and the remedy must be narrowly tailored to correct that past discrimination.

    Mr. SCOTT. Okay, so, to the extent that this bill might go further than Adarand, you would not support that part of the bill?
 Page 173       PREV PAGE       TOP OF DOC

    Ms. BLAIR. The bill itself does not refer to the Adarand case, so it's hard to compare the two.

    Mr. SCOTT. Okay. Well, the problem is, if you have something like the Department of Agriculture where there has been acknowledged discrimination without any goals and timetables to determine whether or not the good old boys have changed their practice, it would be impossible to determine whether or not ongoing admitted patterns and practices of discrimination have stopped, if there are no goals and timetables.

    Ms. BLAIR. No, if the patterns and practices of discrimination have been identified, then those patterns and practices themselves need to be changed.

    Mr. SCOTT. The same individuals are where they are; same institution; same individuals, and without any goals and timetables, it would be impossible to determine whether or not they have changed their ways.

    Let me ask Mr. Pech.

    Mr. PECH. Pech.

    Mr. SCOTT. Pech, I'm sorry.

    Mr. PECH. It's okay.

 Page 174       PREV PAGE       TOP OF DOC
    Mr. SCOTT. What portion of the guardrail market did minorities have before the program started? Do you know?

    Mr. PECH. Before the program started I am not aware of the actual ownership of the companies that were in existence before the program started, because it wasn't——

    Mr. SCOTT. If we assume this program had been narrowly tailored to address prior discrimination or prior unlevel field, and that they had in fact received—this is a 5 percent set-aside program, as I understand it, is that right?

    Mr. PECH. The Highway Department I understand has a 10 percent goal, set-aside.

    Mr. SCOTT. That means that white males had 90 percent of the business before this program went into effect?

    Mr. PECH. I don't think that implies that at all.

    Mr. CANADY. The gentleman's time has expired. The gentleman will have one additional minute.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Is it your testimony that minorities have a level playing field when it comes to being in business—in the guardrail business?
 Page 175       PREV PAGE       TOP OF DOC

    Mr. PECH. Yes, it is.

    Mr. SCOTT. That there is no problems in lending and access to capital; no disadvantage in terms of bonds; no disadvantage in terms of political and other contacts; that minorities have an equal opportunity to participate in the guardrail business as white males?

    Mr. PECH. I don't—all I see, sir, is the final product, and I see four competitors in business. What troubles they went through to get bonding or banking, probably may have exceeded what I had to go through. The end result is I've got four competitors that do a majority of the business in the State of Colorado, and they are favored over——

    Mr. SCOTT. Okay. Well, if in fact minorities are doing well in the guardrail business, Mrs. Blair has indicated, and I assume it would hold, it's not narrowly tailored, because there's no compelling State interest in that situation. But to the extent that minorities have a problem, that is, that the bonding problem they have as a result of the fact that they don't get contracts—let me just finish this sentence—that they don't get contracts; that the lenders won't lend, because they can't get bonds; so it's the institutionalized situation. They don't have the contacts; they don't belong to the segregated country clubs; all of that creates a disadvantage for minorities that can only be solved by some affirmative action, whether it means goals and timetables or whatever. Without some affirmative action, white males will perpetually get 95 plus percent of the contracts.

    Mr. CANADY. The gentleman's time has expired. The gentlelady from California, Ms. Waters, is recognized.
 Page 176       PREV PAGE       TOP OF DOC

    Ms. WATERS. Thank you very much, Mr. Chairman.

    Before I say anything, I want to set the record straight. There was a panelist who told this committee that all African-Americans students admitted or applying to the University of San Diego receive 300—I'm sorry, UC San Diego—get 300 points simply by the fact that they're African-American. I just checked with—it didn't sound right, so I checked with the dean of admissions there, the Assistant Vice-Chancellor of Enrollment and Registrar, Mr. Richard Backer, and this is what he described: Under certain circumstances any student can get 300 points. If, for example, there's a student of any color who's got certain kind of family problems through divorce, et cetera, et cetera, they're eligible and can get them, any color. Anyone with special skills or ability can also get up to 300 points. For example, they gave a student who was very creative; started a business while they were in high school, et cetera, et cetera, et cetera. In 1996, of the African-American students, some 41 did not get 300 points. So I think it's very, very important for us to understand, because the Chair kind of took off accepting that as fact, that that is not fact; that 300 points may be available to any student under any of these special circumstances, and let the record reflect that.

    Now, for Ms. Blair. Ms. Blair, recognizing everything that has been said and what we're trying to do to equalize the playing field, all the laws, all of that, and those who would say, you know, ''If in fact you're discriminated against, you have the courts, you have the legal system by which to take care of your problem,'' even though we have heard from some people on the other side that the legal system doesn't work well for them, and we should reasonably conclude it doesn't work well for us either, that's why we have to try and do something to equalize the playing field, there's another factor that enters into what we're trying to deal with. Are you familiar with the term ''racism?''
 Page 177       PREV PAGE       TOP OF DOC

    Ms. BLAIR. Yes. I know the term.

    Ms. WATERS. Have you ever met a racist?

    Ms. BLAIR. I'm sure I have.

    Ms. WATERS. Do you believe they exist?

    Ms. BLAIR. Pardon.

    Ms. WATERS. Do you really believe racists exist?

    Ms. BLAIR. Yes, ma'am.

    Ms. WATERS. Do you think that they're in high places; they're in—on boards of directors, private, public sector?

    Ms. BLAIR. I don't have personal knowledge of it, but I certainly believe they can exist in those places.

    Ms. WATERS. Do you think they can exist in our education systems?

    Ms. BLAIR. Yes.
 Page 178       PREV PAGE       TOP OF DOC

    Ms. WATERS. Do you think they exist—could exist in the Congress of the United States of America?

    Ms. BLAIR. Yes.

    Ms. WATERS. Do you think that, based on the fact that they have these kinds of attitudes, those attitudes would be displayed in their decisions?

    Ms. BLAIR. It can be.

    Ms. WATERS. Well, that's what we're talking about, and that's what's hard to get to. With all the rules, all the regulations, when you have racist attitudes, people are driven by those attitudes to make decisions. It is very hard to undo this. For years those attitudes caused the imbalance that I described earlier. Preferences were given to whites, white males in particular, and because of years of preferences and racist attitudes, we have this great imbalance, and my children and my children's children and their children will be struggling against this for the rest of their entire lives. Now, if we didn't have those racists, and we were all people who respected each other and believed in each other, it would not be as difficult, but how do we get rid of it? What do we do about that? Can you answer that?

    Ms. BLAIR. Well, ma'am, I understand racism to be irrationally favoring one's own race, and racism is a neutral term; it doesn't refer——

    Mr. CANADY. The gentlelady's time has expired. The gentlelady will have one additional minute.
 Page 179       PREV PAGE       TOP OF DOC

    Ms. WATERS. Where you were going, you're right.

    Ms. BLAIR. Racism is a neutral term; it doesn't refer to a specific race.

    Ms. WATERS. On my time. I know where you're going, and we only have a few minutes, and you would say that there could be black racists; there could be green racists, et cetera, but it doesn't make any difference if you don't have any power. The dangerous racist is the one with power and the ability to exercise that power, and that's what I'm talking about.

    Mr. CANADY. Thank you very much.

    Ms. Laverdy, in your testimony you indicated that the system of preferences does not disadvantage individuals who are not in the preferred groups. I think that was an element in your testimony. No? Is that not a point that you were making?

    Ms. LAVERDY. Well, the statistics prove that white males—the lion's share of Government—if we're talking specifically about Government contracts, the lion's share of Government contracts go to majority-owned firms. Statistics prove that.

    Mr. CANADY. Well, one of the frustrations in this debate is that there's some people that want to look at everything in terms of groups, and I think that there are dangers in that, because when we——
 Page 180       PREV PAGE       TOP OF DOC

    Ms. LAVERDY. I agree with you, sir, as a Hispanic-American woman who is constantly looked at as a member of a group instead of an individual, that's true.

    Mr. CANADY. Well, I think that we can agree that looking at people simply as members of groups is demeaning; it is an insult to the dignity of those individuals. But I guess the point I want to make, and I don't want to pit witness against witness, but I don't know how we can listen to what Mr. Pech has gone through and what his individual experience has been and come to any conclusion other than that he has been hurt unfairly by this system of preferences. He has done nothing wrong; he has not discriminated against anyone; he has not participated in any wrongful act, but yet, simply because of his ethnic background, he is denied opportunities that he is qualified for and submits the best bid for. That is, in my view, just unfair, and that is the crux of—or one of the cruxes of—the issue here. There are many aspects of this, but to sit here and imply that somehow this system doesn't disadvantage individuals such as Mr. Pech seems to be disconnected from reality. I'd be happy to have you respond.

    Ms. LAVERDY. Well, first of all, we do agree that this system is not perfect; it is not. The affirmative action——

    Mr. CANADY. But what makes it imperfect? What makes it imperfect?

    Ms. LAVERDY. The fact that some people are being hurt, that makes it not perfect.
 Page 181       PREV PAGE       TOP OF DOC

    Mr. CANADY. Well, I agree, but the essence of why some people are hurt is because some people are treated one way because of their ethnic background, their color, or their gender, and that, again, is the essence of discrimination, and I think——

    Ms. LAVERDY. Right now, a lot of this argument is kind of moot at this point right now because the FARR Council just issued its proposed rule on procurement and contracting, and that rule proposes—this is part of the President's Mend It, Don't End It Program—it proposes——

    Mr. CANADY. With the emphasis on ''Don't End It.'' [Laughter.]

    Ms. LAVERDY. It proposes benchmarking in 70 industries. One of those industries would be construction and would be highway construction, we assume. We don't know yet exactly which 70 industries that they will be looking at, but we can assume that that will be one of them. Now, what this would do is in area like Colorado where there are a lot of minority contractors participating in these programs, they would look at the discrepancy in how many contracts have been given to minority firms in that one industry, and if that one industry has been oversaturated and people like Mr. Pech have been hurt, they will pull back on issuing those contracts in that area, and that is part of—we're not trying to in any way take their fair share of the pie.

    Mr. CANADY. Well, let me say this: I know it's not your personal objective to hurt anyone, and I respect that—I'll yield myself one additional minute—but I believe if we step back, and look at what is happening, and with all due respect, I am not convinced that the regulations are going to have a substantial impact in changing the core of this system which—and still, under those regulations some individuals are going to lose opportunities simply because they belong to the wrong group. That is an undeniable consequence of the system.
 Page 182       PREV PAGE       TOP OF DOC

    Ms. LAVERDY. And it has been in the past. I can tell you hundreds of stories of my members who were hurt in the past before the programs were put in place because they were wronged by their banks, by other contracting officers who would not allow them the chance to bid on contracts. People have been hurt all along in this process.

    Mr. CANADY. Well, let me say I do not deny that such acts of discrimination have taken place; they were wrong.

    Ms. LAVERDY. And still are.

    Mr. CANADY. But we will not overcome past discrimination by practicing discrimination currently. I mean, that is my view. That's the essence of the bill.

    Ms. LAVERDY. But we have to have some remedial remedies with teeth in them.

    Mr. CANADY. Well, again, the point I want to make——

    Ms. LAVERDY. We cannot rely on people's good will——

    Mr. CANADY. Excuse me.

    Ms. LAVERDY. Unfortunately, it hasn't worked in the past.

 Page 183       PREV PAGE       TOP OF DOC
    Mr. CANADY. Well, again, let me thank each of the witnesses for being with us today. We appreciate your contribution. Your testimony has been very helpful to our deliberations on this bill, and the subcommittee will stand adjourned.

    [Whereupon, at 1:16 p.m., the subcommittee adjourned.]

A P P E N D I X

Material Submitted for the Hearing

PREPARED STATEMENT OF JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

    Today we consider the grossly ill-named ''Civil Rights Act of 1997.'' At a time when 90,000 discrimination-based complaints are being filed a year, the Republicans have given us an incredibly simple-minded response to one of the most divisive problems facing this country.

    In one single swoop they would undo thirty years of bipartisan civil rights progress, and take us into a surreal ''Alice in Wonderland'' world where the fiction of color-blind society is used to justify the continued repression of African-Americans. This is extreme legislation, which is far, far to the Right of even the Bush and Reagan Administrations, which consistently supported the use of goals and timetables in the military and in federal contracting.

    I wish the supporters of this bill would slow down for just a moment to review the history of race relations in this country. A nation borne in slavery barely survived a bloody civil war to end the practice. Despite the promise of the Gettysburg Address and the 14th Amendment's Equal Protection Clause, progress has been erratic and slow. It took us nearly 90 years to recognize that separate was not the same as equal and 100 years to get a comprehensive civil rights law passed.
 Page 184       PREV PAGE       TOP OF DOC

    But now the bill's proponents tell us it's time to abandon affirmative action, and time to end any and all goals and timetables which encourage hiring minorities and women, even in the face of years and even generations of pervasive and intentional discrimination.

    To reach this far-fetched conclusion they ask us to accept the recommendations of Chairman Canady. Well I would prefer that we get a second opinion and perhaps consider the advice of the bipartisan Glass Ceiling Commission. Two years ago, they issued a comprehensive report finding that minorities and women still face significant barriers to advancement and recommended that the civil rights laws be strengthened, not weakened. And we ought to take some account of the fact that African-Americans still hold less than 1% of top management jobs and are unemployed at a rate twice as high as whites, and that half of African-American children still live in poverty and two-thirds attend segregated schools.

    I really believe that if we take a moment to reflect, we will find that the Members of this Subcommittee are better than this bill. I know they realize that quotas are already illegal and the ''horror stories'' they hear about affirmative action are vastly and incredibly exaggerated. And I hope they know that affirmative action as a remedy cannot be separated from the offense of discrimination; that affirmative action is not only constitutionally permissible, in some cases it's constitutionally mandated.

    I would also like to believe that the history ad heritage of the Judiciary Committee—through the Civil Rights Act of 1964 and the Voting Rights Act of 1965 and the Fair Housing Act of 1968—will help redeem us from this short-sighted and reactionary legislation. I would like to believe that when the members of the Committee look back over their careers, they will want to say they did something for the cause of civil rights other than terminate the few modest opportunities available to African-Americans, women, and other minorities in this country. And I would like to believe that the party of Lincoln has not become the party of ''Willie Horton.''
 Page 185       PREV PAGE       TOP OF DOC

    I urge the Members, in the strongest possible terms, to reconsider this divisive bill.

55–124

1999
THE CIVIL RIGHTS ACT OF 1997

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

 Page 186       PREV PAGE       TOP OF DOC
H.R. 1909

JUNE 26, 1997

Serial No. 76

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
 Page 187       PREV PAGE       TOP OF DOC
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey

THOMAS E. MOONEY, Chief of Staff-General Counsel
 Page 188       PREV PAGE       TOP OF DOC
JULIAN EPSTEIN, Minority Staff Director

Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas

ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina

KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel

C O N T E N T S

 Page 189       PREV PAGE       TOP OF DOC
HEARING DATE
    June 26, 1997

OPENING STATEMENT
    Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution

WITNESSES

    Blair, Anita K., General Counsel, Independent Women's Forum

    Campbell, Hon. Tom, a Representative in Congress from the State of California

    Cornelius, Michael, Vice President, Malcolm Drilling, Inc

    Fowler, Hon. Tillie K., a Representative in Congress from the State of Florida

    Heriot, Gail, Professor, University of San Diego School of Law

    Jackson Lee, Hon. Sheila, a Representative in Congress from the State of Texas

    Lamprecht, Jerome Thomas, President, Atlantic Coast Communications
 Page 190       PREV PAGE       TOP OF DOC

    Laverdy, Marina M., Executive Director, Latin American Management Association

    McConnell, Hon. Mitch, a Senator in Congress from the State of Kentucky

    Mink, Hon. Patsy, a Representative in Congress from the State of Hawaii

    Naraski, Karen, Executive Director, National Asian Pacific American Legal Consortium

    Norton, Eleanor Holmes, a Delegate in Congress from Washington, DC

    Pech, Randy, Adarand Construction, Inc.

    Prager, Susan Westerberg, Dean, UCLA School of Law

    Roukema, Hon. Marge, a Representative in Congress from the State of New Jersey

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Blair, Anita K., General Counsel, Independent Women's Forum: Prepared statement

 Page 191       PREV PAGE       TOP OF DOC
    Campbell, Hon. Tom, a Representative in Congress from the State of California: Prepared statement

    Cornelius, Michael, Vice President, Malcolm Drilling, Inc: Prepared statement

    Fowler, Hon. Tillie K., a Representative in Congress from the State of Florida: Prepared statement

    Heriot, Gail, Professor, University of San Diego School of Law: Prepared statement

    Lamprecht, Jerome Thomas, President, Atlantic Coast Communications: Prepared statement

    Laverdy, Marina M., Executive Director, Latin American Management Association: Prepared statement

    McConnell, Hon. Mitch, a Senator in Congress from the State of Kentucky: Prepared statement

    Mink, Hon. Patsy, a Representative in Congress from the State of Hawaii: Prepared statement

    Naraski, Karen, Executive Director, National Asian Pacific American Legal Consortium: Prepared statement
 Page 192       PREV PAGE       TOP OF DOC

    Norton, Eleanor Holmes, a Delegate in Congress from Washington, DC: Prepared statement

    Pech, Randy, Adarand Construction, Inc.: Prepared statement

    Prager, Susan Westerberg, Dean, UCLA School of Law: Prepared statement

    Roukema, Hon. Marge, a Representative in Congress from the State of New Jersey: Prepared statement

APPENDIX

    Material submitted for the hearing