SPEAKERS       CONTENTS       INSERTS    Tables

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58–802

2000
CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

JULY 17, 1998

Serial No. 140

Printed for the use of the Committee on the Judiciary

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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
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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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
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
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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

JOHN H. LADD, Acting Chief Counsel
ROBERT J. CORRY, Counsel
CATHLEEN CLEAVER, Counsel

C O N T E N T S

HEARING DATE
    July 17, 1998
OPENING STATEMENT

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

WITNESSES
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    Bolick, Clint, Vice President and Director of Litigation, Institute for Justice

    Devine, Donald, Former Director, U.S. Office of Personnel Management

    Flick, Wayne S., Attorney, Latham & Watkins

    Keenan, Kim M., Attorney, Fair Employment Council of Greater Washington

    Lee, Bill Lann, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice

    Smith, Shanna L., Executive Director, National Fair Housing Alliance

    Sullivan, John, Associate Director, Project on Civil Rights and Public Contracts, University of Maryland

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Bolick, Clint, Vice President and Director of Litigation, Institute for Justice: Prepared statement

    Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution: Prepared statement
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    Devine, Donald, Former Director, U.S. Office of Personnel Management: Prepared statement

    Flick, Wayne S., Attorney, Latham & Watkins: Prepared statement

    Keenan, Kim M., Attorney, Fair Employment Council of Greater Washington: Prepared statement

    Lee, Bill Lann, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice: Prepared statement

    Smith, Shanna L., Executive Director, National Fair Housing Alliance: Prepared statement

    Sullivan, John, Associate Director, Project on Civil Rights and Public Contracts, University of Maryland: Prepared statement

CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE

FRIDAY, JULY 17, 1998

House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
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Washington, DC.

    The subcommittee met, pursuant to call, at 9:37 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.

    Present: Representatives Charles T. Canady, Henry J. Hyde, Bob Inglis, Ed Bryant, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, John Conyers, Jr., and Melvin L. Watt.

    Also Present: Representative Sheila Jackson Lee.

    Staff Present: John Ladd, Acting Chief Counsel; Robert Corry, Counsel; Cathleen Cleaver, Counsel; Susana Gutierrez, Clerk; and Brian Woolfolk, Minority Counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

    Mr. CANADY. The subcommittee will be in order.

    This morning we convene to conduct oversight of the United States Department of Justice Civil Rights Division.

    The Civil Rights Division is the principal Federal authority charged with the essential mission of enforcing the Nation's civil rights laws. The mission of the Division to protect the rights of Americans and to combat discrimination is important to all Americans.
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    Over 30 years ago, the U.S. Supreme Court decided the case of Adarand v. Pena, holding that Federal race preference programs are subject to the strictest judicial scrutiny and are presumptively unconstitutional. The same Department of Justice that had lost Adarand then coordinated the executive branch-wide post-Adarand Task Force, which purported to be established for the purpose of amending affirmatve action and Federal preferences. On June 30, 1998, the Administration issued new regulations that claimed to modify and correct the system of contracting preferences utilized by the Federal Government.

    New regulations allow minority-owned firms to bid up to 10 percent higher than the lowest qualified bidder and still win the Federal contract. Unlike many existing Federal contracting preference programs, this bid preference is not extended to women-owned businesses, but only to those that are minority-owned.

    The new regulations continue the presumption that members of the following groups are socially disadvantaged and are thus eligible to receive the preference, and I will read this list: Black Americans; Hispanic Americans; Native Americans (American Indians, Eskimos, Aleuts and Native Hawaiians); Asian Pacific Americans, that is persons with origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, and China (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands, Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga, Kiribati, Tuvalu or Anaru; subcontinent of Asian—Subcontinent Asian Americans, that is persons with origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, and the Maldives Islands or Nepal; and members of other groups designated from time to time by SBA.
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    Now a list of this nature, in my view, has no place in the operation of the Government of the United States of America. The Federal Government anticipates that some men and women may misrepresent their racial status to get on the preferred list for preferential treatment. Accordingly, the new regulations which have been issued provide that any person who does so is subject to a fine of not more than $500,000 or imprisonment for not more than 10 years or both for the crime of being of the wrong race. This should give pause to all Americans. Is this the kind of policy we want the Federal Government to enforce?

    The Department of Justice is designated as the lead enforcement agency to ensure that it pursues to the extent permitted by law all persons who inaccurately evaluate their own race. In scrutinizing the race of individuals, Federal agents will examine a wide array of factors, including skin color, eye color and hair color.

    Those who support governmental race preferences might respond that a severe penalty of 10 years in prison is necessary to remedy past discrimination. Whatever the merits of this assertion, I will leave you to judge that. These regulations by their own terms are not designed to remedy any past discrimination. There is no finding of past discrimination by either Federal Government officials or private actors within the regulations, nor in any of the supporting documents. The regulations have nothing to do with remedying discrimination, but instead are justified solely as outright balancing in industries that perform Federal contracting, that is outright racial balancing in such industries. This is discrimination for the sake of proportional representation, and it is wrong.

    Now at this hearing we also expect to discuss President Clinton's new Executive Order adding sexual orientation to the list of protected classes entitled to affirmative action and Federal employment. President Clinton's order amends the Executive Order issued by President Nixon in 1969 and requires a continuing affirmative action program of each executive department and agency on the basis of sexual orientation.
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    President Clinton's recent order was issued with a minimum of congressional and public participation. The Department of Justice reviewed the Executive Order for form and legality prior to its issuance. This order may have a significant impact on the operation and management of the Federal Government and the enforcement of existing civil rights laws, and I look forward to examining its justification and ramifications at this hearing.

    The Justice Department employs a continuing national strategy of pressuring local governments under threat of litigation to enter consent decrees requiring race-conscious hiring. One example of the Department's conduct is the case of United States v. City of Torrance, which we have considered at earlier hearings of this subcommittee. Now in this case, the Department's discrimination claims were found to be meritless by both the trial and appellate courts. On April 13, 1998, the district court awarded almost $1.8 million in sanctions against the Department, meaning the Department's case was either frivolous, unreasonable or without foundation.

    Now, the Department's efforts in this area caused local communities to be denied the protection of the best law enforcement officers on the streets because they are unable to test for the abilities most important to good police officers, and they must spend scarce resources to defend against frivolous lawsuits by the Department.

    As our Nation approaches the 21st century, we are confronted by a Federal Government that persists in treating people differently on the basis of their skin color. Unfortunately, these policies send a message from the government to the American people that we should judge one another on the basis of race. That is exactly the wrong message for this government to be sending.
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    [The prepared statement of Mr. Canady follows:]

PREPARED STATEMENT OF HON. CHARLES T. CANADY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

    The Subcommittee will come to order. We convene today to conduct oversight of the United States Department of Justice Civil Rights Division. The Civil Rights Division is the principal federal authority charged with the essential mission of enforcing the Nation's civil rights laws. The mission of the Division to protect the rights of Americans and to combat discrimination is important to all Americans.

    Over three years ago, the U.S. Supreme Court decided Adarand v. Pena, holding that federal race preference programs are subject to the strictest judicial scrutiny and are presumptively unconstitutional. The same Department of Justice that had lost Adarand then coordinated the executive branch-wide ''Post-Adarand Task Force,'' which purported to ''mend'' federal preferences. On June 30, 1998, the Administration issued new regulations that claim to modify and correct the system of contracting preferences in the federal government.

    The new regulations allow minority-owned firms to bid up to 10% higher than the lowest qualified bidder and still win federal contracts. Unlike many existing federal contracting preference programs, this bid preference is not extended to women-owned businesses, but only those that are minority-owned. The new regulations continue the presumption that members of the following groups are ''socially disadvantaged,'' and are thus eligible to receive the preference:
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Black Americans; Hispanic Americans; Native Americans (American Indians, Eskimos, Aleuts, or Native Hawaiians); Asian Pacific Americans (persons with origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China, (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga, Kiribati, Tuvalu, or Nauru); Subcontinent Asian Americans (persons with origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands or Nepal); and members of other groups designated from time to time by SBA

    A list of this nature has no place in the operations of the government of the United States of America. The federal government anticipates that some men and women may misrepresent their racial ''status'' to get on the preferred list. Accordingly, the new regulations provide that any person who does so is subject to a fine of not more than $500,000 or imprisonment for not more than 10 years, or both, for the ''crime'' of being the wrong race! This should give pause to all Americans. Is this the kind of policy we want the federal government to enforce?

    The Department of Justice is designated as the lead enforcement agency to ''ensure that it pursues to the extent permitted by law'' all persons who inaccurately evaluate their own race. In scrutinizing the race of individuals, federal agents will examine a wide array of factors, including skin color, eye color, and hair color.

    Those who support governmental race preferences might respond that a severe penalty of 10 years in prison is necessary to ''remedy past discrimination.'' Whatever the merits of this assertion, these regulations, by their own terms, are not designed to remedy any past discrimination. There is no finding of past discrimination by either federal government officials or private actors within the regulations—nor in any supporting document. The regulations have nothing to do with remedying discrimination but instead are justified solely as outright racial balancing in industries that perform federal contracting. This is discrimination for the sake of proportional representation, and it is wrong.
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    At this hearing we also expect to discuss President Clinton's new Executive Order adding ''sexual orientation'' to the list of protected classes entitled to affirmative action in federal employment. President Clinton's order amends an Executive Order issued by President Nixon in 1969, thus requiring a ''continuing affirmative program in each executive department and agency'' on the basis of ''sexual orientation.''

    President Clinton's recent order was issued with a minimum of Congressional and public participation. The Department of Justice reviewed the Executive Order for form and legality prior to its issuance. This order may have a significant impact on the operation and management of the federal government and the enforcement of existing civil rights laws. I look forward to examining its justification and ramifications at this hearing.

    The Justice Department employs a continuing national strategy of pressuring local governments under threat of litigation to enter consent decrees requiring race-conscious hiring. One example of the Department's conduct is the case of United States v. City of Torrance, in which the Department's discrimination claims were found meritless by both the trial and appellate courts. On April 13, 1998, the District Court awarded almost $1.8 million in sanctions against the Department, meaning that the Department's case was either ''frivolous, unreasonable, or without foundation.''

    The Department's efforts in this area cause local communities to be denied the protection of the best police officers on the street because they are unable to test for the abilities most important to good police officers, and they must spend scarce resources to defend against frivolous lawsuits filed by the Department.
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    As our Nation approaches the 21st Century, we are confronted by a federal government that persists in treating people differently on the basis of their skin color. Unfortunately, these policies send a message from the government to the American people that we should judge one another on the basis of race. That's exactly the wrong message for the government to send.

    Mr. CANADY. Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman. I would like to take this opportunity to formally welcome again Bill Lann Lee to the Subcommittee on the Constitution. Unfortunately, he still hasn't been confirmed as Assistant Attorney General for Civil Rights, and we hope that that process is moving along.

    Mr. Chairman, I would like to say that we look forward to establishing a strong and productive partnership in developing ways in which we can effectively ensure that all Americans are treated with respect and dignity. Bill Lann Lee's challenge is great; his work is cut out for him. We know that discrimination is still rampant, and government still has a moral obligation to remedy that discrimination. The Justice Department's Civil Rights Division is the primary institution charged with engaging this very important task.

    A recent study, Mr. Chairman, conducted by the Fair Housing Council found that minorities are discriminated against 40 percent of the time they attempt to rent an apartment. A similar study conducted by the employment testers for the Fair Employment Council and Urban Institute has revealed that African and Latino job applicants suffer blatant and easily identifiable discrimination 1 out of every 5 times they apply for a job.
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    In addition, women still make only 70 cents for every dollar made by men in the same professions. Individuals with disabilities continue to face open, obvious and extensive discrimination. Police brutality, selective prosecution and racial profiling remain institutions in our system of justice. The list goes on.

    The present state of the law, Mr. Chairman, requires remedies to be narrowly tailored to proof in cases of discrimination, but we have to differentiate when we use the word ''preference'' between what most people think of preference and what, in most of these cases, is a requirement that people stop discriminating. That is not a preference. Accountability, when people have been caught discriminating, making them treat people fairly is not a preference.

    We need the continued leadership of the Department of Justice and the Civil Rights Division, and I look forward to working with Bill Lann Lee and others as we try to meet these challenges.

    Thank you, Mr. Chairman.

    Mr. CANADY. Are there other Members wishing to make an opening statement?

    Mr. Watt.

    Mr. WATT. Thank you, Mr. Chairman.

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    I guess I appreciate the subcommittee having this oversight hearing. I suppose that I have to wait until it is over to determine whether it is serving some constructive purpose or continuing to serve the purposes of our chairman. The American public will probably be able to see the divide in our country just by listening to the opening statements of our chairman and listening to the opening statement of our ranking member on this committee. It is like day and night, black and white, ne'er the twain shall meet. And I doubt that the American public is as divided on these important issues of civil rights as this committee may appear to be. If the American public is that divided, then our Nation is in one heck of a mess, I would say.

    And we are not helping matters, Mr. Chairman, by continuing this pattern of having hearings designed to beat up on the people who are charged with the responsibility of enforcing our civil rights laws. We are not helping the cause, in my opinion. We may be playing out the agenda of the chairman of this subcommittee in serving some sinister purpose that he may have or serving the purpose of getting him reelected in his district if his district feels this way, but we are not advancing the cause of civil rights in this country.

    Time after time, over the 2 years that this committee, subcommittee, has been chaired by this chairman, we have continuously had hearings designed to undermine the civil rights of people in this country. An anti-affirmative-action hearing in April 1995; an anti-affirmative-action hearing in June 1995; an anti-school-desegregation hearing in September 1995; an anti-affirmative-action hearing in September 1995; an anti-affirmative-action hearing in October 1995; an anti-affirmative-action hearing in October 1995; an anti-affirmative-action hearing in December 1995; an anti-school-desegregation hearing in April 1996; an anti-Voting-Rights-Act hearing in April 1996; an anti-fair-housing hearing in April 1997; an anti-affirmative-action hearing in June 1997. And if this one turns out to be another one of those anti-civil-rights hearings, it will be 12 to nothing, 12 to nothing in our efforts to address the issues of civil rights in this subcommittee, who has primary responsibility for it in this Congress.
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    So why are we surprised that the American public thinks that there is a divide and is picking up on this? We are helping to cause the divide on these issues. We are not solving anything. So here we go again. Hopefully something constructive will come out of this hearing today, but if so, I will be very surprised.

    But I am sure my chairman will take every opportunity he can to beat up on the agency who has primary responsibility for enforcing the civil rights laws of this country. And I hope that whatever agenda he has in doing that serves him well. I hope that at some point he will look at whether it is serving the purposes of our country well also.

    I yield back, Mr. Chairman.

    Mr. CANADY. The gentleman from Arkansas is recognized.

    Mr. HUTCHINSON. I thank the Chair, and I just wanted to say a couple of words concerning this hearing. As a new Member of this body, I look at this subject of civil rights as being one of the most important issues in the country. And I look at the Civil Rights Division, as a former United States attorney, as a division of the Department of Justice as critically important to the enforcement of our laws dealing with that important issue of civil rights.

    But I came to Congress and I think we have a responsibility to ask tough questions. I don't think we come here as an idle participant, but an active participant in setting the policy for our country, and I look at this hearing not as pro or con, but as an appropriate role of Congress in oversight. And so I am delighted for this opportunity.
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    I am not approaching this as ''anti'' anything, but as wanting an opportunity to ask what I hope will be tough questions because that is the role that we play. And there are many, many good things that the Civil Rights Division does, and I am sure those will be brought out today, and I look forward to hearing the testimony, Mr. Lee.

    But at the same time, there is some confusion out there, and there is some direction, hopefully, that this body can give that will be helpful, and perhaps some good answers for some tough questions that we hope to present today. So I am grateful for this hearing. I think it is appropriate to the oversight role, and I look forward to Mr. Lee's testimony.

    Mr. WATT. Would the gentleman be kind enough to yield?

    Mr. HUTCHINSON. If that is appropriate during an opening statement, I would be happy to.

    Mr. WATT. I appreciate the gentleman yielding.

    The question I am asking is when are we going to ask some tough questions about the rampant discrimination that exists in this country, rather than how to undermine it? That is the question I am asking, and if we ask those tough questions today, then I will be happy.

    Mr. HUTCHINSON. Reclaiming the time, I would expect you to ask those questions.

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    Mr. WATT. Why do I have to ask them?

    Mr. HUTCHINSON. Well, I hope we would all ask those questions.

    I would note that in the opening statement which I read from Mr. Lee, there was a reference to a case in Arkansas, an enforcement case on a racial discrimination, and it might be—I know that he is testifying as to something that happens in my district, and I look forward to that, and I am sure there might be some cases in other parts of the country that will be addressed, some positive things that the agency is doing, and so, Mr. Chairman, I thank you, and I yield back.

    Mr. CANADY. The gentleman from Illinois.

    Chairman HYDE. Thank you, Mr. Chairman, and I yield such time as I have to the chairman.

    Mr. CANADY. Thank you, Mr. Chairman.

    I want to respond briefly to Mr. Watt's comments concerning this hearing and the activities of the subcommittee. This hearing is not to beat up on anybody, I want to make that very clear. I think it is also clear and should be clear that we have some fundamental differences with the policy of the administration. We have tried to outline those in these hearings, and all of us recognize that the Department, through the Civil Rights Division, does important work for the American people, for all the American people. We just want to make certain that we are doing what we can to ensure that that work is carried on most effectively, and in a way that is consistent with the principles of the American people.
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    And the problem that we have is that this Department, at least in some instances, is pursuing policies that actually divide the people of America on the basis of race. The Department is pursuing policies that are designed to give a benefit to some people because of their race and to deny other people a benefit because of their race. I believe that that sort of policy is inconsistent with what the American people want, and I think it is inconsistent with what is good for all Americans. I believe it is harmful even to those people it is designed to benefit, because as I said earlier, it sends a message from our government to the American people that we should judge one another as Americans on the basis of skin color or other irrelevant characteristics.

    I think if our history as Americans teaches us anything, it teaches us that any classification based on a race is inherently harmful, it is inherently pernicious, and it is something we should not pursue. Now I feel very strongly that that is the case. I know that there are those who disagree, and I can respect the fact that there are people who have reached a different conclusion about that, who believe that classifying people on the basis of race can be used to serve a good purpose, but I think that they are mistaken, and that is one of the issues that we will hear about at this hearing. We have heard about it at other hearings, but that is an issue that is not going to go away because the American people basically are opposed to the system of classifying people on the basis of race. They believe we should treat people at individuals, and that is what the chairman of this subcommittee is advocating, and I believe that that is what the policy of this government should be, and I am sorry you don't agree.

    Mr. WATT. Would the chairman yield?

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    Mr. CANADY. Hopefully one day we will all be able to reach agreement on the principle.

    I will be happy to yield to the gentleman. Well, it is not my time.

    Chairman HYDE. I would be happy to yield to the gentleman.

    Mr. WATT. I thank the chairman for yielding.

    I think the chairman is missing my point. I think the point I am making is that this committee's inquiries have been so overwhelmingly disproportionately directed at the chairman's agenda, which is right, I mean, he is the chairman of the committee, and he sets the agenda of this committee, but if the objective of this committee is to further the interest of civil rights and respect for those rights by the people of America, we owe an obligation to the people to hear all sides and not just pursue an agenda that the chairman has to undermine civil rights.

    Mr. CANADY. Does the gentleman ask for more time?

    Mr. WATT. The point I am making is if you look at the hearings that this subcommittee has conducted under your leadership, they are just disproportionately on your side of the issue, and you are not giving any opportunity for people to have any rational discussions of these issues.

    Chairman HYDE. Reclaiming my time, I don't believe the gentleman had the pleasure of serving on this subcommittee when Mr. Edwards was the chairman, as I did.
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    Mr. WATT. Are we getting ready to get the two wrongs make a right?

    Chairman HYDE. Oh, yes, we are.

    Mr. WATT. Go ahead. I thought I was headed in that direction.

    Chairman HYDE. You have pegged that right on the button. Now just a minute. You have had your say.

    I served for years on the Edwards subcommittee and enjoyed every minute of it, but I can assure you, my agenda was nowhere ever to be seen or heard. So tradition is something that has been established, and precedent, and you should not be shocked or dismayed at the fact that you are not in the Majority this time. Now there is going to be an election in November, and you may sweep in again, and then we will never be heard from again.

    Mr. WATT. I assure you, if that happens, I am likely to be the chairman of this subcommittee, and I assure you, we will hear both sides of it at that point.

    Chairman HYDE. You will be very influential, I am sure.

    Mr. CANADY. Your time has expired, Mr. Chairman.

    Chairman HYDE. I ask unanimous consent for another 2 minutes.
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    Mr. CANADY. I think the gentleman from—Mr. Bryant wants to be recognized.

    Chairman HYDE. I thought you had something more to say.

    Mr. CANADY. I am hoping Mr. Bryant will yield a little time to me.

    Chairman HYDE. Mr. Bryant.

    Mr. BRYANT. Thank you, Mr. Chairman.

    We have a very distinguished panel here today, and I look forward to hearing from them and having the complete and full examination of their statements as well as our examination, which I would hope would bring out all sides of this issue. We are a diverse group of Members of the House, and we bring different backgrounds, different educations, different philosophies. We come from different regions, and we have different solutions to what we see as the problems in America. And while we would hope that we can reach agreement, there are times we are not going to reach an agreement on things.

    We are a diverse country, and we could probably sit here and argue about this among ourselves for a long time today, but I would encourage us as honorable people, which we all are, to move forward and let us get to the work at hand. These are very outstanding people, and I certainly would be happy to yield to our distinguished chairman.
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    Mr. CANADY. I appreciate that, Mr. Bryant, and I agree with your sentiments entirely, and I think it is important that we move forward now to let Mr. Lee have an opportunity to present his testimony.

    I do want to point out, however, that in conducting all the hearings at this subcommittee, it has always been my objective to work with the Democratic members to have a presentation that is balanced. We invite witnesses at the request of the Democratic members, and I think that is important. I think it is important for all the members of the subcommittee to hear from people that we don't agree with. I think it is important for us to hear those different perspectives, because I think we can learn things from one another. We can learn from those that we do disagree with, and that has always been my approach as chairman of the subcommittee, and I think the Ranking Member of the subcommittee knows that it is my desire to work with him in bringing witnesses forward who can address the full range of opinion on the matters that are within the jurisdiction of this subcommittee.

    And if the gentleman from North Carolina is ever concerned we are not having witnesses at the hearings that represent the viewpoint that he thinks should be represented, please let me know, and I will be happy to work with the gentleman from North Carolina. But I think the record will reflect that we have had witnesses that reflect diverse viewpoints and represent the views of the Democratic members.

    Mr. WATT. Will the gentleman yield?

    Mr. BRYANT. I would hope that we will get to the panel. I certainly will be happy to yield.
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    Mr. WATT. I just would like to say, I am perfectly content to let this audience draw its own conclusions at the end of the day of how representative these panels will be.

    Mr. SCOTT. Will the gentleman yield?

    Mr. BRYANT. Certainly.

    Mr. SCOTT. I wasn't going to get into it until the chairman invoked the Ranking Member. I think the tradition in Congress, as the Chairman of the Full Committee has indicated, is when you talk about balance, that is within the tradition of Congress, which is usually at least 3 to 1 against the Minority is considered balanced. And I think this committee is balanced in that context, but I think that to suggest that it is balanced in the—in what the national audience may think about balance, you think about 1 to 1, not 3 or 4 to 1.

    And we also make note of the list that the gentleman from North Carolina raised, when you have the subject matter aimed in one direction, it is awkward and impossible to have witnesses that want to go forward with an agenda to actually enforce civil rights. I think we have, when you talk about not treating people—not considering people's race, when you have racial problems, maybe we can hear from the witnesses to hear how you address notorious, open racial discrimination without a remedy that recognizes people's races.

    I yield back. I thank the gentleman for yielding.
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    Mr. BRYANT. I would yield back the balance of my time.

    Mr. CANADY. I thank the gentleman.

    We will now go to our first panel, and our first panel this morning, Mr. Lee, if you would come forward. On our first panel this morning, the subcommittee will hear from the Honorable Bill Lann Lee, Acting Assistant Attorney General for Civil Rights at the U.S. Department of Justice.

    Mr. Lee, we want to thank you for being with us this morning. I would ask that you do your best to summarize your testimony in 10 minutes, if that is sufficient. If it is not, I don't think anyone is going to insist on strict adherence to the 10-minute limit. Of course, your full written statement will be made a part of the permanent hearing record. We appreciate your attendance, and I look forward to hearing your testimony.

STATEMENT OF BILL LANN LEE, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. LEE. Thank you, Mr. Chairman.

    Mr. Chairman, members of the subcommittee, thank you for the opportunity to appear before you today. I am pleased to discuss the important work of the Civil Rights Division in enforcing this Nation's civil rights laws—civil rights laws which were enacted by Congress, many of which originated in this committee.
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    Thank you for making my written statement a part of the hearing record.

    I last appeared before the subcommittee in February, and I am honored to appear once again. The record since then has shown that the Civil Rights Division continues to perform its important and fundamental job of law enforcement, enforcing the laws enacted by Congress. Virtually all of the Division's work is nuts-and-bolts law enforcement.

    Let me give you a flavor of what we have done since February. The Division obtained indictments of suspects in south Florida for luring Mexican women and girls as young as the age of 14 to the United States and forcing them to work as prostitutes. Young women who refused to work or attempted to leave were beaten. One woman who tried to escape was locked in a closet for 2 weeks. Others who became pregnant were forced to have abortions.

    The Division obtained convictions against seven defendants stemming from a campaign of terror directed at an African woman, designed to force her out of her home in a predominately white south Philadelphia neighborhood.

    The Division won a case in Arkansas in which a jury found that an apartment building owner and his rental agents had refused to rent apartments to African Americans based solely on their race.

    The Division settled a case in Georgia to improve overcrowding, mental health care, medical care, detention alternatives, education and quality assurance in the State's juvenile facilities.
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    The Division settled a complaint against Carmike Cinemas, one of the largest theater chains in the country. Carmike had agreed to make its entrances, restrooms, ticket windows and parking lots accessible and to improve its wheelchair seating in Des Moines, Iowa.

    The Division settled a sexual harassment case involving a teacher with the Florida Correctional School Authority who was retaliated against and terminated for rejecting her supervisor's sexual advances.

    As I testified in February, I have emphasized three enforcement priorities: hate crimes, housing and lending discrimination, and enforcement of the Americans with Disabilities Act. I would like to touch briefly on each area.

    Fighting hate crimes is one of the highest priorities of the Department of Justice. The recent tragic death of James Byrd, Jr., in Jasper, Texas, points out how important this fight is. Late last month I met in Texas with the Jasper district attorney and the United States Attorney for the Eastern District of Texas to help coordinate the law enforcement response to this heinous crime and to ensure that local officials are receiving the full support of the Civil Rights Division.

    I understand that the committee will hold hearings next week on H.R. 3081, the Hate Crimes Prevention Act, and I commend the committee for doing so. I hope that you will be persuaded by the testimony of the pressing need for this law. It will make absolutely clear that Federal jurisdiction would be available to address horrendous hate crimes like the one in Jasper. If enacted, Federal prosecutors would no longer be constrained by unnecessarily restrictive jurisdictional requirements to address serious hate crimes. Federal officals would be able to provide additional assistance to State and local law enforcement agencies. The bill would also provide needed protections against hate crimes for individuals currently not covered.
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    Let me highlight another initiative of our criminal law enforcement, our Worker Exploitation Task Force. The Florida indictment of the defendants who were charged with luring Mexican women and girls to the United States and enslaving them in a prostitution ring is but the latest example of this problem. A few years ago, Thai workers were enslaved in an El Monte, California, sweatshop, and the Civil Rights Division obtained convictions for that crime. We have found other equally troubling situations, such as 60 deaf Mexican nationals who were forced to work in New York selling worthless trinkets and imprisoned, some for over 3 years.

    Who would have predicted that slavery would exist in America as we approach the next century? But in fact it does. To address these problems better, we started our Worker Exploitation Task Force, which I cochair, to coordinate enforcement of civil rights and labor laws against worker exploitation and modern-day slavery.

    We are pulling together the resources of the Justice Department and of the Labor Department along with investigative strength of the FBI to go after this problem. We must move the problem of involuntary servitude from the newspapers to the history books.

    Combating discrimination in housing and lending is another enforcement priority. We have continued to bring housing discrimination cases, including a number of cases based on blatant, intentional discrimination uncovered by our fair housing testing program. We have had victories in the two largest cities in Alabama against some of the largest housing providers in the State. We have settled a number of cases that improved access for persons with disabilities in multifamily housing. Our companion work, promoting fair lending practices, continues to make a difference.
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    Finally, enforcing the Americans with Disabilities Act is a high enforcement priority. As envisioned by Congress, we have been providing extensive education to let people know their rights and responsibilities under the ADA. In this way we can address problems before they happen. We intend to keep up our technical assistance efforts because they benefit all of us.

    In May, I traveled to Florida to meet with Governor Lawton Chiles and to announce we had certified Florida's building code as complying with the ADA. Florida now joins the states of Maine, Texas, and Washington in having ADA-approved building codes.

    I am a big fan of code certification because knowing and following the standards up front allows people to comply with the ADA. More importantly, it expands opportunities for persons with disabilities. I have written to the Governors of the other States, urging them to seek certification of their building codes.

    We also plan to emphasize enforcement efforts through a combination of mediation and litigation to fulfill the grand promise of the ADA. I am especially proud of our settlement with the National Collegiate Athletic Association, the NCAA, that now allows athletes with dyslexia and other learning disabilities to have a fair chance to participate in college athletics. The president of the NCAA praised the agreement as a model exercise in Federal/private cooperation. I agree with him that the real winners in this case are this group of student athletes.

    The Florida building code certification and the NCAA case reflect my philosophy that litigation should be a matter of last resort. I have prided myself on reaching settlements that benefit both the parties and the public interest.
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    I believe remedies must remain in place until the problem is solved, but no longer. In the past year, the Division has sought actively to modify or terminate a number of decrees in which court-ordered relief has achieved its goal and was no longer necessary. For example, we resolved a long-standing desegregation case involving a number of school districts in Indianapolis, Indiana. We will phase out the use of interdistrict student transportation and create a program to promote housing desegregation and to provide housing opportunities.

    And in early June, we ended an 8-year-old case challenging the unconstitutional conditions at the Northern Virginia Training Center for the mentally retarded. The conditions at the center have been improved sufficiently to remedy the violation.

    Let me conclude by emphasizing again why the law enforcement mission of the Civil Rights Division is important. In giving the Civil Rights Division jurisdiction to enforce our civil rights laws, Congress emphasized that exclusion and discrimination are barriers to too many of our people. Exclusion and discrimination based on race, color, religion, sex, national origin, citizenship status, disability, or other irrelevant characteristics remains a compelling problem that continues to vex our Nation. Time and again we are reminded that America is not the land of opportunity for scores of people who are victims of discrimination and exclusion.

    Complaints of discrimination and unfairness continue. Our criminal section alone each year receives over 10,000 complaints of police misconduct, racial and religious violence, church arson and involuntary servitude.

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    Last year, our ADA hot line talked with over 15,000 people with disabilities about problems of disability-based discrimination. Our colleagues at other civil rights agencies have even starker numbers. The Equal Employment Opportunity Commission received over 80,000 complaints of employment discrimination last year. The Department of Housing and Urban Development received over 6,100 claims of housing discrimination in 1997. State and local fair housing enforcement agencies reported at least that many.

    As I testified in February, right here in the Washington metropolitan area, a private fair housing organization reported that black applicants encountered housing discrimination 44 percent of the time in their search for rental housing, and Hispanics encountered discrimination 37 percent of the time. Our fair housing tester program has found similar graphic cases of intentional discrimination around the Nation.

    Mr. Chairman, we want to work with Congress and with State and local governments throughout the Nation to enforce our civil rights laws, to eliminate discrimination and exclusion, and to move closer to the American ideals of fairness, opportunity, and justice for all. I would be happy to answer any questions the subcommittee may have about our work.

    Mr. CANADY. Thank you, Mr. Lee.

    [The prepared statement of Mr. Lee follows:]

PREPARED STATEMENT OF BILL LANN LEE, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

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    Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to appear before you today. I am pleased to discuss the important work of the Civil Rights Division.

    I last appeared before the Subcommittee in February and am honored to appear once again. I think the record of the past five months has shown that the Civil Rights Division is continuing to perform its important and fundamental job of law enforcement—enforcing the law as enacted by the Congress. I'd like to review briefly our record under my tenure as Acting Assistant Attorney General, so you can see what we have accomplished recently.

    In the short time I have had the privilege to serve as Acting Assistant Attorney General, I have seen cases of injustice and unfairness that are being addressed by the Civil Rights Division. Virtually all of the Division's work is nuts-and-bolts law enforcement. Let me give you a flavor of what we have done since we last met in February:

  The Division indicted suspects in Florida for luring Mexican women and girls as young as 14 to the United States and forcing them to work as prostitutes in Florida and other states. If the young women refused to work or attempted to leave, they were beaten. One woman who tried to escape was locked in a closet for 2 weeks. Others who became pregnant were forced to have abortions.

  The Division settled a case in Georgia to improve overcrowding, mental health care, medical care, detention alternatives, education, and quality assurance in the state's juvenile facilities.The Division won a case in Arkansas in which a jury found that an apartment building owner and his rental agents had refused to rent apartments to African Americans based solely on their race.
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  The Division settled a complaint made against Carmike Cinemas, one of the largest theatre chains in the country, with more than 510 theaters and more than 2,700 movie screens in 36 states. Carmike has agreed to resolve a complaint from Des Moines, Iowa, which alleged that the Carmike theaters in Des Moines violated the Americans with Disabilities Act by having inaccessible entrances, restrooms, ticket windows and parking lots, as well as inadequate wheelchair seating.

  The Division settled a sexual discrimination lawsuit by a teacher for the Florida Correctional School Authority who was retaliated against and terminated for rejecting her supervisor's sexual advances.

    As you know, the Division's funding has remained virtually flat since 1995. Yet our enforcement responsibilities have expanded substantially. In the past few years, we have been tasked by Congress to investigate and prosecute church arsons, protect those who seek access to reproductive health care facilities, redress patterns of police misconduct, and enforce the motor voter law.

    In 1999, we are asking for an increase of approximately $7 million. This increase is focused on enhancing important programs within the Division—programs such as fighting crime, improving enforcement of our disabilities laws, and coordinating federal civil rights programs. The House Appropriations Subcommittee indicates it will support flat funding plus an enhancement for our ADA enforcement. I hope the Subcommittee will support us in maintaining a budget that will enable the Division to effectively address the problems confronting us.

    Although all of the Division's work is critically important, as I testified in February, I have emphasized three priorities: hate crimes, housing and lending discrimination, and enforcement of the Americans with Disabilities Act. I'd like to tell you a little something about each.
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    First, fighting hate crimes is one of the highest priorities of the Department of Justice. The recent events in Jasper, Texas, point out how important this fight is. Late last month I met in Texas with the Jasper District Attorney and the United States Attorney for the Eastern District of Texas, to help coordinate the federal response to this heinous crime and to ensure that officials were receiving the full support of the Civil Rights Division.

    I understand that the Committee will hold hearings on H.R. 3081 next week, and I commend the Committee for doing so. I hope that you will be persuaded of the compelling need for this law. Enactment of this law would make absolutely clear that federal jurisdiction would be available to address horrendous hate crimes, like the tragic death of James Byrd, Jr., in Jasper, Texas. If enacted, Federal prosecutors would no longer have to search for a federally protected activity as a basis for jurisdiction to address serious hate crimes. The bill would also expand the categories for hate crimes to reach individuals currently at risk.

    I co-chair the National Church Arson Task Force, which coordinates the federal response to arson at America's houses of worship. In the last Congress, every member of this Committee supported important legislation to help us combat church arsons. More than 500 church burnings have been investigated, involving churches of many faiths and affecting people of all races. While some of these investigations lead to findings of a hate crime, we all recognize that whatever the motive, the burning of a house of worship offends the most fundamental ties that bind us together as a civil society, and that law enforcement must respond vigorously to these crimes.

    Additionally, I would like to highlight another initiative of our criminal law enforcement—our Worker Exploitation Task Force. The Florida indictment of the defendants who were charged with luring Mexican women and girls to the United States and enslaving them in a prostitution ring, is but the latest example of this problem. A few years ago Thai workers were enslaved in an El Monte sweatshop and the Civil Rights Division obtained convictions for that crime. We have found other equally troubling situations, such as 60 Mexican nationals who happened to be deaf, who were forced to work in New York selling worthless trinkets.
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    Who would have predicted that problems of modern day slavery would continue in America as we approach the next century. But in fact they do. In order to better address these problems, we started a Worker Exploitation Task Force, which I also co-chair, to coordinate enforcement of civil rights and labor laws against worker exploitation and modern day slavery. We are pulling together the resources of the Justice and Labor Departments, along with the investigative strength of the FBI, to go after this problem proactively. We must move the problem of involuntary servitude from the newspapers to the history books.

    Combating discrimination in housing and lending is another priority. We have continued to bring housing discrimination cases, including a number of cases based on results from our testing program. We have had victories in the two largest cities in Alabama, against some of the largest housing providers in the state. Our companion work promoting fair lending practices continues to make a difference.

    Finally, enforcing the Americans with Disabilities Act is a high priority. In May I traveled to Florida to meet with Governor Lawton Chiles, and to announce that we had certified Florida's building code as complying with the ADA. Florida now joins the states of Maine, Texas, and Washington in having an ADA approved building code. I am a big fan of code certification because knowing and following the standards up front allows people to comply with the ADA and, more importantly, it expands opportunities for persons with disabilities. We have written to the governors of the other states urging them seek certification of their building codes.

    As envisioned by Congress, we have been providing extensive education to let people know of their rights and responsibilities under the ADA. In this way, we can address problems before they happen. We intend to keep up our technical assistance efforts, because it benefits all of us.
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    We also plan to emphasize enforcement efforts through a combination of mediation and litigation to fulfill the promise of the ADA. I am especially proud of our settlement with the National Collegiate Athletic Association, the NCAA, that now allows athletes with learning disabilities to have a fair chance to participate in college athletics. The President of the NCAA praised the agreement as ''a model exercise in federal-private cooperation.'' I agree with him that the real winners are this group of student athletes.

    How we get the job done, is often as important as what we accomplish. Throughout my career, I have always believed it is better to resolve cases through conciliatory means whenever possible. The Florida building code certification and the NCAA case reflect my philosophy on how we should be enforcing civil rights laws. Litigation should be a matter of last resort. I've prided myself on reaching settlements that benefit both parties and the public interest. I believe in obtaining remedies that will effectively cure the discrimination.

    And those remedies must remain in place until the problem is solved—but no longer. It is important that court decrees last no longer than necessary to do the job. That is why in the past year the Division has sought actively to modify or terminate a number of decrees in which court-ordered relief had achieved its goal and was no longer necessary.

    For example, we just resolved a longstanding school desegregation case involving a number of school districts in Indianapolis, Indiana. We will phase out the use of inter-district busing and create a program to promote housing desegregation and to provide housing opportunities. And in early June, we ended an 8-year-old case challenging unconstitutional conditions at the Northern Virginia Training Center for the mentally retarded. The conditions at the center had been improved sufficiently to remedy the violation.
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    Finally, Mr. Chairman, I would like to address another issue that is of interest to the Subcommittee. The Division has continued to work with police and fire departments across the country to use fair selection devices that select qualified employees and do not result in unfair discrimination against minorities and women. The Department has challenged the employment tests used by local governments only when those tests have disparate impacts on minority and women applicants and are not related to good job performance. Such tests violate Title VII of the Civil Rights Act of 1964, as amended by Congress in 1991.

    Our work in this area is often misunderstood or mischaracterized. Employment tests often do not identify those applicants who are best qualified to perform the wide range of duties assigned to police and fire officials. A test that is truly job-related will consider not only an applicant's cognitive abilities, but also many other tangible and intangible factors, including leadership, motivation, honesty, judgment, reliability, attention to detail, emotional stability, openness, and maturity. Cognitive ability is one important factor, but it is only one of many. Police and fire departments should use employment tests that predict more accurately which applicants will perform best on the job. Many departments in fact have adopted improved tests, including the State of Louisiana and Nassau County, New York.

    We have an ongoing case against the City of Garland, Texas that challenges the City's use of employment tests. The Garland case also challenges a racially hostile work environment in its police and fire departments, including the routine use of racial slurs and an incident involving white firefighters who displayed a confederate flag and dressed in white sheets to taunt a black co-worker. Unfortunately, we have found in a number of cases that the use of exclusionary tests often goes hand-in-hand with overt discrimination.
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    I would be remiss if I did not emphasize why the Civil Rights Division is in business. As a longtime civil rights lawyer, I have seen the tremendous progress that has been made over the past 50 years, through legislation and through litigation. Together we are coming to an understanding that all persons in this country should be free from discrimination on the basis of race, color, religion, sex, national origin, disability, citizenship status, and other irrelevant characteristics. Many of the laws that provide these fundamental protections originated here in this Subcommittee, with bipartisan support and encouragement.

    Unfortunately, discrimination remains a compelling problem that continues to vex our nation. Time and time again we are reminded that America is not the land of opportunity for scores of people who are victims of discrimination. The number of compelling discrimination complaints and cases continue. Large numbers of complaints are filed each year with the Equal Employment Opportunity Commission alleging employment discrimination, and with the Department of Housing and Urban Development regarding housing discrimination. The number of hate crimes reported by the FBI have also increased, and are acknowledged to be an underreporting of the problem. The problems of discrimination show no sign of going away.

    Mr. Chairman, I am proud to report that the Civil Rights Division has had very productive months since the last time I appeared before the Subcommittee in late February. I have outlined for you the principles that guide our work, and the priorities we have developed in order to remedy the most serious civil rights violations in the most effective and efficient manner. Hand in hand with the Congress and with state and local governments throughout the country, we are moving closer to the ideals of fairness, opportunity and justice for all.

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    I would be happy to answer any questions members may have about our work.

    Mr. CANADY. Mr. Hyde.

    Chairman HYDE. I have no questions.

    Mr. CANADY. Mr. Bryant.

    Mr. BRYANT. Thank you, Mr. Lee, for your testimony and appearance today before this subcommittee. I have just a menu of questions, not all tied to the same issue, so I might be bouncing around just a little bit.

    In reviewing some of the regulations, I think they are fairly new regulations regarding our government and employment preferences where I understand they are there, and that in particular racial and ethnic groups under these regulations are considered presumptively socially disadvantaged. One that strikes me as a little bit, perhaps, out of hand is a net worth dollar amount that, as I understand, that individuals who are economically disadvantaged can be defined as having a net worth of less than $750,000, which does not include the value of any business or primary personal residence in order to continue to be eligible for the Federal—for this program. That is according to the Federal Register, June 30, 1998, page 35742.

    How can we realistically, with a straight face, have that type of level of qualification, $750,000, and still call someone socially disadvantaged or economically disadvantaged?
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    Mr. LEE. Well, Mr. Bryant, you have to understand the limited nature of what the Civil Rights Division does in this area. First let me say that when we talk about the groups that Congress has determined are presumptively eligible for assistance in this area to overcome the problem of contracting discrimination, that Congress itself has documented, we are merely following what Congress has told us to do.

    With respect to the details as to setting the various eligibility standards, that is something that is in the hands of the SBA and the Department of Commerce. Those are the departments that Congress has tasked with a job, and they are expert in this area because they have been running small business assistance programs for many years.

    So I can't tell you the exact reasons for setting particular dollar amounts, but I would be happy to look into it and get you further information about that, but I agree that when we have these programs, our job is to enforce the law, and we try to do so and have it consistent with the command of the Supreme Court, particularly in the Adarand case.

    Mr. BRYANT. Thank you.

    As I understand it, you have alluded to both Congress and SBA and other regulatory bodies, I understand that was actually developed by regulation and not by Congress, and you have alluded to the SBA, I think, as possibly one of the culprits in setting that dollar figure.

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    Let me ask you, regarding the Vacancies Act, I know this is an issue that comes up quite frequently, and we have had it, I know, in the limited time I have served in Congress, more so with the Department of Justice, and we understand that the Comptroller General and CRS, which is Congressional Research Service, both agree that the Vacancies Act does, in fact, apply to the Department of Justice, and we understand perhaps that the Department of Justice does not agree with us over that. There seems to be some confusion. Should Congress resolve this confusion by legislation, or should we just allow us to sort of remain in limboland, in terms of whether or not DOJ and the Vacancies Act come together?

    Mr. LEE. Well, Mr. Bryant, as you know, this issue is of some personal concern to me. My understanding, and I am not an expert in this area, but my understanding is we are not really in a limboland. We have a situation where there is a disagreement. The position of the Department of Justice, which has been adhered to for 70 years through both Republican and Democratic administrations, has been that the Vacancies Act doesn't apply to the Department of Justice because the Department of Justice has other more specific legislation that governs when the Attorney General can make temporary appointments to help her in the job of law enforcement.

    I understand that there is a difference of opinion, particularly with the CRS study, but as I say, it is an interpretation the Department of Justice has adhered to for a long time, and some of the most eloquent arguments that have been made on behalf of the Department of Justice's position have been made by then Assistant Attorney General Ted Olson and Attorney General William Barr. So by no means is it an insignificant position, it is a very strongly supported position.

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    Mr. BRYANT. If I might just add, I certainly, with all deference to you, was aware of your situation, but it has come up in other situations, too, as I alluded in my question, and I felt like you might be prepared to answer that, so that is why I did ask that question. I thank you for your answer.

    Mr. CANADY. The gentleman from North Carolina Mr. Scott is recognized—I am sorry, Mr. Watt. Wrong State.

    Mr. WATT. We are always accused of looking like each other. I don't mean people in general, I mean me and Mr. Scott. I didn't want people to misinterpret that.

    Mr. LEE. You are both very handsome.

    Mr. WATT. Mr. Lee, welcome back to the subcommittee, and I appreciate you being here and the work you are doing in your division of the Justice Department. You have been there now how long?

    Mr. LEE. I think it is about 7 or 8 months.

    Mr. WATT. Are you aware of anything that this Congress has done to help, in terms of new legislation, to help in the enforcement of civil rights laws, other than, I guess, the funding we always authorize; but is there anything that we have done during your tenure there that is serving the purpose of furthering the public's respect for civil rights?

    Mr. LEE. Well, as you may know, we have hearings next week on a bill that is pending that is before Congress, and I hope that—and that concerns making the hate crimes legislation a more effective weapon against that heinous crime, and I hope that at the end of this session, that this Congress will have enacted that. That will make, I think, a tremendous contribution to our law enforcement capacity.
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    Most of our work, as I testified earlier, is nuts and bolts law enforcement. With respect to affirmative action issues and contracting issues and things of that kind, we actually devote very little of our time on that. But I would like to point out that Congress, in reauthorizing the ISTEA legislation, that is the Intermodal Surface Transportation Act, did see fit to include an affirmative action contracting provision in that program, and that is consistent with the past position of Congress in enacting these programs, and we are in the position as a law enforcement agency of trying to implement the role of Congress and at the same time try to abide by Supreme Court decisions.

    Something happened last night, which I think I would like to point out, which I think is making a major contribution. Last night the Senate approved a rider to an appropriations act concerning a statute of limitations issue with respect to black farmers. So at this point in time, both the House and Senate appropriations bills have riders that would overcome the problem of statute of limitations of sovereign immunity that was an obstacle in the way of a useful and amicable resolution, and I hope that does occur, but I think that Congress, working with the Department and the White House, have worked together very well to do the right thing.

    Mr. WATT. To what extent do you, personally, as the assistant, Acting Assistant Attorney General over the Civil Rights Division, get involved in budget issues?

    Mr. LEE. Well, I am actually somewhat low down on the food chain. The budget issues are handled at a bit of a higher level. However, with respect to the Civil Rights Division, on the House side our funding has been held flat with an increase for salary increases, and I think an amount in the order of a million dollars for enhanced ADA enforcement. I would appreciate it if this committee could support the appropriations committee on that, and if you see fit to even get us more money because I think the work we do, particularly in hate crimes area, ADA and housing discrimination, and the other areas we enforce is very important.
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    Mr. WATT. What would be the areas, if there are any, that you believe your division is underfunded in, and what kinds of things do you think need to be undertaken or undertaken more aggressively than you are funded to do at the present?

    Mr. LEE. Across the board, we are pretty much underfunded. We have not had a real increase since 1995, and even then it is not very much. Our funding levels have been somewhat flat. And in that time we have gotten enhanced enforcement, such as the church arson effort that Congress passed a law on a couple years ago, and enhanced enforcement of the ADA order. We received jurisdiction from Congress to address patterns and practices of misconduct in police departments. We have received increased jurisdiction at the same time that our funding has been kept low. Because so much of our expenses are salary for lawyers, that has meant a net reduction in what we are able to do. So funding is a very important issue.

    I have earlier described what my priorities are, and I think if we had enhanced funding adequate to do the job that Congress has given us, we would be able to do more on hate crimes, we would be able to do more on housing and lending, we would be able to do more on ADA and the other important issues that we are confronted with.

    Mr. WATT. Thank you, Mr. Chairman.

    Mr. CANADY. The gentleman's time has expired. Would the gentleman like additional time?

    Mr. WATT. No, Mr. Chairman. Thank you, Mr. Chairman. I yield back.
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    Mr. CANADY. Mr. Barr.

    Mr. BARR. Thank you, Mr. Chairman.

    Mr. Lee, would you define, what is a learning disability?

    Mr. LEE. A learning disability is something in which people process information differently. A classic one is dyslexia.

    Mr. BARR. We all process information differently. My concern is if we get into the business of trying to legislate learning disabilities from Washington and dictate to local schools matters in which they can or cannot be involved, that don't relate directly to learning per se, namely, athletics, it seems to me that we are getting into an extremely vague area.

    A learning disability can, in fact, be a medical condition. It can be a psychological or psychiatric condition. It can also be reflective of laziness or short attention span, which, you know, people give kids Ritalin all the time for that, and there is a dispute over that.

    Is it really something that the Department of Justice feels comfortable in trying to involve itself in, what is a learning disability, or would that not better be something left up to local school boards?

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    Mr. LEE. Congress has directed us to enforce the ADA, and it made very clear that dyslexia and other learning disabilities were impairments that were covered as disabilities under that statute. The way we see it is we don't really have a choice, and I think it is appropriate.

    If you look at the facts in the NCAA case, I will tell you what it was about. You had kids in high school who were skiers, wrestlers, basketball players. They had learning disabilities, and so they were taking programs in the special ed part of schools. Those special education programs derived from Federal legislation that this Congress has passed. So they were participating in these programs, they were actually learning the same thing as in regular classrooms, but because they had a label, special ed or something like that, the NCAA, in its administrative processing, was just totally discounting those courses, although those kids could do college work. And all that that NCAA lawsuit did was to require that the NCAA look at what the content of the courses was and not just rely on the title. So the NCAA, in our opinion, and according to them, did not change any of its standards. It is adhering to its high standards for scholar athletes.

    Mr. BARR. Let's talk about another term, sexual orientation. We could, I suppose, get into a philosophical or personal discussion about why the Department of Justice thinks that sexual orientation is on par with racial discrimination or whatnot. But leaving that aside for a moment, I am a little bit concerned with Executive Order 13087, possibly in conjunction with Executive Order 13083, on federalism, which will go into effect on August 12th, I believe it is. Executive Order 13087 does something that various administrations have tried to do. It is not a Republican or a Democrat problem, although one could argue over the extent to which this administration is using Executive Orders to, in essence, enforce laws that Congress has not passed yet, such as ENDA, as sort of an end run around the failure of Congress to pass a law and this administration wants it to pass.
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    How do you define sexual orientation? It is not defined in the Executive Order 13087. And, the second part of the question is do you foresee this administration using Executive Order 13083 on federalism to provide that justification for, in essence, enforcing its opinion on sexual orientation, even though Congress has not passed a law specifically authorizing the Department to do that?

    Mr. LEE. I want to start with a caveat. Our division did not review the Executive Order that the President signed prior to its issuance. My understanding, and I am not familiar with the other Executive Order——

    Mr. BARR. It basically says that it directs the Federal agencies, in essence, can involve themselves in matters that traditionally have been left to States and local governments if the matter which they seek to regulate falls into one of nine very, very broad categories of activity,.

    Mr. LEE. My understanding is that Executive Order——

    Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have 2 additional minutes.

    Mr. LEE. My understanding of that Executive Order the President signed only deals with Federal employment—that people can't sue upon those rights, and it doesn't create any rights for those outside of the Federal Government.

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    Mr. BARR. Would 13083 then provide the basis to take it to the next level and do precisely that?

    Mr. LEE. My understanding is it will not, but I would like the opportunity to look at that. But my understanding of that Executive Order is it only pertains to Federal employment, and I understand that the President issued that because it was consistent with the prior policies governing how Federal employment should work, since approximately 1980.

    Mr. BARR. But sexual orientation was neither contemplated nor contained in the prior Executive Order that had been issued by President Nixon that 13087 amends.

    Mr. LEE. My understanding is it is the policy of the Office of Personnel Management and, prior to that, the Civil Service Commission, as of 1980, was to make sure when you make employment decisions, you not consider criteria that were not related to job performance, and sexual orientation is not related to job performance.

    Mr. BARR. Define sexual orientation for me, please.

    Mr. LEE. Well, as I understand it, and my understanding is based on how the Supreme Court has dealt with this issue, but it has to do with sexual preferences.

    Mr. BARR. I mean, what is that? Is a sexual preference an adult that likes to have sexual relations with small boys? Is it a preference if an adult likes to have sexual relations with animals. I mean, these are not frivolous questions. We have an Executive Order here that purports to set a certain enforceable standard for Federal employees, possibly down the road for others, that uses the term ''sexual orientation,'' and you are saying it simply means a sexual preference. A sexual preference can mean an awful lot of things I would hope even you would agree are not the sort of things we ought to be condoning. I mean, what is a sexual orientation?
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    Mr. LEE. My understanding of the Executive Order is it deals with performance on the job, and it says that sexual orientation is irrelevant, it is——

    Mr. BARR. What is sexual orientation? Are you saying that a Federal agency under this executive order could take no adverse personnel action against a pedophile?

    Mr. LEE. Mr. Barr, you know, I am sitting here, and I guess I kind of feel like Justice Stewart. I know it when I see it. But I can go back and try to find——

    Mr. BARR. Is pedophilia a protected sexual orientation under the order?

    Mr. LEE. No, I don't believe it is. We are talking about——

    Mr. BARR. You are talking about——

    Mr. LEE. The Department of Justice——

    Mr. CANADY. The gentleman's time has expired. Would the gentleman like a further minute so Mr. Lee can further respond?

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    Mr. BARR. Thank you, Mr. Chairman.

    Mr. CANADY. The gentleman will have 1 additional minute.

    Mr. LEE. The reason I started off with the caveat is the Civil Rights Division has nothing to do with the enforcement of that Executive Order. That is why I am stumbling on giving you definitions, because it doesn't fall within our bailiwick. But I would be happy to make appropriate inquiries and get this information for you.

    Mr. BARR. So the Civil Rights Division has no interest in and has not been called upon, will not be called upon, to have any activity involving this or any other Executive Order?

    Mr. LEE. We have not been called upon with this. From time to time we are asked to give legal guidance as to civil rights aspects of Executive Orders and other matters. Our jurisdiction is defined by Congress, and Congress has not seen fit to have us go into this area. But I wish to point out that, as you know, the Employment Nondiscrimination Act was proposed in the last Congress, but it did not pass last year in the Senate. The Administration did support that bill.

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

    Mr. SCOTT. Could I ask the gentleman to yield for a very brief question?

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    Mr. BARR. I mean, if I had more time, I would use it. I have no more time, though.

    Mr. CANADY. The gentlelady from California is recognized.

    Ms. WATERS. Thank you very much.

    Mr. Lee, last month I went to Jasper, Texas, along with some of my other colleagues, and we were quite traumatized, along with the family, friends, and many people in America, about what happened to Mr. James Byrd, a 49-year-old black man who was savagely beaten in Jasper, Texas. And Mr. Byrd's murderers were three young white men with ties to white supremacist hate groups. These men, who allegedly offered Mr. Byrd a ride home, beat him, chained him to the back of a pickup truck, and dragged him until his body was torn into 75 pieces. Mr. Byrd's head, arm and neck were severed and strewn along a 2-mile stretch of country road, about 10 miles from his home in Jasper, Texas. Mr. Byrd was so savagely murdered, the only way the police could identify his body was with fingerprints.

    I started to take a look to see if I could compile similar-type incidents, and I think what I found may be the tip of the iceberg. I found in Fort Worth, Texas, a black woman was killed by two white males who admitted killing her because they wanted to kill blacks and other minorities. In Grayson County, Virginia, a black man was set aflame and beheaded by two white men. In South Bend, Indiana, a black man was shot by two white men. The black man was one of six shooting victims. The white men had targeted black victims randomly. In Denver, Colorado, an African American man was shot by a skinhead. In 1996, in Jackson, Mississippi, a black man was killed by a white supremacist. In Dutchtown, Missouri, a black man was stabbed to death by a white man using racial slurs. And in Fort Worth, Texas, another black man was stabbed by a white man spouting racial slurs. And even in Ennis Cosby's death, the young man who killed him told a friend, ''I shot a nigger.''
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    We are getting frightened and concerned about attacks on minorities by whites, some of whom are white supremacists or just white haters. I understand that in order for something to be identified a hate crime, it has to go through all of these hoops about whether or not it was done in terms of interstate commerce, et cetera. And I understand that there is going to be some attempts to refine the definition so that we could get at some of what is going on.

    Is there some way you could compile for us the murdering of minorities by whites so that we could get a full look at crimes that we may not know about because they don't fall within this strange definition of what is a hate crime, but, clearly, you have crimes that are being committed and killings that are being done with racial slurs and some other things? Can you compile that for the Congress of the United States so that we can begin to look at what is going on?

    Secondly——

    Mr. LEE. We will try to do our best on that.

    Ms. WATERS. Okay. Secondly, is there any way you can help us with prevention in terms of warnings to minorities, African Americans and others, how to be on the lookout for racists? We did a little something in the Congressional Black Caucus with the 10-point alert against racial violence card that we are asking young people to take a look at and to carry and to pay attention to, and it does some very common-sense stuff about how not to be alone on long stretches of deserted roads. But we also say don't get into arguments with racists; be alert when visiting or doing business in communities that have a reputation for discrimination and racism.
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    What can you do to help us? We are frightened. We work very hard, we send our children to college, and the idea that our sons or our daughters could be driving along stretches, going from college to home, could be killed, could be stopped for no reason except they are black or Asian or Latin American, what can you do to help us?

    Mr. LEE. You know, the role of education and training is considered by the Attorney General to be a top priority. Last winter she convened a hate crimes conference as part of a hate crimes initiative the Department of Justice has undertaken. In each of the 93 United States attorneys offices, we have set up local working groups with law enforcement, Federal, State and local, and also with community groups, to focus attention on these issues in the hope that we could get at the local level, at the United States attorney level, law enforcement and community groups organized to prevent hate crimes. I agree, hate crimes can be every bit as horrible as you have said. These working groups can deal with them when they occur and to deal with the aftermath with the victims, but primarily those local working groups have been designed to deal with prevention and getting the word out.

    Mr. CANADY. The gentlelady's time has expired. The gentlelady will have 3 additional minutes.

    Ms. WATERS. Thank you.

    Mr. LEE. I just wanted to say, it is very important from our perspective, the Civil Rights Division in the Department of Justice, to involve local law enforcement in these efforts, and we have to address not only the concerns of community, but also make sure that local law enforcement, State law enforcement and Federal law enforcement know what the problem is, are trained in how to deal with it, and can approach and investigate these horrible incidents in a sensitive, thorough, professional fashion, and I think we are making progress in that respect.
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    Ms. WATERS. Mr. Lee, this may be going a little bit far, but I have a feeling that many of our Members who have platforms in town halls, et cetera, really don't know how to talk about this issue and how to engage their constituents in dealing with racism. Could you prepare some pointers, particularly in States where we see rising crimes against minorities, we see attacks on blacks, where we could offer suggestions to our Members of how we could use our platform to talk about racism and discrimination? And in some States it is worse than others, and I think some of our Members perhaps could do something if they had some sense of how to approach it.

    I am worried about Texas, I am worried about Georgia, and I am worried about places where we see crimes that are taking place, attitudes that are developing, symbols of hatred and racism, and our measures are pretty silent, and I don't think it is because they don't want to talk about it and they don't want to deal with it. I choose to believe they don't know how. And if you could help us with some pointers, I think many of our Members could factor them into their town hall meetings and find opportunities to engage their constituents in this subject matter, because it is just so very important at this time.

    Mr. LEE. I agree with you, and I would like to just add one additional point to what you have said very eloquently, which is we have to understand that this is an issue that doesn't affect just one group. We are talking about hate crimes committed against a whole range of individuals, not for who they are as individuals, but for what they appear to be. These crimes are intended not only to hurt individuals, but they are intended to stigmatize whole communities. And I think it is important to approach this as a people and not just as members of different kinds of communities. It is an American problem, and we have to recognize it as such and deal with it as such.
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    Mr. WATERS. I would appreciate if you could send me some ideas, and perhaps I could bring it up here in Congress and help some of our Members be able to have these kinds of discussions in their own districts to get at this problem.

    Mr. LEE. I would be very happy to.

    Ms. WATERS. Thank you very much.

    Mr. CANADY. Mr. Hutchinson is recognized.

    Mr. HUTCHINSON. Thank you, Mr. Chairman.

    First of all, I want to congratulate Mr. Lee for your Department's winning the case in Arkansas that you cited in your testimony, and I appreciate what the gentlelady has said about California. She recited some horrific cases of hate crimes, of discrimination, and your Department plays a very, very important role in fighting that type of discrimination and hate crimes. And I think, I just want to couch it in terms of how important I think that mission of your agency is.

    I know in the 1980's, we had to deal with a whole generation of hate crimes then, and we fought that in Arkansas, and it is a continuing battle we have. But I think it is an issue of priorities as well, that it seems to me that the Civil Rights Division gets scattered into so many different areas that sometimes you could lose site of the priority of your mission and dilute your resources, as you have indicated.
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    And so with that background, I really intended to ask some questions on the Executive Order that Mr. Barr referred to, but then you indicated that your Division was not consulted, and you had no role in the review of that Executive Order. Did I correctly understand that?

    Mr. LEE. That is right. The Office of Legal Counsel reviewed it for form and legal correctness.

    Mr. HUTCHINSON. You know, that just startles me to no end that your office, the Civil Rights Division, had no role in reviewing an Executive Order that has affected civil rights in our government. It startles me particularly whenever, to me, it appears to have a dramatic impact.

    I would encourage you to look at this Executive Order, which adds sexual orientation, and as Mr. Barr pointed out, is not well defined, and I would sure hate to have to define it.

    Mr. LEE. So you appreciate my position?

    Mr. HUTCHINSON. Yes. I would hate to have to answer that question. But is not defined in the Executive Order, and it ties it to the previous Executive Order that includes a continuing affirmative action program in each executive department and agency, and it says the head of each executive department will establish affirmative action programs. And so the concern is not discrimination, the concern here is whether we are going to start having set-asides and recruitment efforts for individuals who might be in the minority in terms of their sexual orientation. I am also interested in how this applies to the military.
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    Mr. LEE. The answer is no.

    Mr. HUTCHINSON. No what?

    Mr. LEE. It only applies as to nondiscrimination.

    Mr. HUTCHINSON. But that is not what the Executive Order says.

    Mr. LEE. That is my understanding of it, sir.

    Mr. HUTCHINSON. Well, I would encourage you to read it because all the Executive Order does is add ''sexual orientation'' to the list of age, gender, etc. that you can't discriminate against. And the previous Executive Order refers to the affirmative action programs that were required by each agency, and so under that, I am, you know, a simple reader, but it appears to me that a man's sexual orientation is entitled to all of those protections. And then it also says the order applies to military departments. How does that tie into the don't ask, don't tell policy? It really appears to me to open up a dramatic change and really gets to the area of legislation as well.

    Mr. LEE. My understanding is it doesn't affect affirmative action, and it doesn't affect the don't ask, don't tell policies. My understanding of what that Executive Order does is it institutionalizes the prior practice that was followed in both Republican and Democratic administrations in the Office of Personnel Management not to consider non-job-related criteria in personnel actions.
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    Mr. HUTCHINSON. Would you be good enough to write me a letter and put that in writing, to analyze the Executive Order and how it was amended?

    Mr. LEE. Yes, I would be happy to do that.

    Mr. HUTCHINSON. Let me go on to another area, if I may.

    Mr. SCOTT. Do you want to continue the answer, I am sorry?

    Mr. LEE. I wanted to emphasize the point that it is intended to bar discrimination that has nothing to do with the job. We are not talking about misconduct of any kind. Misconduct of any kind on the job by any person is not addressed by this Executive Order. It is about equity. It is not about——

    Mr. HUTCHINSON. Mr. Lee, in all fairness, this is the Executive Order that you did not review and were not asked to review by the administration.

    Mr. LEE. But I have read it since, you see.

    Mr. CANADY. Does the gentleman—the gentleman can have 3 additional minutes, and I would appreciate the gentleman yielding briefly.

    Mr. HUTCHINSON. I would be glad to.

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    Mr. CANADY. I just want to read this Executive Order. This is language that is added to the section that provides—as a policy to the Government of the United States to provide equal opportunity in Federal employment for all persons, and then it lists the various characteristics, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency.

    That has always been understood to involve outreach efforts based on a desire to make certain that those people are not excluded, so at the very least it would contemplate outreach efforts based on a sexual orientation. I don't know how you could deny that.

    Mr. LEE. Well, I will take advantage of Mr. Hutchinson's offer to get him a letter on this.

    Mr. CANADY. Well, please send me a copy.

    Mr. LEE. Mr. Chairman, I will address it to you.

    Mr. CANADY. I would be interested in seeing how you can explain that.

    I am sorry, thank you, Mr. Hutchinson.

    Mr. HUTCHINSON. Certainly. And rather than trying to get into another area, I am going to stop here at this point. But I thank you, Mr. Lee, for your testimony today and your important work.
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    Mr. LEE. Thank you, Mr. Hutchinson.

    Mr. HUTCHINSON. I yield back.

    Mr. CANADY. The gentleman from Virginia, Mr. Scott, is now recognized.

    Mr. SCOTT. Thank you, Mr. Chairman.

    The gentleman from Georgia and the gentleman from Arkansas both asked questions about the Executive Order, and we have previously asked for a hearing on the Employment Non-Discrimination Act, and I think these kinds of questions would be the questions that would be discussed during that hearing, and we would again, Mr. Chairman, renew that request, and perhaps the Executive Order could be made a part of that hearing.

    As I understand it, the Civil Rights Division is not involved in enforcing Federal Government employment discrimination. Who is charged with that responsibility?

    Mr. LEE. I am sorry, could you repeat the question?

    Mr. SCOTT. Who is in charge of enforcing laws against Federal Government employment discrimination?

    Mr. LEE. That is the Equal Employment Opportunity Comission.
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    Mr. SCOTT. And not the Civil Rights Division?

    Mr. LEE. We have jurisdiction in employment discrimination over State and local employers. There are no rights of action in this Executive Order.

    Mr. SCOTT. The Executive Order, therefore, if they were to discuss it with the agency involved in enforcing that law, it would not have been your office, it would have been the EEOC?

    Mr. LEE. I am sure you would get better answers.

    Mr. SCOTT. Okay. In your response to the NCAA question, I understand that the settlement does not require any college to lower its academic standards, that the only thing that you did was to remove the automatic bar against people who are otherwise qualified but just happened to have a handicap?

    Mr. LEE. That is right, and that is what Cecil Dempsey, the president of the NCAA, emphasized.

    Mr. SCOTT. Are there any limitations on your ability to perform your job because you are in the acting position, rather than in a confirmed position?

    Mr. LEE. The President and the Attorney General have been very clear that I am to have the authority, the full authority, of that office.
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    Mr. SCOTT. Okay. On the hate crimes, I think your testimony indicated that you have discovered approximately 500 church arsons in the last few years.

    Mr. LEE. We have investigated approximately 600 at this point.

    Mr. SCOTT. Some of those church burnings were not hate crimes, some were electrical problems and such things as totally accidental burnings. How many of them have you classified as hate crimes?

    Mr. LEE. I would have to get you that information in writing, sir.

    Mr. SCOTT. Is it a significant portion? Is it a significant portion?

    Mr. LEE. It is a smaller proportion. I believe it is a significant portion. In this day and age as we approach the next millennium, when we have church burnings that are motivated by hate, even one is too many.

    Mr. SCOTT. What are the provisions of the hate crime bill? Could you describe that? You referred to it several times.

    Mr. LEE. The hate crime legislation strives to take care of some enforcement issues that have arisen in the last 30 years that the Civil Rights Division has enforced the hate crime statute. First, in proving a hate crime, we not only have to demonstrate that a crime such as a church burning or maiming of an individual or harassment was committed with racial motive or ethnic motive or religious motive, but also that it was done in the course of participation in a very narrowly defined set of Federal activities such as going to vote or enjoying a place of entertainment or public accommodation. What that has led to is distortion in how we make decisions about prosecution. We can have very horrible, heinous incidents of hate crimes that should be prosecuted that for whatever reasons local law enforcement may not be able to prosecute, but our hands are tied if we don't fall into their categories. And sometimes that has meant in a 7-Eleven that we have to look and find out if there is a video machine in the 7-Eleven before we can prosecute a hate crime. It has nothing to do with the hate crime itself.
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    The present hate crime statute focuses on hate crimes based on race, religion, ethnicity and color. Current law does not cover sexual orientation, gender, or disability.

    Mr. CANADY. The gentleman's time is expired. The gentleman will have 3 additional minutes.

    Mr. SCOTT. Thank you.

    Mr. LEE. And the experience has shown there are significant number of hate crimes in those areas.

    Mr. SCOTT. Well those limitations aren't there by accident. They are there really to provide to the best we can Federal jurisdictions, because without some of those loops you have to jump through, there is a question as to whether or not the Federal Government would have jurisdiction to prosecute those crimes. If we remove those limitations, would we lose jurisdiction in all other cases.

    Mr. LEE. No. It would expand the potential for jurisdiction, and perhaps more importantly it would allow the Federal Government, particularly the FBI, to assist local law enforcement in the investigation of such crimes.

    Mr. SCOTT. You have to have a Federal nexus. You have to have a connection, Federal connection, to have jurisdiction.
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    Mr. CANADY. Would the gentleman yield briefly.

    Mr. SCOTT. I will.

    Mr. CANADY. I think the gentleman may be asking whether we might have a Lopez problem. Is that—am I correct?

    Mr. SCOTT. That is exactly the problem. And whether or not the Fourteenth Amendment would be a sufficient Federal connection.

    Mr. LEE. Well, the hate crimes legislation is actually slated for hearing next week, next Wednesday, and I think we can get very technical very fast, but for purposes of this oversight hearing, I would say that on the basis of our experience, implementing what Congress gave us with the original hate crime statute, we have found that we need to tinker with it to make sure that it does a better job of what we believe Congress was up to in giving us the jurisdiction.

    Mr. SCOTT. Okay.

    Mr. LEE. I would like to point out it is not just bringing Federal cases, but also helping local law enforcement investigate those cases.

    Mr. SCOTT. Well, if some of these jurisdictions did a better job, we wouldn't need the Federal jurisdiction. But we are going to have that hearing next week, so let's—and we want to do everything we can to expand the jurisdiction, but we don't want to lose the entire law.
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    Housing discrimination, you indicated that approximately 40 percent of the time that minorities seek housing, they are discriminated against. That was a Fair Housing Council testimony. And did I understand that you had other evidence to suggest that housing discrimination is that widespread from other studies?

    Mr. LEE. Often before we bring a fair housing case the Civil Rights Division conducts its own specific testing. The results in our testing are consistent with your statement that 30 years after the Fair Housing Act was enacted, and 30 years of enforcement by the Civil Rights Division and by others outside the government and by HUD, we still have significant problems with access to fair housing, and that is very fundamental to the attainment of the American dream for all Americans.

    Mr. SCOTT. You mentioned lending, too. Can you go in—because that—lending discrimination has a significant impact on people's ability to do business, get contracts. Can you speak briefly about the extent of discrimination in lending and bonding?

    Mr. LEE. In the area of housing, no loan, no home. It boils down to that for most Americans.

    Mr. CANADY. The gentleman's time has expired. The gentleman will have 1 additional minute.

    Mr. SCOTT. Thank you, Mr. Chairman.
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    Mr. LEE. We have brought cases in which we have shown there to be intentional discrimination and unjustified disparate impact in lending practices of some institutions. And our jurisdiction—and one particular case in Southern California, we found that women, the elderly, racial, and ethnic minorities were all subjected to practices in which they were subject to predatory lending in which something like 12 percent in points were added to their loans, and they were targeted in that way. That is the kind of cases we bring.

    With respect to business——

    Mr. SCOTT. And these cases are representative and not just isolated incidences?

    Mr. LEE. I wish I could say they were isolated incidences, but we have paired testing, which has proven to be a very effective and reliable law enforcement technique to root out these cases.

    Mr. SCOTT. What does pair testing mean?

    Mr. LEE. It means that when you send a black couple in there to seek——

    Mr. CANADY. The gentleman's additional time has expired, but the gentleman will have additional 30 seconds to have this question answered.

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    Mr. LEE. When a black couple—in many of our paired testing, a black couple goes in to seek an apartment, they get told there is no apartment available, come back next week, or that there is one apartment, it has one bedroom and they are looking for two. Fifteen minutes later another couple comes in with a different race, ethnicity, or religion, and they get offered an apartment. That is the kind of results we get in our testing program, and that is the kind of results that in city after city that seems to be the pattern. That shows the need for increased enforcement of the Fair Housing Act and the Equal Credit Opportunity Act.

    You asked me about business lending, but I am afraid I don't have time to deal with it.

    Mr. CANADY. I am sorry, the gentleman's time has expired. Now I will now recognize myself for 5 minutes.

    Mr. Lee, I appreciate your being here. I appreciate the work you are charged with doing at the Department of Justice. There really is nothing more important that we do than to protect the rights of people, and I think a lot of the work that you do at the Department is directly related to that, and thank you for your commitment to that.

    As you know, as we have discussed, we have some differences about some policy matters. And let me refer you to a statement that you made in your written statement, and I think you may have repeated that in your testimony, that, as you spoke this morning, you said the Department has challenged the employment test used by local governments, and you are talking about here in the context of police and fire departments. Only when those tests have disparate impact on minority and women applicants and are not related to good job performance, such tests violate Title VII of the Civil Rights Act of 1964 as amended by Congress in 1991.
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    When the Department files a case like this, does the Department only file if the Department has evidence that the tests in question are not related to good job performance?

    Mr. LEE. Yes.

    Mr. CANADY. Well, let me ask you this: Was that true in the City of Torrance case in California? What evidence did you have that the tests were not related to good job performance in that case? And let me—furthermore, what evidence do you have in the City of Garland case in Texas which is pending now?

    Mr. LEE. Well, I am a little more comfortable talking about Garland since the Torrance case was brought and largely litigated before my arrival at the Civil Rights Division. If that's okay with you, I would like to talk about Garland.

    Mr. CANADY. Sure.

    Mr. LEE. My understanding is that an investigation was done in Torrance, and there was information that we ended up presenting in court. After prevailing on a prima facie case that the written examination in Torrance had disparate impact on minority officers, we presented our evidence over a number of days, and the court saw fit to reject it, but we presented evidence.

    Now, with respect to Garland——

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    Mr. CANADY. Did you have evidence prior to filing the complaint against the city of Garland? Because what you say here is that you only bring these cases when tests have disparate impact on minority and women applicants and are not related to good job performance. Now, I think the record will reflect in both the Torrance case and the Garland case that the Department, at early stages in the proceeding, admitted that it had no evidence with—any specific evidence with respect to those tests. The Department had essentially filed the lawsuits simply on the basis that the numbers did not look right to the Department; that is, that the—the employment was—did not have proportional representation. Am I wrong?

    Mr. LEE. Yes, you are. My understanding is we file cases based on whether there is a prima facie case, and then we also look at whether we——

    Mr. CANADY. Okay. Go ahead.

    Mr. LEE. Then we look to see whether there is business necessity satisfied. And what that boils down to is whether the test selects the best qualified, in this case, officers for police work.

    Mr. CANADY. Well, if that is the case, then in the initial stages of discovery, you would be able to respond to requests for discovery from the defendant itself and explain to them what was wrong with the test. Wouldn't that be correct?

    Mr. LEE. We—you know, the point of discovery process——

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    Mr. CANADY. No, no——

    Mr. LEE [continuing]. Is that we would get more information. We have a preliminary view.

    Mr. CANADY. I understand. You might get more information, and that you may refine your view as things go on. And that is appropriate. But at the outset, you would have a position and you would have evidence and information concerning why the tests were not appropriate. Isn't that correct?

    Mr. LEE. That is my understanding. And—but——

    Mr. CANADY. So, let me ask you that. If that is your understanding, and if there are cases where the Department does not provide that information in the initial stages of discovery, to the extent that it is developed to that point, wouldn't that be a problem? Don't you think that would indicate that somebody is not doing the homework that should be done before the lawsuit is filed?

    Mr. LEE. We provide the information in discovery. The Department of Justice Civil Rights Division does its homework before it files cases.

    Mr. CANADY. Okay. My time——

    Mr. LEE. We almost always prevail.

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    Mr. CANADY. Okay. That is interesting. My time is expired. I will give myself 3 additional minutes.

    I know you frequently prevail in extracting settlements from folks, but let me ask you about a case where you didn't prevail, where I already mentioned, the City of Torrance case. There you not only did not prevail, you lost in the district court. Again, I am not saying you initiated the suit, but it is the Civil Rights Division. You lost at the district court level. The Ninth Circuit rejected your position. And then furthermore, recently, the district court imposed sanctions to the tune of around $1.8 million against the Department in that case.

    Let me ask you this: Was it your position that the Ninth Circuit was wrong in that case? Unless you just are adamantly in support of everything that happened in the Torrance case, and you just reject the decision of the district court and the decision of the Ninth Circuit, which I think was unanimous on the three-judge panel, could you tell me what you think went wrong in the City of Torrance case, and if there are things that you are going to do to help make certain that the Department isn't faced with having to pay sanctions? That is a significant penalty, $1.8 million in sanctions, and I am concerned about the taxpayers' money being used in that way. I would like to see it used dealing with some of the real problems that need to be dealt with.

    Mr. LEE. Let me tell you this: This case was filed before I came, and the reason I hesitate to respond in all the details is that I am not familiar with all the details. But let me tell you what I do know, and if I could just have a minute or so to this.

    This case raised several issues. One of them had to do with the recruiting practices and use of background data. The other issues had to do with maintenance of a racially hostile work environment. On those issues, the Department prevailed, and we got relief for minority officers. With respect to written examination, we showed that that written examination had racially disparate impact. That was a prima facie case.
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    The district court has ruled preliminarily that attorneys' fees should be awarded. Based on what little we know at this point, because the district court has not issued its written ruling, we think that that may be subject for appeal, because it is inappropriate under the governing law to levy attorneys' fees when a prima facie case has been made out and mixed results have been obtained in the lawsuit.

    But let me make clear, whatever our position in court is, we accept what the district court and the court of appeals ruled. They ruled that we did not prevail on the written examination part of the case.

    Mr. CANADY. Well, my time is expired. I recognize the gentleman from South Carolina.

    Mr. INGLIS. Thank you, Mr. Chairman. I would be happy to yield to you for further questions.

    Mr. CANADY. Thank you. I appreciate that.

    Well, Mr. Lee, I have a hard time with the situation where you lose at the district court level, you lose again at the appeals court level, and then the sanctions are awarded against you. And now I would encourage you to look into all the details about that case, because I would think, if I were in your position, I would want to learn from any mistakes that might have been made in that case to avoid such a result in the future. Now, I just think that would be good management practice. And I am not saying you are not going to do that as things move along, but I just want to encourage you to carefully evaluate that case. Now, I——
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    Mr. LEE. Mr. Chairman.

    Mr. CANADY. Please.

    Mr. LEE. We evaluate all our work. And I wanted to tell you that, you know, there is another side to this particular story. But, you know, we stick to and we learn from all of our experiences. And I appreciate what you said earlier about the importance of our work and your acknowledgment of the importance of our work. And I wanted you to know that we try to be as careful as we can when we bring cases and when we litigate cases, and I think our record supports the fine work that our professional staff has done in that job.

    Mr. CANADY. Well I—again, in this particular case, the case of Torrance, the district court and the court of appeals have quite a different view of the matter, and as I said earlier, encourage you to further evaluate that.

    And I am also concerned, as we will hear later, that we are simply seeing a repeat of the experience in the Torrance case and the City of Garland case. Now, we don't really have time to go into extensive discussion about that. Let me move on to a couple of others things here.

    Mr. LEE. Mr. Chairman we have very carefully investigated that case. I want to you know that.

    Mr. CANADY. Okay. Well, ultimately the district court in Texas and the Fifth Circuit will have an opportunity to evaluate that.
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    On the issue I touched on in my opening statement about individuals who misrepresent their racial status and the penalties that they will be subjected to, I am unclear exactly how this is determined. Now, let me just give you an example. If someone is presumptively disadvantaged because that person has an origin in Brunei, that is one of the places listed, is it sufficient that one grandparent have come from Brunei? Would it be sufficient that one great-grandparent come from there, or one great-great-grandparent or one great-great-great-great-grandparent? How much do you have to show in order to be able to claim that you have that origin that would qualify you for the presumptive entitlement under the—under the law?

    Mr. LEE. The Sultan of Brunei is not eligible for our programs.

    Mr. CANADY. I did not talk about the Sultan of Brunei. I don't know where you heard that, but that is not something I said. I am talking about someone who has origins in Brunei, and that is clearly in the regulation.

    Mr. LEE. Let me point out Congress made the decision that certain groups in this country—after analyzing the full record of discrimination against contractors, Congress decided that certain groups would be presumptively eligible for these programs. Congress gave that authority to deal with it——

    Mr. CANADY. Where is Brunei listed in the statute? Let me ask you that. Where is Brunei listed in the statute?

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    Mr. LEE. That is what I was addressing. SBA or Commerce are the agencies that try to implement what Congress laid out in those statutes. Congress did that in the SBA Act. Congress did that in the 1994 FASA statute as well adopting those provisions.

    I can't answer these hypothetical questions about the administrative enforcement, because our role is to give——

    Mr. CANADY. Mr. Lee, with all due respect, these hypothetical questions are very real questions, and people who are applying for these benefits, I think, have a right to know of what the standards are by which they are going to be judged. And I want to get some idea of whether it is enough to have a grandparent or enough to have a great-grandparent or great-great-grandparent. Do you have any idea?

    Mr. LEE. I agree that these are very important questions because we are talking about programs that are intended to overcome a history of discrimination and exclusion in industry after industry. And that is what our benchmark process has shown.

    Mr. CANADY. Well, the gentleman from South Carolina will have an additional 3 minutes if he would like.

    Mr. INGLIS. I would continue to yield to the Chairman.

    Mr. CANADY. Thank you.

    Mr. LEE. If I could continue my response.
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    Mr. CANADY. Sure. Please do, but I am waiting to get to the response part.

    Mr. LEE. If you are presumptively entitled, you fall into those categories that Congress has set forth in the administrative agencies which have the expertise. If you fall in that, then you are eligible, but it is only a rebuttable presumption, presumably if you are the Sultan of Brunei, you are not going to be eligible because you have too much money. Even then, if you don't fall within those categories under the changes the Department of Justice has encouraged the agencies to make, you can establish eligibility. Any individual of whatever race or gender can establish eligibility by——

    Mr. CANADY. Mr.——

    Mr. LEE. Excuse me.

    Mr. CANADY. I understand that. I appreciate you going through that, but that is the background I understand. My question is what does it take to be within one of the categories? What does it take to establish that you have the origin of Brunei such that you are presumptively eligible? Or any other, we can pick any of the other groups. But is one grandparent from that area enough, a great-grandparent or a great-great-grandparent?

    Do you have—request you answer that. That is my question. If you don't know, please tell me. Maybe there is a role for Congress to play in helping define this, if that is what Congress should want to do. But I think it is unfair to tell people they are going to be subjected to criminal penalties for misrepresenting themselves when you don't even have standards to determine—because you would agree that people don't have to be 100 percent of that ethnic background in order to qualify. We have in this country people of mixed racial backgrounds. That is one of the characteristics of our country.
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    Mr. LEE. SBA and Commerce have criteria in which you look at how an individual is treated, how he presents himself, if he says he is a minority person, things of that kind. You know, these questions of percentage minority have a history in this country, because Homer Plessy——

    Mr. CANADY. I agree.

    Mr. LEE [continuing]. Was 1/16 black.

    Mr. CANADY. It is very disturbing.

    Mr. LEE. And that is considered enough to be black in this country.

    Mr. CANADY. It is a very disturbing history, I think you would admit.

    Mr. LEE. I understand your question, but what I wanted to say is the practical solution is if you apply, the easiest thing to do is demonstrate that you are socially and economically disadvantaged, and that under the reforms of the——

    Mr. CANADY. Well, with all due respect, Mr. Lee, I don't think that is the way these programs really operate. I don't think that is the way the Supreme Court has found that they operate, and I don't think that is the way the other courts that have dealt with them have found that they operate. Again, Mr. Lee, it is of concern to me that there are no standards. I think the whole enterprise is——
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    Mr. LEE. There are standards.

    Mr. CANADY [continuing]. Is foolish because of the very reasons you talked about, referring back to Mr. Plessy. I don't think we ought to be categorizing people on the basis of their ethnic background. I think we get into trouble when we do that, and this is just an example of how that happens.

    Mr. LEE. Sometimes, Mr. Chairman, others categorize us. So it is not just self-characterization.

    Mr. CANADY. I agree. And that is wrong. That is

    wrong.

    Mr. LEE. But let me point out the need to have the protections of the kind we are talking about.

    Mr. CANADY. Well, Mr. Lee, the—without objection, I will give the gentleman from South Carolina an additional minute if——

    Mr. INGLIS. Thank you, Chairman.

    Mr. CANADY. Because the time has expired.

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    Mr. LEE. In order to make these programs work as Congress intended, fairly and reasonably, we can't have front people who pretend to be eligible, whether they are a different race or they are committing fraudulent conduct or any other reason. We have these situations in which the intended beneficiaries of these programs sometimes are muscled out because people claim to be what they aren't, and that is a very important concern to SBA and Commerce. It is an important concern for law enforcement. We want these programs to work. We want these programs to work for those that Congress intended that they work for.

    Mr. CANADY. I understand that, Mr. Lee, and the only question I have had is what the standards are that are applied in that context. And quite frankly, with all due respect to you, I don't think I have gotten an answer, and it may be because there isn't a clear answer. I think you are probably doing the best you can within this framework that has been established, and I respect that, and I respect you, Mr. Lee, but I think it just points out the problems that are inherent in this system.

    And with that I will yield to the gentleman from Michigan, Mr. Conyers.

    Mr. CONYERS. Thank you, Chairman Canady.

    I wanted to be sure to welcome the Acting Assistant Attorney General for Civil Rights, Mr. Lee, and for the record tell you what an excellent job that I think you are doing.

    The previous dialogue between yourself and the chairman dealing with who is entitled to the economic disadvantaged business programs is a very interesting subject, and I had no idea that the chairman was this interested in it to bring it before the Department of Justice since it is a matter within the jurisdiction of the Small Business Administration and the Department of Commerce. But now that I know of his continuing interest, I will be happy to work with him on who is eligible and who isn't eligible and how far this whole question has to go. It—I don't think it is on the Department of Justice's agenda.
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    Now, I have got several considerations, and I just want to give them to you, and I seek your comment. There are so many things we could talk about. And the chairman may want to entertain an additional hearing on this subject matter in terms of our oversight, because 5 minutes back and forth in a couple of hours may not do it as complete justice as it—as should be required.

    I am interested in an attempt that has been ongoing in the civil rights movement back from the 1940's to create what was then called a Federal antilynch law; that is, to make crime—hate crimes of violence, particularly lynching and murder, a Federal crime in and of itself. I have introduced legislation to that effect, and we have never talked about it before, notwithstanding a lot of contact we have had through each other.

    And then I am interested in knowing about affirmative action, since that is such a sensitive hot point with Speaker Gingrich and the chairman of this subcommittee and many conservatives in the Congress. And my simple question is: How much of your energies and efforts are directed toward issues that involve affirmative action? And I would be interested to know that.

    Mr. LEE. Representative——

    Mr. CONYERS. And two other little considerations. There is—there is a notion that racial discrimination and even racism is literally a thing of the past. There is a—a little buzz word, phrase, that goes on around here, let's have color-free considerations of everything. We don't have to take color into consideration. It doesn't matter anymore. And I need to know what your impression of this—as a matter of fact, some remarks in this body would—would suggest to you that white males are the discriminated people in the country at the present moment.
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    And finally, your work on the Worker Exploitation Task Force of which you are a cochairman, I would like to get some information about that onto the record.

    Mr. LEE. I think the work of the Worker Exploitation Task Force, trying to coordinate Federal investigations and prosecutions of what is, in fact, slavery, whether we are talking about Mexican women and girls forced to work as prostitutes or black individuals picked up and forced to work in the fields, that is an important part of our work, and it shows the persistence of things that many of us wish were the past. We spend most of our time on those nuts and bolts law enforcement that frankly is not controversial in the least.

    I think a lot of these laws, as I pointed out earlier, originated in this very subcommittee. We vow to do the work that this committee and subcommittee have given us. Very little of our time is spent on affirmative action efforts. Our affirmative action efforts are to defend the programs that Congress has enacted. We try to enforce what Congress wanted. We try to do so within what the Supreme Court has given us as the law.

    Mr. CANADY. The gentleman's time has expired. The gentleman will have 3 additional minutes.

    Mr. CONYERS. Thank you.

    Mr. LEE. When we talk about affirmative action programs and contracting, we are not talking about people from Brunei. We are talking about people like Mr. Mitchell, a contractor in Atlanta, a black MBA. He submitted a contract to the Corps of Engineers. The Corps of Engineers told him he had to hire this person, he had to do this, he had to get expensive equipment. He found out they didn't tell that to the white contractor. Mr. Mitchell had common suppliers, as is typical, with white contractors. Those contractors gave a price break to the white contractors, not to Mr. Mitchell. He spent 30 years in this business. He couldn't get that.
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    He testified to this Congress that there was discrimination both in the Federal Government and outside, and Congress listened to people like Mr. Mitchell and devised these programs, not so they could be an engine of oppression, but that they could be fair and reasonable and deal with a problem that Congress recognized was a problem. And Congress, with the reauthorization of ISTEA, continues to recognize it is a problem for African Americans, other minorities, other ethnicities, and also we have eased the standard for women so that women contractors also get the benefits of these programs.

    Mr. CONYERS. Do you have any comments about the question of the continued existence of discrimination and racism in our society that creates the justification for your division within the Department of Justice?

    Mr. LEE. I sit at my desk. What comes across my desk sometimes is truly horrifying. When I took this job, I didn't think I would be dealing with slavery cases and prostitution rings. I didn't think that I would be dealing with an incident like Jasper. That is what the job is. That is what the Civil Rights Division does, day in, day out, law enforcement, because there is a persistence of the problem that has led Congress to enact these statutes and that have led Congress to give us this jurisdiction.

    We are talking about problems suffered by racial minorities, religious minorities, women, and the disabled. We are talking about individuals of every color and nationality. We are talking about all Americans, and I think it is important to keep in mind what the core of our mission is. The core of our mission is to enforce the Federal civil rights laws so that Congress' will could become a reality, and that will is to make race, to make gender irrelevant. We aren't there yet, though.
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    Mr. CONYERS. Well, I thank you very much for your comments, and we look forward to—this committee in particular—continuing its work with you in your Department.

    Thank you, Mr. Chairman.

    Mr. CANADY. Thank you, Mr. Conyers.

    And, Mr. Lee, again, we thank you for being here. We appreciate your contribution in today's hearing.

    I would now ask that the members of our second panel prepare to come forward. And the subcommittee will stand in recess for 5 minutes, and let's be back promptly in 5 minutes to resume the hearing with a second panel.

    [Recess.]

    Mr. CANADY. The subcommittee will be in order.

    We will now go to our second panel. I want to thank all the members of the second panel for being here. We appreciate your patience. We spent a long time with Mr. Lee and appreciate all of you being here during that.

    The first witness on our second panel will be Mr. Clint Bolick, who is vice president and litigation director for the Institute of Justice in Washington, D.C., and he formerly served as an attorney in the Civil Rights Division from 1986 to 1987.
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    The second witness will be Shanna Smith, who is the executive director of the National Fair Housing Alliance.

    Our third witness on this panel will be Wayne Flick, an attorney with the law firm of Latham & Watkins in Los Angeles, California, who represents the cities of Torrance, California, and Garland, Texas, in litigation against the Department of Justice.

    Our fourth witness will be Kim M. Keenan, who is an attorney with the Fair Employment Council of Greater Washington.

    The fifth witness on this panel will be the Honorable Donald Divine, a policy and management consultant who served as the Director of the U.S. Office of Personnel Management from 1981 to 1985.

    And our sixth and final witness of this panel and of this hearing will be John Sullivan, an attorney and associate director with the Project on Civil Rights and Public Contracts at the University of Maryland.

    I would ask that each of you do your best to make your statements in 5 minutes, and try to be guided by the light. When it is red, that means you should try to start winding up, but I don't think anyone is going to insist on strict enforcement of the 5-minute rule. Of course, your full written statements will, without objection, be made a part of the permanent record of this hearing.

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    Mr. CANADY. Mr. Bolick.

STATEMENT OF CLINT BOLICK, VICE PRESIDENT AND DIRECTOR OF LITIGATION, INSTITUTE FOR JUSTICE

    Mr. BOLICK. Mr. Canady, I will depart from my written text. I know you enjoy spending your weekends reading all of these scintillating comments.

    Mr. CANADY. I have already read them, and they were wonderful.

    Mr. BOLICK. Reread it.

    I congratulate this subcommittee for the very important task of oversight of the Civil Rights Division. As you noted, I am a veteran of the Civil Rights Division; participated in the prosecution of the Yonkers case, which was the most aggressive civil rights prosecution in the 1980's, also a slavery case. It is very distressing and disturbing to hear that not much has changed in 10 years, and I am delighted that the Civil Rights Division is continuing with aggressive law enforcement efforts.

    Sadly, business as usual or standard business for the Civil Rights Division is a very distressing set of circumstances, but what I think that this subcommittee ought to focus on are things that are going on in the Civil Rights Division which cannot be characterized as business as usual or standard business, or even in some instances lawful or legitimate business.

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    The two areas to which I would like to draw this subcommittee's attention are, first, this administration's continuing and constant open defiance of precedents of the United States Supreme Court which have declared that racial classifications are inherently suspicious and presumptively unconstitutional. We continue over 5 1/2 years to see this administration, led by the Civil Rights Division, which is the fulcrum of civil rights policy in this and any other administration, trying to evade rather than enforce the precedents of the United States Supreme Court. That the Adarand case itself is still in litigation years after the Supreme Court decision in that case is outrageous, and I would—I would be very interested to hear how Mr. Lee would defend that continued litigation in the face of constant, constant rejection of this administration's position not only by the U.S. Supreme Court, but by virtually every other court in the country.

    Even more disturbing, and I think the appropriate point of serious focus of this subcommittee, is a pattern and practice of this division in its law enforcement duties that can only be characterized as distortion. It is the practice of going up to defendants, most of them, because of the state—because of the Justice Department's docket and jurisdiction, State and local governments, with very, very dubious statistics.

    Mr. Lee says in his written testimony, I have always believed it is better to resolve cases through conciliatory means whenever possible. That is intended to be a very beneficent statement. The image of the Justice Department coming in and saying, oh, we are not here to mess things up or to do anything awful, it is unfortunately the pattern of this administration's Civil Rights Division, which Mr. Lee has inherited, and which I believe he is continuing to engage in, to go in with cases that are not legitimate cases, threaten endless prosecution of those cases at the cost of millions of dollars, and then to engage in settlements that are themselves illegal.
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    This is not just Clint Bolick talking. Court after court has criticized the Justice Department and this administration for its excessive tactics, not only in the area of employment discrimination, but in the area of the Voting Rights Act as well, where similar efforts are going on to achieve racial or gender balance. Judge Boyle a few years ago in North Carolina threw out one of these consent decrees, which is a very extraordinary thing. Normally courts rubber-stamp consent decrees. In this instance, Judge Boyle characterized the complaint against the North Carolina Department of Corrections as not valid and the consent decree as most likely unconstitutional because of its extreme resort to, in that case, gender preferences.

    The Torrance case, which the chairman and others have talked about, and I know Mr. Flick will get into in much more detail, is very, very disturbing. This is a case, again, where the Justice Department came in and bullied a city. And Judge Mariana Pfaelzer of the district court in Los Angeles, district court judge who is an appointee, I might add, of President Jimmy Carter, we are not talking about partisan issues here, dismissed the lawsuit, pointing out that the Justice Department could not carry the burden of proof, and awarding $1.8 million in attorneys' fees because she found the suit frivolous, unreasonable, and without foundation.

    It is one thing for a private litigant to do this. It is quite another for the United States Government through the Justice Department to ever have a lawsuit that could be characterized this way. I hope that—because I believe that this is the tip of the iceberg. There have been similar consent decrees in Hialeah, Florida; Macon County, Georgia; Chevy Chase Savings and Loan; Fullerton, California, and elsewhere. I believe this is an indication of a very disturbing pattern of law enforcement abuse. It is one that this subcommittee, in my view, ought to take a very close look at, and Mr. Lee ought to be asked, in response to Judge Boyle in North Carolina, in response to Judge Pfaelzer in California, what will he do to ensure that this sort of abuse will never, ever happen again.
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    Thank you, Mr. Chairman.

    Mr. CANADY. Thank you Mr. Bolick.

    [The prepared statement of Mr. Bolick follows:]

PREPARED STATEMENT OF CLINT BOLICK, VICE PRESIDENT AND DIRECTOR OF LITIGATION, INSTITUTE FOR JUSTICE

    Mr. Chairman and members of the subcommittee, thank you for the opportunity to comment on the activities of the Civil Rights Division. I speak to you in my capacity as litigation director of the Institute for Justice, a public interest law firm that promotes individual liberty and equality under law, and also as an alumnus of the Civil Rights Division, where I served in Appellate Section and the front office in 1986–87. My observations will be general in nature, leaving to my co-witnesses to further develop specific areas of concern that I share.

    I applaud the subcommittee for its vigorous oversight of the Division, whose law-enforcement mandate touches the lives of every American in its impact on voting, education, employment, housing, crime, and other matters.

    Unfortunately, the story here is a sad one, for the Civil Rights Division under the Clinton Administration has squandered its proud legacy. Over the last five and a half years, the Division has compiled a shocking record of abusive conduct and disregard for the law. At a time when civil rights issues are intensely divisive, the Division has done utterly nothing to forge consensus, instead using its powerful arsenal to advance an ideological agenda that rejects the shared values and principles embraced by our nation's civil rights laws. Conse quently, the Civil Rights Division has abandoned any claim to moral authority, a circumstance exacerbated by the failure of its acting chief, Bill Lann Lee, to submit to the constitutionally requisite confirmation by the United States Senate.
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    Given the Division's vast powers and resources, it is important that the officials who head the Division wield those powers with care, objectivity, and restraint. But it is the pattern of this administration to turn over the federal civil rights apparatus to ideological activists who can not, or will not, differentiate between objective law enforcement and ideological crusading.

    This conduct plays itself out most prominently in the area of race and gender prefer ences. Repeatedly and consistently, the United States Supreme Court has struck down such preferences as violations of the constitutional guarantee of equal protection of law, and has admonished that such discrimination is presumptively unconstitutional and tolerable only under the most narrow and exceptional circumstances.

    But the Administration, at the direction of the Civil Rights Division, has resisted all efforts to conform federal policies and programs to the rule of law. The Division continues to defend and advance preferences in litigation around the country. It persists in its litigation of the Adarand case, even though the underlying set-aside program is clearly unconstitutional. The recent Federal Acquisition Regulations for Small Disadvantaged Businesses are the latest example of evasion of Supreme Court precedents, designed not to comport with constitutional parameters but to preserve as much of the federal preference apparatus as possible. I would hope, but not expect, that Acting Assistant Attorney General Lee will explain how those rules and the positions the Division takes in employment, set-aside, and racial gerrymandering cases square with Supreme Court precedents.

    Nowhere is the Division's contempt for the rule of law more apparent than in the tactics it employs under Title VII of the Civil Rights Act of 1964 and the Voting Rights Act. Under former Assistant Attorney General Deval Patrick, the Division commenced concerted and extra-legal efforts to coerce state and local governments to adopt employment preferences and racial gerrymandering. In both areas, the Division consistently proceeds in the following manner: (1) it announces a violation of the law without the requisite prima facie showing of discrimination; (2) it threatens costly and time-consuming litigation in order to induces coerced settlements; and (3) it pursues consent decrees containing race- and gender-conscious remedies that exceed constitutional parameters. These tactics have been repeatedly and roundly condemned by federal courts in both the employment and voting contexts, bringing shame to the Civil Rights Division and costing taxpayers millions of dollars.
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    One such decree with the North Carolina Department of Corrections was invalidated by a federal court for ''run[ning] roughshod over due process'' and containing gender-conscious provisions that ''appear to be unlawful and unreasonable.'' It is highly unusual to have federal courts criticizing the United States for such outrageous and unlawful tactics.

    The most recent example is a case brought by the Civil Rights Division against the City of Torrance, California, alleging employment discrimination in the police and fire departments. In other instances, municipalities facing a similar threat of litigation capitualated in the face of massive Justice Department resources and entered into consent decrees. But Torrance refused, and in the process unmasked the Civil Rights Division's abusive tactics.

    The allegations against the City of Torrance were based solely on statistics that were not probative of discrimination. When Judge Mariana R. Pfaelzer, an appointee of President Carter, grilled the Civil Rights Division's lawyer about the basis for the discrimination claim, the attorney was unable to provide it. Judge Pfaelzer declared,

What you're saying repeatedly to the court is, you can't carry the burden of proof that you have unless you get details from the City. Now, how can that be? You wouldn't have picked out the City unless you had a prima facie case, would you?

Yet that's exactly what happened. The court ruled against the Justice Department, and that decision was upheld on appeal. But earlier this year, Judge Pfaelzer went a step further, awarding two millions dollars in attorneys fees against a lawsuit she found ''frivolous, unreasonable, and without foundation.''
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    This decision, which is highly unusual if not unprecedented, reveals a Civil Rights Division that is out of control. One might expect such an outcome from private litigants. But not from the government, which is obligated to determine in good faith whether a law has been violated before it undertakes legal action. It might lose a case, but it never—never—should file a lawsuit that conceivably could be characterized as frivolous, vexatious, or outside the bounds of due process and other constitutional guarantees.

    This Committee should determine from Mr. Lee who is responsible for authorizing these actions. Whoever is responsible does not belong in this Justice Department. Mr. Lee also should be called upon (1) to explain what steps he will take to ensure that such suits are not authorized in the future, and to set forth the basis on which statistics-based suits will be authorized under Title VII, the Voting Rights Act, and other statutes that allow statistics-based claims; and (2) to delineate the remedies he will seek in such cases to ensure that they comport with U.S. Supreme Court precedents.

    The even bigger problem is that the Torrance and North Carolina cases, I fear, reveal only the tip of the iceberg. In most instances, the defendants capitulate in the face of the Civil Rights Division's coercive tactics, leading to possibly unlawful consent decrees. Roger Clegg of the Center for Equal Opportunity testified in March about a consent decree reached with the Arkansas Department of Corrections that contains express gender-based preferences. These practices are outrageous abuses of law-enforcement powers and must be stopped.

    Acting Assistant Attorney General Lee and the Civil Rights Division also seem determined to undo civil rights reforms enacted at the state or local level. As the Committee knows, the Division joined a legal assault on Proposition 209, which prohibited governmental discrimination in California. In light of its stinging defeat in the Ninth Circuit Court of Appeals, will Mr. Lee ensure this Committee that it will refrain from challenging such measures elsewhere?
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    The Division also is targeting bilingual education reforms. With no apparent basis in federal law, the Justice Department is seeking to compel the San Juan school district to establish an extensive bilingual program in Navajo, despite the fact that few of the district's Navajo students speak and write in the Navajo language. James Littlejohn, who worked for 27 years in the U.S. Department of Education's Office for Civil Rights (OCR), has stated that ''if left unchecked by Congress, OCR and DOJ will continue to require local school systems to agree to a prescriptive and intrusive district-wide bilingual program as a major element of the court agreement,'' even though federal law does not mandate such obligations. Again, ideology rather than law-enforcement drives the Division's actions.

    The Division also has challenged a Denver school district policy that focuses on transitioning students out of bilingual programs and provides greater parental choice. The federal officials are insisting on greater Spanish-language instruction, even for students who do not speak Spanish. Denver faces a loss of federal funds if it does not capitulate. Again, the Justice Department's heavy-handed efforts appear to have no basis in law.

    Mr. Chairman, if these were merely policy differences, I would not be here today. The Administration has the right to pursue whatever civil rights policies it desires, even if they are divisive, counterproductive, and contrary to the views of a majority of Americans.

    This is different and much worse. The attorneys who work for the United States Department of Justice are sworn to enforce the law. I understood that when I was an attorney in the Civil Rights Divsion, and so have hundreds of others who have worked proudly and vigorously to enforce our nation's civil rights laws.
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    This Division, under President Clinton, Assistant Attorney General Deval Patrick, and the Acting Assistant Attorney General Bill Lann Lee, have a profoundly different view. Mr. Lee and his predecessor do not seem to understand the difference between the NAACP Legal Defense Fund, for which they used to work, and the Department of Justice. As law-enforce ment officials, they are accountable to the American people and their actions are bounded by the rule of law. It is tragic that their disregard for the law and the people is so great that the courts have felt compelled to rein in their zealotry.

    I hope this Committee will exercise its oversight powers vigorously to exert a democratic check on the Civil Rights Division's excesses. Plainly, the Division must conform its decisions to bring cases, its litigation tactics, and its proposed remedies into compliance with the statutes it is bound to enforce as well as with the dictates of due process and equal protection. If it fails to do so, not only will the Division continue to lose credibility in the courts, but it will further undermine the precious consensus upon which our nation's civil rights laws are based.

    Mr. CANADY. Ms. Smith.

STATEMENT OF SHANNA L. SMITH, EXECUTIVE DIRECTOR, NATIONAL FAIR HOUSING ALLIANCE

    Ms. SMITH. Good morning. My name is Shanna Smith, and I am the executive director of the National Fair Housing Alliance (NFHA) NFHA is the umbrella organization representing more than 85 private, non-profit fair housing groups throughout the United States.
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    The purpose of my testimony today is to comment on the implementation of the fair housing testing program and other fair housing activities of the Department of Justice and to make several recommendations that I think will help improve and provide more protections for people throughout the United States under the fair housing laws. But first and foremost, I really must take this time to note that the absence of support for affirmative action programs by so many Members of this Congress is not balanced by adequate funding for both education and enforcement activities of the civil rights laws, and, in particular, the Fair Housing Act. I think if Congress is committed to eliminating housing discrimination in the United States, it must increase funding for enforcement and education activities for both the Department of Justice and the U.S. Department of Housing and Urban Development.

    You have my statement, and I would like to just summarize and highlight some points and add some additional information. In 1989, HUD conducted a housing audit in 25 cities, which estimated that more than 2 million incidents of rental and sales discrimination occur annually. However, last year only 24,000 complaints were filed with the Department of Justice, HUD, State and local agencies, and private fair housing agencies. Of that 24,000, about 13,584 were filed with the private, nonprofit fair housing groups. So you can see that we have only touched the tip of the iceberg in identifying, documenting and eradicating the problems of housing discrimination in the United States.

    There were comments earlier about the level of discrimination. In the cities where there are no fair housing groups, which are the majority of cities in the United States, the incidents of discrimination are very high. Where new groups have recently formed, such as in San Antonio, Texas; Montgomery, Alabama; New Orleans, Louisiana; and Fresno, California, first time rental audits were conducted using matched paired testers who were African American, white and Hispanic. They were sent to apartments to inquire about the availability of the units, the date of availability, the amount of the rents and the amount of security deposits required. Seventy to eighty-five percent of the time that African Americans and Hispanics inquired about rental units in those four cities, they experienced discrimination. Some acts were blatant such as saying—no apartment was avaliable even though there was an ad in the paper. Managers simply lied by saying, ''we don't have anything for rent.'' Some acts were very subtle such as the manager inquiring about when the tester needed the apartment. When the African American or Hispanic tester said, ''August 1st.'' ''It won't be available until September 1st.'' When the white counterpart arrived, the apartment was available right then and there.
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    While the hate crimes that we were talking about are really blatant and vicious, but the other types of discrimination in housing or employment cause just as much racial animosity and problems in our culture and in this society.

    It is very important that Congress support funding to increase fair housing education that teaches people what the laws require as well as supporting enforcement activities that will require people to comply with the fair housing laws. The fair housing laws weren't passed to tell people of color and women that we have the right to buy housing, rent housing, get a loan, get homeowners insurance. The civil rights laws were passed to tell the people who run the corporations and to tell white people, in particular, that they must give the same rights to everybody else that they enjoy. Those of us who are white people are privileged to experience fair treatment every day in this country.

    What the Justice Department has done in the area of rental, sales and lending testing and litigation is very, very important. In the rental arena, Justice has traveled across the country conducting testing and investigations of large apartment complexes. Justice has held companies accountable when the evidence found discriminatory conduct. More importantly than that, Justice has set up victim funds to help identify the people who were denied the right to apartments simply because of their race.

    In the area of lending, I think we need to applaud the Department of Justice for taking a major role in holding lenders accountable for acts of predatory lending as well as redlining. I think the case that Bill Lann Lee referred to in Long Beach, California is significant. The subprime market offers loans to people who have ''B'' and ''C'' credit ratings. The interest rate is supposed to be based on the risk the applicant poses. There is a need to have the subprime market in America because not everybody can always pay their bills on time, and they should not be denied the opportunity to purchase a home or refinance it or get a home equity line of credit because of past credit problems. But there are predators in that market. The Long Beach case illustrates that oftentimes people of color, elderly of all races, and women are the people who are exploited by these predatory brokers. They extort high fees, points, down payments, and interest rates from them.
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    The most recent issue of Consumer Reports describes predatory lending practices going on in Georgia, you have these problems all over the country. Last week I spent 3 nights listening to people talk about what rates they are paying for mortgage loans when they couldn't get a loan from a coventional lender. Some people were paying rates as high as 28 percent to refinance their home. The people who were paying the highest rates were the elderly, African American, Hispanic and Asian people. The people I listened to were all from California

    The Justice Department's work in fair lending has been critical because the private fair housing movement doesn't necessarily have the financial resources to bring these cases. Justice's first case, U.S. v. Decatur Federal, sent a message, a clear message, throughout the country that the Government would not tolerate redlining practices. Justice's most recent settlement with the Albank case in New York City—I know my time is almost up.

    Mr. CANADY. Well, actually your time has been up for quite a while now. So if you would try to wrap it up as soon as you can.

    Ms. SMITH. Okay.

    Mr. CANADY. Thanks.

    Ms. SMITH. The Albank case in New York is a classic 1997 instance of redlining. The bank just told their correspondent brokers not to write in African American and Hispanic communities.
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    Finally, what is very unique about the Fair Housing Act is that whites who recognize discrimination occurring can report it and bring administrative or legal actions. Whites who are trying to move into integrated and African American, Hispanic or Asian neighborhoods and experience discrimination can bring actions under the Federal Fair Housing Act. Many of the insurance cases that have been filed, have been brought by white agents working for insurance companies. White agents working for Nationwide alleged they were told not to write in Philadelphia's black neighborhoods. Other white agents allege they were told to get rid of the insurance policies in Detroit—Wayne County. So what is very important about this law is that the Fair Housing Act has a way of making sure that those whites who are of goodwill and want to promote the law and don't want to be part of a society that continues to discriminate, they, too, have an opportunity to bring actions under the law.

    Thank you.

    Mr. CANADY. Thank you Ms. Smith.

    [The prepared statement of Ms. Smith follows:]

PREPARED STATEMENT OF SHANNA L. SMITH, EXECUTIVE DIRECTOR, NATIONAL FAIR HOUSING ALLIANCE

INTRODUCTION

    Members of the Committee, my name is Shanna Smith, and I am the Executive Director of the National Fair Housing Alliance (''NFHA'') located in Washington, DC. NFHA opened its offices in January, 1990. Previously, I was the Director of the Toledo Fair Housing Center for fifteen years. NFHA is a private, non-profit corporation representing approximately eighty private, non-profit fair housing agencies located in thirty-five states, virtually the entire organized private fair housing movement. In addition, there are supporting members of NFHA representing state and local civil rights agencies and other organizations and individuals who support the principles of fair housing.
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    The National Fair Housing Alliance was founded in 1988. The mission of the Alliance is to promote the achievement of ''the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.'' The Alliance believes that by vigorous, positive and focused action we can work together to achieve fair housing through outreach, education, litigation, conciliation and research into the nature, extent and effects of housing discrimination.

    The members of the Alliance are dedicated to working to develop and implement strategies to reduce, and eventually eliminate, racially and ethnically segregated housing patterns and to make all housing accessible regardless of race, color, religion, sex, familial status, disability or national origin. Since 1992, the Alliance has focused on developing investigative tools in the areas of discriminatory lending and insurance practices. NFHA has shared with its membership as well as staff of federal, state and local governmental enforcement bodies the techniques used to investigate and test complaints in these areas. Additionally, the Alliance remains committed to providing programs that focus on prevention of discriminatory conduct and will continue to work with members of the housing, lending and insurance industry to provide guidance and self-testing programs.

TESTIMONY

    The purpose of this testimony is to comment on the implementation of the fair housing enforcement program of the U.S. Department of Justice and make recommendations that will help further fair housing compliance in the United States. First and foremost, NFHA must note that the absence of support for affirmative action by so many members of this Congress is not balanced by adequate funding for enforcement of civil rights laws and, in particular, the Fair Housing Act. If Congress is committed to eliminating housing discrimination in the United States, it must increase funding for enforcement and educational activities for the Departments of Justice and Housing and Urban Development (HUD). Specifically, Congress should fund the 1990 proposal by Senator Orrin Hatch to allocate an additional $1 million to the Department of Justice to support its testing program. Currently, Justice spends approximately $250,000 per year for testing. This amount falls woefully short of what is needed to uncover the myriad practices used to restrict and deny housing, loans and insurance to qualified people because of their race, color, sex, religion, national origin, disability or family status.
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    The private fair housing movement has historically been in the forefront of identifying, testing, and litigating fair housing complaints; however, in 1990 several pattern and practice complaints alleging discriminatory rental procedures were referred to the Department of Justice (''Department''). The referral of cases to the Department is significant because between 1980 and 1989 there was virtually no cooperation between the Department and private, non-profit fair housing organizations on matters under investigation or litigation by fair housing organizations. During this period, private fair housing groups pioneered investigations, testing methodologies and litigation regarding sexual harassment in housing and discriminatory practices, policies and underwriting guidelines of lending institutions and homeowners insurance companies. There are several reasons the fair housing groups began to cooperate with the Department and to provide information and case referrals. The first reason was a commitment from the Assistant Attorney General for Civil Rights and the Chief of the Housing and Civil Enforcement Section of the Civil Rights Division to become fully engaged in fair housing litigation as authorized under the Fair Housing Amendments Act of 1988. The most important reasons, however, were the way Justice handled the initial cases referred to it and its commitment to seek funding for a testing program.

DEPARTMENT OF JUSTICE—TESTING AND INVESTIGATIONS

    What Is Testing? The purpose of testing and investigating housing market transactions is to identify policies and practices that restrict and deny equal access and/or protection for individuals or neighborhoods protected by fair housing laws. Testing can provide evidence that supports allegations of discrimination and may be the best way to reliably identify and document illegal housing discrimination. Testing conducted by the Department has clearly documented patterns or practices of illegal housing discrimination. This is best illustrated by the variety of resolutions secured based on the testing program.
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    Testing is an invaluable tool because it resembles in all discernible aspects the typical consumer housing transaction. Testing evidence is compelling because reasons for differential treatment are isolated through the testing process. Race, ethnicity, family status or disability remain the sole element of difference. Testers are matched on all characteristics relevant to renting an apartment or buying a home. Where redlining issues are raised, testing involves the racial composition of neighborhoods. Testing measures the terms and conditions offered to similarly qualified borrowers seeking purchase loans, refinancing or home equity lines of credit for homes located in predominately African American and Hispanic neighborhoods as compared to homes in predominantly white neighborhoods. The difference remaining in the test is a difference in the racial composition of the neighborhoods.

    Testing cannot confirm or refute all types of discrimination in the marketplace. Sometimes a landlord raises the rent higher for racial minorities or families with children. Testing may not necessarily uncover this practice. A lender may charge higher fees or add points at closing; however, lending testing only reviews the practices at the pre-application level, so testing cannot document whether fair treatment occurs at closing.

    One of the most important aspects of testing is that it also documents when no illegal practice is occurring. Therefore, allegations brought to the Department or private fair housing groups can be verified in an efficient and cost effective manner before proceeding with administrative or legal actions.

Testing by the Department of Justice

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    Rental Housing Sector: Initially, the Department of Justice became fully engaged in testing rental apartment buildings in Michigan and Illinois by working with credible, experienced private fair housing organizations in Detroit and Milwaukee. The high quality and professional implementation and analyses of test results led to the filing of several important lawsuits and consent decrees. The settlements that the Department negotiated included provisions for identifying protected group members who were illegally denied apartments and compensating them for the acts of discrimination as well as requiring proper education and outreach to the consumers who were denied equal housing opportunities. Where the evidence of discrimination was particularly egregious, Justice also sought civil penalties. These civil penalties act as a deterrent to future violations by the same company and send a message to others in the industry that violating fair housing laws is costly. These initial filings put the housing industry on notice that the federal government was serious about rooting out illegal practices. At the same time, staff from the Housing and Civil Enforcement Section were working with national, state and local housing trade groups to explain the fair housing law and to offer information about how to comply with the law. The Department staff also met with private fair housing groups and state and local human rights agencies to discuss the importance of ensuring high quality standards for testing and investigation.

    As a result of well-documented cases and well-publicized settlements, the rental and sales industries began implementing improved training programs for their constituents. Fair housing groups began referring more complaints to the Department that alleged patterns of illegal housing discrimination. The National Fair Housing Alliance referred complaints from cities that had no private fair housing enforcement programs.

    These early cases were followed by rental testing in Alabama, California, Florida, Indiana, Louisiana, Missouri, New Jersey, Ohio, South Dakota and Virginia. In total, these testing investigations resulted in the filing of 46 pattern and practices cases as of 1995. Of the 38 cases that were resolved by consent orders or favorable judgements, the Department recovered more than $6.2 million in damages for victims of illegal practices as well as funds for investment in communities that were redlined by illegal lending or homeowners insurance practices. The victim funds for damages are very important for two reasons. Monetary damages serve as reminder in America there is a cost for engaging in practices that violate the federal Fair Housing Act. Secondly, and equally important, is that the actions of the Justice Department remind victims of housing discrimination that the federal government takes very seriously violations of their civil rights. It is important that ordinary people know that the United States government will not tolerate illegal housing discrimination. The success of the Justice Department in identifying and eliminating illegal housing practices restores confidence to people of color, families with children, persons with disabilities and others for whom the government is committed to protecting their right to secure housing, loans and homeowners insurance.
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    Sales Issues: One usually thinks that housing discrimination complaints are brought by the person seeking housing; however, increasingly we see more cases where the rental manager or sales agent identifies illegal practices and refuses to comply with management's discriminatory policies. The following case was filed by a private attorney and referred to the Justice Department by the local fair housing group. The Department entered the case.

    Debra Byrd and Patricia Humes v. First Real Estate Corporation of Alabama, et.al. Two African American sales agents for First Real Estate of Birmingham, Alabama, filed complaints with the U.S. Department of Housing and Urban Development and subsequently brought a lawsuit in federal district court alleging that the brokers for First Real Estate subjected them to racial discrimination in the terms and conditions of their association with the company. The plaintiffs alleged that white agents received more favorable treatment in matters involving sales listings and sales contracts with home buyers. Plaintiffs also alleged that they were treated differently with respect to the nature and amount of referrals. The two Black agents alleged that they were told not to show homes in predominantly white neighborhoods to African American buyers. In another example of discrimination, a sales contract proffered by an African American male for a home in a white neighborhood was voided by the broker because the seller's neighbor did not want a Black person to buy the home. The former agents alleged that there was a pattern and practice of discrimination in the office of First Real Estate and that the listing and selling of homes was driven by illegal considerations of race—from the race of the sales agent to the race of the prospective buyer to the racial composition of the neighborhood. The company denied African American home seekers access to housing in particular areas and interfered with and frustrated the plaintiffs' attempts to sell housing to African Americans These practices went on for four years before the Black agents filed complaints.
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    Ms. Byrd complained to the brokers about her working conditions and First Real Estate's discriminatory practices, but no action was taken and the conditions did not improve. Ms. Byrd placed a ''For Sale'' sign on a property that she listed in a predomonantly white neighborhood. The sign displayed Ms. Byrd's photograph and advertised that she was the sales agent for the property. The broker refused to allow her to post the sign and actually removed the ''For Sale'' sign from the property. White agents were allowed to place signs which contained their pictures.

    After the Justice Department became involved in the case, it was swiftly resolved and included damages for the real estate agents and training for all agents working for the company.

    Sexual Harassment: Sexual harassment in housing is a serious problem, but prior to the Justice Department's testing and investigation program only two complaints had ever been filed—one in federal court in Toledo, Ohio in 1982, and one in state court in Milwaukee, Wisconsin in 1984. Justice has handled several cases and obtained relief and good publicity which sent a message to rental apartment managers that sexual harassment of tenants will not be tolerated. Women who had every right to be safe in their apartments were subjected to verbal and physical assaults by managers and owners. Children were also victims of sexual harassment by some mnagers. Sexual harassment in housing is a frightening experience because under laws in most states, the owner ir manager is entitled to have a key to your apartment. How can a woman feel safe in her own home when the person hasrassing has 24 hour access to her home? The Justice Department's thorough and swift investigation of these complaints provided a sense of security for the victims.
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    Lending Investigations: The Department's work in the field of mortgage lending has had an historic impact on reducing mortgage redlining practices throughout the entire United States. The Department's first major case which resulted in a consent decree with Decatur Federal Savings and Loan of Atlanta, Georgia in 1992 sent a wake up call to the whole lending industry. Companies all across the country studied the order and began reviewing their own internal policies and structure to try to identify and eliminate discriminatory policies or practices.

    Chevy Chase: However, it was the Department's 1994 settlement with Chevy Chase Bank that clearly illustrated the nature and extent to the lending problems facing America's African American and integrated neighborhoods. Chevy Chase is a federally chartered institution doing business in the District of Columbia, Maryland and Virginia. Chevy Chase had a practice of opening new branches and mortgage offices after considering customer-deposit statistics, location of competitors, and the location of other businesses that may attract customers. When these conditions were identified in white communities a beanch was opened. However, these guidelines were not uniformity applied and race appeared to be a factor in the selection of branch locations because Chevy Chase did not open any new offices in the District of Columbia's African American neighborhoods. In fact, in the late 1980's, Chevy Chase decided to eliminate the District in its definition of service area under the Community Reinvestment Act. Its federal regualtor asked the bank to reverse this policy. Additionally, Justice uncovered evidence that indicated that Chevy Chase actively and aggressively solicited real estate related financial transactions through real estate professionals and builders serving white areas, but intentionally avoided seeking such business from professionally serving African American residential areas. Possibly the most striking feature in the charges against Chevy Chase was its failure to make loans in the District of Columbia's African American neighborhoods. Attached is a map depicting the total number of loans made by Chevy Chase in 1992 in the District. It is shocking how few loans were made.
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    The settlement agreement with Chevy Chase made headlines in more ways than one. Community leaders and residents applauded the settlement terms, while the industry vehemently accused the Department of overstepping its bounds. But it is absolutely necessary to secure strong, effective relief in order to reverse the effects of years of disinvestment and establish trust with the African American and other minority communities that a lender will change its past discriminatory behavior. How can we expect people to believe that the same institution that refused loans because of race will now embrace the people lving in African American and integrated neighborhoods? However, the proof of the effectiveness of this settlement is clearly evidenced in the significant increase in home purchase loans made by Chevy Chase in the African American neighborhoods in the District of Columbia. Attached is a second map which is a visual testimony to the changes that can take place when fair lending practices and good business practices are implemented.

    Chevy Chase has made a marvelous entry in the District of Columbia's African American and integrated neighborhoods by instituting proactive lending initiatives which include, among other things:

 Advertising in print and radio forums to African American consumers

 Soliciting business from real estate professionals working in African American neighborhoods

 Creating incentives in the commission structure for loan originators closing loans on lower priced homes

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 Opening three new branches in African American residential areas

 Announcing a $25 million special lending initiative with below market fixed rate loans

    Predatory Lending Practices: In September 1996, the Department entered a consent decree with Long Beach Bank. This case may be the third most important lending issue brought by the Department and is certainly a landmark case. The subprime lending market is notorious for charging exorbitant interest rates, processing fees and points and was virtually unchallenged in the fair housing arena until the Department investigated and negotiated a comprehensive consent decree with Long Beach Bank. The customers in the subprime market are often described as people with ''B/C'' credit ratings. They are usually charged a higher interest rate because they can be considered a higher risk than the traditional ''A'' borrower. However, what the Department uncovered was more than a lender using risk-based pricing to set the terms and conditions for loans. Indeed, risk-based pricing can be legal and can be a fair way for people with credit problems to secure home purchase, refinance or home improvement loans. However, what the Department uncovered was intentional actions directed at protected groups members to extract unconscienable and illegal rates becasue of the person's race, national origin, sex and age.

    The Department examined the totality of loan originations by Long Beach and discovered that African Americans, Hispanics, women and persons over the age of 55 were charged higher prices for their loans than the terms and conditions granted to younger, white males who presented similar levels of risk to the lender. Wholesale brokers from whom Long Beach Bank bought loans were charging up to 12 points above the lender's base price. Thus, for a loan of $100,000, the lender permitted an additional charge of $12,000 to the consumer. Loans brought in by Long Beach's loan officers, revealed that African American females over the age of 55 were 2.5 times more likely than white males under the age of 56 to be charged fees and points that amounted to 6% or more of the loan. For loans brought in by the lender's wholesale brokers, older African American females were almost four time more likely as younger white males to be charged fees in this range. Hispanics also experienced these high fees and interest rates. Remeber that the comparisons are maded between similar risks.
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    Since the Long Beach case, the Federal Trade Commission has brought suit against a Washington, DC based subprime lender, Capitol Cities Mortgage Corporation, for charging fees exorbitant fees (some more than 22%) and other consumer fraud issues. Freddie Mac is exploring the subprime market. If Fannie Mae and Freddie Mac entered the market there would less chaos and fewer opportunities for unscrupulous lenders to exploit the elderly, women and people of color. The Department's bold move to tackle predatory lending practices must be heralded as the beginning of the end of consumer exploitation of the groups protected under the Fair Housing Act and the Equal Cedit Opportunity Act.

    Mortgage Redlining: In August, 1997, the Department filed a consent decree with Albank, a New York bank that allegedly redlined African American and Hispanic communities in Connecticut and Westchester County, New York. The Office of Thrift Supervision (OTS) conducted a special examination of Albank in early 1997 and found information that indicated the Albank was redlining African American and Hispanic communities. OTS made a referral to the Department in May, 1997. The Department's investigation uncovered evidence that Albank explicitly instructed its correspondent brokers not to originate loans in specific geographic areas with large populations of African Americans and Hispanics. In Connecticut, Albank refused to fund loans secured by properties located in Hartford, New Haven and Bridgeport whose Hispanic and African American populations approached or exceeded the majority of the population in the cities. In Westchester, Albank delineated an area in which it would not underwrite loans that had 75% of the African American population and 66% of the county's Hispanic population.

    The consent decree requires Albank to permanently remove all geographic limitations on the scope of its mortgage lending activities in Connecticut and Westchester County, implement a special mortgage lending program which includes outreach to the previously excluded minority areas, provide home buyer education and counseling services and commit $55 million of below market rate loans in these areas.
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    Hate Crimes: Unfortunately, there are instances in the United States where some people react violently when African Americans, Hispanics, interracial couples, or people with disabilities move into their neighborhood. Fortunately, Congress had the foresight to include civil [42 U.S.C. 3617] and criminal [42 U.S.C. 3631] penalties to protect both members of the protected groups when they are seeking housing and people who help them secure housing or exercise their fair housing rights. In the twenty-three years I have been promoting equal housing opportunities, I have called on the Department of Justice and the Federal Bureau of Investigation no fewer than 50 times to intervene and stop acts of harassment, coercion and intimidation, investigate shots fired into homes of African Americans who bought in white neighborhoods, stop threats of arson against Hispanic families living in white neighborhoods, and help fair housing groups that are threatened or assualted because of their advocacy for victims of illegal discrimination.

    When a young African American couple buying their first home in Toledo, Ohio returned from their closing to find bullets had been fired into their home, the Department instructed the FBI to investigate immediately. The FBI agent learned that the real estate agent who sold the home received a telephone call the morning of the closing from a white male with a German sounding accent who asked if the home had been sold to Blacks. When the agent refused to answer the question, the caller hung up. From the trajectory of the bullets, the FBI determined that shots were fired from the side of the home directly across the street from the African American couple's new house. The man living in the home had a distinct German accent. While the FBI could not prove the man fired the shots, the inquiry and investigation alone were enough to prevent further acts of intimidation.

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    The Department and the FBI have been extremely diligent in responding to threats of violence and harassment relating housing all over the United States. The fair housing movement depends upon the rapid response from both the Department and the FBI to quash these terrifying events. While we fully understand that it is difficult to secure enough evidence in many of these cases to get a conviction, it is nonetheless, imperative that the Department and the FBI have the necessary resources to respond promptly and help the local government, police and community leaders deal with the problems that give rise to hate crimes.

Recommendations:

1. Testing Program: The Committee should recommend a special funding line item for testing resource to $1 million so the Department will be able to take the lead in identifying and eliminating the newest form of housing discrimination underway as a result of mega-mergers, and real estate sales, mortgage financing and home insurance transactions via the Internet,

2. Attorney Staffing: The Committee should recommend an increase of at least $5 million for hiring more staff attorneys in the Housing and Civil Enforcement Section. The additional staff will allow the Department to challenge the institutionalized discriminatory practices identified in the Department's cases involving real estate rental and sales companies, homeowners insurance companies and mortgage lenders, in particular, subprime lenders and finance companies.

3. Hate Crimes: The Committee should recommend increased funding to provide more staff who will specialize in the investigation of housing related hate crimes and acts of intimidation and coercion that violate the Fair Hosuing Act as well as providing guidance and support for community hate crime prevention programs.
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58802a.eps

58802b.eps

    Mr. CANADY. Mr. Flick.

STATEMENT OF WAYNE S. FLICK, ATTORNEY, LATHAM & WATKINS

    Mr. FLICK. Good morning Mr. Chairman, Mr. Scott, Ms. Waters. Again, thank you for the opportunity to come back here.

    You will recall that I was here 14 months ago, and I described in some detail the conduct of attorneys in the Civil Rights Division in the case it filed against the police and fire departments in Torrance, California. That lawsuit was an adverse impact challenge to written literacy skills tests that Torrance has used since 1981 to select entry-level police officers and firefighters.

    At the time I testified in May 1997, Judge Mariana Pfaelzer had issued a lengthy decision in that case, finding that the government ''wholly failed'' to meet its burden of proof, and that, with respect to the important question of whether there exists a legitimate alternative to written literacy skills testing in the police and fire hiring processes, the Civil Rights Division ''made no case at all.''

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    As has been noted this morning, since then there have been two important developments in that case. First, as you noted, Mr. Chairman, a unanimous panel of the Ninth Circuit affirmed Judge Pfaelzer's decision in its entirety. Second, and more importantly, I think, for today's purposes, Judge Pfaelzer ordered the Civil Rights Division to pay $1.8 million to reimburse Torrance for the legal fees it was forced to spend to defend the adverse impact allegations. This is the largest sanctions award against the Civil Rights Division of which we are aware.

    Unfortunately, it seems that Mr. Lee and his colleagues have not learned anything from their experience in Torrance. In February, the Civil Rights Division filed a very similar lawsuit against the police and fire departments in Garland, Texas. As in Torrance, the complaint in the Garland case says nothing about what it is Garland is alleged to have done to violate Title VII. In fact, all the Civil Rights Division did was take the Torrance complaint, change a few names and numbers, slap a new caption page on it and file it in Federal court. In fact, it is the Civil Rights Division's form complaint that they use in most or all of these cases. What is important about that in particular in Garland is that, before filing that complaint, the Civil Rights Division conducted a 5-year investigation into the city's hiring practices.

    I returned here today because I think it is vitally important, still, that this subcommittee be fully aware of what is going on in the Civil Rights Division, at least with respect to police and firefighter hiring. It is manifest from their activities that that the Civil Rights Division objects to the use of written literacy skills in hiring police officers and firefighters. The tests that they challenged in Torrance measure those skills at the 11th-grade level. Nevertheless, Mr. Lee sat here today and continued to take the position that the United States files suites only when the tests that are being used are not job-related.
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    The tests under attack in Garland, like the tests challenged in Torrance, have been professionally developed and validated, and shown to be reliable predictors of job performance. As a consequence, they are essential to the city's hiring practices. But because the Division doesn't like the overall complexion of the police and fire departments in Garland, they conclude that Garland ''must'' be violating the law.

    What makes this war on merit-based hiring so troubling is not merely that the Civil Rights Division wants to prevent the use of basic literacy skills tests, although I suggest that that is a remarkably scary notion. What angers law-abiding municipalities is the way the Civil Rights Division goes about it, the way they use their enormous power and their massive resources to try to bully cities into submission.

    If a city will simply sign a consent decree and agree to stop using these tests or modify them in such a way that they no longer, in fact, measure literacy skills, then the Justice Department will go away quietly. A city that stands up and defends its practice of merit-based hiring, however, finds itself on the receiving end of some very troubling and, at least in the Torrance case, some very unethical practices.

    The bottom line is that cities need to hire police officers and firefighters, and those that they hire need to be able to read, to write and to reason at at least some basic level. It is also a virtual certainty that any attempt by an employer to measure basic literacy skills in the preemployment process will, in fact, have an adverse impact on certain minorities.

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    The Civil Rights Division's answer to this problem is a simple one, but an insidious one: Stop measuring literacy skills, and replace those tests with tests that merely measure personality traits like openness, honesty, reliability and maturity. No one who hires police officers and firefighters disagrees those are important characteristics, but the only people I am aware of who believe those tests should replace written literacy skills are the people inside the Civil Rights Division.

    The Civil Rights Division has been using Title VII for more than a decade now to achieve this objective, and because most cities simply cannot afford to wage a war of attrition with a mindless bureaucracy, they acquiesce. That is exactly what the Justice Department hopes they will do. And that is exactly what Title VII is not about.

    And so I hope this subcommittee will again take seriously what you have heard today and what you have heard previously on this subject and formulate a concrete plan to make sure there are no more Torrance cases before more law-abiding cities across the country are engaged in this sort of frivolous litigation, or more importantly, before more cities are forced to give in to the demands of a government agency that is fully dedicated to race-conscious selection at any cost.

    Thank you.

    Mr. CANADY. Thank you, Mr. Flick.

    [The prepared statement of Mr. Flick follows:]

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PREPARED STATEMENT OF WAYNE S. FLICK, ATTORNEY, LATHAM & WATKINS

DISCLOSURE PURSUANT TO HOUSE RULE XI, CLAUSE 2(G)(4)

    Pursuant to House Rule XI, clause 2(g)(4), Mr. Flick certifies that he has not received any federal grant, contract or subcontract in 1998 or during the preceding two years. Although Mr. Flick and the law firm of which he is a member, Latham & Watkins, do represent the cities of Torrance, California and Garland, Texas in ongoing litigation brought by the Civil Rights Division of the United States Justice Department, he does not formally represent either municipality at this hearing. He appears today to offer his own testimony at the invitation of the Subcommittee, and the opinions expressed by him do not necessarily reflect the opinions held by officials, members, employees or any other persons in, affiliated with or in any way related to Latham & Watkins, Torrance or Garland. Accordingly, no disclosure is made with respect to Latham & Watkins, Torrance or Garland regarding federal grants, contracts or subcontracts.

I. INTRODUCTION

    Mr. Chairman and Members of the Subcommittee:

    In May 1997, I had the privilege of testifying before this Subcommittee and took the opportunity to explain in detail the conduct of the Civil Rights Division in a Title VII action it brought in July 1993 against the police and fire departments in Torrance, California. You may recall that, after finding Torrance unwilling to accede to its demands that the City adopt race-conscious hiring practices, the Justice Department brought an adverse impact challenge to the standardized written examinations used by Torrance since 1981 in hiring entry-level police officers and fire fighters. These examinations were—and the Court in the Torrance case expressly found them to be—professionally developed and validated, job-related and essential to the City's employment selection process. The examinations were and continue to be used by literally hundreds of jurisdictions in California and elsewhere.
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    At the time we last met, the District Judge, Mariana R. Pfaelzer, had already issued a lengthy written decision in the Torrance case and had entered judgment in favor of the City. (That September 8, 1998 decision was provided to the Subcommittee with my May 20, 1997 testimony.) Torrance had also filed and argued a motion seeking reimbursement of its attorneys fees from the Civil Rights Division, on the ground that the Government's adverse impact claim was frivolous, unreasonable and without any factual foundation. And the United States had filed an appeal of the district court's decision in the United States Court of Appeal for the Ninth Circuit.

    Since I last appeared here, there have been several further developments in the Torrance litigation. On March 23, 1998, the Ninth Circuit summarily rejected the Civil Rights Division's appeal and affirmed the district court's decision in its entirety. Then, on April 13, the district court granted the City's sanctions motion, ordering the Justice Department to reimburse the City's legal fees and pay costs in an amount to which the Civil Rights Division has since agreed: $1,795,759.60. While this result is most certainly a resounding vindication of the City's consistent position that the lawsuit against it had absolutely no factual or legal merit, it also offers compelling reason for this Committee to do what it should have done long before now: bring to an end this ongoing pattern of abusive litigation by the Civil Rights Division conducted under the guise of enforcing Title VII.

    I am aware of Mr. Lee's views regarding the Civil Rights Division's Title VII enforcement activities. I watched closely during his failed confirmation hearing last year. And, with due respect to Mr. Lee, I question his authority to continue to act in any official capacity within the Justice Department, absent Senate approval. Mr. Lee made quite clear during the confirmation hearings that, under his leadership, race-conscious enforcement policies would continue to be the Division's modus operandi. Indeed, the Justice Department admitted during the Torrance trial that it would permit the use of almost any selection device so long as it results in an ''acceptable'' bottom line. The same selection device that is permissible in one jurisdiction will be challenged as unlawful, however, in neighboring jurisdictions if the racial composition of their police and fire departments does not meet the Civil Rights Division's raw numerical criteria. In other words, it is the numbers that are important to the Justice Department, no matter how those numbers are achieved. Judging from his performance as Acting Assistant Attorney General, this approach fully reflects Mr. Lee's philosophy of ''equal opportunity.''
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    Sadly, neither Mr. Lee nor the attorneys who work under his supervision appear to have learned anything from their defeat in Torrance or the virtually unprecedented sanctions award against them. Rather than taking the decisions of a widely respected Senior District Judge and the liberal Ninth Circuit as a strong sign of the federal courts' disapproval of their heavy-handed tactics, they have ignored these caveats and continue to operate using their standard play book in jurisdictions throughout the country, making the same frivolous allegations, using the same boilerplate pleadings, and waging war on merit-based hiring while refusing to point to a single alternative other than race-conscious selection.

    The latest municipality to fall victim to the Government's massive exercise in social engineering is Garland, Texas, which I and my firm also now have the privilege to represent. (Mr. Lee's signature appears on the complaint in the Garland case, and we assume he is responsible for the press release issued when the suit was filed.) The Missouri State Highway Patrol and the Delaware Department of Public Safety have also recently found themselves on the receiving end of the Civil Right Division's so-called ''enforcement activities,'' and they, too, are being called upon to abandon merit-based hiring under threat of enormously burdensome litigation.

    Our experience in Garland is already eerily familiar, as the Justice Department has filed yet another lawsuit making adverse impact allegations about job-related examinations which it has admitted it cannot prove. After a five-year investigation in Garland, and notwithstanding the filing of a lawsuit in federal court in Dallas, the Government recently stated under oath that it has no idea which particular selection devices used in Garland are ''unlawful,'' and it has acknowledged—as it has repeatedly—that it is aware of no lawful alternatives. Instead, it has said that it will be able to answer that question only after the City provides it the information necessary to do so. I met yesterday with attorneys in the Justice Department seeking an explanation; predictably, they had no credible explanation to offer.
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    So, I return here today not merely to update the Subcommittee on the developments in the Torrance and Garland cases, but to urge the Subcommittee finally to take action. The Subcommittee's hearings on this subject have brought together testing experts, educators, attorneys and representatives of jurisdictions targeted by the Civil Rights Division. You have heard uncontradicted, specific testimony about the way in which Justice Department lawyers routinely and systematically bully municipalities into signing consent decrees that prohibit testing for basic literacy skills and mandate race-conscious selection, something the Government knows full well it could never constitutionally achieve through litigation. You have before you the detailed findings of the district court in Los Angeles, which were followed by an award of substantial monetary sanctions against the Civil Rights Division. And you will hear more details today about the Government's ongoing war on merit-based hiring.

    The record is now replete with evidence from which only one conclusion is possible: The Civil Rights Division continues to use Title VII as a mechanism to coerce employers to hire minority candidates based on race and national origin, rather than on merit, notwithstanding their inability to pass job-related examinations. This is a serious abuse of its statutory authority and directly contradicts the letter, the intent and the spirit of Title VII. It is time for the talking to end and for this Subcommittee to act.

II. LITIGATING THE OBVIOUS

    The premise of the Government's adverse impact challenges to cognitive abilities tests is that the jobs of police officer and firefighter in each jurisdiction, and the processes used to hire for those positions, are unique. Each new investigation or lawsuit begins with essentially the same pronouncement by the Civil Rights Division: ''You haven't hired enough minorities, so you must justify your hiring practices by demonstrating the relationship between cognitive abilities and the work performed by your police officers and firefighters.'' The Government approaches each state or municipality as if it is amazed to learn that the jurisdiction requires its public safety employees to possess basic literacy skills. It then plods its way through months, if not years, of enormously costly discovery in search of some evidence that the literacy requirement is merely a pretext and that, alas, police officers and firefighters in the target jurisdiction really don't need to read or write. Obviously, this makes about as much sense as suing the ballet for requiring its dancers to have legs.
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    When all is said and done, the credible literature on this subject and the decisions of the federal courts may be reduced to a handful of simple, if not obvious, facts: All of us know that police officers and firefighters need to read and write in order to perform successfully in training academies and in their jobs. All of us know it, but the Justice Department chooses to ignore it. Likewise, all of us know that professionally developed and validated tests of cognitive abilities accurately predict performance in training academies and on the job. All of us know it, but the Justice Department pretends it isn't so. And all of us know that, due to educational, socioeconomic and other societal differences, minorities as a group or groups tend to perform less well on valid tests of literacy skills than white testakers. All of us, including the United States Department of Education know it, but Justice Department attorneys keep filing lawsuits as if no one has told them.

    In order fully to comprehend the fundamental absurdity of the Civil Rights Division's adverse impact litigation, you must recognize these uncontrovertible facts. Indeed, you could scour the records in federal courts from coast to coast and I predict you would not find one brief filed by the Civil Rights Division that either effectively refutes these facts or offers any way they can be reconciled with the Division's view of Title VII or its enforcement practices. Simply put, the Justice Department's position in these cases is intellectually dishonest but they maintain their position in order to continue to justify using the Civil Rights Acts and burdensome, meritless litigation to ensure that competence is replaced by color in police and firefighter hiring across the country.

A. Different racial and ethnic groups possess different literacy skills

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    Though I understand it is not popular to say this aloud, it cannot credibly be denied that there are actual, measurable differences in the literacy skills of different racial and ethnic groups. These are not differences in innate ability; they are differences in educational achievement, which have been documented for at least two decades by the federal government itself. They are not an illusion created by employers' use of job-related, standardized tests of cognitive skills. They are not just a hypothesis that can be refuted by empirical data. The variance in performance by racial and ethnic groups on literacy skills tests reflects a problem in society which the Government and the educational and scientific communities have long known to be true but have been incapable of remedying. Whatever their cause, these differences ensure that an employer's use of a legitimate, job-related test of reading and writing skills in its selection process will generally have an adverse impact—probably a statistically significant adverse impact—on groups other than whites who take the test. The Justice Department's response to this problem is a simple but insidious one: stop measuring reading and writing skills. I doubt that anyone but the attorneys in the Civil Rights Division, who have shown themselves consistently to be philosophically opposed to merit-based hiring, thinks this makes any sense. Consider this evidence:

    In 1994, the United States Department of Education, Office of Educational Research and Improvement issued findings on the percentage of students (ages 9, 13 and 17) who possess skills at or above selected reading proficiency levels, based on administrations of the National Assessment of Educational Progress Tests between 1971 and 1992. The NAEP Tests are administered to representative samples of students in public and private schools, and test reading, writing, mathematics and science at various levels. For 1980 and 1992, for example, the Department of Education reported the following statistics:

Table 1


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    In 1990, the average NAEP reading, writing and mathematics test scores(see footnote 1) for 17-year-olds (approximately 11th grade) were as follows:

Table 2

    The percentile distribution of NAEP reading proficiency scores has followed the same pattern. In 1980 and 1992, these scores were distributed as follows:

Table 3



    Likewise, the distribution of average Scholastic Aptitude Test (''SAT'') scores has consistently supported the proposition that whites, as a group, perform at higher levels on standardized tests. In 1980–81 and 1992–93, average Verbal SAT scores were as follows:

Table 4



    Like it or not, it is a sound empirical proposition that whites as a group consistently score higher on standardized tests of cognitive abilities than black, Hispanic and Asian applicants. I offer no thorough explanation for these results, nor need I or any Title VII defendant. Title VII does not require an employer to explain or defend against factors that are outside its control. But these data make clear that minority police officer and firefighter applicants bring with them to the hiring process skill levels that guarantee that they, as a group, will not perform as well as white applicants. Title VII is concerned with distinctions made by employers for which no legitimate explanation can be offered. The explanation for the disparity in group performance on literacy skills tests lies not with employers, but with the applicants themselves—or, more broadly, with society in general. Using the Civil Rights Act to compel municipalities to hire less capable applicants will never solve this problem.
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B. Literacy skills tests predict performance

    Literacy skills tests are highly predictive of success in police and fire training academies and in police officer and firefighter jobs. Literally thousands of studies in the field of industrial and organizational psychology have confirmed the intuitively apparent proposition that testing for reading, writing and reasoning skills for police officer and firefighter positions is job-related and is a valid predictor of job performance. Similarly, the substantial research in this area reveals that police officer and firefighter jobs do not vary substantially from one jurisdiction to the next. Thus, contrary to the position implicit in the Civil Rights Division's enforcement philosophy, it is not necessary that each municipal defendant sued by the Government for using standardized tests reinvent the validation wheel. There is an overwhelming consensus in the scientific and educational communities that cognitive abilities tests scores predict performance in a manner and to a degree consistent with Title VIII.

    The ''validity'' of a test refers to the appropriateness, meaningfulness, and usefulness of specific inferences drawn from test scores. Test validation is the process by which evidence is gathered to support the use of test scores. Detailed discussion of the concept of validity is provided in two primary sets of professional standards, the Standards for Educational and Psychological Tests (1985) of the American Psychological Associates (the ''APA Standards''), and the Principles for the Validation and Use of Personnel Selection Procedures (1987) of the Society for Industrial and Organizational Psychology (the ''SIOP Principles''), and in the Government's Uniform Guidelines on Employee Selection Procedures (1978).(see footnote 2)

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    Research by Dr. John Hunter, one of the pioneers of validity generalization (also known as ''meta-analysis''), has established that, at least with respect to jobs such as police officer or firefighter, the process of developing a validity study of the type anticipated by the Uniform Guidelines is wholly unnecessary. The studies that have been done in the field of industrial and organizational psychology may now be combined through meta-analysis to establish that testing for reading, writing and reasoning skills for medium-complexity jobs, such as those of police officer and firefighter, is job-related.

    Professional standards in the field of industrial organizational psychology recognize cumulative validity evidence, i.e., validity generalization, as a method for supporting the validity of tests of cognitive skills for positions such as police officer and firefighter. See, SIOP Principles at pages 26–27. In fact, the SIOP Principles expressly endorse the use of cooperative validation efforts and validity generalization studies:

Validity generalization is a demonstration that a selection procedure or kind of selection procedure permits valid inferences about job behavior or job performance across given jobs or groups of jobs in different settings. Systematic meta-analyses have been used to integrate the cumulative findings from number of validity studies to determine the best estimates of the validity of the procedure for the kinds of jobs or groups of jobs and settings included in the studies.

                        * * *

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To the extent that validity generalization evidence is available, researchers may rely on it to support the use selection instruments.

See id. (emphasis added) (citing, inter alia, Schmidt, Hunter, Pearlman & Shane (1979); Schmidt, Pearlman, Hunter & Hirsch (1985)).

    John Bernardin, known for his work on police officer job analysis, has reported the results of his summary of police officer job analyses conducted in ten different jurisdictions, as follows:

There have been many job analyses conducted on the police officer job across a variety of jurisdictions and using a variety of job analytic methods. It is clear that the cognitive elements of the job are essentially the same regardless of the size or location of the organization. Thus, for most purposes of job analysis, results from the past studies should be quite useful. There is also evidence that the job has not changed appreciably over the past 10 years. This consistency over time and settings supports arguments for validity generalization and transportability.

    Validity generalization literature indicates that tests of cognitive ability are predictive of peace officer and firefighter job performance. Aside from the general proposition established through meta-analysis, validity generalization studies for law enforcement occupations have been available in the literature since at least 1986. See Hirsch, Northrop & Schmidt, Validity Generalization Results for Law Enforcement Occupations, Personnel Psychology 39 (1986) (aggregating cognitive test validity results across a number of studies, primarily for occupational group 375 in Dictionary of Occupation Titles—Police and Detectives in Public Services (U.S. Dept. of Labor, 1977), and concluding that cognitive ability tests are excellent predictors of performance in job training programs). Dr. John Hunter has personally conducted such validity generalization analyses for the position of firefighter, which establish that testing for basic cognitive abilities involving reading, writing and reasoning skills for the position of firefighter is a valid and reliable predictor of performance for the job. See The Validity of General Cognitive Ability Predicting Job Performance for Firefighters (Hunter 1990).
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    Thus, to the extent that the Government contends that the use of literacy skills tests in the hiring of public safety employees runs afoul of Title VII because such tests do not accurately predict performance, that contention lacks any merit.

C. Literacy skills are essential for police officers and fire fighters

    The jobs of police officer and firefighter are, without a doubt, among the most studied professions in our society. Countless studies of the knowledge, skills and abilities required successfully to perform these jobs establish beyond peradventure that literacy skills are among the most critical basic requirements for municipal public safety employees.

    The Supreme Court recognized this in Washington v. Davis, 426 U.S. 229 (1976). The Justice Department insists, however, that non-cognitive skills (what it calls ''personality measures'') are more appropriate selection criteria for public safety employees. No credible police or fire department official, or municipal human resources specialist of whom I am aware would disagree that successful police officer and firefighter hiring must include measures of non-cognitive skills. But the Government believes that personality measures should replace cognitive skills testing. This is where the Government departs from common sense, not to mention the mainstream scientific community and those actually responsible for police officer and firefighter selection. Indeed, the Justice Department has it backwards. The most appropriate method of hiring public safety personnel who are likely to perform successfully on the job is to supplement cognitive skills testing with selection procedures that measure personality and other non-cognitive traits. Indeed, virtually all jurisdictions use multi-component selection processes that include one or more of the following, in addition to some form of literacy skills testing: oral interviews, background examinations, psychological screenings and polygraph tests.
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    As Professor Linda Gottfredson of the University of Delaware explained in her May 1997 testimony before this Subcommittee, and as Dr. Stephen Wollack, one of the nation's foremost testing experts, explains in The Nassau Test: The Justice Department's Latest Weapon in the War Against Merit Systems (hereinafter, ''Wollack, The Nassau Test,'' attached as Exhibit A hereto), the Civil Rights Division has spent millions of dollars constructing what it now claims is a pair of legitimate, entry-level police officer examinations that eliminate adverse impact. As the Civil Rights Division knows full well, however, these tests do not pass even the most lenient of scientific standards. The notion that they measure literacy skills to any degree whatsoever is, to be blunt, preposterous. It is not hyperbole to say that no one with any substantive knowledge in this area actually believes that these tests have any validity whatsoever—except the handful of psychologists who were paid to create a written test that could be said to eliminate adverse impact (without regard to its effectiveness), and those inside the Justice Department.

    The first of these tests was developed by the Justice Department and Nassau County, New York as a result of a 1990 consent decree between the County and the Civil Rights Division. The second test, developed for use in Louisiana, is essentially a clone of the Nassau test. Dr. Wollack explains:

  The Nassau test consists of a single reading comprehension measure buried in a battery of eight personality tests. The reading comprehension test is based upon a set of reading passages which are made available to job applicants up to 30 days before the exam. If applicants are given a month to study the actual reading passages used in the examination, one cannot reasonably argue that the test measures reading comprehension. It is beyond dispute that this practice totally undermines the meaningfulness of the only portion of the Nassau test designed to measure intellectual ability.
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  As if the reading test had not been simplified enough, a ''cutoff'' was set so that only the bottom one percent of the police officers in the validation sample would be excluded. Moreover, the cutoff really wasn't a cutoff, since the applicants' score was based upon the entire test battery—which was predominantly made up of personality tests. This means that applicants with good personalities, but poor intellectual skills, passed the test—which is not a bad selection strategy if you are hiring police officers who do not need to read.

  As if they were planting a needle in a haystack, this so-called reading comprehension test was embedded in a battery of eight personality measures, and the statistical weighting of the nine subtests in the battery was manipulated to further reduce the weight given to the reading test.

  The Louisiana test is just more of the same. The DOJ consultants started with a battery of six tests—the reading comprehension test; a test of the ability to comprehend policies and procedures, a few personality measures, and a biographical data form which supposedly predicts success in police work. The consultants then proceeded to delete the reading comprehension test because they didn't want two intellectual tests in the battery due to increased adverse impact. The policies and procedures test, the one cognitive measure in the battery, was used without a minimum cutoff score. Scores on this test were virtually a constant for all applicants. Roughly two-thirds of the applicants received scores on the policies and procedures test which were within plus or minus three points of the mean. When most of the applicants receive virtually identical scores on a test, there exists no basis for identifying the individuals with superior qualifications. Also, because of the brevity of this test of 20 items, one may infer that its reliability is unacceptably low.
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  As with the Nassau test, this one rather marginal cognitive examination was planted in a battery of four non-cognitive measures, and the weightings were adjusted to minimize the influence of the cognitive test.

  Based on the validation findings, the one most valid component of the Louisiana test battery was the biographical data form. This test was represented to be a valid predictor of success in police work. Inexplicably, the group of applicants tested with this instrument achieved a significantly higher average score than did the incumbent officers in the Louisiana State Police. This means that an unselected group of police applicants, on average, have a higher probability of being successful as police officers than do the officers already employed by the State Police. I would like to hear the researchers who developed this bio-data form explain this finding.

(Wollack, The Nassau Test, pp. 4–6.)

    It is difficult to understand how people sworn to uphold the Civil Rights Acts could seriously argue that the Nassau and Louisiana tests offer valid means of guaranteeing equal opportunity consistent with our Constitution, while ensuring that our police and fire departments hire the best possible candidates. Anyone who has ever owned, operated, managed, worked in or even patronized a business of any kind can appreciate the necessity of merit-based hiring. I find it remarkable that this Congress would willingly fund a massive effort by the Justice Department to compel just the opposite—especially in some of the most important jobs in our communities. The Civil Rights Division appears to believe that the Civil Rights Acts repealed the laws of common sense.
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III. CIVIL RIGHTS DIVISION GAMES IN GARLAND, TEXAS

    Garland, Texas, like hundreds of other municipalities across the country, uses professionally developed standardized tests of reading, writing, reading comprehension and quantitative skills as part of its multi-faceted selection process for police officers and firefighters. Like Torrance, California, Garland leases these examinations from the test developers; it does not create the tests themselves. Like the tests challenged in the Torrance litigation, the tests used by Garland have been used in dozens of other jurisdictions in Texas and elsewhere. There simply is no question about the legitimacy of these selection devices as valid predictors of job performance.

    Nevertheless, the Justice Department filed suit against Garland in February, apparently contending that some or all of these written examinations violate Title VII. I say ''apparently'' because the Government's complaint fails to identify a single specific selection device or practice that is allegedly unlawful. Instead, as is its usual practice, the Civil Rights Division has challenged, in the vaguest of terms, every selection practice used by Garland—expressly because the City has not hired ''enough'' minorities. It will soon become clear, though, that the Garland case is really about literacy skills tests, and that all of the allegations in the complaint that are not directed at Garland's use of written skills test are merely ''filler.'' Ultimately they will likely be abandoned, and only the attack on the written tests will be pursued aggressively.

    As if to demonstrate that they do not comprehend the implications of the defense victory followed by the $1.8 million attorneys' fee award in the Torrance litigation, the attorneys prosecuting the Garland case have thus far borrowed the first several chapters from their colleagues' Torrance playbook, one I would have thought the Justice Department had scrapped by now. Notwithstanding the fact that the Government conducted a five-year investigation into the hiring and employment practices in Garland—during which it consistently refused to identify a single alternative to the written examinations it claimed were unlawful—it merely filed a form complaint accusing Garland of a wide range of unspecified civil rights misdeeds. In fact, the complaint in the Garland case is virtually identical to the complaint filed in the Torrance case, as well as those the Civil Rights Division filed or threatened to file against El Monte, Alhambra and Pomona, California (and most likely several other jurisdictions nationally).
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    The substantive allegations of the Torrance and Garland complaints—if they can be called that—are set forth below for comparison. After merely reciting the numbers of people who applied for jobs and the numbers who were hired, by racial and ethnic group, the complaints set forth the Justice Department's apparent view of the way in which Torrance and Garland violated Title VII. Judge for yourselves whether these allegations reflect the Government's exhaustive pre-litigation investigation:

Table 5



(See Exhibits B and C hereto.)

    From jurisdiction to jurisdiction, with this standard set of vague accusations, the Civil Rights Division initiates the broadest possible lawsuits, using its boilerplate pleading to justify the most burdensome and costly possible discovery, at all times insisting that it is ''entitled'' to whatever discovery it seeks. Although it insists upon virtually unlimited discovery, it simultaneously refuses to provide any discovery of its own. It then justifies this conduct by telling the defendant that the Civil Rights Division can't answer any substantive discovery about the complaint until the defendant provides the information with which to do so. In the Garland suit, as in the Torrance case, the United States:

  1. Refused to produce a single witness to provide any deposition testimony whatsoever to explain the basis of its vague, form pleading.

  2. Refused to produce documents on the ground that the Attorney General ''used them'' in reaching her decision to bring suit in the first place. (The law does not recognize a broad privilege that entitles the United States to withhold evidence merely because someone looked at it, even if that someone is the Attorney General.)
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  3. Refused to provide substantive answers to even the most basic discovery requests, including those that sought the following information:

 the specific selection devices or aspects of the City's selection process being challenged;

 any evidence that supports the allegation that the written examinations used have no legitimate business justification or are not job-related;

 any alternative selection devices or practices that Garland could or should have used in place of the challenged examinations.

(The Government's verified responses to Garland's Interrogatories and Requests for Admission are attached hereto as Exhibits E and F, respectively.) The Justice Department's consistent justification for refusing to provide this information is that the City has not yet provided it the information needed to respond. This, of course, reveals that, as in the Torrance case, the Civil Rights Division has filed the Garland complaint alleging a full range of Title VII violations with absolutely no factual basis for doing so. It cannot say which, if any, aspects of the hiring process is unlawful; it merely assumes that some or all of the process must be unlawful because the bottom line does not satisfy the Justice Department.(see footnote 3) This is a clear violation of Federal Rule of Civil Procedure 11, and is precisely the reason the federal court in Los Angeles ordered the Government to pay $1.8 million in sanctions to the City of Torrance.

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1. High school degree or equivalency requirement;
2. United States citizenship requirement;
3. Successful completion of a medical examination;
4. Requirement of no felony conviction;
5. Successful completion of a physical agility test;
6. Successful completion of one or more oral interviews;
7. Driver's license requirement (police only); and
8. Successful completion of a psychological examination (police only).

The improper use of the litigation process by the Civil Rights Division is routine. The Division regularly files suit without any factual basis in order to justify the use of burdensome discovery to determine whether, in fact, any violation exists. This is precisely why it was ordered to reimburse Torrance its attorneys' fees.

    Manifestly, the Justice Department is of the view that the rules of procedure and the ethical rules apply only to Title VII defendants, and that it may conduct lengthy, costly litigation under a shroud of almost total darkness. Once it concludes that a jurisdiction has used selection procedures that fail to pass ideological muster, the Civil Rights Division ignores its obligations as the sovereign, and sets out to litigate in the most unfair and, at least in the Torrance case, unethical manner it knows how. A clear example of this disregard for ethical standards is described in the following excerpt from the hearing on the City of Torrance' motion for sanctions:

  One of the arguments we make in our motion is that when the Government filed this lawsuit, they did not have a proper factual basis for alleging that every written examination used by the police and fire departments from 1981 forward failed to meet the test of job-relatedness. Now, they have met that argument by telling us that before they filed suit they hired an expert, and although the expert did not look at any of the tests, he claims that he looked at the validation studies relating to two of those tests. And although they don't tell us how he reached his conclusion, they tell us that, before they filed suit, he opined that those two tests were not job-related. Keep in mind that the complaint was filed in July 1993.
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  Later, during discovery, because the Government refused to produce any witnesses for deposition we sent them a set of interrogatories. Interrogatory No. 2 called upon the Government to identify every selection device that they contended had an adverse impact. Interrogatory No. 3 asked them to state, with respect to each selection device identified in response to number two, whether they contended that the selection device was not job-related and, if not, why not.

  In February 1994, the Government served its verified responses, and their answer to Interrogatory No. 3 was, ''we can't tell you because it's work product and, in any event, we have not yet hired an expert.''

  I'm tempted to ask whether they were being untruthful then or whether they are being untruthful now, but in either case, one of those statements was false when made, and I think it is a perfect example of the way this entire case was prosecuted—in extraordinary bad faith.

(Transcript of Hearing, 4/13/98, attached hereto as Exhibit D.) The Civil Rights Division has never explained the documented misrepresentations it made in the Torrance case. Indeed, they are unexplainable. They do demonstrate, however, that the Civil Rights Division is willing to go to almost any length to force municipalities to eliminate the merit-based hiring of police officers and firefighters, even if that means making false statements to a federal court.

    The abusiveness of these lawsuits is exacerbated by the fact that the Division apparently has unlimited resources with which to wage what it obviously hopes will be wars of attrition. As it learned painfully in Torrance, however, and as it shall soon learn in Garland, innocent municipalities will not stand for its threats and its coercion. If this Congress cannot or will not reign in the Civil Rights Division, then municipalities will be forced to continue using their scarce tax dollars to defend frivolous litigation. And defend them they will. But, if this Subcommittee refuses to act, you will fail in your oversight responsibility and you will fail the American people. Make no mistake—we are watching, and we expect results.
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IV. CONCLUSION

    Just two weeks ago, the nation celebrated its independence from the tyranny of a monarchy an ocean away. Ironically, I come here today, the second time in as many years, to protest what many fairly regard as the tyranny of an agency of our own national government. With the tacit approval of this Congress, and funding from the public, the Civil Rights Division is and has been for several years engaged in a pattern and practice of using the Civil Rights Acts of 1964 and 1991 to secure for the few (who it obviously sees as its constituents) rights that offend a Constitution that protects us all.

    In its quest to see merit-based hiring abandoned in favor of race-conscious selection, the Civil Rights Division has betrayed the trust placed in it by the American people, violated the rights of innocent municipalities it has arbitrarily and maliciously turned into civil rights defendants, and done violence to a statute that has had, for the last third of this century, a noble history of guaranteeing equality of opportunity without regard for race or national origin.

    This Congress has an obligation to ensure that no agency of the federal government has the power and the freedom to trample the rights of some in the name of advancing the rights of others. If the Civil Rights Division cannot control itself, then it must be controlled. As more and more municipalities find themselves seeking relief from frivolous lawsuits brought in the name of ''diversity,'' the need for a legislative solution becomes more compelling. It would be far too easy for this Subcommittee to see this problem as a mere ideological debate, a difference of opinion defined by political agendas and party affiliations. It would be far to easy to leave this battle to the States and municipalities, and the already over-burdened federal courts.
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    There are people here today, and many more in municipalities across the nation, wondering whether this Subcommittee has the will and courage finally to act. I urge you not only to act now, but to act decisively, to exercise the full extent of your oversight authority to bring to an end what has been almost a decade of government abuse. Dozens of innocent municipalities, fully committed to the principles embodied in Title VII but also faced with the difficult task of hiring capable men and women to protect and serve our communities, have been victimized by so-called ''enforcement actions'' that may accurately be characterized as punitive. Municipalities that will not quietly acquiesce in adopting racial quotas find themselves penalized financially and otherwise by well-funded teams of Justice Department lawyers let loose to wage mindless wars. The people of those municipalities look to you now to declare a cease fire. I ask today that you restore their hope and their belief that justice is indeed blind, and that this Subcommittee is not.

EXHIBIT A

THE NASSAU TEST: THE JUSTICE DEPARTMENT'S LATEST WEAPON IN THE WAR AGAINST MERIT SYSTEMS

STEPHEN WOLLACK, PH.D.

IPMA SOUTHERN REGIONAL CONFERENCE, CORPUS CHRISTI, TEXAS, APRIL 28, 1997

    Suppose you are the Personnel Director in a public agency responsible for hiring police officers, and you are contacted by a representative of the U.S. Department of Justice, who informs you of their intent to conduct a compliance review of your police department's employment process. A request is made for documentation extending back over a period of several years including: the racial and ethnic composition of your workforce and of the officers hired over this period; the results of your employment testing; all applicable test validation reports, and so forth.
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    Based upon Justice's review of this information, a determination is made that minorities are underrepresented in the police department. This finding is based upon a numerical comparison between the workforce and labor market. Because your employment tests have produced an adverse impact against minority applicants, you bear the burden of proving that these tests have been properly validated and are, therefore, job related and lawful. However, the experts retained by the Justice Department have concluded that your tests are unfair and the validation studies inadequate. You are told that a civil rights lawsuit will be filed against your agency for noncompliance with Title VII of the Civil Rights Act.

    You are faced with a serious dilemma. What to do? On one hand, you find the allegations to be unfair. You have, for many years, endeavored to promote the employment of minority police officers. You have consistently made special efforts to recruit and hire as many qualified minorities as you could find. You feel that you have not discriminated against anyone, but you are responsible for administering a merit system, and you have always tried to balance merit objectives with the need for diversity.

    On the other hand, there are fewer minorities in your police department than you would like to see, and your employment tests do have an adverse impact. The reality is that you now have the full force and power of the United States Department of Justice aimed against you. They are the undisputed heavyweight champions of Title VII; armed with a cadre of highly experienced attorneys, testing experts, and inexhaustible resources. The morning newspaper has been full of stories concerning the alleged discriminatory hiring practices of your department, and the people to whom you are subordinate do not appreciate the adverse publicity. You infer from discussions with your legal counsel that the impending lawsuit might be a bit of a mismatch—one in which you get to play the role of General Custer. Although you don't like it a bit, it is fair to say that you are now in the mood to negotiate.
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    A settlement of this dispute is on the table. In order to avoid litigation, you are informed by Justice that several conditions must be met. Among these conditions, the principal elements are: that you Must agree to numerical quotas by race or ethnicity, and that you must adopt a test called the Nassau test, which has been approved by DOJ because it produces no adverse impact against minorities. This scenario has been played out a number of times in recent years across this country. It is the modus operandi of our U.S. Department of Justice.

    On October 24 of last year, the Wall Street Journal published an article entitled: ''Racially Gerrymandered Police Tests'' written by Professor Linda Gottfredson, University of Delaware. In her article, Gottfredson contended that the Justice Department is:

trying to force state and local governments to adopt a new police entrance examination that allows nearly equal percentages of black and white applicants to pass—and that achieves this result by stripping the test of crucially important reading, reasoning and judgment skills . . . The consultants were well aware that they faced a virtually impossible task: developing a test that measures important job skills but also produces proportional hiring, despite big gaps in such skills between blacks and whites, when they leave school. How these experts set about this task is a case in racially gerrymandering the content of the test . . . Meanwhile the test provides the Justice Department with a new tool for coercing police departments into proportional hiring . . . The Nassau County test destroys what it purports to embody-merit hiring.

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    The Nassau test was developed as a result of a 1990 consent decree involving the Nassau County, NY, Police Department. In a highly unusual arrangement, the U.S. Department of Justice and Nassau County agreed to develop a test which has been validated or lacks adverse impact against minorities. At the staggering cost of millions of dollars, a test was produced which resulted in nearly equal passing rates for each separate group.

    When I described the Nassau test as the Justice Department's latest weapon against merit systems, I did not realize how busy they were spending our tax dollars. I guess I lied. Their latest weapon is now the Louisiana test, Justice's latest permutation of the Nassau test. This is another reason cloning should be outlawed. The Louisiana test is so named because Justice imposed this test upon the Louisiana State Police.

    These test development efforts by the Justice Department are, by no means, intended to upgrade the quality of law enforcement personnel. To the contrary, what Justice has fashioned is a montage of illusions and sleight-of-hand, all directed at a common purpose: to produce a written examination for police hiring, devoid of intellectual content, for which they may claim validity. Let us look at what the test developers did and examine, one-by-one, the problems with the Justice Department examinations.

    I have two general criticisms of the Nassau and Louisiana tests: (1) impact reduction was achieved by removing any form of mental ability measurement from these tests, and (2) numerous technical mistakes were made which resulted in vastly overstating the validity of these tests.

    The DOJ consultants sought to eliminate adverse impact by developing examinations which were watered down to the point of being meaningless. Every step of the test development and validation process was guided by the goal of impact reduction with little regard for the issue of police officer competence.
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    The Nassau test consists of a single reading comprehension measure buried in a battery of eight personality tests. The reading comprehension test is based upon a set of reading passages which are made available to job applicants up to 30 days before the exam. If applicants are given a month to study the actual reading passages used in the examination, one cannot reasonably argue that the test measures reading comprehension. It is beyond dispute that this practice totally undermines the meaningfulness of the only portion of the Nassau test designed to measure intellectual ability.

    As if the reading test had not been simplified enough, a ''cutoff'' was set so that only the bottom one percent of the police officers in the validation sample would be excluded. Moreover, the cutoff really wasn't a cutoff, since the applicants' score was based upon the entire test battery—which was predominantly made up of personality tests. This means that applicants with good personalities, but poor intellectual skills, passed the test—which is not a bad selection strategy if you are hiring police officers who do not need to read.

    As if they were planting a needle in a haystack, this so-called reading comprehension test was embedded in a battery of eight personality measures, and the statistical weighting of the nine subtests in the battery was manipulated to further reduce the weight given to the reading test.

    The Louisiana test is just more of the same. The DOJ consultants started with a battery of six tests—the reading comprehension test; a test of the ability to comprehend policies and procedures, a few personality measures, and a biographical data form which supposedly predicts success in police work. The consultants then proceeded to delete the reading comprehension test because they didn't want two intellectual tests in the battery due to increased adverse impact. The policies and procedures test, the one cognitive measure in the battery, was used without a minimum cutoff score. Scores on this test were virtually a constant for all applicants. Roughly two-thirds of the applicants received scores on the policies and procedures test which were within plus or minus three points of the mean. When most of the applicants receive virtually identical scores on a test, there exists no basis for identifying the individuals with superior qualifications. Also, because of the brevity of this test of 20 items, one may infer that its reliability is unacceptably low.
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    As with the Nassau test, this one rather marginal cognitive examination was planted in a battery of four non-cognitive measures, and the weightings were adjusted to minimize the influence of the cognitive test.

    Based on the validation findings, the one most valid component of the Louisiana test battery was the biographical data form. This test was represented to be a valid predictor of success in police work. Inexplicably, the group of applicants tested with this instrument achieved a significantly higher average score than did the incumbent officers in the Louisiana State Police. This means that an unselected group of police applicants, on average, have a higher probability of being successful as police officers than do the officers already employed by the State Police. I would like to hear the researchers who developed this bio-data form explain this finding.

    Though it is not entirely clear from the language of the validation report, my impression is that the test scores on the Louisiana battery were dichotomized at the median, and everyone in the upper half of the score distribution was considered equally qualified. Given the random character of this test, I don't think they would have done any worse by hiring everyone in the lower half of the distribution.

    I believe that there are a number of things that can be done to minimize inappropriate sources of adverse impact in a police officer selection process. However, eliminating the intellectual component from written tests in order to reduce impact is not an acceptable employment practice.

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    My second general criticism of the DOJ tests is that there are numerous serious technical problems in the validation of both the Nassau and Louisiana tests. These technical errors involve the misapplication of various statistical procedures and, in the aggregate, resulted in vastly overstating the validity of the test batteries.

    In order to find predictor tests having positive correlations with the job criteria, the Nassau researchers engaged in a practice generally referred to as ''validity shopping.'' The way this works is that they generated a large number of validity coefficients while setting the standard for determining statistical significance inappropriately low. Of course, many of the correlations obtained would be statistically significant by virtue of chance alone. When one applies the more appropriate, higher standard for determining statistical significance, six of the nine predictors in the Nassau examination prove to be non-significant. One of these non-significant tests was the previously-described, watered-down reading comprehension measure. While the Nassau test creates the illusion that it measures reading comprehension, this subtest is, in actuality, unrelated to job performance.

    Even though the Nassau research team shopped for validity, they were not good shoppers, because the validity coefficients for their nine predictor tests ranged from a high of .12 to a low of .03. The average coefficient was .08. To describe these validity coefficients as small is probably being too Mind.

    The Nassau researchers employed a series of analytical methods which boosted the multiple correlation of their test battery to .35. By validity shopping, preselecting subtests based on their correlations, and using the technique of multiple correlation, the researchers capitalized on sampling error in the most egregious fashion.
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    To control for inflated validity estimates in such circumstances, it is considered standard professional practice to cross-validate one's results. Cross validation means applying the elements of the prediction equation to an independent sample to determine if validity holds up. When multiple correlation is utilized, cross validation invariably produces a lower, more conservative validity estimate. No cross validation study was performed of the Nassau test.

    The validity claim for the Nassau test is fictitious because the researchers used a series of analytical methods which merely heaped together all positively correlated error. They applied a statistical technique to correct for the inflated validity estimate. But, they applied the wrong formula to the wrong numbers.

    Frank Schmidt, a highly respected psychometrician, reevaluated the Nassau test data and estimated the multiple correlation for the test battery to be .14. The bottom line is that the Nassau test's validity, when properly calculated, falls far short of being statistically significant. This examination, which was once described by an attorney for the Justice Department as being valid ''beyond doubt,'' is, in fact, uncorrelated with job performance. In laymen's terms, the validation of the., Nassau test was an exercise in making marshmallows out of horsedroppings. The research team should have allowed this rather bad test to die peacefully.

    In the Louisiana study, the validity of the test battery was again overstated. The researchers claimed a multiple correlation of .51. Most of the mistakes which were made in the validation of the Nassau test were repeated in the Louisiana test. When an analysis was made of the Louisiana validation findings, using the correct numbers, I determined that the validity coefficient is actually .15, which is also nonsignificant. Both the Nassau and Louisiana tests are invalid.
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    It does not go unnoticed that the Justice Department's consultants declined to use the Louisiana State Police as an opportunity to cross validate their Nassau test. This appears to be a deliberate effort to avoid subjecting their workproduct to the level of scrutiny which professional standards require.

    I hope that I haven't bored you with a lot of technical details. I attempted to gloss over most of the statistical stuff out of mercy for this audience. But, the fact is that test validation is pretty technical. Most civil service or police administrators are not schooled in the statistics of validation. When these statistical methodologies are systematically misused, as they were in the Nassau and Louisiana studies, a layperson can be easily misled. If a group of credentialed psychologists, and the U.S. Department of Justice, tell you that the test is valid, how many police chiefs or personnel directors are in a position to dispute this claim?

    Job analysis studies of municipal, county, and state law enforcement agencies have consistently identified literacy skills as among the most critical basic requirements for law enforcement personnel. I believe there are few public sector occupations which are more literacy intensive than that of police officer. Reading memos, reports, correspondence, policies and procedures, statutory materials, codes, ordinances, and the like, is a daily occurrence. Officers are responsible for preparing narrative reports whenever they respond to a wide variety of calls ranging from the investigation of accidents; domestic calls; criminal incidents; citizen complaints; interviewing witnesses, and so forth. The thoroughness and accuracy of such reports is often pivotal to the successful prosecution of a criminal matter. Understanding the rights of citizens, the legal parameters regarding the use of force, the constraints pertaining to search and seizure, interrogation, departmental policy in dealing with juveniles, and the like are essential requirements for professional law enforcement personnel—requirements which depend upon literacy skills.
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    Literacy skills also enable employers to identify the applicants who possess the basic learning skills required to benefit from police training. Wollack & Associates' police examinations have been the object of 12 predictive validation studies against police training, studies involving police academies in nine states. A sample of over 1,600 police officers, most of whom were hired with our examinations, were followed up in their training. The Alert examination, our police literacy test, is correlated r = .79 with academic grade-point average in police training, corrected for a direct restriction in range. Simply put, literacy skills are the single best predictor of success in police training academies. The Nassau and Louisiana tests provide no basis for evaluating the literacy skills of police officer applicants.

    The basic premise of the Justice Department's test validation effort is that adverse impact is a property of tests, not people. If you accept this untrue assumption, then you are inclined to accept that different tests, measuring the same thing, have different levels of adverse impact. Therefore, to reduce adverse impact, you need only to change the test. This is the basic assumption upon which the entire effort of the Justice Department rests, and it is, simply wrong.

    To understand the issue of adverse impact in cognitive employment tests, you must first understand the underlying educational problem in this country. At first blush, the goal of developing a police officer employment test with no adverse impact may appear to be a laudable objective. Upon closer review, such an undertaking is logically flawed. The flaw is in the presumption that adverse impact is a property of tests, somewhat like reliability or variance. This is wrong. Observed differences in acceptance rates by race or ethnicity inform you of the disparity in educational achievement among applicant groups in your labor market. Accordingly, adverse impact is a property of people, not tests. Job-related cognitive examinations which measure required basic educational skills typically result in a showing of adverse impact against blacks and Hispanics. Over the years, data from testing in the areas of education, employment, the military, and research consistently confirm these disparities. Do not misunderstand what I am saying. I am not talking about native ability. I am addressing basic educational achievement and, in particular, literacy. This is a national problem which most everyone recognizes. The loudest critics of employment testing are often the very same people who have been critical of this educational problem. These are positions which one cannot have both ways. If there is an educational problem in this country, then one cannot be critical of employment tests which reflect this disparity in achievement levels.
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    Data from yearly educational achievement tests have provided sobering documentation of racial and ethnic differences in literacy. The most comprehensive research on literacy has been the National Adult Literacy Survey conducted by the Educational Testing Service with funding from the U.,S. Department of Education. Based on their findings, it has been estimated that approximately 90 million employment-age adults, nearly half of the U.S. labor market, have poor literacy skills which substantially limit their range of occupational choices. The practical implications of these findings are unmistakable. There exists in the labor markets throughout the country a literacy problem which is staggering in its proportions, and the precise extent and nature of this problem must be understood by those responsible for hiring police officers.

    Searching for the one cognitive employment test having the least adverse impact ignores the reality of the underlying problem in this country. Adverse impact on cognitive tests reflects an educational problem which is real and cannot be fixed by changing the test. You cannot eliminate this disparity in educational achievement by designing a new test. You can, however, make a test which conceals this disparity—which is precisely what the Nassau and Louisiana tests do.

    Imagine, instead of being a test publisher, Wollack & Associates manufactured mirrors. Suppose we sold some mirrors to a family of ugly people, who were offended by what they saw in the mirrors. They want their money back, because the images in the mirrors are so unflattering. ''Wait a minute,'' I tell them, ''we will make you some new mirrors that you will like much better.'' So, we paint the glass black. It reflects no light, and everybody is happy. The moral of the story is that an employment test is a mirror. Like it or not, it reflects the realities of the labor market. We can obscure your image of reality by making different tests, but we cannot change the disparity in educational achievement. To the extent that cognitive skills are job related to police work, an employment test which is designed to conceal group differences will, necessarily, result in hiring police officers who are less capable.
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    When one considers the Justice Department's apparent war on police officer competence, one irony becomes clear. While one federal agency, the U.S. Department of Education, has, for years, funded the National Adult Literacy Survey, which has documented disparities in educational achievement between whites, blacks, and Hispanics, a second federal agency, the Justice Department, continues to sue public agencies for using employment tests which reflect these disparities.

    There is overwhelming evidence that basic literacy skills are essential prerequisites for police officers. Relying on tests which use gimmicks to eliminate impact means that you will hire people who are substandard performers—and there is no escaping that bit of reality.

    In her paper on racially gerrymandered tests, Gottfredson cites a quotation made by the Vice President of the consulting company which developed the Nassau and Louisiana tests. The quotation refers to a police employment test they had developed previously.

  Through 18 years and four presidents, the message from the Justice Department was clearly that there was no way in hell they would ever sign onto an exam that had an adverse impact on blacks and Hispanics. What we finally came up with was more than satisfactory if you assume a cop will never have to write a coherent sentence or interpret what someone else had written.

    One may rightly question the propriety of Justice's conduct in using their might to inflict a test upon public employers which is so poorly conceived. Those of you responsible for administering merit systems should be fully aware of the disregard which Justice has shown for police officer competence. That is the most troubling aspect of this problem. The Justice Department examinations produce no adverse impact by relying upon random selection. If you were to hire police officers, even under a quota system, you would still have the ability to identify the most qualified white applicants and the most qualified minority applicants providing you were relying upon meaningful, job-related tests. The Justice tests do not allow you to do this. What you get with these tests is random selection which is, by definition, unrelated to ability. You may as well be using the Ouija board or1he roulette wheel to select officers.
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    Whom does it hurt? The short answer is everyone. Applicants who possess the necessary job-related abilities, regardless of race or ethnicity, are penalized by random selection. The police department is penalized because random selection equals the abolition of standards of competence. The citizens who depend upon professional police services suffer, as well. Frankly, this is a game nobody wins. Should you ever have the misfortune of coming face-to-face with the Department of Justice and their Nassau or Louisiana tests, my advice to you is very simple: Don't roll over. You have everything to lose.

EXHIBIT B

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EXHIBIT C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.                            Civil Action No. 3:98–CV0307–P

CITY OF GARLAND, TEXAS,

Defendant.

COMPLAINT
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    Plaintiff, United States of America, alleges:

    1. This action is brought on behalf of the United States to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et. seq.

    2. This Court has jurisdiction of this action under 42 U.S.C. §20OOe-6, 28 U.S.C. §1331, and 28 U.S.C. §1345.

    3. Defendant City of Garland is a corporate, governmental body created pursuant to the laws of the State of Texas.

    4. Defendant is a person within the meaning of 42 U.S.C. §2000e(a) and an employer within the meaning of 42 U.S.C. §2000e(b).

    5. Defendant City of Garland maintains Police and Fire Departments.

    6. Defendant City of Garland is responsible for the hiring of all sworn positions in its Police and Fire Departments.

    7. Blacks have represented about 13.5% of the applicants for entry-level police officer positions with Defendant from 1988 to 1995, yet they represent only about 3% of the sworn officer workforce. During the same period, the Hispanic applicant rate was about 7.8%, while Hispanics comprise only about 4% of the sworn workforce in the Police Department.
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    8. Blacks have represented an estimated 11.8% of the applicants for entry-level fire fighter positions with Defendant from 1990 to 1995, yet they represent only about 2.2% of the sworn workforce. During the same period, the Hispanic applicant rate was an estimated 5%, while Hispanics comprise only about 1.3% of the sworn workforce in the Fire Department.

    9. Defendant has pursued and continues to pursue policies and practices that have discriminated against Blacks and Hispanics and that have deprived or tended to deprive Blacks and Hispanics of employment opportunities on the basis of race and/or national origin.

    10. Defendant has implemented these policies and practices in its Police and Fire Departments, among other ways, as follows:

a. by failing or refusing to recruit and/or hire Blacks and Hispanics for entry-level police officer and fire fighter positions on the same basis as whites;

b. by using hiring procedures for entry-level police officer and fire fighter positions that disproportionately exclude Blacks and Hispanics from employment, although these procedures have not been shown to be job-related for the position in question and consistent with business necessity;

c. by providing Black and Hispanic employees with terms, conditions or privileges of employment less favorable than those provided to white employees; and

d. by failing or refusing to take appropriate action to eliminate the discriminatory policies and practices and to correct the present effects of those policies and practices.
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    11. The United States, through the Department of Justice, has investigated the employment practices of Defendant, has notified Defendant of the results of the investigation and the policies and practices described in paragraph 10 above, and has unsuccessfully attempted to eliminate those policies and practices through negotiation and settlement.

    12. The policies and practices of Defendant, described in paragraph 10 above, constitute a pattern or practice of resistance to the full enjoyment by Blacks and Hispanics of their right to equal employment opportunities without discrimination based on race or national origin. The pattern or practice is of such a nature that it is intended to deny the full exercise of the rights secured by Title VII of the Civil Rights Act of 1964, as amended.

    13. Unless restrained by order of this Court, Defendant will continue to pursue policies and practices that are the same as or similar to those alleged in this Complaint.

    Wherefore, plaintiff United States prays for an order enjoining the Defendant, its officers, agents, employees, successors, and all persons in active concert or participation with them from discriminating on the basis of race or national origin with respect to employment practices in its Police and Fire Departments and specifically from:

a. discriminating against Blacks and Hispanics in recruitment and/or hiring;

b. using hiring procedures that disproportionately exclude Blacks and Hispanics from employment, although these procedures have not been shown to be job-related for the positions in question and consistent with business necessity;
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c. providing Black and Hispanic employees with terms, conditions or privileges of employment less favorable than those provided white employees;

d. failing or refusing to provide make-whole relief, including back pay with interest, offers of employment and retroactive seniority, to individuals who have suffered loss or will suffer loss as a result of the discriminatory employment policies and practices in the Police and Fire Departments alleged in this Complaint; and

e. failing to take other appropriate measures to overcome the present effects of past discriminatory policies and practices in the Police and Fire Departments.

    Plaintiff United States prays for such additional relief as justice may require, together with its costs and disbursements in this action.


JANET RENO
Attorney General
                      By:



BILL LANN LEE
Acting Assistant Attorney General
  CA Bar No. 108452

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RICHARD UGELOW
  DC Bar No. 95224
MICHAEL T. KIRKPATRICK
  TX Bar No. 11531002
ANDREW H. TARSY
  MA Bar No. 633214


Attorneys
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P. 0. Box 65968
Washington, D. C. 20035–5968
(202) 616–9615
(202) 514–1105 (fax)


PAUL E. COGGINS, JR.
United States Attorney for the
Northern District of Texas
KATHERINE MCGOVERN
Assistant United States Attorney
1100 Commerce Street, 3rd Floor
Dallas, Texas 75242–1699
(214) 767–0951
EXHIBIT D

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EXHIBIT E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,
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Plaintiff,

vs.                            Civil Action No. 3:98–CV0307–P

CITY OF GARLAND, TEXAS,

Defendant.

PLAINTIFF UNITED STATES' RESPONSE TO DEFENDANT

CITY OF GARLAND'S FIRST SET OF INTERROGATORIES

    Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiff United States of America responds as follows to Defendant City of Garland's First Set of Interrogatories to Plaintiff United States of America, served on the United States on May 15, 1998:

INTERROGATORY NO. 1

    For every HIRING PROCEDURE used by GARLAND at any time between January 1, 1988 and the present and which YOU contend has had an adverse impact against Black or Hispanic applicants for police officer, IDENTIFY the HIRING PROCEDURE, the date(s) on which it was administered, the specific use of the HIRING PROCEDURE which YOU contend resulted in an adverse impact, and the manner in which YOU calculated the alleged adverse impact.
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RESPONSE

    Prior to filing its complaint, the United States requested factual information from the City of Garland which would have allowed the United States to determine whether each selection procedure used by Garland at any time since 1988 has had an adverse (or disparate) impact against Black or Hispanic candidates for police officer. Although it provided the United States with a general description of the hiring process for police officer, the City did not provide the information necessary to analyze separately each stage of the selection process. Therefore, the United States presently lacks the information necessary to calculate whether each separate hiring procedure used by the City has had a disparate impact on Blacks and/or Hispanics. The United States has sought this information through the formal discovery process, but has not yet received responses from the City. Once the United States has received and analyzed the data it has requested, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.

    While the United States at present lacks the information necessary to analyze each stage of the selection process, the City provided the United States, prior to the filing of this action, information indicating that the written examinations administered by the City as part of the selection process for entry-level sworn positions in the City's Police Department, and specifically the use of rank order hiring based on written examination scores and the requirement that applicants receive a score of 70 or higher, have had a disparate impact on Black and Hispanic applicants. The dates on which the written entrance examinations were administered are more readily available to the City than to the United States, and the United States has sought from the City, but has not yet obtained, the dates of all such examinations. Based on information thus far provided to the United States by the City of Garland, the United States believes that from January 1, 1988 through October, 1995, the City of Garland administered the following examinations on the following dates:
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Table 6

    The United States has not yet received information concerning any examinations for the Police Department which were administered after October 6, 1995.

    Garland has provided the United States with summary information regarding the race and national origin of test takers and test passers for nine of the ten written exams it administered from 1988 to 1995. The City has not provided a summary of this data for the exam it administered on July 8, 1994. The data provided to the United States by the City of Garland indicates that Blacks and Hispanics pass the exams at a significantly lower rate than do whites. For example, the information provided by the City of Garland indicates that 83 percent (83%) of the white applicants who participated in the administrations of the Wollack and Associates' ALERT exam on November 2, 1991, July 18, 1992, May 21, 1993, and October 6, 1995, passed the exam, compared to only 40 percent (40%) of Black and only 61 percent (61%) of Hispanic exam takers. Similarly, on the three administrations of the IPMA exam during 1990, 57 percent (57%) of white exam takers passed the exam compared to only 5 percent (5%) of Black and only 32 percent (32%) of Hispanic exam takers. On the two administrations of the TCLEOSE exam since 1988, 63 percent (63%) of white exam takers passed the exam compared to only 39 percent (39%) of Black and only 41 percent (41%) of Hispanic exam takers. The difference in the pass rates between white and Black and Hispanic test takers indicates that the exams used by Garland since 1988 have had an a disparate impact on Black and Hispanic applicants for police officer. Further, the disparate impact of these exams on Black and Hispanic applicants has been exacerbated by the City's use of these exams on a descending rank-order-of-scores basis.

    While Garland has not provided the United States with the information necessary to analyze separately each stage of the selection process other than the written examination, the information made available to the United States by the City prior to the filing of this action indicates that the selection process as a whole has had a disparate impact on Black and Hispanic applicants. The United States has requested through formal discovery the information necessary to analyze separately each component of the selection process, but has not yet received a response from Garland. However, to the extent that the elements of the City's application, selection and hiring process are not capable of separation for analysis, the United States may contend that the process as a whole has had a disparate impact on Blacks and Hispanics.
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    The information provided to the United States by the City of Garland indicates that Blacks and Hispanics have been hired at rates much below their representation in the applicant pool, as reflected by the significant disparity between the representation of Blacks and Hispanics in the applicant pool and their representation on the Garland police force. According to information provided by the City prior to the filing of this action, the Garland police force is only approximately 3 percent (3%) Black and 4 percent (4%) Hispanic. The United States estimates, based on the limited information provided by the City, that the actual applicant pool from 1988 to 1995 was about 13.5 percent (13.5%) Black and 7.8 percent (7.8%) Hispanic. This estimate of the percentages of Blacks and Hispanics in the applicant pool is based on information provided by the City regarding the race and national origin of those applicants who took the April 23, 1988 exam, and those eligible to take eight other exams from May 13, 1989 to October 6, 1995. It does not include the applicant pool for the July 8, 1994 exam, nor the approximately five percent (5%) of applicants who were not eligible to take the written exam because of an incomplete application, because the City did not provide the United States with complete race and national origin information for these groups. Although the information provided to the United States is incomplete, the United States believes that the difference in the percentage of Blacks and Hispanics in the applicant pool and on the City's police force indicates that the selection process as a whole has had a disparate impact on Black and Hispanic applicants for police officer, because the information provided by the City to the United States indicates that the City has hired an average of about 18 police officers each year since 1988.

    The representation of Blacks and Hispanics in the actual applicant pool, which the United States estimates to have been about 13.5 percent (13.5%) Black and 7.8 percent (7.8%) Hispanic from 1988 to 1995, also may have been depressed, because the City of Garland failed or refused to recruit and hire Blacks and Hispanics for entry-level police officer positions on the same basis as whites, as well as the City's reputation for not hiring Blacks and Hispanics for entry-level police officer positions.
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INTERROGATORY NO. 2

    For every HIRING PROCEDURE used by GARLAND at any time between January 1, 1990 and the present and which YOU contend has had an adverse impact against Black or Hispanic applicants for fire fighter, IDENTIFY the HIRING PROCEDURE, the date(s) on which it was administered, the specific use of the HIRING PROCEDURE which YOU contend resulted in an adverse impact, and the manner in which YOU calculated the alleged adverse impact.

RESPONSE

    Prior to filing its complaint, the United States requested factual information from the City of Garland which would have allowed the United States to determine whether each selection procedure used by Garland at any time since 1988 has had a disparate impact against Black or Hispanic candidates for fire fighter. Although it provided the United States with a general description of the hiring process for fire fighter, the City did not provide the information necessary to analyze separately each stage of the selection process. Therefore, the United States presently lacks the information necessary to calculate whether each separate hiring procedure used by the City has had a disparate impact on Blacks and/or Hispanics. The United States has sought this information through the formal discovery process, but has not yet received responses from the City. Once the United States has received and analyzed the data it has requested, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.

    While the United States at present lacks the information necessary to analyze each stage of the selection process, the City provided the United States, prior to the filing of this action, with information indicating that the written examinations administered by the City as part of the selection process for entry-level sworn positions in the City's Fire Department, and specifically the use of rank order hiring based on written examination scores and the requirement that applicants receive a score of 70 or higher, have had a disparate impact on Black and Hispanic applicants. The dates on which the written entrance examinations were administered are more readily available to the City than to the United States, and the United States has sought from the City, but has not yet obtained, the dates of all such examinations. Based on information thus far provided to the United States by the City of Garland, the United States believes that from January 1, 1990 through August, 1995, the City of Garland has administered the following examinations on the following dates:
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Table 7

    The United States has not yet received information concerning any examinations for the Fire Department which were administered after August 18, 1995.

    Garland has provided the United States with summary information regarding the race and national origin of test takers and test passers for two of the exams listed above: the Wollack ALARM exams of April 11, 1992 and August 18, 1995. Our analysis of this information indicates that Blacks and Hispanics have failed the ALARM exam at significantly higher rates than white applicants. On the April 1992 exam, 58 percent (58%) of the white applicants passed the exam compared to only 2.6 percent (2.6%) of the Black applicants and only 13.6 percent (13.6%) of the Hispanic exam takers. On the August 1995 exam, 88 percent (88%) of the white applicants passed compared to only 33.3 percent (33.3%) of Black and only 62.5 percent (62.5%) of Hispanic exam takers. The difference in the pass rates between white and Black and Hispanic exam takers indicates that the exams used by Garland have had a disparate impact on Black and Hispanic applicants for fire fighter. Further, the disparate impact of these exams on Black and Hispanic applicants has been exacerbated by the City's use of these exams on a descending rank-order-of-scores basis.

    While Garland has not provided the United States with the information necessary to analyze separately each stage of the selection process other than the written examination, the information made available to the United States by the City prior to the filing of this action indicates that the selection process as a whole has had a disparate impact on Black and Hispanic applicants. The United States has requested through formal discovery the information necessary to analyze separately each component of the selection process, but has not yet received a response from Garland. However, to the extent that the elements of the City's selection process are not capable of separation for analysis, the United States may contend that the process as a whole has had a disparate impact on Blacks and Hispanics.
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    The information provided to the United States by the City of Garland indicates that Blacks and Hispanics have been hired at rates much below their representation in the applicant pool, as reflected by the significant disparity between the representation of Blacks and Hispanics in the applicant pool and their representation on the Garland fire department. According to information provided by the City prior to the filing of this action, the Garland fire department is only approximately 2.2 percent (2.2%) Black and only 1.3 percent (1.3%) Hispanic. The United States estimates, based on the limited information provided by the City, that the actual applicant pool from 1990 to 1995 was about 11.8 percent (11.8%) Black and 5 percent (5%) Hispanic. This estimate of the percentages of Blacks and Hispanics in the applicant pool is based on the information provided by the City regarding the race and national origin of those in the applicant pool for the December 1990 and April 1992 exams and those eligible to take the August 1995 exam. It does not include the applicant pool for the March 1994 exam, nor those who were not eligible to take the written exam of August 1995, because the City did not provide the United States with complete race and national origin information for these groups. Although the information provided to the United States is incomplete, the United States believes that the difference in the percentage of Blacks and Hispanics in the applicant pool and serving on the City's fire department indicates that the selection process as a whole has had a disparate impact on Black and Hispanic applicants for police officer, because the information provided by the City to the United States indicates that the City has hired an average of about 13 fire fighters from each exam administration since 1987.

    The representation of Blacks and Hispanics in the actual applicant pool, which the United States estimates to have been about 11.8 percent (11.8%) Black and 5 percent (5%) Hispanic from 1990 to 1995, also may have been depressed, because the City of Garland failed or refused to recruit and hire Blacks and Hispanics for entry-level fire fighter positions on the same basis as whites, as well as the City's reputation for not hiring Blacks and Hispanics for entry-level fire fighter positions.
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INTERROGATORY NO. 3

    IDENTIFY every policy or practice which YOU contend GARLAND has pursued or continues to pursue and by which GARLAND has ''discriminated against Blacks and Hispanics and that have deprived or tended to deprive Blacks and Hispanics of employment opportunities on the basis of race and/or national origin,'' as is alleged in paragraph 9 of the COMPLAINT.

RESPONSE

    Prior to filing its complaint, the United States requested factual information from the City of Garland which would have allowed the United States to determine whether each policy or practice pursued by Garland at any time since 1988 has discriminated against Blacks and Hispanics and/or deprived or tended to deprive Blacks and Hispanics of employment opportunities on the basis of race and/or national origin. Although it provided the United States with a general description of the hiring process for police officer and fire fighter, the City did not provide the information necessary to analyze separately each policy or practice of the City of Garland. Therefore, the United States presently lacks the information necessary to identify each policy or practice which has discriminated against Blacks and Hispanics and/or deprived or tended to deprive Blacks and Hispanics of employment opportunities on the basis of race and/or national origin. The United States has sought this information through the formal discovery process, but has not yet received responses from the City. Once the United States has received and analyzed the data it has requested, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.

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    Additionally, to the extent that the City's policies and practices are not capable of separation for analysis, the United States may contend that the City's policies and practices as a whole have discriminated against Blacks and Hispanics and have deprived or tended to deprive Blacks and Hispanics of employment opportunities on the basis of race and/or national origin.

    The United States hereby incorporates by reference into this Response the United States' Responses to Interrogatory Nos. 1 and 2, above.

INTERROGATORY NO. 4

    For every policy or practice identified to Interrogatory No. 1, state the years in which YOU contend GARLAND has pursued such policy or practice.

RESPONSE

    The United States' contentions extend from 1988 to the present. As to the bases of the United States' contentions, see the United States' Responses to Interrogatory Nos. 1–3, above.

INTERROGATORY NO. 5

    State all bases for YOUR contention that GARLAND has ''fail[ed] or refus[ed] to recruit and/or hire Blacks and Hispanics for entry-level police officer or [sic] firefighter positions on the same basis as whites,'' as is alleged in paragraph 10(a) of the COMPLAINT, including, but not limited to, the IDENTITY of all individuals whom GARLAND allegedly failed or refused to hire.
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RESPONSE

    Prior to filing its complaint, the United States requested factual information from the City of Garland which would have allowed the United States to determine whether each procedure, requirement or criterion used by the City as part of its recruitment, application, selection and hiring process has been used to discriminate or has had the effect of discriminating against Blacks and Hispanics on the basis of race and/or national origin. The City did not provide the information necessary to analyze separately each part of the City's recruitment, application, selection and hiring process. The United States has sought this information through the formal discovery process, but has not yet received responses from the City. Once the United States has received and analyzed the data it has requested, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.

    The facts known to the United States as of the filing of the complaint which relate to the allegations of the complaint are contained in the documents made available in response to the City's First Request for Production of Documents and in interviews conducted by the paralegals and attorneys of the Employment Litigation Section during the Section's investigation of the employment practices of Garland. According to information in these interviews and documents, prior to February, 1996, Garland made little or no effort to recruit Blacks or Hispanics for either its police or fire departments; Garland continues to make little or no effort to recruit Blacks and Hispanics for the fire department; the City's written examinations have had a disparate impact on Black and Hispanic applicants; and, to the extent that the elements of the City's application, selection and hiring process are not capable of separation for analysis, the process as a whole has had a disparate impact on Blacks and Hispanics. See the United States' Responses to Interrogatory Nos. 1–4, above.
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    The individuals whom the City has failed or refused to hire include all Black or Hispanic individuals who have applied for or expressed interest in entry-level sworn positions in the City's Police Department or Fire Department, or who would have applied for or expressed interest in such positions had they been recruited on the same basis as whites or had they not been discouraged from applying by the City's actions or reputation. The identities of individuals who Garland failed or refused to hire are more readily available to the City than to the United States, and the United States has sought from the City, but has not yet obtained, the identification of all such individuals. The individuals known by the United States at this time include all of the Black or Hispanic applicants identified in the documents produced in response to the City's First Request for Production of Documents and bate stamped 50000809–50000811; 50000825–50000826; 50000828; 50000830–50000832; 50000850–50000852; 50001432–50001624; and 50002516–50002619.

INTERROGATORY NO. 6

    IDENTIFY the particular HIRING PROCEDURES allegedly used by GARLAND which YOU contend have disproportionately excluded Blacks or Hispanics from employment, including the dates YOU contend any such HIRING PROCEDURES were allegedly used.

RESPONSE

    See the United States' Responses to Interrogatory Nos. 1 and 2, above.

INTERROGATORY NO. 7
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    For each HIRING PROCEDURE identified in response to Interrogatory No. 6 above, and which was used by GARLAND prior to November 21, 1991, state whether YOU contend that GARLAND had a legitimate business justification for using such HIRING PROCEDURE, and if YOU contend that it did not, state every basis for YOUR response.

RESPONSE

    As indicated in the United States' Responses to Interrogatory Nos. 1 and 2, above, the United States has requested, but has not yet been provided, the information necessary to analyze separately each component of the City's hiring procedure. However, the information made available to the United States by Garland prior to the filing of this action indicates that the written examinations and the hiring procedure as a whole have had a disparate impact on Black and Hispanic applicants for police officer and fire fighter positions. Once the United States has received and analyzed the data it has requested through formal discovery, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.

    The United States notes that it is the City's burden, and not the United States' burden, to make any contentions regarding the issues of business necessity or job-relatedness of any hiring procedure identified by the United States as having disparate impact on any protected group. Therefore, the United States does not expect that it will make any contentions regarding the issues of business necessity or job-relatedness for any hiring procedure identified in response to Interrogatory No. 6 unless the City contends that its use of the hiring procedure is supported by such justifications. Based on the information currently available to the United States, to the extent that the City contends that business necessity or job-relatedness support its use of the written examinations or of the hiring procedures as a whole (to the extent that the elements of the City's hiring procedures are not capable of separation for analysis), the United States contends that such use of the written examinations or of the hiring procedures as a whole is not supported by business necessity or job-relatedness.
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INTERROGATORY NO. 8

    For each HIRING PROCEDURE identified in response to Interrogatory No. 6 above, and which was used by GARLAND on or after November 21, 1991, state whether YOU contend such HIRING PROCEDURE is job-related for the position in question, and if not, state every basis for YOUR response.

RESPONSE

    See the United States' Responses to Interrogatory No. 7, above.

INTERROGATORY NO. 9

    For each HIRING PROCEDURE identified in response to Interrogatories Nos. 7 & 8 above, for which YOU contend GARLAND had no legitimate business justification or which YOU contend is not job-related within the meaning of Title VII of the Civil Rights Act of 1964, IDENTIFY every ALTERNATIVE SELECTION DEVICE which YOU contend should have been used by GARLAND.

RESPONSE

    See the United States' Responses to Interrogatory Nos. 7–8, above. The United States notes that, in general, in order to prove a prima facie violation of Title VII on a disparate impact theory of liability, plaintiff must establish that a particular employment practice used by defendant causes a disparate impact on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. §2000e-2(k)(1)(A)(i). Upon such showing, defendant must demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. See id. If defendant succeeds in demonstrating job-relatedness and business necessity, plaintiff can still prevail by showing the existence of a less discriminatory alternative employment practice that defendant has refused to adopt. 42 U.S.C. §2000e-2(k)(1)(A)(ii). Therefore, the United States need not offer any evidence of alternative employment practices, unless or until the City of Garland proves that its hiring procedures which have a disparate impact on Blacks and Hispanics are job-related and consistent with business necessity.
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    Indeed, until the United States has obtained information sufficient to allow an evaluation of the impact of each of selection device used by the City as part of its application, selection and hiring process and of any contentions made by the City regarding whether each such device is job-related and consistent with business necessity, it is impossible for the United States to assess what alternatives may constitute alternative employment practices within the meaning of Section 703(k)(1)(A)(ii) and 703(k)(1)(C) of Title VII, 42 U.S.C. §2000e-2(k)(1)(A)(ii) and -2(k)(1)(C). Once the United States has received such information, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.

INTERROGATORY NO. 10

    STATE all bases for YOUR response to Interrogatory No. 9 above.

RESPONSE

    See the United States' Response to Interrogatory No. 9, above.

INTERROGATORY NO. 11

    State all bases for YOUR contention that GARLAND has provided ''Black and Hispanic employees with terms, conditions or privileges of employment less favorable than those provided to White employees,'' as is alleged in paragraph 10(c) of the COMPLAINT.

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RESPONSE

    Prior to filing its complaint, the United States requested factual information from the City of Garland which would have allowed the United States to determine whether the City's policies and procedures relating to promotion, assignment, compensation, discipline, termination, work environment, and other terms, conditions or privileges of employment have had a disparate impact on Blacks and/or Hispanics or have been used to discriminate against Blacks and/or Hispanics on the basis of race and/or national origin. The City did not provide the information necessary to analyze such policies and procedures. The United States has sought this information through the formal discovery process, but has not yet received responses from the City. Once the United States has received and analyzed the data it has requested, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.

    The facts known to the United States as of the filing of the complaint which relate to the allegations of the complaint are contained in the documents made available in response to the City's First Request for Production of Documents and in interviews conducted by the paralegals and attorneys of the Employment Litigation Section during the Section's investigation of the employment practices of Garland. According to those documents and interviews, racial slurs were routinely used in both the police and fire departments and racial slurs were used to refer to the minority communities served by the police and fire departments. In addition, employees in the fire department dressed in white sheets in the manner of members of the Ku Klux Klan and displayed a Confederate flag while at work to taunt a Black fire department employee. Black and Hispanic employees of the police department have not been assigned on an equal basis with white officers; and Black and Hispanic employees of the police and fire departments have not been promoted to supervisory positions on an equal basis with white officers. As of the beginning of 1997, all supervisory positions in the fire department above the rank of driver were held by white employees. In the police department, all positions above the rank of officer were held by white employees with the exception of two positions held by Hispanics.
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INTERROGATORY NO. 12

    State all bases for YOUR contention that GARLAND has ''failed or refused to take appropriate action to eliminate the allegedly discriminatory policies and practices in its Police and Fire Departments and/or allegedly failed to correct the present effects of any such policies and practices,'' as is alleged in paragraph 10(d) of the COMPLAINT.

RESPONSE

    The United States objects to Interrogatory No. 12 because it quotes the United States' complaint inaccurately. Without waiving the foregoing objection, facts known to the United States as of the filing of the complaint which relate to the allegations of the complaint are contained in the documents made available in response to the City's First Request for Production of Documents and in interviews conducted by the paralegals and attorneys of the Employment Litigation Section during the Section's investigation of the employment practices of Garland. According to the documents and interviews, Garland has not changed or altered its policies or practices described in the responses to these interrogatories with the exception of its recent attempt to increase efforts to recruit of Blacks and Hispanics in the police department and to stop the use of racial slurs in the fire department.

INTERROGATORY NO. 13

    IDENTIFY all other PUBLIC SAFETY AGENCIES whose employment policies, practices or procedures YOU have INVESTIGATED since January 1, 1988.
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RESPONSE

    The United States objects to Interrogatory No. 13 as requesting information which is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence. The United States objects to Interrogatory No. 13 on the ground that it is overbroad and unduly burdensome in that, given the City's definition of the term ''YOU'' for purposes of its interrogatories, Interrogatory No. 13 is not limited to investigations conducted by the Civil Rights Division of the Department of Justice but instead requests information relating to investigations which may have been conducted by any agency, employee or representative of the United States. The United States objects to Interrogatory No. 13 on the ground that it is overbroad and unduly burdensome in that it requests information regarding investigations of, for example, individual allegations of failure to accommodate a religious practice, sexual harassment, and numerous other unlawful employment practices unrelated to the allegations at issue in this case. The United States objects to Interrogatory No. 13 on the ground that it is vague and ambiguous in that the City's First Set of Interrogatories does not contain a meaningful definition of the term ''investigated.''

    Further, the United States objects to Interrogatory No. 13 on the ground that pursuant to the United States' authority under 42 U.S.C. §2000e-5(f)(1), the United States investigates individual charges of employment discrimination against state and local government employers once such a charge has been filed with the Equal Employment Opportunity Commission (EEOC), the EEOC has investigated the charge, found reasonable cause, conciliation has failed, and the EEOC has referred the charge to the Department of Justice. 42 U.S.C. §2000e-5(b) provides that charges filed with the EEOC shall not be made public by the EEOC and further provides that any person who makes public information in violation of that subsection of Title VII is subject to a fine up to $ 1,000, imprisonment for up to a year, or both. The United States considers itself bound by the confidentiality requirements of this Subsection and therefore objects to producing the information described in this request with respect to all investigations made of individual charges other than charges in which the City of Garland is a respondent.
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    The United States further objects to the production of the information described in interrogatory No. 13 as it pertains to pattern or practice investigations begun by the United States pursuant to its independent authority under Title VII. It has long been the policy of the Department of Justice not to publicize the existence of such investigations, in part to encourage cooperation from employers under investigation. Indeed, the United States routinely refuses to produce documents pertaining to pattern or practice investigations under sections (b)(7)(A), (C) and (E) of the Freedom of Information Act, as they are investigatory records whose production would interfere with enforcement proceedings, disclose investigative techniques and procedures, and/or constitute an unwarranted invasion of personal privacy.

    Moreover, because the United States has an obligation to inform the targets of such investigations prior to releasing any information so that such targets may take whatever legal action they deem appropriate, the United States would have to contact every public safety agency it has investigated since 1988 prior to providing an answer to this interrogatory. Contacting each such agency would be unduly burdensome, particularly because the information requested by this interrogatory is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence.

    Without waving the forgoing objections, see the United States' Response to Interrogatories Nos. 14 and 15, below.

INTERROGATORY NO. 14

    For each PUBLIC SAFETY AGENCY identified in response to Interrogatory No. 13 above, state whether YOU filed a civil action against such municipal public safety agency, or the City which operates it, alleging discriminatory employment practices or procedures.
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RESPONSE

    The United States objects to Interrogatory No. 14 as requesting information which is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence. The United States objects to Interrogatory No. 14 on the ground that it is overbroad and unduly burdensome in that, given the City's definition of the term ''YOU'' for purposes of its interrogatories, Interrogatory No. 14 is not limited to civil actions filed by the Civil Rights Division of the Department of Justice but instead requests information relating to investigations which may have been conducted by any agency, employee or representative of the United States. The United States objects to Interrogatory No. 14 on the ground that it is overbroad and unduly burdensome in that it requests information regarding investigations of, for example, individual allegations of failure to accommodate a religious practice, sexual harassment, and numerous other unlawful employment practices unrelated to the allegations at issue in this case.

    Without waving the forgoing objections, since January 1, 1988, the Civil Fights Division has filed civil actions against the following public safety agencies, alleging discriminatory employment practices or procedures:

Alhambra, California, Police and Fire Department
Allentown, Pennsylvania, Police Department
Arvada, Colorado, Police Department
Assumption Parish, Louisiana, Sheriff's Department
Belleville, Illinois, Fire and Police Departments
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Brook Park, Ohio
Brownsville, Texas, Fire Department
Canton, Mississippi, Police Department
El Monte, California, Police and Fire Departments
Fairview Park, Ohio, Police Department
Fullerton, California, Police and Fire Departments
Garland, Texas, Police and Fire Departments
Glassboro, New Jersey, Police Department
Guardian, Puerto Rico, Municipal Guard
Hattiesburg, Mississippi, Fire Department
Hialeah, Florida, Police and Fire Departments
Jackson, Michigan, Police Department
Jamestown, Tennessee, Police Department
Jeanerette, Louisiana, Police Department
Jeffersonville, Indiana, Fire Department
Kern County, California, Sheriff's Department
Key West, Florida, Police Department
Lakeland, Florida, Fire Department
Louisiana State Police
Markham, Illinois, Fire Department
Maury County, Tennessee, Sheriff's Department
McHenry County, Illinois, Sheriff's Department
Medina County, Texas, Sheriff's Department
Miami Beach, Florida, Police and Fire Departments
Nassau County, New York, Police Department
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New Jersey Personnel Department, Police Department
Newton County, Georgia, Sheriff's Department
Orange County, California, Sheriff's Department
Ormond Beach, Florida, Police Department
Palm Beach Gardens, Florida, Police Department
Pomona, California, Police Department
Ridley Township, Pennsylvania, Police Department
Secaucus, New Jersey, Police Department
Seven Hills, Ohio
Southeastern Pennsylvania Transportation Authority
Torrance, California, Police and Fire Department
Virgin Islands Fire Service
Washington, D.C., Police Department
West Palm Beach, Florida, Fire Department
Westmoreland County, Maryland, Sheriff's Department
Willis, Texas, Police Department
Wilmington, Delaware, Police Department
Winter Haven, Florida, Fire Department

INTERROGATORY NO. 15

    For each municipal public safety agency identified in response to Interrogatory No. 14 above, state whether YOU settled or entered into a Consent Decree in connection with YOUR filing of a civil action against such municipal public safety agency.

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RESPONSE

    The United States objects to Interrogatory No. 15 as requesting information which is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence. The United States objects to Interrogatory No. 15 on the ground that it is overbroad and unduly burdensome in that it requests information regarding investigations of, for example, individual allegations of failure to accommodate a religious practice, sexual harassment, and numerous other unlawful employment practices unrelated to the allegations at issue in this case.

    Without waving the forgoing objections, of those actions listed in response to Interrogatory No. 14, the following actions have settled or the Civil Rights Division has entered into a Consent Decree in connection with the filing of a civil action against such municipal public safety agency:

Alhambra, California, Police and Fire Department
Allentown, Pennsylvania, Police Department
Arvada, Colorado, Police Department
Assumption Parish, Louisiana, Sheriff's Department
Belleville, Illinois, Fire and Police Departments
Brook Park, Ohio
Brownsville, Texas, Fire Department
El Monte, California, Police and Fire Departments
Fairview Park, Ohio, Police Department
Fullerton, California, Police and Fire Departments
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Glassboro, New Jersey, Police Department
Guardian, Puerto Rico, Municipal Guard
Hattiesburg, Mississippi, Fire Department
Hialeah, Florida, Police and Fire Departments
Jackson, Michigan, Police Department
Jamestown, Tennessee, Police Department
Jeanerette, Louisiana, Police Department
Jeffersonville, Indiana, Fire Department
Kern County, California, Sheriff's Department
Key West, Florida, Police Department
Lakeland, Florida, Fire Department
Louisiana State Police
Markham, Illinois, Fire Department
McHenry County, Illinois, Sheriff's Department
Medina County, Texas, Sheriff's Department
Miami Beach, Florida, Police and Fire Departments
Nassau County, New York, Police Department
New Jersey Personnel Department, Police Department
Newton County, Georgia, Sheriff's Department
Orange County, California, Sheriff's Department
Ormond Beach, Florida, Police Department
Palm Beach Gardens, Florida, Police Department
Pomona, California, Police Department
Ridley Township, Pennsylvania, Police Department
Secaucus, New Jersey, Police Department
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Seven Hills, Ohio
Torrance, California, Police and Fire Department
Virgin Islands Fire Service
Washington, D.C., Police Department
West Palm Beach, Florida, Fire Department
Wilmington, Delaware, Police Department
Winter Haven, Florida, Fire Department

INTERROGATORY NO. 16

    For each municipal public safety agency identified in response to Interrogatory No. 14 above, IDENTIFY those in which the filing of a civil action resulted in a trial of any of YOUR claims.

RESPONSE

    The United States objects to Interrogatory No. 16 as requesting information which is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence. The United States objects to Interrogatory No. 16 on the grounds that it requests information regarding investigations of, for example, individual allegations of failure to accommodate a religious practice, sexual harassment, and numerous other unlawful employment practices unrelated to the allegations at issue in this case. Without waving the forgoing objections, of those actions listed in response to Interrogatory No. 14, the following actions have resulted in a trial:

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Canton, Mississippi, Police Department
Maury County, Tennessee, Sheriff's Department
Southeastern Pennsylvania Transportation Authority
Torrance, California, Police and Fire Department
Washington, D.C., Police Department
Westmoreland County, Maryland, Sheriff's Department

INTERROGATORY NO. 17

    IDENTIFY the person(s) who made the ultimate decision to file the COMPLAINT.

RESPONSE

a. Bill Lann Lee

b. The United States objects to providing Mr. Lee's home address and telephone number on the grounds that it is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence.

c. U.S. Department of Justice
Office of the Assistant Attorney General
Civil Rights Division
P.O. Box 65808
Washington, D.C. 20035–5808
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(202) 514–2151
Appointed December 15, 1997. (Mr. Lee has not been promoted.)
Acting Assistant Attorney General

    Mr. Lee is the Acting Assistant Attorney General for Civil Rights at the United States Department of Justice. The Civil Rights Division is the primary institution within the federal government responsible for enforcing federal statutes prohibiting discrimination on the basis of race, sex, handicap, religion, and national origin. The Division enforces the Civil Rights Acts of 1957, 1960, 1964, and 1968; the Voting Rights Act of 1965, as amended through 1992; the Equal Credit Opportunity Act; the Americans with Disabilities Act; the National Voter Registration Act; the Uniformed and Overseas Citizens Absentee Voting Act; the Voting Accessibility for the Elderly and Handicapped Act; and additional civil rights provisions contained in other laws and regulations. These laws prohibit discrimination in education, employment, credit, housing, public accommodations and facilities, voting, and certain federally funded and conducted programs. In addition, the Division prosecutes actions under several criminal civil rights statutes which were designed to preserve personal liberties and safety. The Division also enforces the Civil Rights of Institutionalized Persons Act of 1980; the Freedom of Access to Clinic Entrances Act; the Police Misconduct Provision of the Violent Crime Control and Law Enforcement Act of 1994; and Section 102 of the Immigration Reform and Control Act of 1986, as amended. The Division is also responsible for coordinating the civil rights enforcement efforts of federal agencies whose programs are covered by Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973, as amended. As the head of the Civil Rights Division, Mr. Lee establishes policy and provides executive direction and control over litigative enforcement and administrative management activities in the Division.
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d. Asian male

e. The United States objects to providing Mr. Lee's home address and telephone number on the grounds that it is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence.

INTERROGATORY NO. 18

    IDENTIFY each and every employee, former employee, applicant or prospective applicant of GARLAND whom YOU have interviewed, indicating whether YOU have obtained one or more written statements from each.

RESPONSE

    The United States objects to Interrogatory No. 18 as requesting information which is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence. The United States objects to Interrogatory No. 18 on the grounds that it is overbroad and unduly burdensome in that, given the City's definition of the term ''YOU'' for purposes of its interrogatories, Interrogatory No. 18 is not limited to investigations conducted by the Civil Rights Division of the Department of Justice but instead requests information relating to investigations which may have been conducted by any agency, employee or representative of the United States. The United States further objects to Interrogatory No. 18 on the grounds that it is overbroad and unduly burdensome in that it is not limited to interviews related to the subject matter of this action, specifically, Garland's employment practices with respect to its police and fire departments. Without waving the forgoing objections, the attorneys and paralegals from the Employment Litigation Section have interviewed the following employees, former employees, applicants or prospective applicants of Garland with respect to the subject matter of this litigation. The attorneys and paralegals from the Employment Litigation Section have not obtained written statements from any individual listed in the response to Interrogatory No. 18.
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Thomas A. Adams
7202 Shawn Drive
Rowlett, Texas 75088
(972) 475-1021 (h)
(972) 463-8959 (w)

Cheryl Adams-Smith
Female

Sam Allen
Black Male

Yvonne Arnold
Female

Merrill Ballanciere
Garland Fire Department
Black Male

Shawanda Bosley
(214) 953-7880 h
(972) 203-9122 w
Information Systems Analyst, AMRESCO
Black Female
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Sharon Brown
Black Female

Lana Burke
Garland Police Department
Female

David Burmea
Hispanic Male

Nancy Carpenter
Garland Fire Department
White Female

Juan Cervantes
(214) 337-2610
Hispanic Male

Greg Clemmont
(713) 723-5876
Male

Linda Coleman
(972) 272-7882
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Female

Alexis Crockett
Garland Police Department

Ken Davis
Garland Police Department
Black Male

Frank Deanda
Hispanic Male

Carolyn Derrick
Black Female

Edgar Duarte
(972) 276-9109 (home)
(972) 881-4700 (work)
Hispanic Male

Ralph Ferguson
Black Male

Marco Garza
(972)475-6868
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Garland Police Department
Hispanic Male

Brenna Hagmann
Female

Robert Hamill
(214) 240-0007
Garland Fire Department
Native American Male

Ron Holifield
Former City Manager, City of Garland
White Male

Marna Istre
(972) 226-2664
Female

Fred Jackson
(972) 272-7238
Black Male

Assistant Chief James
Garland Fire Department
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White Male

Gabino Martinez, Jr.
(972) 238-6079
Hispanic Male

Mark Mendoza
(972) 463-3609
Garland Police Department
Hispanic Male

Andrea Okerbloom,
Carrollton Fire Department
(972) 662-2548
White Female

Reggie Osborn
(214) 475-7343
Male

Bill Peace
Garland Police Department
White Male

Don Peterson
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Human Resources Director, City of Garland
White Male

R.A. Plumlee
Garland Police Department
White Male

Charles Rene
Male

Lewis Ramseur
Garland Fire Department
Black Male

John Rocha
(972) 840-6871
Hispanic Male

Edward Saenz
Hispanic Male

Frank Simon
Garland Fire Department
Black Male

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Denise Smold
Female

Demond Turner
Male

Hector Vega
2929 Riviera, Garland, Texas
414-0081
Hispanic Male

Ed White
(214) 475-5287
Garland Police Department
Black Male

Sylvia Williams
Black Female

INTERROGATORY NO. 19

    IDENTIFY each and every employee or former employee, applicant or prospective applicant of GARLAND with regard to whom YOU have prepared or obtained a transcription of his or her oral statement.

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RESPONSE

    The United States objects to Interrogatory No. 19 as requesting information which is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence. The United States objects to Interrogatory No. 19 on the grounds that it is overbroad and unduly burdensome in that, given the City's definition of the term ''YOU'' for purposes of its interrogatories, Interrogatory No. 19 is not limited to investigations conducted by the Civil Rights Division of the Department of Justice but instead requests information relating to investigations which may have been conducted by any agency, employee or representative of the United States. The United States further objects to Interrogatory No. 19 on the grounds that it is overbroad and unduly burdensome in that it is not limited to interviews related to the subject matter of this action, specifically, Garland's employment practices with respect to its police and fire departments.

    Without waving the forgoing objections, the attorneys and paralegals from the Employment Litigation Section obtained a transcription of the oral statements of the following individuals:

Larry Rettig
11210 Wood Meadows, Apartment 115
Dallas, Texas 75228
Recreation Leader, Parks Department, City of Garland
Male

Shannon Stevens
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9696 Walnut, Apartment 1916
Dallas, Texas
Recreation Leader II, Parks Department, City of Garland
Female

Sharon Brown
Black Female

Sylvestine (Sylvia) Williams
409 Bluebonnet Trail
Garland, Texas 75043
Black Female

    In addition, the attorneys and paralegals from the Employment Litigation Section obtained a transcript of a meeting held at the City of Garland Parks Department on February 10, 1994 which includes statements by the following individuals whom the Employment Litigation Section believe are employees or former employees of the City of Garland:

Bob Hall

Roy Foster

Shannon Stevens

Jim Stone
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Jack Summers

Roxanne Cswaykus

Larry Rettig

Ray Harris

INTERROGATORY NO. 20

    IDENTTFY each and every employee or former employee, applicant or prospective applicant of GARLAND of whose statements YOU have made any audio or video recording.

RESPONSE

    The United States objects to Interrogatory No. 20 as requesting information which is not relevant to the subject matter involved in the pending action and is not reasonably calculated to lead to the discovery of admissible evidence. The United States objects to Interrogatory No. 20 on the grounds that it is overbroad and unduly burdensome in that, given the City's definition of the term ''YOU'' for purposes of its interrogatories, Interrogatory No. 20 is not limited to investigations conducted by the Civil Rights Division of the Department of Justice but instead requests information relating to investigations which may have been conducted by any agency, employee or representative of the United States. The United States further objects to Interrogatory No. 19 on the grounds that it is overbroad and unduly burdensome in that it is not limited to interviews related to the subject matter of this action, specifically, Garland's employment practices with respect to its police and fire departments.
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    Without waving the forgoing objections, the attorneys and paralegals from the Employment Litigation Section have made no audio or video recordings of statements of any employees or former employees, applicants or prospective applicants of the City of Garland relative to this action or the investigation which preceded it.

INTERROGATORY NO. 21

    IDENTIFY the labor market, if any, including geographical, educational, citizenship and all other criteria which YOU contend is relevant for the purposes of determining the legally appropriate hiring levels of ENTRY-LEVEL police officers and firefighters in or by GARLAND.

RESPONSE

    The United States objects to Interrogatory No. 21 as vague and ambiguous in that it does not define ''legally appropriate hiring levels.'' Without waiving the forgoing objection, the United States has sought from the City of Garland, but has not yet received, information relating to applicant flow data maintained by the City, information relating to the geographical area from which the City has drawn applicants and employees, and information relating to whether each requirement, criterion or device used by the City as part of its application, selection and hiring process has had the effect of unlawfully discriminating against Blacks or Hispanics on the basis of their race or national origin, or has been used by the City to unlawfully discriminate against Blacks or Hispanics on the basis of their race or national origin. Such information may affect any contentions the United States may make regarding the parameters of labor markets relevant to the matters at issue in this case. Once the United States has received and analyzed the data it has requested, the United States will supplement its response to this interrogatory to the extent required by the Federal Rules of Civil Procedure.
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INTERROGATORY NO. 22

    STATE all bases for YOUR response to Interrogatory No. 21, above.

RESPONSE

    See the United States' Response to Interrogatory No. 21, above.

INTERROGATORY NO. 23

    For the relevant labor market identified in response to Interrogatory No. 21 above, please state the composition of that labor market broken down by race, national origin and sex, as of 1980, 1988, 1990 and 1998.

RESPONSE

    See the United States' Response to Interrogatory No. 21, above.

INTERROGATORY NO. 24

    STATE all bases for YOUR response to Interrogatory No. 23, above.

RESPONSE

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    See the United States' Response to Interrogatory No. 21, above.

INTERROGATORY NO. 25

    State every fact on which YOU base the allegations in the COMPLAINT which are not set forth in YOUR responses to Interrogatories Nos. 1 through 25, above.

RESPONSE

    The United States objects to Interrogatory No. 25 on the grounds that it is overbroad and unduly burdensome in that the facts are more readily available to the City of Garland than to the United States. Without waving the forgoing objection, facts known to the United States as of the filing of the complaint which relate to the allegations of the complaint are contained in the documents made available in response to the City's First Request for Production of Documents and in interviews conducted by paralegals and attorneys from the Employment Litigation Section. According to those documents and interviews, the City of Garland has failed or refused to recruit Blacks and Hispanics for entry-level police officer and fire fighter positions on the same basis as whites, because, inter alia, Garland made little or no effort to recruit Blacks or Hispanics for the police department prior to February, 1996, and Garland continues to make little or no effort to recruit Blacks and Hispanics for the fire department. The recruitment efforts Garland has made have been insufficient to overcome Garland's poor reputation in the Black and Hispanic communities which has served to discourage Blacks and Hispanics from applying for positions with the police and fire departments. The documents and interviews further suggest that the City has provided Black and Hispanic employees with terms, conditions or privileges of employment less favorable than those provided to white employees because, inter alia, the City's policies and procedures relating to promotion, assignment, compensation, discipline, termination, work environment, and other terms, conditions or privileges of employment have had a disparate impact on Blacks and/or Hispanics or have been used to discriminate against Blacks and/or Hispanics. According to those documents and interviews, racial slurs were routinely used in both the police and fire departments and racial slurs were used to refer to the minority communities served by the police and fire departments. In addition, employees in the fire department dressed in white sheets in the manner of members of the Ku Klux Klan and displayed a Confederate flag while at work to taunt a Black fire department employee. Black and Hispanic employees of the police department have not been assigned on an equal basis with white officers; and Black and Hispanic employees of the police and fire departments have not been promoted to supervisory positions on an equal basis with white officers. As of the beginning of 1997, all supervisory positions in the fire department above the rank of driver were held by white employees. In the police department, all positions above the rank of officer were held by white employees with the exception of two positions held by Hispanics. According to the documents and interviews, Garland has failed or refused to take appropriate action to eliminate the discriminatory policies and practices and to correct the present effects of those policies and practices because the City has not changed or altered the policies or practices described above, with the exception of attempting to increase efforts to recruit of Blacks and Hispanics in the police department and attempting to stop the use of racial slurs in the fire department.
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Dated: June 15, 1998


JOHN M. GADZICHOWSKI
  WI Bar No. 1014294
MICHAEL T. KIRKPATRICK
  TX Bar No. 11531002
SHARON A. SEELEY
  IL Bar. No. 06197091
SHARYN A. TEJANI
  DC Bar No. 456150
Attorneys
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P. 0. Box 65968
Washington, D.C. 20035-5968
(202) 616–9615
(202) 514–1005 (fax)


PAUL E. COGGINS, JR.
United States Attorney for the
  Northern District of Texas
KATHERINE MCGOVERN
Assistant United States Attorney
1100 Commerce Street, 3rd Floor
Dallas, Texas 75242–1699
(214) 659–8600


ATTORNEYS FOR PLAINTIFF
UNITED STATES OF AMERICA

                                Certification
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    I, Michael T. Kirkpatrick, pursuant to 28 U.S.C. §1746, declare under penalty of perjury that I am an employee of the United States Department of Justice and one of the attorneys assigned to this suit. I have reviewed the foregoing Plaintiff United States' Responses to Defendant City of Garland's First Set of Interrogatories and they are true and correct to the best of my knowledge, information and belief.


Michael T. Kirkpatrick

                            Certificate of Service

    I certify that a true and correct copy of the foregoing document was served by facsimile and Federal Express; this 15th day of June, 1998, upon counsel for the Defendant, addressed as follows:

Charles M. Hinton, Jr.
City Attorney
The City of Garland, Texas
P. 0. Box 469002
Garland, Texas 75046–9002


Michael T. Kirkpatrick
EXHIBIT F

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.                            Civil Action No. 3:98–CV0307–P

CITY OF GARLAND, TEXAS,

Defendant.

PLAINTIFF UNITED STATES' RESPONSE TO DEFENDANT

CITY OF GARLAND'S FIRST SET OF REQUESTS FOR ADMISSIONS

    Pursuant to Rule 36 of the Federal Rules of Civil Procedure, Plaintiff United States of America responds as follows to Defendant City of Garland's First Set of Requests for Admission to Plaintiff United States of America, served on the United States on May 15, 1998:
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REQUEST FOR ADMISSION NO. 1

    Admit that YOU do not contend that GARLAND's high school degree or equivalency requirement for employment with the Fire Department violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. §2000e et seq.

RESPONSE

    Whether an employer's use of a selection procedure, requirement or criterion violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., depends on numerous facts, including the employer's motive in adopting the procedure, requirement or criterion, whether the employer has applied the procedure, requirement or criterion in a consistent and non-discriminatory manner, whether the employer's use of the procedure, requirement or criterion has had a disparate impact on the basis of race, national origin, or some other characteristic protected by Title VII, whether the procedure, requirement or criterion is job-related for the positions at issue and consistent with business necessity, and whether ''alternative employment practices'' within the meaning of Section 703(k)(1)(A)(ii) and 703(k)(1)(C) of Title VII, 42 U.S.C. §2000e-2(k)(1)(A)(ii) and -2(k)(1)(C), exist.

    Prior to filing its complaint, the United States requested factual information from the City which would have allowed the United States to determine whether each procedure, requirement or criterion used by the City as part of its application, selection and hiring process for sworn positions in the Fire or Police Department at any time since 1988 has had an adverse impact against Blacks or Hispanics on the basis of their race or national origin. Although it provided the United States with a general description of the hiring process for firefighters and police officers, the City did not provide the information necessary to analyze separately each stage of the application, selection and hiring process. The United States has sought this information through the formal discovery process, but has not yet received responses from the City. Similarly, the United States has sought from the City, but has not yet obtained, information necessary to allow the United States to determine whether the City has applied each of the procedures, requirements and criteria used by the City as part of its application, selection and hiring process consistently and in a non-discriminatory manner with respect to the positions at issue in this case.
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    Therefore, with respect to each of the requirements referred to in Request for Admission Nos. 1–14, the United States lacks the information necessary to evaluate whether the City's application of the requirement to the positions at issue in this case has had a disparate impact on Blacks and/or Hispanics, whether the requirement is job-related for the positions at issue and is consistent with business necessity, and whether alternative employment practices exist. Similarly, the United States lacks the information necessary to allow it to determine whether the City has applied each of the requirements referred to in Request for Admission Nos. 1–14 consistently and in a non-discriminatory manner with respect to the positions at issue in this case. Thus, the United States has made reasonable inquiry before and subsequent to the filing of the complaint initiating this suit, and the information currently known to or readily obtainable by the United States is insufficient to enable the United States to admit or deny Request for Admission Nos. 1–14.

    However, the information made available to the United States by the City prior to the filing of this action indicates that the City's application, selection and hiring process as a whole has had a disparate impact on Blacks and Hispanics. Thus, to the extent that the elements of the process are not capable of separation for analysis, the United States may contend that the process as a whole has had an unlawful disparate impact on Blacks and Hispanics, and the United States denies Request for Admission Nos. 1–14 to the extent that they could be interpreted as requesting that the United States admit otherwise.

REQUEST FOR ADMISSION NO. 2

    Admit that YOU do not contend that GARLAND's United States citizenship requirement for employment with the Fire Department violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.
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RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 3

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Fire Department successfully complete a medical examination violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 4

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Fire Department have no felony record violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

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REQUEST FOR ADMISSION NO. 5

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Fire Department successfully complete a physical agility test violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 6

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Fire Department participate in one or more oral interviews violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 7

    Admit that YOU do not contend that GARLAND's high school degree or equivalency requirement for employment with the Police Department violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.
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RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 8

    Admit that YOU do not contend that GARLAND's United States citizenship requirement for employment with the Police Department violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 9

    Admit that YOU do not contend that GARLAND's driver's license requirement for employment with the Police Department violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

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REQUEST FOR ADMISSION NO. 10

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Police Department have no felony record violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 11

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Police Department successfully complete a medical examination violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 12

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Police Department successfully complete a psychological examination violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.
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RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 13

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Police Department successfully complete a physical agility test violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

REQUEST FOR ADMISSION NO. 14

    Admit that YOU do not contend that GARLAND's requirement that applicants for employment with the Police Department participate in one or more oral interviews violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    See Response to Request for Admission No. 1, above.

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REQUEST FOR ADMISSION NO. 15

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires (except for those who have served in the military) be at least 21 years of age and not more than 35 years of age on the date the written examination is administered.

RESPONSE

    The United States objects to Request for Admission Nos. 15–24 as vague and ambiguous in that a relevant labor market is a fact rather than something which can or ''must'' be ''adjusted.'' Assuming that Request for Admission Nos. 15–24 are intended to refer to some definition(s) or measure(s) of the relevant labor market, the United States also objects to Request for Admission Nos. 15–24 as vague and ambiguous in that the requests do not state the definition(s) or measure(s) to which they refer; it would be unnecessary to ''adjust'' a measure of a relevant labor market which already takes into account a particular factor. In addition, the United States objects to Request for Admission Nos. 15–24 as vague and ambiguous in that each requests an admission with respect to ''the relevant labor market for the GARLAND Police Department'' rather than any specific position(s) within the Garland Police Department, and the labor market relevant to one position within the Police Department may be different than the labor market relevant to other positions.

    Without waiving the foregoing objections, the United States has made reasonable inquiry before and subsequent to the filing of the complaint initiating this suit, and the information currently known to or readily obtainable by the United States is insufficient to enable the United States to admit or deny the matter stated in Request for Admission Nos. 15–25. As stated previously, as part of its investigation of the facts relevant to this case, the United States has sought from the City, but not yet obtained, information necessary to allow the United States to separately analyze whether each requirement, criterion or device used by the City as part of its application, selection and hiring process has had the effect of unlawfully discriminating against Blacks or Hispanics on the basis of their race or national origin, or has been used by the City to unlawfully discriminate against Blacks or Hispanics on the basis of their race or national origin, in violation of Title VII. Whether a given definition or measure of the relevant labor market for entry-level sworn positions in the City's Police Department should be adjusted, if feasible, for a particular requirement, criterion or device used by the City will depend on, inter alia, whether the City's use of the requirement, criterion or device violates Title VII.
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REQUEST FOR ADMISSION NO. 16

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires possess a high school degree or equivalency.

RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 17

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires possess 60 hours of college credit or 30 hours of college credit and military or police experience.

RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 18

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires be United States citizens.
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RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 19

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires have no felony conviction record.

RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 20

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires possess a valid driver's license.

RESPONSE

    See Response to Request for Admission No. 15, above.

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REQUEST FOR ADMISSION NO. 21

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires (except for those who have served in the military) be at least 21 years of age and not more than 35 years of age on the date that the written examination is administered.

RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 22

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires possess a high school degree or equivalency.

RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 23

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires be United States Citizens.
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RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 24

    Admit that the relevant labor market for the GARLAND Police Department must be adjusted to account for the requirement that ENTRY-LEVEL hires have no felony conviction record.

RESPONSE

    See Response to Request for Admission No. 15, above.

REQUEST FOR ADMISSION NO. 25

    Admit that YOU are aware of no evidence that GARLAND has a reputation among potential applicants to the Police Department for discriminating against Blacks.

RESPONSE

    Denied.

REQUEST FOR ADMISSION NO. 26
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    Admit that YOU are aware of no evidence that GARLAND has a reputation among potential applicants to the Police Department for discriminating against Hispanics.

RESPONSE

    Denied.

REQUEST FOR ADMISSION NO. 27

    Admit that YOU are aware of no evidence that GARLAND has a reputation among potential applicants to the Fire Department for discriminating against Blacks.

RESPONSE

    Denied.

REQUEST FOR ADMISSION NO. 28

    Admit that YOU are aware of no evidence that GARLAND has a reputation among potential applicants to the Fire Department for discriminating against Hispanics.

RESPONSE

    Denied.
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REQUEST FOR ADMISSION NO. 29

    Admit that YOU do not contend that GARLAND'S recruitment policies or practices for ENTRY-LEVEL police officers violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

RESPONSE

    Denied.

REQUEST FOR ADMISSION NO. 30

    Admit that YOU do not contend that GARLAND's recruitment policies or practices for ENTRY-LEVEL firefighters violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C., §2000e et seq.

RESPONSE

    Denied.

REQUEST FOR ADMISSION NO. 31

    Admit that YOU are not aware of any ALTERNATIVE SELECTION DEVICE that GARLAND could or should have used in place of any of the HIRING PROCEDURES that YOU contend violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. §2000e et seq.
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RESPONSE

    The United States objects to Request for Admission No. 31 as vague and ambiguous in that the City's First Set of Requests for Admission contains no meaningful definition of the phrase ''alternative selection device.'' Without waiving the foregoing objection, the United States notes that, in general, in order to prove a prima facie violation of Title VII on a disparate impact theory of liability, a plaintiff must establish that a defendant's use of an employment practice has a disparate impact on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. §20OOe-2(k)(1)(A)(i). The defendant must then demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity. See id. If the defendant succeeds in demonstrating job-relatedness and business necessity, the plaintiff can prevail by showing the existence of a less discriminatory alternative employment practice that defendant has refused to adopt. 42 U.S.C. §20OOe-2(k)(1)(A)(ii). Therefore, the United States need not identify any alternative employment practices, unless and until the City of Garland proves that its selection devices which have an adverse impact on Blacks and Hispanics are job-related and consistent with business necessity. Indeed, until the United States has obtained information sufficient to allow an evaluation of the impact of each of selection device used by the City as part of its application, selection and hiring process and of any contentions made by the City regarding whether each such device is job-related and consistent with business necessity, it is impossible for the United States to assess what alternatives may constitute alternative employment practices within the meaning of Section 703(k)(1)(A)(ii) and 703(k)(1)(C) of Title VII, 42 U.S.C. §20OOe-2(k)(1)(A)(ii) and -2(k)(1)(C). Thus, although the United States has made reasonable inquiry before and subsequent to the filing of the complaint initiating this suit, the information currently known to or readily obtainable by the United States is insufficient to enable the United States to admit or deny the foregoing matter. See Responses to Request for Admission No. 1, above.
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Dated: June 15, 1998


JOHN M. GADZICHOWSKI
  WI Bar No. 1014294
MICHAEL T. KIRKPATRICK
  TX Bar No. 11531002
SHARON A. SEELEY
  IL Bar. No. 06197091
SHARYN A. TEJANI
  DC Bar No. 456150
Attorneys
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P. 0. Box 65968
Washington, D.C. 20035-5968
(202) 616–9615
(202) 514–1005 (fax)


PAUL E. COGGINS, JR.
United States Attorney for the
  Northern District of Texas
KATHERINE MCGOVERN
Assistant United States Attorney
1100 Commerce Street, 3rd Floor
Dallas, Texas 75242–1699
(214) 659–8600


ATTORNEYS FOR PLAINTIFF
UNITED STATES OF AMERICA

                            Certificate of Service
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    I certify that a true and correct copy of the foregoing document was served by Federal Express, this I5th day of June, 1998, upon counsel for the Defendant, addressed as follows:

Charles M. Hinton, Jr.
City Attorney
The City of Garland, Texas
P. 0. Box 469002
Garland, Texas 75046–9002

Michael T. Kirkpatrick


    Mr. CANADY. Ms. Keenan.

STATEMENT OF KIM M. KEENAN, ATTORNEY, FAIR EMPLOYMENT COUNCIL OF GREATER WASHINGTON

    Ms. KEENAN. Mr. Chairman, Mr. Scott, Ms. Waters, thank you for the opportunity to comment on the uses and benefits of employment testing to detect illegal discrimination in employment. I speak to you today in my capacity as chair of the board of directors of the Fair Employment Council of Greater Washington. The Fair Employment Council is a nonprofit, nonpartisan organization located in the District of Columbia. We are a civil rights research and advocacy organization focused on the development of innovative strategies to address the issues of discrimination and disadvantage, particularly in the field of employment opportunity, through methods which include research, public education, outreach, and litigation.
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    One of the strategies that we utilize to identify workplace discrimination is employment testing. Employment testing is the systematic social science procedure for observing and recording employers' candid responses to the personal characteristics of job applicants. Studies show that racial and ethnic minorities remain underrepresented in high-level occupations and overrepresented in lower-level occupations. They often do not command the same wages as nonminorities performing the same work, and minorities often do not receive the same payoffs for acquiring educational credentials. On average, they experience greater unemployment than equally qualified nonminorities and experience higher rates of job dismissal.

    To examine this problem and to directly demonstrate that this actually occurs, pairs of research assistants are sent to apply for actual job openings listed in the help wanted section of newspapers or at the random sample of companies listed in telephone books. Since 1990, the Fair Employment Council has participated in 2,000 tests where research assistants are carefully matched in terms of age, appearance, personality, and they carry resumes written by experts that credit them with equivalent education and experience. However, each pair of testers consists of persons who differ in their race or ethnicity. An African American tester is paired with a white or Hispanic tester, or a Hispanic tester is paired with an Anglo. Testing creates a controlled environment, and what results do we see?

    When a Hispanic tester called to apply for a job that was advertised in a Washington Post newspaper, and it was in a suburban area, she gave her name as Carmen, but they responded to her as though her name was Juanita, and it was told that there were no further applications. When her Anglo testing partner called 13 minutes later, she was given an appointment for an interview the following morning.
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    This occurs in various aspects of the employment arena. When an African American tester sought entry-level employment through a large employment agency in downtown Washington, after she completed the application and was being interviewed briefly, she was told she would be called if a suitable vacancy was available. Shortly thereafter, her white testing partner arrived seeking similar opportunities. After she completed an application and was interviewed, she was told about a receptionist sales position at an upscale health and grooming firm. She was coached on interviewing techniques and scheduled for an interview later that day.

    In the area of compensation, a major department store advertised in The Washington Post for sales assistants in the women's clothing department in an affluent neighborhood. When a pair of female testers applied for the position, both were interviewed by the store's personnel department, and both were offered permanent full-time employment. However, the starting salary offered to the African American tester was $6.50 per hour, while her white partner was offered $7.50.

    Another example, a major brand auto dealer in the Washington suburbs advertised in The Washington Post for a car salesperson. An African American tester who applied was told that to enter the business, he should accept a position as a porter/car washer. Arriving shortly thereafter with identical credentials, his white testing partner immediately interviewed for the sales position that had been advertised.

    Even when African American or minority applicants present positive credentials, these can often be used as a negative. In one example, a tester appeared and was dressed appropriately for the interview, in fact the same as his same white counterpart, and he was asked whether he participated in illegal activity which enabled him to dress in the appropriate manner.
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    In face-to-face tests by the Fair Employment Council in the Washington area, white testers obtain job interviews at a rate of 22 percent higher than the rate for their equivalently qualified African American counterparts. Whites who interviewed for jobs received offers at 415 percent of the rate of African Americans who were interviewed. In tests which both testers received job offers for the same position, whites received a higher wage offer than their African American counterparts 17 percent of the time, and white testers were 37 percent less likely than their African American partner to be diverted to a lesser quality job than the one advertised, and 48 percent more likely to be told about additional opportunities. Taken together, the labor market experience of identically qualified minority and nonminority job applicants is profoundly different.

    I realize that my time is up, and I just want to say that testing can be used to monitor compliance with injunctive remedies; that legislatures can rely on testing results to assess the effectiveness of existing laws prohibiting discrimination. Indeed, the Montgomery County Human Relations Commission has contracted with the FEC to perform employment testing.

    Testing can be used to investigate allegations of employment discrimination, it can avoid unnecessary and prolonged use of resources by enforcement agencies by differentiating between complaints that appear to reflect systemic problems of discrimination and those which are without foundation or reflect isolated or atypical occurrences.

    I submit to you that employment discrimination is more fundamental than any other type of discrimination. It affects every aspect of an individual's livelihood. If you remove all barriers to housing discrimination, if you remove all barriers to accommodation discrimination, but people are not allowed to obtain suitable employment reflective of their skills and abilities, then all these issues remain moot, and America will remain divided.
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    Help us level the playing field. Help Justice level the playing field; help us point out where the playing field isn't leveled. We can't just say the playing field is leveled without any recognition of whether, in fact, it is not. Just because the signs of Jim Crow have been removed doesn't mean the attitudes have been erased.

    Thank you.

    Mr. CANADY. Thank you, Ms. Keenan.

    [The prepared statement of Ms. Keenan follows:]

PREPARED STATEMENT OF KIM M. KEENAN, ATTORNEY, FAIR EMPLOYMENT COUNCIL OF GREATER WASHINGTON

    Mr. Chairman and members of the subcommittee, thank you for the opportunity to comment on the uses and benefits of employment testing to detect illegal employment discrimination. I speak to you in my capacity as Chair of the Board of Directors of the Fair Employment Council of Greater Washington. The Fair Employment Council is a non-profit, non-partisan organization located in Washington, D.C. We are a civil rights research and advocacy organization focused on the development of innovative strategies to address issues of discrimination and disadvantage, particularly in the field of equal employment opportunity, through methods which include, research, public education and outreach, and litigation. One of the strategies utilized to identify workplace discrimination is employment testing. Employment testing is a systematic social science procedure for observing and recording employers' candid responses to the personal characteristics of job applicants.
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    My testimony can be summarized as follows:

 A substantial amount of racial/ethnic discrimination continues to persist in the American job market;

 Modern discrimination involves subtle but perceptible processes which tilt the employment playing field;

 Employment testing is an objective tool which can reliably detect workplace discrimination;

    Without question, progress has been made in the arena of employment. Obvious barriers to employment have been removed through civil rights legislation. However, the reality is that discriminatory practices still exist. Although rare is the case when an applicant is blatantly confronted with deliberate discrimination, minority applicants still receive disparate treatment in the hiring process. The employment discrimination of the nineties is less about overt rejection than it is about covert distinctions made between applicants which, in reality, results in illegal discrimination.

    Studies show that racial and ethnic minorities remain under-represented in higher level occupations and over-represented in lower level occupations. They often do not command the same wages as non-minorities for performing the same work. Minorities often do not receive the same payoffs for acquiring educational credentials. On average, they experience greater unemployment than equally qualified non-minorities, and experience higher rates of job dismissal. To examine the problem of discrimination directly, a research method called testing is performed. Pairs of research assistants are sent to apply for actual job openings listed in the help-wanted section of the newspapers or at a random sample of companies listed in the telephone yellow pages. Research assistants are carefully matched in terms of age, appearance and personality and they carry resumes written by experts that credit them with equivalent education and experience. However, each pair of testers consist of persons who differ in their race or ethnicity: an African-American tester paired with a white or Hispanic tester, or a Hispanic tester is paired with an Anglo. Testing creates a controlled experiment. If partners are treated differently, it is reasonable to attribute that disparate treatment to the one way in which they differ, their race or ethnicity. Since 1990, the Fair Employment Council of Greater Washington has participated in more than 2,000 such experiments in Washington, D.C., Chicago and San Diego. The job vacancies tested have typically been for entry-level positions ranging in qualifications from less than high school graduate to college graduate, and drawn from a variety of industries. We have used both male and female testers and applied for jobs by mail and telephone, as well as in person. We found that nearly one employer in four treated the minority applicant significantly worse than the non-minority. For example, a vacancy for a receptionist in an optometrist's office in the Washington suburbs was advertised in a local newspaper. When an Hispanic tester called to apply for the job, she was put on hold and then called by the wrong name, Carmen, when she had given her name as Juanita, and told that they were not taking any further applications. When her Anglo testing partner called 13 minutes later, she was given an appointment for an interview the following morning.
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    Job offers and referrals: An African-American tester sought entry-level employment through a large employment agency in downtown Washington. After completing an application and being interviewed briefly, she was told that she would be called if a suitable vacancy became available. Shortly thereafter, her white testing partner arrived seeking similar opportunities. After she completed an application and was interviewed, she was told about a receptionist sales position at an upscale health and grooming firm. She was coached on interviewing techniques and scheduled for an interview later that day. In that interview she was offered the position.

    Compensation: A major department store advertised in the Washington Post for sales assistants in the women's clothing department of a branch in an affluent neighborhood. When a pair of female testers applied for the position, both were interviewed by the store's personnel department and both were offered permanent, full-time employment. However, the starting salary offered to the African-American tester was $6.50 per hour, while her white partner was offered $7.50 per hour.

    Steering: A major brand auto dealer in the Washington suburbs advertised in the Washington Post for a car salesperson. An African-American tester who applied was told that to enter the business, he should accept a position as a porter/car washer. Arriving shortly thereafter with identical credentials, his white testing partner was immediately interviewed for the sales position that had been advertised.

    Information About Unadvertised Opportunities: A dating service in the Washington suburbs advertised in the Washington Post for a receptionist/typist. When an African-American tester applied for the position she was interviewed but heard nothing further. When her white testing partner applied for the receptionist position and was interviewed, the employer offered her a position as a personal assistant to the manager. This new position would pay more than the receptionist job, would lead to rapid raises and promotions, and would provide tuition assistance. Follow up calls by the African-American tester elicited no interest on the part of the firm either for the receptionist position or the newly created opportunity even after the white tester refused the offer.
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    In face-to-face tests by the Fair Employment Council in the Washington area, white testers obtained job interviews at a rate 22% higher than the rate for their equivalently-qualified African-American counterparts. Whites who were interviewed received job offers at 415% the rate for African-Americans who were interviewed. In tests which both testers received job offers for the same position, whites received a higher wage offer than their African-American counterparts 17% of the time. And, white testers were 37% less likely than their African-American partner to be diverted to a lesser quality job than the one advertised, and 48% more likely to be told about additional opportunities.

    Taken together, the labor market experience of identically qualified minority and non-majority job applicants is profoundly different. In the course of finding one job, a typical job seeker applies for dozens of positions, virtually no minority job seeker is likely to get through a job campaign without being touched by discrimination. These results are not limited to any particular subsector of the economy. True, suburban areas appear nearly twice as discrimination prone as central cities. Unadvertised vacancies are more subject to discrimination than widely advertised ones and discrimination was more likely to arise for jobs which offered higher pay and more opportunities for advancement. And, in employment agencies, our testers encountered discriminatory treatment an appalling 67%, that is, two-thirds of the time that they applied for job referrals. However, we found that no industry, no community or type of employment is immune. We observed discrimination in large firms with professional personnel departments, in mom and pop operated enterprises, in government contractors, in firms that advertise themselves as equal opportunity employers, and in firms bearing some of the most well known business names in the nation. In light of these findings, it is clearly appropriate to reach the conclusion that discrimination still operates in the American job market today.
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    Employment testing offers a pro-active means to detect and challenge work place discrimination without reliance upon initiation of charges by applicants or employees. Employment testing has been recognized as a social science research tool. The results of employment tests have served as a valuable source of documentation for the existence of discrimination in the work place. The results of testing can play a valuable role in educating the community regarding the existence and extent of discrimination in the work place. Agencies such as the EEOC, state and local human resource rights agencies, can use testing to measure the effectiveness of their efforts to curb discrimination and to direct their resources to those segments of the community where disparities and treatment are most pronounced. Indeed, the Montgomery County Human Relations Commission has contracted with the FEC to perform employment testing. Legislatures can rely upon testing results to assess the effectiveness of existing laws prohibiting discrimination and to consider the sufficiency of the resources appropriated to address employment discrimination. In the area of enforcement, testing permits targeted investigations of employers hiring practices which often rely upon common knowledge of demographic data.

 Testing can be used to monitor compliance with injunctive remedies.

 Testing can be used to investigate allegations of employment discrimination, it can avoid unnecessary and prolonged use of resources by enforcement agencies by differentiating between complaints that appear to reflect systemic problems of discrimination in those that are without foundation or reflect isolated, atypical occurrences.

 Testing can be used to directly challenge the existence of discrimination in hiring. Moreover, testers have standing to challenge discrimination under Title VII of the Civil Rights Act. Indeed, employers themselves may want to develop and use a testing program to detect non-compliance or other discriminatory conduct toward job applicants. One notable example is Denny's. Denny's wrote testing into the settlement agreement. Thus, they will monitor institutional behavior by testing.
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    I submit to you that employment discrimination is more fundamental than any other type of discrimination. It affects every aspect of an individual's livelihood. If you remove all the barriers to housing discrimination, but you cannot afford to buy a house in a particular neighborhood because you are unable to find suitable employment, then other issues of discrimination become moot.

    Help us level the playing field. Help us point out where the playing field is not level. We cannot just say that the playing field is level with no recognition of whether, in fact, it is or not. Just because the signs of Jim Crow have been removed, doesn't mean the attitudes have been erased.

    Mr. CANADY. Mr. Devine.

STATEMENT OF DONALD DEVINE, FORMER DIRECTOR, U.S. OFFICE OF PERSONNEL MANAGEMENT

    Mr. DEVINE. Thank you very much, Mr. Chairman.

    Members of the committee, it has been a long time since I testified before your committee. I was the Director of the Office of Personnel Management from 1981 to 1985. It is amazing to me to see how little the issues have changed over that period of time. I am sorry Congressman Watt isn't here so I could give him some historical perspective on what the partisan makeup was at the time in the series of questions when I appeared here before. But it is a pleasure to be here.
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    I would like to speak today about President Clinton's Executive Order 13087, which he issued recently, which included sexual orientation as a new category under President Nixon's Executive Order 11478. You have my full written testimony. I will just highlight a few points that have already been brought up, to some degree.

    Number one, there is no definition of this. I think it was Congressman Barr that mentioned it could go to any kind of level of sexual perversion. I don't know how you can have an Executive Order without definitions. I participated in the process of many before, and I can guarantee you to the degree to which they are not defined or defined ambiguously and vaguely, they are going to lead to terrible problems in enforcement. Any political science textbook will make clear the unintended consequences of law, and without a definition at all, you are just asking for incredible difficulty.

    Secondly, the President is adding a new category to an area in which Mr. Lee has already said that the resources are stretched and that he needs more, so what they are, in fact, doing is adding more work, which is going to take away from what I agree are serious areas that need enforcement in the problem of discrimination, and particularly racial discrimination, which has been mentioned several times before.

    The degree to which this Executive Order has been ill-thought and ill-prepared, again, without even a definition, I think was highlighted in Mr. Lee's own testimony. I was quite surprised to hear, A, that he had not been consulted on this, and I can guarantee you during the Reagan administration that the Assistant Secretary for Civil Rights was enormously involved in areas Mr. Lee mentioned. It was the responsibility of my former agency, and it is partially under EEOC, but I guarantee you, Brad Reynolds, who had that position while I was there, was very involved in issuing these, and it is an indication of how little consideration it has been given, especially relating to Mr. Lee's understanding of that.
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    He took what to me is the incredible position under that Executive Order, which I had to work under, that it only dealt with nondiscrimination and not affirmative action. If, in fact, that was the case, I would have much less problem with the whole Executive Order itself, as well as adding the new category, if, in fact, it was added properly. But the next very serious problem is, in fact, that this was done by executive fiat. This is not a country which operates under executive fiat, that the President can simply add by executive decree a new category out of thin air. And the President has the chutzpah in the same statement in which he issues the Executive Order to request that Congress pass a law which would give him the authority that he has already exercised. I mean, this is an amazing situation of law.

    So I would strongly request that Congress take a particular interest in this if for no other reason than Congress itself, at least to some degree, is subject to this new category of discrimination being added. I am not sure of the full degree because I couldn't get the bill of internal guidance, but at least as far as I know, most of Title V was applied to Congress, so I think at least you should look at that.

    Four years being intimately involved in the management of the Federal Government makes me very concerned that this adds another layer and another degree of difficulty to an already almost impossible job of trying to manage the Federal bureaucracy with any degree of rationality. This is very ill-conceived, it deals with categories that are vague, and could be even dangerous, and it will vastly complicate the management of the government, and I would urge Congress to take action to override this decision of the President.

    Mr. CANADY. Thank you, Mr. Devine.
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    [The prepared statement of Mr. Devine follows:]

PREPARED STATEMENT OF DONALD DEVINE, FORMER DIRECTOR, U.S. OFFICE OF PERSONNEL MANAGEMENT

STATEMENT

    Thank you, Chairman Canady and Members of the Constitution Subcommittee, for the opportunity to testify before Congress on an issue that has significant implications for the management of the federal government and the continued viability of the civil rights laws of the United States. As you know, I was Director of the U.S. Office of Personnel Management (OPM) from 1981 to 1985 and, as such, was responsible for personnel aspects of the Government's management and equal employment policy.

    On May 28, 1998, President Clinton signed Executive Order 13087,(see footnote 4) which amends Executive Order 11478(see footnote 5) (issued by President Nixon on August 8, 1969) to include ''sexual orientation'' as a basis for affirmative action and nondiscrimination in federal employment.

    Section 1 of the original Nixon Executive Order 11478 set forth ''the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency.'' The Nixon order provides in Section 2 that ''[t]he head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in section 1.'' OPM was given specific responsibilities with the Equal Employment Opportunity Commission in Section 4.
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    Equal employment is a complex and controversial policy within the federal Government. Yet, President Clinton's recent order was issued with a minimum of public and governmental involvement. Congress was not involved, and Congress was not consulted. The normal lawmaking process was entirely circumvented in this drastic alteration of civil rights law. The American people were not involved in this decision, despite the fact that they have repeatedly expressed strong opinions on many sides of this issue. This order will have a significant impact on the operations of the federal government, and should be examined very closely by Congress.

    As a threshold matter, the executive order fails to define the term ''sexual orientation.'' This problem would be somewhat mitigated if the term were otherwise defined in federal law, but the United States Code is silent as to a definition of ''sexual orientation.'' We are thus left to conjecture. Webster's Dictionary(see footnote 6) does not even define the term ''sexual orientation,'' although it defines ''sexual'' as ''of, relating to, or associated with sex or the sexes; . . . having or involving sex,'' and defines ''orientation'' as ''a usually general or lasting direction of thought, inclination, or interest; . . . change of position by organs, organelles, or organisms in response to external stimulus.''

    Under these definitions, the term ''sexual orientation'' is either vague or incredibly broad. It could even encompass pedophilia, a criminal sexual perversion in which children are the subject of sexual orientation or interest. It could encompass bestiality, another sexual disorder in which animals are the objects of sexual desire or sexual orientation. I am sure your imagination can conjure up other bizarre ''sexual orientations'' protected under this new executive order. The point is that the term ''sexual orientation'' is undefined in law, and this vagueness and ambiguity means that the executive order is open to considerable interpretation that could lead to abuse and unanticipated results of all possible types. For those who doubt that unanticipated results follow from vague legal language, let them consult almost any political science textbook.
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    Perhaps even worse, the new executive order will undermine enforcement of legitimate civil rights laws protecting individuals based upon the immutable characteristics that have been established in law as requiring protection. The new executive order will distract the federal government from its mission to prevent discrimination against legitimately aggrieved victims on basis of race, color, religion, sex, national origin, handicap, or age; the categories in the original Nixon Executive Order 11478. By necessity, resources are limited and funds spent enforcing sexual orientation are funds not spent upon race or other factor now in law.

    There is a great deal of scientific and medical dispute over the nature of sexual orientation. Science has not determined conclusively whether what might be described as ''sexual orientation'' is innate or learned. This ''Nature vs. Nurture'' question is one we will not resolve today, and probably one that will probably never be fully answered, since society will probably always carry on a general dispute as to the extent certain behaviors are genetically innate or learned. Science rarely settles such matters in a simple manner.

    However, we need not resolve the eternal ''Nature vs. Nurture'' question to recognize the obvious fact that ''sexual orientation'' is not an immutable characteristic in the same way as race, color, ethnicity, or sex. There are documented examples of persons who formerly regarded themselves as heterosexual, who later defined themselves as bisexual or homosexual. These people were frequently in normal, married relations with a person of the opposite sex, sometimes even having children, yet for whatever reason switched their sexual orientation. The reverse is also true. There are numerous examples of people who formerly regarded themselves as homosexual or bisexual who later defined themselves as exclusively heterosexual.(see footnote 7) You may know someone, or know of someone, who has switched his or her sexual orientation at some point in his or her life. Indeed, it would seem that a cornerstone of the so-called ''gay rights'' movement is to enable and convince people to reexamine their existing sexual orientation and to redefine themselves if appropriate.
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    This changeable, necessarily mutable nature of sexual orientation detracts from the enforcement of civil rights laws designed to protect persons on the basis of unchangeable, immutable characteristics. A person is born with, and dies with, his race. That characteristic does not change and cannot be changed. Race should be an irrelevant characteristic as to governmental decisionmaking. Race is not behavior. By contrast, sexual orientation is a demonstrably changeable behavioral characteristic.

    An individual's sexual orientation is not always readily apparent, and here lies a truly insidious aspect of the Clinton executive order, which requires ''affirmative programs'' to promote employment opportunities for federal employees on the basis of their sexual orientation. This means the government must affirmatively recruit, track, and promote people on the basis of their sexual orientation. In order to affirmatively promote employment opportunities, government must first know the sexual orientation of those it seeks to promote. How will the government know this? It must affirmatively ask. This will create the perverse—and probably unintended—result that in order to properly implement and enforce this executive order, inquiries must necessarily be made into each employees' sexual orientation. This raises the specter of the federal government inquiring into the private lives and practices of federal employees to accurately assess their sexual orientations.

    This should concern people on all sides of this issue. Supporters of the order would likely respond that this is not its intent. Congress has seen time and again—particularly in the civil rights area—that intent and effect are not always aligned. This intrusive practice will be the probable consequence of a vague and ambiguous order issued without any public discussion or consensus, and certainly without any participation from Congress. There is no other way this executive order could be properly implemented than for the federal government to be affirmatively engaged in the business of affirmatively ascertaining the sexual orientation of its employees. This will create a backlash among employees and citizens alike.
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    In addition, the new executive order could be used as tool to discriminate against people who espouse traditional values, morals, and religious beliefs about sexual activity and sexual orientation. The majority of the American people believe that homosexuality is morally wrong. While we will not resolve that factual debate today, or probably any time soon, in the hands of overzealous federal enforcers the new order could be construed to require the suppression of the free speech and religious expression of Americans who have other points of view. Section 2 of the order(see footnote 8) could be used to prohibit religious or faith-based organizations from offering services made possible by federal funds. For example, the Salvation Army is the largest non-profit provider of drug rehabilitation services in the City of San Francisco, but refused city contracts to provide those services rather than hire homosexuals and compromise its beliefs. Similar situations have taken place with the Boy Scouts of America and the Catholic Church in the same city. These potential abuses are compounded by the vague and ambiguous nature of the order, and the definitional cloud that obscures the term ''sexual orientation.''

    This executive order undermines legitimate civil rights enforcement in another way: it is unsupported by any empirical or scholarly studies or findings demonstrating past or current discrimination against people on the basis of their sexual orientation in the federal workforce. By contrast, the civil rights laws protecting workers against racial discrimination were enacted in light of continuing and historical discrimination against people on the basis of their race. To equate sexual orientation with race diminishes the very real and very sorry history of prejudice against people on the basis of their race in this country. There is no comparable history of discrimination against people on the basis of sexual orientation. There is no reliable documented evidence of a pattern or practice of discrimination against federal employees on the basis of sexual orientation. In fact, demographic data shows that homosexuals, on average, have attained higher incomes and educational levels than others, which militates against any threshold presumption of disadvantage or discrimination in employment.
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    The history of federal government policy against racial discrimination provides a chilling example of what might happen with the new order. Somewhere along the way and for various reasons, federal civil rights law changed from a principled policy of strict nondiscrimination (a policy of conducting action without regard to race); to a policy of preferences on the basis of race (a policy where action is conducted explicitly with regard to race). The current system of federal race preferences was constructed largely outside of the public eye, through executive orders, internal guidance, and unaccountable actions. Such a process was used because the American people, while they strongly supported nondiscrimination, strongly opposed the creation of preferences for certain groups.(see footnote 9) It had to be accomplished largely through executive actions insulated from public and Congressional scrutiny.

    Why should we assume that the same would not happen for ''sexual orientation?'' Will we have institutionalized quotas and preferences for homosexuals, when they are among the more economically advantaged groups in society?. The American people simply do not support the granting of special privileges to people on the basis of sexual orientation, just like they did not and do not support the granting of special privileges to people on the basis of race. This is supposed to be equal employment policy, not preference policy.

    In the statement(see footnote 10) accompanying the executive order, President Clinton explains that ''most Federal agencies and departments have taken actions . . . to memorialize that policy [of nondiscrimination based on sexual orientation].'' The U.S. Department of the Interior is one federal agency that has struggled with the issue of sexual orientation. The National Park Service's San Francisco area office originally sought to ban the Boy Scouts of America from volunteering in national parks because the organization prohibited homosexuals from being members or boy scout leaders. On July 24, 1992, Lewis Albert, Acting Regional Director of the Western Region of the National Park Service, signed an order recommending that the Service ''notify the Boy Scout troops who do volunteer that the Western Region specifically includes sexual orientation in its nondiscrimination policies and that we expect their leadership to respect our policies if they wish to continue volunteering.'' That policy was revoked by a higher agency official on January 19, 1993 in the previous administration, but reinstated in a written order on February 16, 1993, by Brad Leonard, Acting Assistant Secretary under Secretary Bruce Babbitt.
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    My particular interest is in the good management of the federal government. The Interior Department's past use of this ''sexual orientation'' category against the Boy Scouts may give some indication of what abuses are possible as the Clinton Executive Order is implemented. Even without clear abuses this will be a costly and intrusive order for the federal government to administer. It will complicate the already difficult job of managing the federal government. It will drive a further wedge throughout the government and the American people and their government's use of civil rights laws to accomplish ends with which the people do not support.

    In his accompanying statement, President Clinton continued that ''This Executive order states administration policy but does not and cannot create any new enforcement rights (such as the ability to proceed before the Equal Employment Opportunity Commission). Those rights can be granted only by legislation passed by the Congress, such as the Employment Nondiscrimination Act [ENDA].''

    This is the point. Congress is supposed to make the laws and the President concur or veto. The United States is not supposed to have law by executive decree. Yet, Executive Order 13087 even goes far beyond the proposed ENDA(see footnote 11), by requiring ''affirmative policies,'' in addition to a protection against discrimination. President Clinton's executive order therefore anticipates preferential hiring and promotion of homosexuals within the federal civil service over others with other characteristics. By contrast, ENDA, at least on its face, purports to only prohibit discrimination and expressly prohibits quotas and preferential treatment.(see footnote 12) President Clinton's order contains no such prohibition. But the point is that neither body in the 105th Congress has acted on ENDA. During the 104th Congress, the Senate rejected the measure and the House did not consider it.(see footnote 13)
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    Section 6(a) of the original Nixon order applies its provisions to the Departments of the Army, Navy, and Air Force, as defined in section 102 of title 5, U.S. Code. This conflicts with the National Defense Authorization Act of 1994(see footnote 14) and the Administration's own ''don't ask, don't tell'' policy(see footnote 15) with regard to homosexuals in the military. It is impossible to institute ''affirmative programs'' to promote employment of homosexuals in military departments, if the government is prohibited from even knowing sexual orientation as provided by the ''don't ask, don't tell'' policies. This is another example of the result when a policy is developed in a vacuum without consulting Congress or conducting any hearings or fact-finding activities. It will be an administrative nightmare for the most essential function of the government, providing for the national defense.

    The bottom line is that the executive order attempts to overrule a federal statute, which of course it cannot do, unless Congress allows it. It complicates immensely the job of managing the government, including its primary function. Lest we believe this action does not directly affect Congress or anything outside of the executive branch, the original Nixon order, and the new Clinton order, expressly apply to Congress itself. Section 6(b) of Executive Order 11478 applies ''to those portions of the legislative and judicial branches of the Federal Government and of the Government of the District of Columbia having positions in the competitive service.'' The 1995 change in Congress applying personnel rules to itself may also be affected. At an absolute minimum, Congress ought to protect its own hiring practices against this order.

    Section 3 of the original Nixon order provides that the Equal Employment Opportunity Commission is responsible for implementing the policy.(see footnote 16) The first clause of Section 3 requires no amendment of specific protected classes, since it is a general grant of authority to the EEOC to direct and further the implementation of this policy. Thus the EEOC will be responsible to assure that federal agencies adopt ''affirmative programs'' to promote employment of persons on the basis of their sexual orientation. Many have argued that the EEOC is already overworked and unable to adequately respond to legitimate claims of discrimination. Whether that is true, the new order will add a considerable impediment to the EEOC's mission.
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    President Clinton's Executive Order 13087 was issued out of the glare of public attention but can have far-reaching implications in both the short- and long-term. In my opinion, this order mandates a completely unwise, unworkable, and unenforceable policy that will make the government even more difficult to manage. Far-reaching policies such as these should be developed with the benefit of reasoned debate and public consensus, two things obviously lacking here. The courts are not properly situated to act decisively and quickly enough to prevent the damage this order will do. Congress alone is properly positioned to take action correcting this order before it can do much damage both to the orderly management of the government and to its equal employment policies generally. Thank you.

    (No federal government grants, contracts or subcontracts in the last two years).

    Mr. CANADY. Mr. Sullivan.

STATEMENT OF JOHN SULLIVAN, ASSOCIATE DIRECTOR, PROJECT ON CIVIL RIGHTS AND PUBLIC CONTRACTS, UNIVERSITY OF MARYLAND

    Mr. SULLIVAN. Yes, good morning. I am John Sullivan, and as the last witness of the day, I promise to comment as quickly as I can.

    I have been asked to talk about the Benchmarks Report, which was produced by the Department of Commerce, under the guidance of the Justice Department. And the purpose of the benchmarks report is to provide a constitutional basis for a racial price preference, and I guess our starting point is to see how the preference works.
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    Traditionally, in Federal contracting, the responsive low bidder is awarded the contract. Under this system, that may no longer be the case. In about three-quarters of the sectors of the American economy, this price preference will be imposed, so if the low bid is not a small disadvantaged business, which is defined as the traditional minority groups, but it does not include white women, as most preference programs do, if an SDB is within 10 percent of that low bid, the low bidder won't get the contract, and it will be awarded to the higher bidder. It doesn't change the quality or the product or the service in any way, it just asks the taxpayer to pay more money.

    Now, this is clearly a racial preference system. A preference system is constitutional only if it meets strict scrutiny, which is the highest standard of constitutional review. My written testimony has six reasons why I do not feel this report, and this is the report in its entirety, all of 12 pages, I don't feel this meets strict scrutiny for the six reasons set out. This morning I will only talk about three.

    The first reason is that it combines all minority groups. It tosses blacks, Hispanics, Asians and Native Americans into the same pot, if you will. Every case that has ever looked at this issue has said that is not good enough, you have to view the situation of blacks separately from that of Hispanics, separately from Asians, separately from Native Americans. This report does not do that.

    Secondly, it treats minorities and whites differently in determining availability. Now, availability is the heart of any study in the area of preferences, and availability is just your percentage of the marketplace. If you start off with bad availability numbers, you will wind up, no matter how complex your manipulations, and there are some very strange manipulations in here—no matter how complex the things are, if you start off with bad numbers, you wind up with bad numbers, and this availability system treats minority and whites differently.
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    There are three availability sources. One of those is the 8(a) portfolio. Now, the 8(a) portfolio is 99 plus percent minority. Even though in any given year, half of all firms in the 8(a) portfolio do not bid on any Federal contracts, every one of those firms is considered available. But for white firms, it is a very different system. For white firms, you either have to receive a contract, or you at the very least have to bid on one. You have to actively pursue a contract if you are white, but for the minorities you simply have to be in the 8(a) portfolio.

    The third strict scrutiny standard that I feel this report doesn't meet is that it is about racial balancing, it doesn't address racial discrimination. Under this system, there will be preferences awarded in contracts involving water transportation, but not air or railroad transportation. There will be preferences awarded in the primary metal industries, that is forges and foundries, but no preference awarded in nuts and bolts, the products that those foundries and forges ultimately produce.

    In construction, the system is even more illogical. In construction, they looked at things on a regional basis, as opposed to a national one, and in construction for special trade contracts, that is like electricians and plumbers, there will be a preference imposed in Connecticut, but not New York and New Jersey, and there will be a preference imposed on highways built in Texas, but not on highways built right next door in New Mexico. Now, what pattern of discrimination could explain that? I don't believe there is any. This report is not designed to investigate racial discrimination. I believe it is designed to achieve racial balancing.

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    Now, the program takes effect October 1 of this year, and I am going to make two predictions, and then I will be finished, about what will happen once the program is installed. The first is that it is going to lead to a lot of lawsuits. There seems to be a belief, and it is a misconception on the part of the administration, that this sort of preference is less burdensome than goals and set-asides. That is just not so. If you are a contractor and you invest a week or more of work putting together a bid, and it is 10- or $20,000 of your work, and you do your job right, and you are the low bid, and then you learn that you have had that contract taken away from you because of the skin color of the people competing against you, I believe that is going to incite a lot of lawsuits against this program.

    Secondly, it is clearly going to cost a taxpayer a lot of money. It is the same product, the same service, it is just going to cost more money.

    Thank you very much.

    Mr. CANADY. Thank you very much.

    [The prepared statement of Mr. Sullivan follows:]

PREPARED STATEMENT OF JOHN SULLIVAN, ASSOCIATE DIRECTOR, PROJECT ON CIVIL RIGHTS AND PUBLIC CONTRACTS, UNIVERSITY OF MARYLAND

    My Name is John Sullivan. I am a lawyer and the Associate Director of the Project on Civil Rights and Public Contracts. My colleague, George La Noue, is in Phoenix today serving as a member of the Universal Purchasing Certification Council of the National Institute of Government Purchasers which accredits procurement officers in the United States and Canada.
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    I have been asked to comment on the June 30 benchmark report which is intended to support a racially based price preference for federal contracts. For the reasons set out here, I believe the report is not sufficient justification for the preference and that any contract awarded with the preference would be vulnerable to constitutional challenge.

APPLICATION OF THE PREFERENCE

    The starting point is understanding how the preference will be applied. As of October 1, 1998, federal contracts in about three-quarters of the industries of the economy will be subjected to a racially based price preference. Only firms certified as Small Disadvantaged Businesses (SDBs) are eligible for the preference. Apparently more than 99% of the SDBs are businesses owned by Blacks, Hispanics, Asians, and Native Americans. Members of these racial and ethnic groups are considered presumptively socially disadvantaged. On the other hand, whites, both men and women, must individually prove their disadvantage to the satisfaction of the bureaucracy, a task arduous and discouraging enough that fewer than one percent of the firms in the 8(a) portfolio—all 8(a) firms will be automatically considered SDBs—are firms owned by white men or white women.

    The amount of the preference is ten percent. In those sectors where the preference is applied, if the low bid on a contract is not an SDB, the low bidder will not be awarded the contract if an SDB's bid is within ten percent. To illustrate: if a firm owned by a white woman not an SDB is low bid at one million dollars for a tire contract, she will not necessarily get that contract. If an SDB bid $1,050,000 or $1,070,000 or anything lower than $1,100,000, because the SDB's bid is within ten percent of the low bid, the minority firm receives the tire contract instead of the firm owned by the white woman.
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    Application of the price preference does not change in any way the service or product provided by the contractor. It merely raises the cost to the taxpayer for the same work.

THE BENCHMARK REPORT

    The administration has offered as justification for the price preference the June 30, 1998 report produced by the Department of Commerce, which needed more than two years to complete its work. In May 1996, the Justice Department proposed in the Federal Register that ''benchmark limits'' be created for each industry because ''Application of the benchmark limits ensures that any reliance on race is closely tied to the best available analysis of the relative capacity of minority firms to perform the work in question—or what their capacity would be in the absence of discrimination.''

    The benchmark report is intended to satisfy the requirements of the 1995 Supreme Court ruling in Adarand v. Pena. In Adarand the Court held that federal racial preference programs had to meet ''strict scrutiny,'' the most demanding standard of constitutional review. Strict scrutiny requires that any preference have a compelling interest and be narrowly tailored. The administration's statement on compelling interest was first issued on May 23, 1996 in 61 Fed. Reg. 26050. The benchmarks report is the administration's attempt to meet the second prong of strict scrutiny, narrow tailoring.

    In compiling the data for the benchmark report, Commerce limited itself to contracts over $25,000 awarded by the federal government in Fiscal Year 1996. To categorize these contracts, Commerce used 74 Census Bureau categories called Standard Industrial Classifications (SICs), which cover all aspects of the American economy.
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    Within each SIC, Commerce compared SDB availability with SDB utilization. Availability was determined by looking at three sources: (1) bidders on a random sample of contracts, (2) recipients of noncompetitive contracts, and (3) the 8(a) portfolio. Availability was then adjusted with some complex mathematics intended to reflect the varying capabilities of different firms to complete contracts of different sizes. Then Commerce derived the percentage of firms within each SIC which are SDB and compared that with the SDB share of federal dollars awarded in those SICs. In the SICs where SDBs are below parity (about three-quarters of all SICs), the price preference will be imposed.

    Thus far the Administration has not released enough information to determine exactly how either the SDB availability or utilization figures were calculated, but it is apparent that the benchmark report suffers from some fundamental flaws, including: (1) combining minority groups, rather than addressing them separately; (2) treating minorities differently from whites in determining availability; (3) omitting subcontractor data from utilization totals; (4) presuming disadvantage for some groups but not others; (5) pursuing racial balancing rather than identifying racial discrimination; and (6) ignoring the 80% rule in evaluating disparities.

COMBINING MINORITY GROUPS

    Since 1989 in the landmark Supreme Court decision City of Richmond v. Croson (488 US 469), it has been clear that any local preference program must be based on findings of identified discrimination against each group granted a racial, ethnic, or gender preference:
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The random inclusion of racial groups, that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination. . . . The gross overinclusiveness of Richmond's racial preferences strongly impugns the city's claim of remedial motivation. (Croson, 488 U. S. at 506.)

    The concept that there has to be a specific evidentiary basis for each preferred group has now been incorporated in a number of lower court opinions.

    The Third Circuit in Contractors Association of Eastern Pennsylvania v. City of Philadelphia decided that summary judgment could be granted prohibitting the inclusion of white women, Asian Americans, Hispanics, and Native Americans in Philadelphia's MWBE programs because of a lack statistical and anecdotal evidence regarding those groups (6 F.3d 990,1993). The decision about African Americans was reserved for a trial, which concluded that preferences for African American contractors were not warranted either (893 F.Supp. 419, E.D. Pa. 1995)

    A similar ruling was made recently in Prior Tire v. Atlanta Public School District, where the Court held a price preference program unconstitutional for women, Hispanics, and Asian-Americans, reserving for trial judgment about the inclusion of African-Americans, because:

As discussed, the Court is required by Croson to examine under the strict scrutiny standard the inclusion of each minority group in an affirmative action plan. (No.1–95–CV–825–JEC, S.D. Ga. (1997) at 27).
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    In April of this year the School District abandoned all preferences for at least the next two years.

    In Engineering Contractors Association of South Florida v. Metropolitan Dade County, both the District and the Eleventh Circuit were careful to analyze both the statistical and anecdotal evidence for each of the three groups covered by the County preference program before determining that a sufficient predicate did not exist for providing preferences to any of them. (943 F.Supp. 1546 (S.D. Fla. 1996); 122 F.3d 895 (11th Cir. 1997)

    Because Adarand made the constitutional standard for federal preference programs consistent with that of their local counterparts, the benchmarks report should have disaggregated SDBs into separate groups. The ten percent price preference to be imposed as of October 1st, however, does not meet this requirement of addressing each group separately. The definition of ''Small Disadvantaged Businesses'' essentially divides the universe of firms into two parts: (1) those certified SDBs owned by Asians, Blacks, Hispanics, and Native Americans and (2) firms owned by white women, white men, corporations(which have no race or ethnicity), and minority firms which are not SDB certified. No attempt has been made to address the four minority groups separately. This violates constitutional standards and it goes against common sense as well. Assuming, for example, that a study showed discrimination against Blacks—would that justify a preference for Asians? The benchmark limits report does not address this issue since it combines all minority groups.

    For two years the Justice Department has recognized the necessity of group specific narrow tailoring federal race-conscious plans in employment. On February 29, 1996, a Justice memorandum to General Counsels of federal agencies stated:
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. . . if an agency's statistics were to reveal underutilization only in the hiring and promotion of African-Americans, the agency would be justified in focusing remedial action on African-Americans, but not on Hispanic-Americans, Native-Americans or Asian-Americans. Treating minorities as a single group raises concerns; remedial action in federal employment can be targeted only at specific groups determined to have a need for special focus. (John R. Schmidt, Associate Attorney General,''Post-Adarand Guidance On Affirmative Action in Federal Employment,'' February 29, 1996, p. 17.)

    While there is no logical or constitutional reason to accept the need for group specificity in public employment while denying the need to do so in public procurement, that is currently the administration's position.

TREATING MINORITIES AND WHITES DIFFERENTLY

    The second serious flaw of the benchmarks report is that it treats minorities and whites differently in determining the availability of firms to contract with the federal government. Availability is the initial step in measuring the expected SDB share; if availability is improperly computed, any subsequent calculations will be wrong.

    The benchmarks report used three sources of data for compiling the number of available firms. One of these sources is the firms in the Fiscal Year 1996 8(a) portfolio. In that year, the portfolio contained 6115 firms, more than 99% of which were minority owned (see sheet at the end of this testimony). Every one of these firms was considered available, whether or not they actually bid on a federal contract. In fact, most years only about half of all 8(a) firms actually bid on a contract.
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    Whites, on the other hand, are treated completely differently by the benchmarks report. White owned firms—both male and female owned—are not deemed available unless the firm actually received or at least bid on a contract. Minority firms are considered available by simply being in the 8(a) portfolio; whites must actively pursue a contract.

OMITTING SUBCONTRACTS

    In Croson, the Supreme Court stated unequivocally the need to have complete subcontractor data when attempting to statistically support a preference program: ''Without any information on minority participation in subcontracting, it is quite simply impossible to evaluate overall minority representation in the city's construction expenditures.''

    Nonetheless, the benchmarks report contains no subcontracting data; only prime contracts are included. Omitting subcontracts is a flaw not only in construction but in any industry where prime contractors hire smaller firms to work on parts of larger federal projects. Since minority owned firms are disproportionately newer and smaller, a comparatively greater share of their firm revenues derive from subcontracts than their white or corporate competitors.

PRESUMING DISADVANTAGE

    The fourth flaw of the benchmarks report arises from the very concept of ''Small Disadvantaged Business.'' The SDB category is based on the presumption that all members of certain racial and ethnic groups are disadvantaged, regardless of the business owner's actual education, family background or personal success. That concept is under legal attack and may not survive, as the district court judge in the Adarand remand showed:
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I find it difficult to envisage a race based classification that is narrowly tailored. By it's very nature, such a program is both underinclusive and overinclusive. This seemingly contradictory result suggests that the criteria are lacking in substance as well as in reason.

    The statutes and regulations governing the SCC program are overinclusive in that they presume that all those in the named minority groups are economically and in, some acts and regulations, socially disadvantaged. The presumption is false, as is its corollary, namely that the majority (Caucasians )as well as members of other (unlisted )minority groups are not socially and/or economically disadvantaged. By excluding certain minority groups whose members are economically and socially disadvantaged due to past and present discrimination, the SCC program is underinclusive. (Adarand v. Pena, 965 F.Supp. 1556, 1580 (D. Colo. 1997)

    Even if the general concept of presumptive eligibility were constitutional, there is grave doubt that all the groups now entitled to that presumption would survive strict scrutiny. The groups are:

Black (a person having origins in any of the original racial groups of Africa; Hispanic(a person of Mexican-American, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese origin or culture, regardless of race; Native American(an American Indian, Eskimo, Aleut or Native Hawaiian.); Asian-American (Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos, Cambodia, (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Hong Kong, Fiji, Tonga, Kiribati, Tuvalu, Nauru, India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands and Nepal).
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    Some of the groups on the presumptively eligible list have been in this country since its beginning; some are very recent arrivals. Some are relatively poor; some are comparatively affluent. Some have very high rates of business formation; some very low. Some have well-documented histories of discrimination; some are virtually invisible. These groups have essentially nothing in common at all, except that they have lobbied to be included and they have been considered by the bureaucracy to be ''people of color.''

    In 1997 two federal district courts reviewed the concept of presumptive eligibility in federal programs and both found that the concept failed to meet the narrow tailoring standard. One court was the Adarand remand. The other decision was Houston Contractors Association v. Metro Transit Authority. In Houston Contractors, the Court, commenting on the concept of presumptive eligibility which Metro borrowed wholly from federal regulations, declared:

  Like all distinctions based on race and sex, Metro's classification of disadvantaged business enterprises is a blunt instrument. It is both over- and under-inclusive. The program designates groups and defines control and ownership, fixing the groups who win and lose in its allocation of public resources. The judiciary reviews distinctions by race and sex meticulously because none of them has been found to have a rational basis, except in political preference and social convention. The eradication of barriers is a noble goal, but it will not be achieved by creating new barriers.

  A. Class presumption v. Individual Reality

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  While it is true that statistically members of these groups are more likely to be unable to participate fully in the economy because they suffer from the effects of past discrimination, Metro presumes that all bidders associated with ''disadvantaged'' are actually disadvantaged. Legislative presumptions are at best a convenience and at worst a cloak. (954 F.Supp. 1013, 1018 (S.D. Tex. 1996)

RACIAL BALANCING, NOT RACIAL DISCRIMINATION

    The fifth problem with the benchmarks report is that it reaches conclusions which contradict common sense. For instance, the ten percent price preference will be imposed in federal contracts in Water Transportation but not Railroad Transportation or Air Transportation. Fabricated Metal Products contracts will be subjected to the price preference but not Primary Metal Industries. In special trade construction contracts, such as plumbing and electrical, the preference will be imposed in Connecticut but not in New York and New Jersey. In general construction contracts, the preference will be applied in Texas but not New Mexico next door.

    What pattern of discrimination could possibly explain these results? This is clearly not an effort at identifying racial discrimination, as required by Croson and Adarand, but is really an attempt at racial balancing in procurement. Diversity in procurement has never been recognized as a ''compelling interest'': any federal procurement awarded under this system would be vulnerable to court challenge.

    And what of those SICs where SDBs are OVERutilized? If underutilization is grounds for a price preference, then, logically, overutilization should justify ending existing preferences in those SICs showing overutili1zation of SDBs.
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THE 80% RULE IGNORED

    The sixth flaw of the benchmarks report is that whoever decided to put the asterisk by a particular industry to indicate that a SIC code would be subject to the price preference treated the issue as though it was a simple matter of mathematics. Any disparity no matter how slight was viewed as grounds for a racial preference. As a result many SIC codes are slated for preferences based on numbers indicating virtually no disparity.

    The Eleventh Circuit in a recent case striking down a minority business program in Dade County summarized the law regarding the 80% rule as follows:

In general, and as the District Court recognized, disparity indices of 80% or greater, which are close to full participation, are not considered indications of discrimination. For instance, the EEOC's disparate impact guidelines use the 80% test as the boundary line for determining a prima facie case of discrimination. 29 C.F.R. 1607.4D. Additionally none of the circuits that have explicitly endorsed the use of disparity indices have indicated that an index of less that 80% or greater might be probative of discrimination. Engineering Contractors Association of South Florida v. Metropolitan Dade County, 122 F.3d 895, 914 (11th Cir. 1997)

    Applying the 80% rule to the Commerce data would make a

    substantial difference affecting billions of dollars of federal procurement. If the 80% rule is applied to construction, of the 27 comparisons Commerce made, there are disparities indicating a prima facie case of discrimination (below 80%) in only 2 categories. Non-construction categories affected by the 80% rule are SIC 30,31 rubber, plastic and leather (82.3%); wholesale trades-durable goods (86.4%); wholesale trades non-durable goods (88%); and SIC 70 hotels and lodging (90.1%).
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UNANSWERED QUESTIONS

    There are also a number of technical questions currently unanswered in the Commerce report.

    What percent of total federal contracts and dollars are represented in the random sample of contracts for which Commerce analyzed bidders in 1996? According to the 1996 Federal Procurement Report, there were 460,733 federal contracts awarded that year. How many in the over $25,000 category did Commerce analyze?

    If a firm bid many times, was it counted as more available than a firm that bid once? Clearly, a firm bidding on more than 100 contracts should not be treated identically with a firm which bid on a single occasion.

58802c.eps

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

    Mr. BARR. Thank you, Mr. Chairman.

    Mr. Devine, toward the end of your remarks, you got into an area that I think is very important and has ramifications far beyond simply the new Executive Order about which you spoke. It has ramifications that we see in Executive Order 13083 on federalism, for example, and I know you are familiar not only with that actual perversion of the concept of federalism, but President Reagan's Executive Order on federalism, which much more properly reflected the principles in which our Constitution, including the 10th Amendment, was based. And you spoke about this administration implementing a policy preference and a certain philosophy, even though there is no statutory authority on which to base it.
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    I wondered if you could expound on that a little bit. We have the language of the Executive Order that the President signed here, and it talks about this applying only to Federal employees and makes another pitch for legislation, which, actually, it is an explicit recognition, not an implicit recognition, an explicit recognition that no authority exists for including sexual orientation as a protected class of activity.

    Where you have not only the situation where not only is there no Federal statute that exists recognizing a certain category of activity as being privileged, but have affirmative legislative history that Congress has declined to do so. Then you have a President who circumvents that, saying, well, at least for Federal employees we are going to make this the law of the land. What sort of constitutional problems and constitutional conflicts does that present, and how do we deal with it where you have an administration that simply does what it wants, even though there is no legislative authority on which to do it, a clear indication by Congress that it does not wish to give that, but then just goes and does it anyway? Is there a cause of action that a Federal employee would have, is there a cause of action that a taxpayer would have, is there a cause of action that Congress would have to address this problem that you very accurately indicated exists now?

    Mr. DEVINE. Well, the clearest case where there is some action is a Federal employee. A Federal employee would, in my opinion, have an actionable case if he or she were subject to discrimination, where this category was used in favor of one person and against another. So I think there clearly is some action there.

    I think Congress, to the degree to which you—the problem—or this is applied to Congress through what in effect were changes in your rules, you could change through your rules, even without having to go through a change in the law, which, of course, is the ultimate answer, and Congress, I know how difficult it would be because, clearly, President Clinton would veto anything you did in this area. But I would encourage you to confront him because clearly he has raised a constitutional challenge to you.
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    As a former professor of political science, my view of the Constitution is a very precarious thing. We have a form of government that was set up that most of the world at the time didn't think could work. We divided power into three different categories and then divided it again with national and State, and they said how could this possibly work with power divided all over the place. And the only way it can work is if each of the institutions respects the degree of its own authority. And that is why I consider this, regardless of the subject, which, you know, I do disagree with, too, but, I mean, it is the means that is used here, it is the most objectionable part that the executive rules by decree.

    I was just reading a story on Russia, how Boris Yeltsin is going to get through the IMF agreement by simply issuing an executive decree. Well, that may be legal in Russia, but it is not supposed to be legal here. I think this is a very serious constitutional issue and one that only Congress can deal with, other than employees who can go to court.

    Mr. BARR. Could I have a couple additional minutes?

    Mr. CANADY. The gentleman can have 2 additional minutes.

    Mr. BARR. Are you familiar, Mr. Devine, with the Executive Order signed by the President on May 14 of this year which would become effective, I think, on or about August 12 on federalism, number 13083?

    Mr. DEVINE. I am generally familiar, but not intimately.

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    Mr. BARR. Based on your general familiarity with it, and I know you are very familiar with the Executive Order that President Reagan issued 11 years ago that dealt with federalism, that properly served as a check on the power of Federal agencies, this new Executive Order does exactly the opposite. It provides a very expansive blueprint that provides the directive to and justification for Federal agencies to override State actions and to, ''limit the policymaking discretion of States and local governments.'' It includes a laundry list of areas in which Federal action to override States is appropriate, and if you read that list, it numbers only nine, but they are such expansive components that virtually anything that any Federal agency would want to do could easily fit within one or more of the categories.

    And that was one of my questions to Mr. Lee, that I would pose to you. Do you see a worsening of the problem you identified with a particular Executive Order on sexual orientation being exacerbated if this Executive Order 13083 goes into effect. Because if this goes into effect, they would not even need to go through the sham of proposing an additional Executive Order, they could just do what they want, such as mandating the sexual orientation as a protected category of activity in Federal agencies or even in State agencies based on Executive Order 13083. Do you see very serious problems developing and worsening if this one goes into effect?

    Mr. DEVINE. The whole history, especially in this area, is expanding what the meaning of the Executive Orders are. I mean, clearly, the interpretation of President Nixon's order expanded dramatically since it was issued originally, and a broad Executive Order like that on federalism gives the same interpretation, but it could be spun out of the immediate purview of the Federal Government already. I saw the Department of the Interior——

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    Mr. CANADY. The gentleman's time has expired. The gentleman will have 1 additional minute.

    Mr. DEVINE. The Department of the Interior already has applied its internal affirmative action program against external groups, such as the Boy Scouts of America, by trying to limit them in the particular case of sexual orientation because they have a provision against homosexuals. Secretary Babbitt's assistant has already done that, so, yes, the Executive Order provides that basis to expand it, but the Executive Order on this itself already provides that possibility.

    Mr. BARR. Are we basically seeing this whole concept of rule by decree basically spin out of using—under the guise of Executive Orders, spin out of control?

    Mr. DEVINE. As I say, I consider this, both as a former government official and as a professor of political science—I have written a book on federalism myself. I consider that what we really have is a very delicate balance of powers between national and local and between the three branches, and whenever one of the branches tries to push beyond the limits, it leads invariably to worse government and ultimately undermines the whole foundation of government.

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

    Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman.
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    Two of the witnesses referred to the Torrance case. I think at least one said it was frivolous litigation. I would like them to respond to part of the allegations and let me know what happened to these parts of the complaint.

    The complaint alleged that white officers used the code ''NIT'' to stand for N-word in Torrance when referring to African American suspects. Business cards soliciting membership in the Ku Klux Klan were posted on a bulletin board inside the locker room of the police department. A white field training officer pointed out to a black police officer trainee the difference between, quote, straight N-word and upstanding black citizens, and a white field officer told another trainee that he simply didn't like black people. What happened to those allegations?

    Mr. FLICK. I am glad you asked. I think it is important for the record to be clear about that. The complaint filed by the Civil Rights Division in the Torrance case alleged four separate and discrete claims. One was the claim related to the written tests. One was a disparate treatment challenge relating to the police department's field training officer program. The essence of that claim was that minority officers who were hired were then intentionally washed out of the training program. The third claim was that there existed a hostile working environment in the police department. And the fourth was a disparate treatment claim relating to the background investigations that the police department conducts on applicants. Again, the essence of that claim was that the police department was using the background investigation process to wash out the minorities who made it to that point.

    We moved for summary judgment on the claim relating to the field training officer program, and the court granted that motion early in the litigation. You know what happened to the adverse impact claim. About 3 weeks after Judge Pfaelzer issued her decision, about 3 weeks after she issued her decision on the adverse impact claim, although the next two phases of the case——
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    Mr. SCOTT. What happened to the last count?

    Mr. FLICK. Summary judgment. The court found there were no triable issues of fact and dismissed the claim. And with respect to the last two claims, the hostile environment claim and the claim relating to the background investigation portion, I received a call from the lead counsel from the Civil Rights Division about 3 weeks after the adverse impact trial ended indicating that they did not wish to pursue those claims, and those allegations were dismissed pursuant to an agreement with the city.

    I believe that Mr. Lee testified otherwise this morning, and to the extent he did, his testimony is not correct.

    Mr. SCOTT. Was there any settlement in the case?

    Mr. FLICK. I am sorry?

    Mr. SCOTT. Was there any settlement in the case?

    Mr. FLICK. The Civil Rights Division likes to characterize the resolution or its dismissal of the hostile working environment claim and the background investigation claim as a settlement.

    I believe if you look to the testimony I submitted when I was here last, you will find appended to the testimony the documents which resolve those claims, and I will leave it to your judgment whether you regard that as a settlement.
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    Mr. SCOTT. It was not a settlement?

    Mr. FLICK. It was a dismissal of the claims.

    Mr. SCOTT. Well, did you deny the facts that are outlined in the complaint?

    Mr. FLICK. The city did. And, in fact, there is no evidence in the record, throughout the entire 3-year litigation of the Torrance case, that those allegations are anything other than something the Civil Rights Division merely wrote on a piece of paper. You can scour the entire record and not find evidence to support those allegations.

    Mr. SCOTT. Did the test have a cultural bias to it, the police test?

    Mr. FLICK. The written test?

    Mr. SCOTT. Right.

    Mr. FLICK. I am not sure what you mean by a cultural bias.

    Mr. SCOTT. Was it discriminatory?

    Mr. FLICK. Well, if you are asking me whether or not the tests had an adverse impact, that is whether it excluded certain minorities or groups of minorities at a statistically significantly higher rate than it excluded whites, the answer is that the government failed even to meet its initial burden of proof.
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    Keep in mind, I want to make sure—there is something important to understand. I have said in my testimony today that most written tests that measure literacy skills will have some adverse impact. There is a difference between an adverse impact and unlawful adverse impact. The way Title VII works, an adverse impact is only unlawful if it cannot be justified by showing that the device that has the adverse impact is not job-related.

    Mr. CANADY. The gentleman's time has expired. The gentleman will have 3 additional minutes.

    Mr. SCOTT. And if a test, one test, had an adverse impact and another test did not have an adverse impact, and both were equally job-related, should there be a preference in the law for the test without the adverse impact?

    Mr. FLICK. There is, in fact, such a preference in the law. And throughout the Torrance case and thus far in the Garland case, we have invited the Civil Rights Division to identify such a test. They continue to decline our invitation.

    Mr. SCOTT. Thank you.

    Mr. Sullivan, do you acknowledge that minorities suffer discrimination in obtaining contracts?

    Mr. SULLIVAN. I don't know that there is anyone in this room who would not acknowledge that statement. The question is, why I was asked to come down to the committee, was is this a narrowly tailored remedy for that discrimination, and I believe it is not.
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    Mr. SCOTT. Well what would you come up with as a narrowly tailored remedy?

    Mr. SULLIVAN. It would depend on the particular problem you are trying to address.

    Mr. SCOTT. Ms. Keenan, how many jobs does an individual normally seek before they actually get a job? Do most people get a job on the first try?

    Ms. KEENAN. Typically applicants do not get a job on the first try, no. They may seek several opportunities. It can be four or five; it may be a number of opportunities.

    Mr. SCOTT. Now, approximately what portion of the time does a minority incur discrimination in seeking a job?

    Ms. KEENAN. We found that 1 in 4 employers treats minorities different from nonminorities.

    Mr. SCOTT. Was there even a higher problem on unadvertised and higher pay jobs?

    Ms. KEENAN. Absolutely.

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    Mr. SCOTT. Ms. Smith, how would someone know if they are discriminated against in housing?

    Ms. SMITH. It is very difficult because nowadays most discrimination is conducted in a very subtle manner. Without the use of testing, it can be very difficult to identify it. Generally, somebody will report suspected discriminatory actions after they have found another place to live or they see the apartment still being advertised for rent. Sometimes, the real estate agent will notify the fair housing group that the house that their African American or Hispanic client was looking at was sold on better terms and conditions to whites. Generally the home seeker has a hard time identifying rental, sales, lending or homeowners insurance discrimination.

    Mr. SCOTT. And in the remedies against discrimination, are attorneys' fees awarded?

    Ms. SMITH. Yes.

    Mr. SCOTT. Are those attorneys' fees sufficient for attorneys to actually handle the cases?

    Ms. SMITH. Generally they can be. The problem is there are very few attorneys throughout the country who have been trained to handle private fair housing cases. While the Department of Justice has a compentent staff, there are not enough of them to be able to deal with all of the problems we know exist in the country.

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    Mr. SCOTT. Can I have 1 more minute?

    Mr. CANADY. The gentleman will have 1 additional minute.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Can you talk a little bit about the problem of discrimination in lending and how widespread the discrimination in lending is?

    Ms. SMITH. We conducted testing in eight cities and found that 68 percent of the time African Americans and Hispanics experienced discrimination in the pre-application process. And yet if you didn't do testing, you wouldn't be able to uncover these particular instances, such as charging more points, higher interest rates, requiring more information of minorities.

    Mr. SCOTT. Did your study go into business loans or just consumer loans?

    Ms. SMITH. No, we didn't look at business loans, but we have anecdotally information about small business loans African Americans are oftentimes denied small business loans and have to use the equity in their homes in order to start a business. I believe that testing can be done in the small business loan area, but no testing has been implemented.

    Mr. SCOTT. Thank you, Mr. Chairman.

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    Mr. CANADY. Thank you, Mr. Scott.

    Mr. Hutchinson.

    Mr. HUTCHINSON. Thank you, Mr. Chairman.

    I want to first exchange greetings with my good friend Don Devine. I appreciate him being here today. I have read your testimony, even though I was gone during your oral presentation of it, but I want to follow up with a couple questions.

    Mr. Bolick, in your testimony you made some rather strong assessments of the Civil Rights Division saying, I believe, on two occasions in your written testimony that it is an agency out of control. Is that based upon your experience in an isolated number of cases, or is that a broad overview, and would you comment on what you believe needs to be done to correct that? Is that a management or a policy issue?

    Mr. BOLICK. I think it is both a management and a policy issue. It is based on my own past experience as an attorney with the Civil Rights Division, and it is based on an ongoing assessment of cases and judicial opinions reacting to the Civil Rights Division's excessive tactics over the course of the last 5-1/2 years.

    One of the things that is very disturbing about those practices, Ms. Smith and Ms. Keenan have testified to ongoing discrimination in the areas of housing and employment respectively, when the Civil Rights Division is paying out $1.8 million in attorneys' fees. That is $1.8 million that it no longer has available to prosecute legitimate cases of employment or housing discrimination. We are dealing with finite issues.
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    Mr. HUTCHINSON. That case is on appeal; is that it?

    Mr. BOLICK. Mr. Lee indicated this morning that they may appeal the award of attorneys' fees. The issue of liability is no longer before the court. The finding that there was no discrimination has already been affirmed. But that case is simply reflective of a pattern of cases, and Mr. Flick has described also the Garland, Texas, case, where the Justice Department has an inadequate basis on which to conclude, on any basis other than pure statistics, that a violation has taken place, and then tries to convince the government that it is going to sue to enter into a consent decree. This has been criticized by other courts as well.

    I think it is a policy issue in that I think that this Division is very committed to racial and gender balance as a policy, but, also, it is a management issue because it seems to me that any law enforcement official has got to go beyond what a private litigant would do before filing a lawsuit, and that is to conclude independently that a law has been violated.

    Mr. HUTCHINSON. Mr. Flick, did you have a comment to make on that? You looked like you were about to say something.

    Mr. FLICK. No, I think you saw me shaking my head.

    Mr. HUTCHINSON. Go ahead.

    Mr. FLICK. It is usually the attorneys in the room whose beepers and cell phones go off.
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    I was shaking my head when you asked if the case was still on appeal. I know that you were out of the room when I spoke. The Ninth Circuit in March affirmed Judge Pfaelzer's decision on the merits in the Torrance case, and the question of whether or not the Solicitor General will authorize an appeal of the sanctions award, to my knowledge, has not been addressed.

    Mr. HUTCHINSON. Mr. Chairman, I am going to yield back my time.

    Mr. CANADY. If you would yield the balance of your time to me, I would appreciate it.

    Mr. HUTCHINSON. Yes, I would.

    Mr. CANADY. I want to follow up on Mr. Flick. I find your testimony to be, both at this hearing and at the earlier hearing, very disturbing. And I found that the Department's response has not been adequate or encouraging. Now, I would like to hope for better things for the future, but I don't think there is much reason for optimism that the Department is going to mend its ways.

    What specific legislative actions do you think the Congress could take that would address the problem that you have seen in the Torrance case and in the Garland case and other similar contexts?

    And, Mr. Bolick, if you want to address that after Mr. Flick, that would be good, too.
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    Mr. FLICK. Well, let me first say that after the experience in Torrance, I, too, hoped that the conduct we were seeing, at least in police and fire hiring cases, would change. My experience thus far in the Garland case, and I am not sure I made it clear in my oral testimony, I do now represent the City of Garland, my experience in that case suggests that they are using the same basic playbook. As I mentioned, the Garland complaint is essentially the Torrance complaint. The Government's initial discovery responses are also the same as they were in Torrance—non-responsive.

    Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.

    Mr. WATT. Mr. Chairman, let me reserve the right to object, not for the purpose of objecting, but just to get an understanding of what the chairman's intent is. There are two members of the committee who have not had an opportunity to question these witnesses.

    Mr. CANADY. It is my intention to go vote as soon as this is done and then come back. I assume the Members would like to have their questions.

    Mr. FLICK. Should I continue?

    Mr. CANADY. Yes, please continue.

    Mr. FLICK. So not only does the Garland complaint not differ in any material respects from the Torrance complaint, but their entire initial round of discovery responses, if they can be called that, are exactly what they were in the Torrance case.
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    They refused to produce a single witness for deposition who can give us any testimony whatsoever about the facts that underlie the complaint. We have sent them a full set of detailed written interrogatories asking them to tell us every single factual basis for every allegation in the complaint. We got a set of nonanswers that basically said, we are not telling you until you give us answers to our discovery, and when we find out what it is you have been doing, then we will tell you what it is that you have been doing wrong. And they have refused, as they did during a 5-year investigation, to identify a single alternative selection device.

    So I have seen nothing, as you suggested, that indicates to me that the pattern of conduct in the Garland case is going to be any different than the pattern of conduct in the Torrance case.

    In terms of solutions, I don't know whether, in fact, there is a legislative solution, but I believe that you have at your hands a more important solution: the purse strings. When you give someone a privilege, which the American people and this Congress have given to the Civil Rights Division, and they abuse it, you take it away. And only through funding—or the lack of funding—can you put a stop to the war on merit-based hiring that has been going on in the Civil Rights Division for a decade or more.

    I do think that some attention might be paid to the attorneys' fees provision in Title VII, which, as I think you know, is slanted against defendants. In other words, if plaintiffs prevail in a Title VII case, they are automatically entitled to their attorney's fees. If a defendant prevails, the defendant must show that the case was ''frivolous, unreasonable or without foundation.'' This is a very difficult standard to prove, although we proved it in the Torrance case. I think that that imbalance in the attorneys' fees provision in Title VII merits some examination at least in cases where the Civil Rights Divison is the plaintiff.
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    Mr. CANADY. Thank you.

    Mr. Bolick, could you briefly comment?

    Mr. BOLICK. To add to that, I think that the rules under the statutes are fair, and as Mr. Flick points out, it is very difficult not to meet a prima facie case, and it is very, very difficult, particularly when you are in the government, to be hit with a finding of a frivolous lawsuit entitling the defendant to damages.

    Given the track record that this is not the only such case that a consent decree has been thrown out by another Federal judge for being unlawful, I would like to see a study, an independent audit by the GAO or whatever the appropriate government agency would be, looking at the cases and consent decrees that have been agreed to by the Civil Rights Division over the last few years, to have an independent analysis of whether these decrees and the tactics employed to achieve them are within the law or outside the law. I respect that Mr. Lee has said that he looks at these things, but if the Garland case is what Mr. Flick says it is, then clearly no adjustments have been made to conform to the law.

    Mr. CANADY. Well, thank you very much.

    As you know, the House now has a series of votes, I understand there will actually be two votes, so the subcommittee will stand in recess while the Members go to vote. And I would encourage the Members to come back as soon as possible, and we will continue with the questioning of the second panel.
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    I apologize to the members of the panel. We appreciate your patience, and we will be back as soon as we can.

    The subcommittee will stand in recess.

    [Recess.]

    Mr. CANADY. The subcommittee will be in order.

    The gentleman from North Carolina, Mr. Watt, is recognized.

    Mr. WATT. Thank you, Mr. Chairman, and I hope I don't end up taking my whole 5 minutes.

    I want to first apologize to Mr. Flick, Ms. Keenan, Mr. Devine and Mr. Sullivan for missing their testimony. Unfortunately, I had to go to the floor and debate an amendment that was being offered there that dealt with one of the issues, ironically, that we were talking about in here. At least from my perspective, it dealt with one of the issues we were talking about earlier, the whole question of involuntary servitude, because we have this amendment that is going to force public housing residents to engage in community service without compensation, which I think is involuntary servitude, but I will let that go. That is another issue. Having apologized to you all, I won't ask you any questions because I didn't hear your testimony.

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    I did want to pick up with Ms. Smith and Mr. Bolick. One point that I think really needs to be reemphasized that Ms. Smith made, and get both her comments on it and Mr. Bolick's comments on it, I think many of us are of the opinion that some people in this debate about civil rights are trying to kind of have it both ways. They don't want to do any kind of affirmative action as a remedy for discrimination, and they don't want to aggressively fund the enforcement efforts. And Ms. Smith, I thought, put those two things together kind of as trade-offs, in at least one of the comments she made in her testimony, when she encouraged more aggressive funding of the activities, some of the activities, of the Civil Rights Division.

    Mr. Bolick even, I think, although he didn't go quite that far, said that the great bulk of what the Justice Department is involved in is nuts and bolts stuff that really needs to be done if our society is to move forward, if there are going to be effective ways to redress the violations that are clearly taking place, that even, I think, Mr. Sullivan acknowledged in one of the answers to a question that Mr. Scott had.

    So the question I guess I am raising is, Ms. Smith, to some extent, if we set aside this affirmative action thing, if we set aside all the things that Mr. Bolick said he wanted to spend a lot of time on today and go on to the things that are basic, that everybody agrees the Civil Rights Division ought to be doing, is the Civil Rights Division—is the Justice Department funded adequately to do those things?

    And I don't want to get into the controversy. I am sure Mr. Bolick is going to say, well, they have that million and a half dollars in sanctions to apply. But let's just talk about the funding levels for the base mission, the noncontroversial mission, the nondebated public mission of the Civil Rights Division that everybody agrees needs to be done. Is there adequate funding for that, given the fact that Bill Lann Lee testified that more and more responsibilities have, in fact, been given to this Division?
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    Ms. SMITH. Let me address the Fair Housing issue within the Housing and Civil Enforcement Section. The funds are woefully inadequate. In 1990, Senator Orrin Hatch proposed a million dollars for a testing program at the Department of Justice. However, instead of increasing the budget, the Attorney General set aside existing funds of $1 million to be used for the testing. This amount has not been renewed. When you consider that out of all the cities small and large cities in the United States, that the fact, that there are only 80 private fair housing centers, you can see that $250,000 for testing is inadequate.

    Mr. CANADY. The gentleman's time has expired, but the gentleman will have 2 additional minutes.

    Mr. WATT. Well, I won't ask another question, except to say one point. I intended, in my question, to give the Speaker of the House some credit for at least publicly stating that he thought the EEOC, for example, needed a greater level of funding. Those are pretty basic employment kinds of things. But I am not going to ask any more questions, I just want Ms. Smith and Mr. Bolick to respond, from their perspective.

    Ms. SMITH. The Department has responsibility for various fair housing issues. The statute requires Justice to handle election cases referred by the Department of Housing and Urban Development, and Justice reviews allegations of discriminatory pattern and practice issues that arise in the United States. There are 40 some attorneys at the Department, but they can't handle all of the cases referred. In fact, private fair housing groups refer a number of cases that raise pattern and practice issues, oftentimes Justice must say it doesn't have the resources to accept the complaint. Instead, Justice says to the private group, to try to muster up resources to do it ourselves. Yet when the Department brings a pattern or practice type of case, it really does help to quickly change what is policies and practices of the corporate level throughout the United States. Justice's involvement in the American Family Insurance case in Milwaukee, Wisconsin, and the consent decree with the Nationwide Insurance Company has helped to motivate the other insurance companies to review underwriting guidelines and the practices of their agents for discriminatory impact or effect.
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    If we do not have that kind of leadership from the Justice Department, it is going to mean that those of us working in the trenches are going to have to find more money to bring local legal actions, rather than providing toward more education prevention. We will really have to redirect our resources to enforcement.

    Mr. WATT. I have got to leave some time for Mr. Bolick.

    Mr. BOLICK. Mr. Watt, thank you. And I am going to say something which a lawyer almost would never admit, which is I don't know the answer to your question.

    Mr. CANADY. Without objection, the gentleman will have 1 additional minute.

    Mr. BOLICK. Given the concerns I have outlined about some of the things that may be detracting from the core mission of the Civil Rights Division that an audit would be extremely useful, at the EEOC in the 1980's, such an audit was conducted, and I worked there as well, and it was extremely helpful, in my view, in focusing the agency's mission. And I think that, as I recommended to the chairman before, now might be a very good time for that, especially because so much of this seems to be happening beneath the radar screen, and you all have been adding some additional responsibilities.

    Mr. WATT. Thank you, Mr. Chairman.

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    I yield back.

    Mr. CANADY. Thank you, Mr. Watt.

    The gentlelady from California is recognized.

    Ms. WATERS. Thank you very much.

    Mr. Chairman and members, I want to talk a little bit about this Torrance case for several reasons. Number one, it is right adjacent to my district, and I know the reputation of the city for many years, and they did not employ blacks in the police and fire departments, and they had the reputation for discrimination.

    Now having said all that, I know that none of it means anything, particularly if you can't prove it in a court of law. We have heard here this morning from Mr. Flick that this was a frivolous case, implying that the Department simply is trying to bring in claims that they simply make up and put on a piece of paper, have no proof, no documentation for, and that there was no real settlement in this case. There was a summary judgment, but no settlement, and I want to revisit some of this.

    Number one, as I understand it, the Department alleged that Torrance permitted a racially hostile work environment in its police department specifically. The complaint alleged white officers used a code expression, ''NIT,'' to stand for ''nigger in Torrance'' when referring to African American suspects. A business card soliciting membership in the KKK was posted on a bulletin board. And inside the locker room of the police department, a white field training officer pointed out to a black officer trainee the difference between street niggers and upstanding black citizens, and a white field officer told another trainee that he simply didn't like black people.
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    The second claim was that the Department also alleged that in the use of background investigations, Torrance intentionally held minority applicants for police and fire department jobs to higher standards than those which they held white applicants, thereby preventing minorities from being hired.

    I understand the Department and the City of Torrance settled the first two claims before trial. You claim there was no settlement; is that right, Mr. Flick?

    Mr. FLICK. Well, there are two pieces to that question. First of all—there are three questions there. You are correct that the complaint in the Torrance case did allege all of those things. As I said before, it is easy merely to write something down on a piece of paper.

    Ms. WATERS. Was there a settlement?

    Mr. FLICK. Those are the next two questions.

    After the adverse impact claim was tried and after——

    Ms. WATERS. Was there a settlement before trial, that is what I want to know?

    Mr. FLICK. No.

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    Ms. WATERS. There was no settlement. Then let me ask you this.

    Mr. FLICK. That was not the question you just asked me.

    Ms. WATERS. Well, that is okay, I asked you about those two claims and was there a settlement in those two claims before trial?

    Mr. FLICK. No.

    Ms. WATERS. All right. The Department and the city of Torrance settled the first two claims before trial is my understanding. The settlement agreement for the hostile work environment——

    Mr. FLICK. Your understanding is incorrect.

    Ms. WATERS. Please do not interrupt me.

    The settlement agreement for the hostile work environment claim required the city, among other things, to implement a comprehensive equal employment opportunity policy that prohibits the police department's supervisors, managers, coworkers and vendors from discriminating against or harassing any sworn employee or applicant for a sworn position on the basis of race, sex, religion, color, national origin, age, disability, et cetera. The agreement also established a comprehensive complaint resolution procedure for the police department under the terms of the settlement agreement for the background investigation claim. The police department replaced its existing preemployment background procedure with a new objective procedure.
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    Are you aware that these changes were made as a result of the settlement and the agreement prior to trial on those two allegations?

    Mr. FLICK. Absolutely false. I don't know what you are reading from. I presume it is something that was provided to you by the Civil Rights Division. If you would like, I will tell you the facts.

    Ms. WATERS. No, I would not like, because you have not——

    Mr. FLICK. I am not surprised, Congresswoman.

    Ms. WATERS. Just a moment, Mr. Flick. I am not surprised that you have sat here, without facts, alleging that the Civil Rights Division made up stuff, just put it on a paper with a desire to expand opportunities for minorities. There were no facts in those claims of representations that you made here today. So, no, I do not want you—I only want to know, and this is on the record, and you are saying there was no settlement prior to trial on those allegations, that that is absolutely false.

    You also claim that this trial, this case that was blocked by the Department, simply is another indication of the Department's desire again to expand opportunities without merit.

    Are you aware that this case was brought under the Bush administration?
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    Mr. FLICK. No.

    Mr. CANADY. The gentlelady's time has expired. The gentlelady will have 4 additional minutes.

    Ms. WATERS. Thank you.

    Mr. FLICK. The lawsuit was filed in July 1993.

    Ms. WATERS. I beg your pardon?

    Mr. FLICK. The lawsuit was filed in July 1993. I believe what you meant was that the investigation, the prelitigation investigation, was commenced before President Clinton took office.

    Ms. WATERS. Yes. Well, that was under the Bush administration, the investigation; is that right? Are you alleging that those persons also were frivolous in their investigation, had no facts and no merits in the case?

    Mr. FLICK. They were the same people. The President changed. The people in the Civil Rights Division didn't.

    Ms. WATERS. So you are saying the Civil Rights Division under both this President, under the Bush administration, it doesn't make any difference whether it is Republican or Democrat, that they all act in a frivolous way simply to expand opportunity without fact?
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    Mr. FLICK. Those are not my words, those are yours.

    Ms. WATERS. Well, what are you alleging?

    Mr. FLICK. I am not alleging anything. I am here to report on what the Federal court found. What the Federal court found was that the adverse impact allegations made in the Torrance case were a violation of one or both of Title VII and the Federal Rule 11. The standard, under Title VII, for a defendant to get attorneys' fees is that the lawsuit was ''frivolous, unreasonable, or without foundation.''

    Ms. WATERS. Why is it you refuse to——

    Mr. FLICK. Why is it that I don't get to interrupt you, but you get to interrupt me?

    Ms. WATERS. Because I am in charge, that is why.

    Mr. FLICK. Oh, really?

    Ms. WATERS. That is right. That is why. That is the difference, you know.

    Mr. FLICK. Well, we will have to agree to disagree on that as well.
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    Ms. WATERS. Just a moment. I don't care what you disagree on. The fact of the matter is you don't get to do it your way when you come here. You get to cooperate with us, and any smart responses that you have are not acceptable. As a matter of fact, you are not to speak to me again while you are sitting there, and I will not have any responses from you.

    Mr. FLICK. As I recall, that is an American flag standing back there, Congresswoman.

    Ms. WATERS. Whatever you would like to say is unacceptable, Mr. Flick.

    Mr. FLICK. I am not surprised.

    Ms. WATERS. And if you are representing your law firm, they shall know about your representation here.

    Mr. CANADY. The gentlelady will suspend. I would encourage the gentlelady to treat the witnesses with respect.

    Ms. WATERS. Only if the witness deserves respect.

    Mr. FLICK. Is there a question pending?

    Ms. WATERS. You are not to speak to me again, Mr. Flick.
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    Mr. FLICK. I remind you that I am here at the invitation of this subcommittee and not under subpoena.

    Ms. WATERS. I will reclaim my time, Mr. Chairman.

    I do not need to be reminded of anything from this witness. He obviously is terribly biased, and he came here not to bring fact, but, rather, to support the case as it was represented by his firm, denying any racism, any discrimination in the Torrance police and fire department. I live next door to Torrance. I know what their problems are.

    Thank you, Mr. Chairman.

    Mr. CANADY. I will now recognize myself to take 5 minutes.

    Mr. Flick, I would like to ask you to respond to the statements that have been made. I will make an observation that, you know, you are here to report what the Federal district court did and what the appeals court did. The record on that is clear. But if you would like to elaborate on that further, I would be happy to provide you with that opportunity.

    Mr. FLICK. I think what I said before is sufficient. I meant no disrespect to Ms. Waters, but she found it was appropriate to interrupt me, and I would like to have finished my answer. But in any event, the disparate treatment allegations are not why I am here, they are really quite a red herring.

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    Our objection to the activities of the Civil Rights Division relate to their adverse impact allegations and their attempts to force municipalities to stop using merit as a selection criterion.

    Ms. Waters can sit in that chair and recite for the American people as much as she wants what she thinks she knows because she lives next door to Torrance, but that, frankly, really isn't any different than the Civil Rights Division merely writing it down on a piece of paper, and unless she has evidence, which the Civil Rights Division, in fact, did not, it really doesn't have any meaning.

    Mr. BOLICK. Mr. Chairman, might I add a bit of additional illumination. There is quite a difference between launching an investigation and commencing a lawsuit. Having worked at both the EEOC and the Justice Department, we investigated, I would say, dozens of cases that we did not ultimately bring. Almost anyone can have an investigation launched, particularly at the EEOC, and the agency can initiate it on its own. It is quite a different thing to file a lawsuit. That requires the attention and approval of the Assistant Attorney General or his or her designated in that instance. So it does not become an official sanctioned act of the Justice Department until that happens.

    Finally, a couple of times some of the Members have stated that Mr. Flick and/or I have characterized the claims as frivolous, and I want to just state for the record that it was Judge Pfaelzer, based on an exchange of evidence in this matter, who declared that the case was, as to the adverse impact claim, frivolous, unreasonable, and without foundation.

    Ms. WATERS. Mr. Chairman.
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    Mr. CANADY. Mr. Flick.

    Ms. WATERS. Will the chairman yield?

    Mr. CANADY. I will yield briefly to the gentlelady.

    Ms. WATERS. I would like unanimous consent to request this committee to get the facts about the settlement that I am telling you exists on those two claims that were negotiated. I would like the Justice Department to get that information to us because this is unresolved at this point.

    Mr. CANADY. No unanimous consent is necessary for the lady to get information, for the gentlelady to get information from the Department of Justice.

    Mr. Flick.

    Mr. FLICK. I will do one better. If after this hearing is over, if Ms. Waters will change her mind and permit me to speak to her, I will, the next time she is in California, be happy to meet with her anywhere she likes, including in her office in California, and I would be happy to discuss, as long as she would like, the allegations, the evidence, and the dismissal of those claims. And I leave that invitation to her. And if she wants to come back and report to this subcommittee after that meeting, so be it. If she wants to bring me back here with her, so be it.

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    Ms. WATERS. Mr. Chairman, if he would like to meet with one of my staff members here in Washington, they may wish to do that. I do not wish to meet with him.

    Mr. CANADY. The gentlelady is not recognized.

    Ms. WATERS. Well, I have said it, and I hope he gets the point.

    Mr. CANADY. The gentlelady is not recognized. I think the gentlelady should treat the witnesses here with respect.

    Ms. WATERS. Only if they deserve respect. I have said that before, and I will continue to say it.

    Mr. CANADY. Let me ask a couple of questions here.

    Let me read a statement from the Richmond v. Croson case. In that case the Court said, the random inclusion of racial groups that as a practical matter may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose, referring to the city's program there, was not in effect to remedy past discrimination. The gross overinclusiveness of Richmond's racial preference strongly impugns the city's claim of remedial motivation.

    I will give myself 3 additional minutes.

    That was in the Croson case.
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    Then in a memorandum dated February 29, 1996, prepared by the Department of Justice and sent to general counsels of various Federal agencies, this statement appears: If an agency's statistics work to reveal underutilization only in the hiring and promotion of African Americans, the agency would be justified in focusing remedial action on African Americans, but not on Hispanic Americans, Native Americans or Asian Americans. Treating minorities as a single group raises concerns. Remedial action in Federal employment can be targeted only at specific groups determined to have a need for a special focus.

    That was a statement, actually, by John Schmidt in his memorandum, and I thank Mr. Sullivan for those two quotations because they appear in his written testimony.

    I would like to ask Mr. Sullivan and Mr. Bolick, time permitting, what the implications of these statements are for the rule that the administration has brought forward for bid preferences and the way that program is structured.

    Mr. SULLIVAN. Well, it is rather clear that the administration hasn't thought it out very thoroughly. The administration has admitted that in public employment, you have to deal with groups separately, but in public contracting, this price preference, they simply ignore that.

    Mr. CANADY. But the contracting context was addressed specifically by the court in Croson; now, admittedly, not at the Federal level, but at the local level. Why would there be a difference?

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    Mr. SULLIVAN. There is no difference. Adarand federalized Croson, so at the Federal and local level, the distinction has long since disappeared. There is no rational or constitutional reason to treat public employment differently from public contracting.

    Mr. CANADY. Mr. Bolick, would you like to comment?

    Mr. BOLICK. I agree entirely.

    Mr. CANADY. Mr. Bolick, I want to ask you about the activities of the Division with respect to bilingual education. In your written testimony you had some comments on that. Would you like to highlight for us some of the problems that you have seen there with the activities of the Division?

    Mr. BOLICK. Well, this is within the larger propensity of the Division to undue acts that are voluntarily undertaken by local governments or by electorates. The Proposition 209 lawsuit was perhaps the paramount example. But the Justice Department has taken action against a number of school districts, Denver, Colorado, being one of them, that have decided that there are better ways to provide bilingual education, particularly greater parental choice, greater time limits, and testing students to determine whether, in fact, they are Spanish-speaking in the first place. And the Justice Department has intervened without any apparent basis in Federal law to dislodge those school district decisions.

    Mr. CANADY. Unfortunately, my time has expired. I would like to explore that further with you, but I hope the Members will look at the testimony that you have provided to us on those matters.
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    I want to thank all the members of this panel for being with us. We appreciate your patience in staying with us throughout this rather long hearing today.

    Mr. Scott.

    Mr. SCOTT. Mr. Chairman, there has been, I think, in the exchange with the gentlewoman from California and one of the witnesses, a disturbing conflict in testimony that we have about what happened. And I know you said we didn't need unanimous consent, but I would want to make sure that the record remains open so that the Department of Justice can respond to what information we were given about a settlement and the testimony of the witness, and hopefully that conflict can be resolved.

    But I would hope that we would focus on that because there has been a very disturbing conflict in testimony, and we usually don't have—usually you get some gray areas, but I think the testimony is in direct conflict to what the Department of Justice has suggested to some of us.

    Mr. CANADY. Well, I think that there have been some conflicts in the testimony, and I would certainly welcome having an opportunity to receive additional information from the Department of Justice, as well as from Mr. Flick, if he wishes to provide it.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Ms. WATERS. Excuse me, Mr. Chairman, if I may. I am not simply asking for information, I want the facts of the case, and the information surrounding the allegations in the settlement are facts, not simply information from the Justice Department thinking that something was said.
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    Mr. CANADY. I would like to have the facts from the Justice Department, too, so we will have a unanimous agreement in our desire to get the facts.

    Ms. WATERS. Hopefully we will resolve this one.

    Mr. CANADY. I thank the gentlelady for her interest, and again, thank the members of this panel.

    The subcommittee stands adjourned.

    [Whereupon, at 1:43 p.m., the subcommittee was adjourned.]











(Footnote 1 return)
The range of possible scores on the NAEP tests is 0 to 500, except on the writing test, on which the highest possible score is 400.


(Footnote 2 return)
The Uniform Guidelines, which have not been revised since their publication in 1978, are inconsistent in several respects with the SIOP Principles and the APA Standards. Many developments in validation research, particularly in the area of ''validity generalization'' have been made in the nearly 20 years since the publication of the Uniform Guidelines. In fact, the SIOP Principles expressly recognize the use of cooperative validation efforts and validity generalization studies which permit inferences about job behavior or job performance across given jobs or groups of jobs in different settings.


(Footnote 3 return)
After five years of investigation, the Government alleged that all of Garland's selection practices and criteria for police officers and firefighters violate Title VII. It admitted under oath on June 15, 1998, however, that it lacks sufficient information to determine whether any of the following selection practices or criteria actually violate the statute:


(Footnote 4 return)
Presidential Documents, 63 Federal Register 30097, June 2, 1998.


(Footnote 5 return)
42 U.S.C.A. §2000e, Executive Orders.


(Footnote 6 return)
Merriam-Webster's Collegiate Dictionary, Tenth Edition, 1993.


(Footnote 7 return)
Dr. Jeffrey Satinover, Homosexuality and the Politics of Truth, Baker Pub.; Joseph Nicolosi, Ph.D., Reparative Theory of Male Homosexuality, Jason Aronson Pub.


(Footnote 8 return)
''It is the responsibility of each department and agency head, to the maximum extent possible, to . . . assure participation at the local level with other employers, schools, and public and private groups in cooperative efforts to improve community conditions which affect employability.'' Executive Order 11478 (August 8, 1969), amended by Executive Order 13087 (May 28, 1998).


(Footnote 9 return)
Indeed, race preferences are the antithesis of the principle of nondiscrimination.


(Footnote 10 return)
Weekly Compilation of Presidential Documents, Volume 34, Number 22, pages 957–1002, week ending May 29, 1998, from the 1998 Presidential Documents Online via GPO Access [fwals.access.gpo.gov].


(Footnote 11 return)
Employment Nondiscrimination Act, S. 869, H.R. 1858.


(Footnote 12 return)
This should in no way be construed as an endorsement of any form of ENDA, which suffers from many of the same problems as Executive Order 13087, as well as suffering from additional severe flaws unique to itself. ENDA would inject its prohibitions into the private sector in addition to government.


(Footnote 13 return)
Employment Nondiscrimination Act, S. 2056.


(Footnote 14 return)
National Defense Authorization Act of 1994, 10 U.S.C. §654, Policy concerning homosexuality in the armed forces.


(Footnote 15 return)
Memorandum from Secretary of Defense Les Aspin for Secretaries of the Army, Navy, Air Force, and Chairman, Joint Chiefs of Staff, on Policy on Homosexual Conduct in the Armed Forces, July 19, 1993; Department of Defense, Directives Implementing the New DoD Policy on Homosexual Conduct in the Armed Forces; Department of Defense, Policy Guidelines on Homosexual Conduct in the Armed Forces; Memorandum from Assistant Secretary of Defense Edwin Dorn for Assistant Secretary of the Army (Manpower and Reserve Affairs), Assistant Secretary of the Navy (Manpower and Reserve Affairs), Assistant Secretary of the Air Force (Manpower, Reserve Affairs, Installations, & Environment), Director, Joint Staff on Policy on Homosexual Conduct in the Armed Forces, October 29, 1993.


(Footnote 16 return)
The litany of protected classes in Section 3 was not amended in the Clinton order to include ''sexual orientation,'' which was possibly an oversight in drafting since it is inconsistent with the expansion of protected classes in Section 1.