Judicary HomepageTESTIMONY
OF
ROGER CLEGG
GENERAL COUNSEL
CENTER FOR EQUAL OPPORTUNITY
BEFORE
THE HOUSE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION
HOUSE JUDICIARY COMMITTEE
FEBRUARY 25, 1998
REGARDING
THE CIVIL RIGHTS DIVISION
OF THE UNITED STATES JUSTICE DEPARTMENT
Mr. Chairman, my name is Roger Clegg, and I am the general counsel for the Center for Equal Opportunity, a nonprofit Section 501(c)(3) research and educational organization that is devoted to civil rights, bilingual education, and immigration policy issues. I was a Deputy Assistant Attorney General in the Civil Rights Division from 1987 to 1991.
I very much appreciate the opportunity to testify before your subcommittee on the very important topic of the Justice Department's Civil Rights Division. It is an understatement to call the subject of these hearings "important." There is, in my view, no domestic issue facing our nation that is of greater consequence than the writing, interpretation, and enforcement of our civil rights laws. And the Civil Rights Division has more significant responsibilities in this area than any other federal agency. It is, therefore, enormously important that the division do its job well.
I am therefore sorry to say, Mr. Chairman, that the Division is not doing a good job. Civil rights laws originally were intended to bring our country together, and to eliminate irrational and unfair practices. As these laws are now being enforced, however, they promote irrational and unfair practices - and they are driving Americans apart.
Preferences
Let me begin with the issue of preferences. This administration - including the Civil Rights Division - loves them. Here is just a brief review of the administration's record to date. It has:
· promised a cabinet that "looks like America" and openly used its EGG criteria (ethnicity, gender, and geography) in making all appointments, no matter how much this slowed down the process;
· vowed, through Zoe Baird and Kimba Wood all the way to Janet Reno, that the next Attorney General would be someone "wearing a skirt";
· repeatedly nominated figures from the civil rights establishment, diehard defenders of preferences, including "quota queen" Lani Guinier and the current acting head of the division;
· included racial and ethnic preferences in its ill-fated health plan;
· reversed the Bush administration's policy of limiting the use of racially exclusive scholarships;
· defended the quota policies of the city of Birmingham, Alabama;
· adamantly defended the use of racial gerrymandering, both before and after the Supreme Court struck down the practice;
· issued a series of internal orders to ensure that career civil-service positions would be quota-correct;
· used the Justice Department, the Equal Employment Opportunity Commission, and the Department of Labor's Office of Federal Contract Compliance Programs to pressure employers into meeting numerical goals for women and minorities;
· switched sides in the Piscataway, New Jersey, litigation in order to defend a race-based layoff;
· defended the use of the Department of Transportation's preference program for minority subcontractors all the way to the Supreme Court in the Adarand case, where it was dealt a stunning defeat - but not so stunning that it has not continued to defend the preference on remand in district court, where it lost, and has now appealed that loss to the U.S. Court of Appeals for the Tenth Circuit;
· steadfastly resisted eliminating any other contracting preferences, despite the Supreme Court's ruling;
· defended the University of Texas law school's use of racial and ethnic preferences and pressured schools to ignore the court decision rejecting those preferences (until, under fire, the administration reversed itself);
· flatly limited participation in at least one armed service scholarship program to members of minority groups; and
· attacked the constitutionality of California's Proposition 209, which did no more than ban state discrimination, including preferences.
On this last item, it is ironic that, when you had your oversight hearings last year, you heard some very persuasive criticism by Michael Carvin of the position taken by the Justice Department in attacking the constitutionality of Proposition 209. That position, of course, failed to persuade either the full U.S. Court of Appeals for the Ninth Circuit or the U.S. Supreme Court to reconsider the panel decision upholding the law. Nonetheless, the President has now appointed as the acting head of the Division a man who filed a brief that reached the same conclusion as the brief you heard criticized.
Let me note that the administration encourages the use of preferences both overtly and covertly. For instance, last week there were stories in the New York Times and the Washington Times about an agreement signed by the administration and the Big Three automakers that will increase the amount of minority set-asides. The newspapers did not have to do much digging to unearth this story. The administration issued a press release headlined "Vice President and SBA Administrator Announce Pact with Big Three Automakers / Agreement Will Boost Minority Business Contracts by $3 Billion in Three Years." The first sentence read: "Vice President Al Gore and Administrator Aida Alvarez of the U.S. Small Business Administration (SBA) today announced an unprecedented agreement with the "Big Three" U.S. automakers that will increase subcontracting awards to minority businesses by nearly $3 billion over the next 3 years - a 50 percent increase over current levels." The administration added that the agreement helps the automakers "leverage their commitment" to minority businesses by "encouraging" first-level contractors to "increase opportunities for minority firms when they contract out," and that "the auto industry agreement could serve as a model for similar pacts between small business and other industry groups."
On the other hand, probably few people noted that the Division signed a consent decree on April 14, 1997, which was filed in court on June 19, 1997, in its lawsuit against the Arkansas Department of Corrections (ADC) for sex discrimination in employment. Fewer still know about paragraph 5 of the consent decree, which requires the ADC to "seek in good faith to achieve the employment of women in correctional officer positions at correctional institutions housing male offenders in numbers approximating their application for, and ability to qualify for, such positions. Absent explanation, the parties expect the ADC to hire women for entry-level [positions] at a rate that approximates the female applicant flow for such positions. It is also expected that the ADC will promote women at least in proportion to their representation in the class of qualified employees applying for promotion." Paragraph 6 then provides: "Failure to obtain an particular female applicant flow or hiring or promotion rate is not by itself a violation of this Decree, but may prompt an inquiry by the United States." I suspect that no one has any doubt that these provisions are telling the ADC to meet its quota, or else. Assuming that it makes sense to have female prison guards in male prisons, there is still no justification for quota hiring. Incidentally, this case was pointed to by the administration's witness at your last oversight hearing as "[o]ne of the Division's most significant recent achievements ." Of course, the administration did not mention the quotas.
I understand that Michael Kennedy, the general counsel of the Associated General Contractors of America, will be testifying today about the administration's record with respect to government contracting. No one knows more about contracting issues than Mr. Kennedy, so I will gladly defer to him in this area.
I would make one comment, however. The administration has embarked on a mammoth "study" to see how best to "mend" the over 160 preferences now used by the federal government. But, since the use of preferences is so hard to justify after the Supreme Court's Adarand decision, wouldn't it make more sense to end - or at least suspend - all these preferences until after the study is completed?
Disparate Impact
Closely related to the issue of preferences is the "disparate impact" theory of discrimination. The basic idea here is that, if someone uses criteria that do not result in something close to proportional representation, then they can be sued for violating the civil rights laws, even though there is no allegation or evidence of discriminatory intent and no allegation or evidence that people were treated differently because of race, ethnicity, or sex, or any other prohibited classification. The burden is on the defendant to show a judge or jury that the criteria meet the "business necessity" requirement.
This theory is subject to abuse in two ways. First, it can intimidate employers or other businesses into adopting preferences - quotas - to make sure that their "numbers come out right" and they won't get sued. Second, it can discourage employers and businesses from using criteria that they believe will provide the greatest efficiency and productivity.
Mr. Chairman, you heard testimony last year about the Division's abuse of disparate impact theory in its challenges to the use of written exams by police and fire departments. It does not appear that this testimony had much effect, at least on the Civil Rights Division. Less than a month after your hearings last spring, the Division filed on June 17, 1997, its appeal from its loss in district court in the matter of the Torrance, California, police and fire departments, about which you had heard extensive testimony. And less than a month after that, on July 8, 1997, the Division filed a complaint and a consent decree regarding the disparate impact that written exams had in the police and fire departments of Fullerton, California. I also understand that you will be hearing today from someone discussing the same kind of lawsuit filed recently, on February 6, by the Division against Garland, Texas.
Nor are written exams the only selection device challenged by the Division. For instance, the Division also recently sued the Philadelphia area's regional transit police for discriminating against female applicants by requiring them to be able to run 1.5 miles in less than 12 minutes. The Department says this requirement is "unrelated to job performance" and wants different standards for men and women.
Moreover, the Division's use of disparate impact theory has now spread to the housing area. I am appending to my testimony a paper recently published by the Center for Equal Opportunity criticizing this extension. During the Reagan administration, the Division's position - stated in a brief to the U.S. Supreme Court - was that disparate impact theory should not be applied to the Fair Housing Act.
The Division also filed an amicus brief last spring in the U.S. Court of Appeals for the Third Circuit, in Chester Residents Concerned for Quality Living v. Seif, supporting the right of private plaintiffs to bring a disparate impact cause of action when a permit was issued for a solid-waste facility in a predominantly black community. The district court had ruled that the plaintiffs had to show intent. (The court of appeals declined to hear this interlocutory appeal.) Bill Lann Lee, before he came to head the Division, was an early advocate of the use of disparate impact in the environmental area, so the government's policies in this area deserve watching.
In light of the bad effects of the disparate impact theory - it encourages preferences and discourages merit-based criteria - it should be used only sparingly. That is not the Division's current policy, however.
Civil Rights Law as Regulation
The civil rights laws, particularly when misapplied, can also compromise the efficiency and productivity of business in other ways. Indeed, it is important to recognize that antidiscrimination law is not just a social issue but, increasingly, an economic issue. It is a kind of government regulation, and it can be very expensive.
Perhaps the best example of this is the Americans with Disabilities Act. Mr. Chairman, the Civil Rights Division has been very aggressive in its interpretation of the ADA. For instance, the Division recently has:
· Forced the Pontiac, Michigan, fire department to hire a firefighter who was blind in one eye;
· Argued that the ADA covers the terms and conditions of a company's insurance policies;
· Forced the state of Oregon to see to it that no business sells lottery tickets unless it provides access to the lottery for wheelchair users. Under the agreement, announced by the Division last September 16, Oregon has enacted an administrative rule that requires grocery stores, convenience stores, gas stations, and anyone else who sells tickets to "remove barriers of access" for patrons who use wheelchairs. The Division recently forced the state of New Hampshire to take similar measures;
· Taken the position that the ADA applies to prison inmates;
· Argued that the National Collegiate Athletic Association is covered by the ADA, and that its high-school core course and test score requirements violate the rights of a learning disabled athlete; and
· Forced two Mississippi county courts to ensure that deaf individuals are allowed to participate fully as jurors. A county judge had argued that the case before him was too technical for a deaf juror and that an interpreter would distract the other jurors, but the Division declared, "A prospective juror's deafness does not render him or her incapable of performing the duties of a juror."
I should add, however, that ultimately the solution to the excesses of the ADA must lie with Congress. The fact is that this body passed a statute that was neither well drafted nor well thought out. Now that it has been in effect for several years, it is appropriate for Congress to begin considering how best to narrow its scope.
Changed Times: Voting and Education
Mr. Chairman, I would like to conclude with the suggestion that this Subcommittee pause a moment and give some serious thought to the role that the Civil Rights Division ought to be playing now, in 1998. I think that this would be a worthwhile exercise, because this is a very different world that when the Division was started forty years ago. Perhaps the best way to begin this exercise is by considering the work of the two sections of the Division whose worlds have changed the most: the Voting Section and the Educational Opportunities Section.
When the Voting Rights Act was first passed in 1965, the disenfranchisement of blacks in the South was systematic, deliberate, and deeply rooted. Thirty-three years later, that is no longer the case. The Voting Section no longer has to focus on ensuring that black people can vote, or even that districts are not gerrymandered against them. Now the work of the section consists primarily of ensuring - through the application of "vote dilution" theory --that districts are gerrymandered to ensure "safe seats" for minority officials. Sometimes this work piles absurdity on top of absurdity. In a Motion to Affirm that Mr. Lee recently filed with the Supreme Court in King v. State Board of Election, the Division cited, with approval, an expert's testimony that the aim of that litigation now was to create a "Hispanic-majority district that would not violate the integrity of three existing African-American majority districts" (page 23). The Supreme Court itself has begun to indicate its loss of patience with the Division's heavy-handed approach. And an article in this week's New Republic discusses why - to the liberals' surprise - it is turning out that racial gerrymandering is simply unnecessary for protecting minority voting rights.
The Division's gerrymandering is bad enough when the districts are for members of the statehouse or the city council. But now the Section is trying to ensure that elected judges also have racially identifiable constituencies. For instance, in 1997 the Section said that the city of Shreveport, Louisiana, would not be allowed to annex some adjacent areas unless it changed its city court elections to result in more black-elected judges. Was the current system gerrymandered against such judges? Apparently not: the two city judges are now elected at large, with a majority vote requirement.
As voting rights expert Michael B. Wallace has written, "the premise of dilution cases [is] that elected officials have, and ought to be responsive to, racially defined constituencies. This is problematic for the political branches, but especially dubious for the judiciary." Do we want judges to view themselves as principally responsive to a constituency of a particular race? Is that the judicial role?
The world of the Division's Educational Opportunities Section also has changed. In the sixties and early seventies, de jure school segregation was a major national problem and desegregation was a national priority. It made sense to devote a lot of attention, personnel, and money to this issue.
But consider the situation now, many years later. Last May, when the acting head of the Division testified here, she said the Section now did three things: (1) it "monitors cases involving approximately 500 school districts located in states that formerly had de jure segregation"; (2) it has"pursued several cases to enforce the rights of language minority students"; and (3) it "continue[s] to seek gender equity in cases involving VMI and The Citadel."
Let's think about these three activities. As to the first, it strikes me as a very odd situation that now, some 44 years after Brown v. Board of Education, there should be 500 school districts that are still under federal court order and still monitored by the Civil Rights Division. Are these school districts not yet desegregated? If they are not, then this is inexcusable. What has the Division been doing? But if these school districts are in fact desegregated, they should not still be under federal court order. This is inexcusable, too. The Supreme Court has made it clear that federal supervision of local schools is not supposed to last forever. Among other things, it would mean that these school districts would be barred not only from assigning students on the basis of neighborhood schools and assigning teachers on the basis of their respective preferences, it would also make it difficult or impossible to adopt reforms such as charter schools or school vouchers.
The Division continues to second-guess the decisions of local school districts still under desegregation orders. Just in the last year, for instance, it has filed appellate briefs doing just that in Valley v. United States, United States v. Ridley, Liddell v. Special School District of St. Louis County (part of St. Louis's 27-year-old desegregation case), and Buckley v. Board of School Commissioners of the City of Indianapolis.
The second activity of the Educational Opportunities Section means, I suspect, helping the Education Department's Office for Civil Rights in its efforts to intimidate school districts into using failed and often discriminatory bilingual education programs. For instance, the Denver public school system recently decided that it wanted to move away from bilingual education programs toward English-as-a-Second-Language programs. The latter are more effective in teaching children English and, therefore, more popular among Hispanic parents, but they are anathema to the educational establishment and special-interest groups and, therefore, the Office for Civil Rights. OCR has now asked the Civil Rights Division to sue the Denver Public Schools on its behalf.
And the third activity of the Section, the lawsuits against VMI and The Citadel, is a good example of the mischief that bureaucrats get into when they don't have enough to do. I am ashamed to say that this litigation was started under the Bush administration. I recommended at the time against suing VMI, predicting that the government would probably win, but that it would be a waste of the government's time and the taxpayers' money, because the world be worse off, not better off, when the dust had settled. I have not changed my mind.
Conclusion
My purpose in this testimony, Mr. Chairman, is to highlight those areas where the work of the Civil Rights Division has been the most troubling in this administration. In light of this record, and in light of the Division's new head, I think these are also the areas that bear a close watch for the remainder of the administration.
Mr. Chairman, thank you again for the opportunity to testify before this Subcommittee. I look forward to any questions you have.