Mr. Chairman and Members of the Subcommittee:
I am John Payton, a lawyer in private practice here in Washington D.C. With me is Hampton Dellinger, an associate with my law firm. Over the years I have defended a wide range of legislation that was designed to remedy the effects of racial discrimination by means of race-based measures. I represented the city of Richmond, Virginia before the United States Supreme Court in Richmond v. Croson. I have also filed briefs on behalf of various groups in other Supreme Court cases in which the issue of the use of race-based measures has arisen, including Metro Broadcasting and Adarand. In addition, I have intervened in lower court proceedings involving similar legislation on behalf of the National Lawyers' Committee for Civil Rights Under Law, the Washington Lawyers' Committee for Civil Rights and Urban Affairs, and the Minority Business Enterprise Legal Defense and Education Fund.
I am here to comment on H.R. 2128, titled the Equal Opportunity Act of 1995, as it relates to racial discrimination. I will leave it to other distinguished persons -- testifying before this Committee and expert in the area of gender discrimination -- to comment on the adverse impact H.R. 2128 would have on women. With regard to race, I am compelled to describe the Act as both deceptive and unprecedented for at least two reasons:
First, the language of the Act suggests that its passage is necessary in order to prohibit racial discrimination in federal employment, contracts and programs. But, in fact, all Americans are already protected against such discrimination by existing civil rights statutes.
Second, the Act would make it unlawful for a federal entity or employee to "grant a preference" based on race. The phrase "grant a preference" is defined to mean "use of preferential treatment" and that in turn includes "numerical goals" and "timetables", as well as "quotas" and "set-asides". I am confused by the inclusion of goals and timetables. Clearly, goals and timetables could be used in a way that do not result in "preferential treatment." To the extent that they are used to provide "preferential treatment", the addition of goals and timetables is unnecessary to the definition.
Instead, I would propose to use the phrase that Justice O'Connor used in Croson: "race-based measures to ameliorate the effects of past discrimination on the opportunities enjoyed by members of minority groups in our society. " City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 476-77 (1989). Setting semantics aside, the permissible use of such race-based measures by the federal government has essentially been confined by the Supreme Court to the following situation: where a federal entity has determined through explicit findings that in order to remedy the continuing effects of racial discrimination it is necessary to use a narrowly tailored, race-based remedy. In other words, a race- based remedy can only be an option reserved for situations where a non-racial remedy would be inadequate. H.R. 2128 would prohibit that remedy of last resort and would prevent the federal government from fulfilling its responsibility to ensure that racial discrimination is effectively addressed and eradicated. Apart from that, the Act would have virtually no effect.
I believe there is absolutely nothing -- either in the federal government's current operation of such remedial programs or in the present state of race relations in our nation -- to justify such an abandonment of fundamental federal responsibility.
1. The operative language of the Act is contained in Section 2, which provides as follows:
Notwithstanding any other provision of law, neither the Federal Government nor any officer, employee, or department or agency of the Federal Government--(1) may intentionally discriminate against, or may grant a preference to, any individual or group based in whole or in part on race, color, national origin, or sex, in connection with--
(A) a Federal contract or subcontract;
(B) Federal employment; or
(C) any other federally conducted program or activity;
(2) may require or encourage any Federal contractor or subcontractor to intentionally discriminate against, or grant a preference to, any individual or group based in whole or in part on race, color, national origin, or sex; or
(3) may enter into a consent decree that requires, authorizes, or permits any activity prohibited by paragraph (1) or (2).
As I suggested above, only a small portion of this section is, in fact, "operative" in the sense that it alters the current state of federal law.
First, the anti-discrimination provisions in this section are nothing more than mere surplusage" that duplicate protections already granted all persons under the Constitution, a myriad of civil rights statutes previously enacted by Congress, and a series of Presidential executive orders dating back thirty years.
Second, the Act's prohibition of race-based measures is also redundant of existing law (except for the extraordinary new prohibition on race-based remedial measures that respond to identifiable, unlawful discrimination) as established by Supreme Court decisions dating back twenty years. As this Committee is well aware, beginning with the 1978 Bakke case up to the Adarand decision handed down this year, the Supreme Court has severely limited the constitutional uses of race by the federal government and the states.
Race-based programs justified solely on grounds that they "promoted diversity" or "provided minority role models" were invalidated by the Supreme Court's ruling in Regents of Univ., of California v. Rakke, 448 U.S. 265 (1978) and 1986 decision in Wygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986). Then, in 1989, the ability of municipalities to set aside a fixed percentage of city construction contracts for various historically disadvantaged groups was significantly curtailed in Croson.
Finally, the federal government's authority to use race- based remedial measures was narrowed by the decision this year in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995). "[F]ederal racial classifications," the Court held, "like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest." 115 S.Ct. at 2117.
Thus, the present state of constitutional law -- as it applies to the governmental use of race-based remedial measures in contracting -- is that such measures can be used only to remedy ongoing racial discrimination or its ongoing effects by means of a narrowly tailored measure. This strict standard presumably applies not just to government contracting but to race-based government action in other areas. As Assistant Attorney General Dellinger recently wrote in a memorandum to all executive agency general counsels: "Although Adarand involved government contracting, it is clear from the Supreme Court's decision that the strict scrutiny standard of review applies whenever the federal government voluntarily adopts a racial or ethnic classification as a basis for decision making." The Supreme Court has effectively made unlawful any uses of race by the government, including the federal government, that cannot meet the exacting requirements of strict scrutiny.
Let me be clear that I disagree with Adarand, Croson and other Supreme Court decisions that have limited governments' ability to promote diversity, ensure meaningful minority participation in the economy, and combat the lingering impact of historical discrimination. As the distinguished law professor Charles Black has so strikingly put it:
"[T]o see in the [Fourteenth Amendment's Equal Protection] Clause a banning--even a tainting--of all effective action to help black people as such is to generate a great paradox of history of meaning, and makes of that part of the Fourteenth Amendment a moral- suicide pact." Charles L. Black, Jr., "And Our Posterity", 102 Yale L.J. 1527, 1530 (1993).
Nonetheless, these decisions are the law of the land. Because of these decisions, this bill cannot diminish the ability of the states or the federal government to remedy the effects of societal discrimination or to promote diversity. This bill can't do it because its already been done.
While the Supreme Court has significantly constrained government's use of benign, racial classifications, it has never held that the government cannot consider race-based measures when responding to identifiable discrimination. As the Court stated in Adarand:
"The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it. As recently as 1987, for example, every Justice of this Court agreed that the Alabama Department of Public Safety's pervasive, systematic, and obstinate discriminatory conduct justified a narrowly tailored race-based remedy. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the narrow tailoring test this Court has set out in previous cases. 115 S. Ct. at 2117 (internal citations and quotations omitted).
Even Justice Scalia has acknowledged that the federal government has never been forbidden from utilizing "race-conscious remedies when confronted with egregious and persistent unlawful discrimination." Croson, 488 U.S. at 521.
The rationale for allowing race-based remedies is that "the nature and scope of the remedy are to be determined by the violation". Missouri v. Jenkins, 115 S.Ct. 2038, 2049 (1995) (opinion of Rehnquist, O'Connor, Scalia, Kennedy and Thomas). But H.R. 2128 would abolish this fundamental principle -- that the range of remedies should remain available until the violation is established. The Act declares that there can be no race-conscious remedy regardless of the egregiousness of the race-based violation and regardless of the lack of any other effective remedy. Thus, the bill's impact will be almost exclusively to allow some identifiable racism to continue unchecked.
I would like to conclude with a brief comment on the state of race relations today. There is no doubt that there has been progress over the last thirty years or so. Clearly, racial discrimination that was once lawful and often required by law, is now prohibited. Voting rights, public accommodations, equal employment laws, educational opportunities, civil rights enforcement -- these and other areas have seen dramatic improvement. But we must not mistake progress for victory, or anything even close to victory. Clearly we as a country greatly misjudged the persistence and virulence of racism in our society.
Earlier this week I heard former Attorney General Katzenbach talking about the state of race relations today and yesterday. In his phrase, race relations in this country remain "shameful and intractable." What is needed now is a renewed commitment to direct the efforts of the federal government toward the elimination of racial discrimination and its continuing effects. H.R. 2128 would instead give up the fight and, incredibly, prohibit the federal government from seeking any remedy for some of the most egregious instances of racial discrimination.