Chairman Canady and members of the Committee, it is an honor to testify on the proposed Equal Opportunity Act. I appear on behalf of the Institute for Justice, which has helped lead the fight to eradicate racial classifications. I am also pleased to deliver to you an expression of support from more than 40 civil rights and grass-roots organizations from across the nation. Together they have joined in the following statement:
We support the principle of nondiscrimination embodied in the proposed Equal Opportunity Act. The bill advances civil rights by bringing to an end the federal government's power to discriminate on the basis of race and gender. The vast apparatus of race and gender preferences does not promote equal opportunity. Civil rights arc individual rights, not group rights; and the purpose of the civil rights laws is to expand opportunities, not to redistribute them. Instead of preserving failed policies that classify and divide Americans, our nation should work toward racial harmony and the removal of arbitrary barriers that separate individuals from opportunities.
(The statement and list of signatories is attached to this testimony)
Mr. Chairman, this statement underscores the vital importance of the proposed legislation you have introduced. When enacted, it will vindicate at last the core tenet underlying the American civil rights vision: that our government may no longer discriminate on the basis of race or color, and that every person shall be treated equally under law.
It is fitting that these hearings take place on Pearl Harbor Day. The national reaction to that calamitous event took many noble forms, but it also led to one of the darkest chapters of American history: the internment of Japanese-Americans. Shamefully, the internment order was sustained by the United States Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944). Justice Robert Jackson's eloquent dissent informs our present deliberations:
[A] judicial construction ... that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. ... Once a judicial construction rationalizes the Constitution to show that [it] sanctions such an order, the Court for all time has validated the principle of racial discrimination. ... The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.
Justice Jackson had it right: our history demonstrates that any exception to the principle of nondiscrimination destroys the rule, and that the power of government to classify individuals by race is never benign. The proposed Equal Opportunity Act embraces this understanding and is extremely well-crafted to make the principle of nondiscrimination the law of the land, once and for all.
Not only is the bill consistent with the American civil rights vision, it reflects a broad and continuing societal consensus that bridges the racial divide. Polls consistently show that an overwhelming majority of Americans, including both whites and blacks, opposes discriminatory policies by government. A smaller majority also supports "affirmative action,' so long as it does not involve preferential treatment. This bill outlaws preferences while allowing efforts to extend a helping hand to people outside the economic mainstream -- reflecting precisely the American consensus.
Because the principles and objectives of this bill enjoy strong public support, the defenders of the status quo can defeat the bill only by distorting it. In the remainder of my testimony, I address specific attributes of the proposed legislation.
First and foremost, it is important to stress that this bill does not repeal or modify any other civil rights law. Defenders of the status quo often seek to confuse the debate by equating race and gender preferences with the federal equal opportunity laws, and by suggesting that outlawing preferences means in some manner diminishing those civil rights laws. That is utterly false. The civil rights laws do not require, and indeed were not intended to require race or gender preferences. To the contrary, they require nondiscrimination. The proposed Equal Opportunity Act would bring federal policies into conformity with the intent of the federal civil rights laws. But it will do nothing whatsoever to diminish those antidiscrimination laws or the remedies available to enforce them.
What the legislation will do is to erase the vast array of race and gender preferences that permeate federal employment, contracts, and policies. Many of these were identified in a report prepared earlier this year by the Congressional Research Service for Senate Majority Leader Bob Dole. Most were created by federal agency regulations, and others were enacted as part of non-civil rights statutes. Of the statutory preferences, most purport to assist "socially and economically disadvantaged individuals,' but in fact have been implemented by federal agencies as racial and gender preferences.
The objection has been raised that this bill goes beyond the Supreme Court's decision earlier this year in Adarand Constructors, Inc. v. Pena, which applied a 'strict scrutiny' standard to race preference programs by the federal government. Any difference in reality is a technical one: the last time the Supreme Court upheld a racial classification under strict scrutiny was the same Korematsu decision a half-century ago that I mentioned earlier. Under a proper application of strict scrutiny, none of the federal preference programs could survive because (1) they lack a compelling interest in remedying past discrimination demonstrated by competent findings, and/or (2) they are not narrowly tailored to that objective since they are neither temporary nor the least harmful alternative.
The Clinton Administration takes a narrower view of the Supreme Court's decision. Even as it repeals some of the federal preferences, most will remain intact. I urge you to examine Assistant Attorney General Deval Patrick closely on several points in this regard:
þ On what basis can any of the current federal preference programs be justified?
þ On what basis does Mr. Patrick assert, as the Justice Department has in the Piscataway case, that "diversity" represents a compelling governmental interest? On what basis can the "goals and timetables" requirements of the Office of Federal Contract Compliance Programs, enforced against a substantial number of private employers, be exempted from the administration's review of preference programs?
I believe you will find that W. Patrick's answers to these questions will reveal a less-than-enthusiastic commitment to seriously reviewing discriminatory federal policies and practices.
Moreover, experience at the state and local levels -- whose preference programs have been subject to strict scrutiny for the past decade -- demonstrate that these programs continue to proliferate. Dealing with these policies on a case-by-case basis, often through expensive and protracted litigation, will not curb the federal racial classification apparatus. Just as the Supreme Court ruled in 1954 that "separate but equal' was unconstitutional across the board and just as Congress in 1964 legislated that racial discrimination in employment and public accommodations was unlawful, period -- so should Congress act in a clear and principled manner to outlaw race and gender classifications by the federal government. Anything less will leave us mired in conflict for years to come.
For this reason, arguments that this bill goes too far are invalid. This bill establishes a complete prohibition against discrimination by the federal government. To do anything less -- to leave loopholes no matter how narrow they appear -- would mean accomplishing nothing.
As this bill recognizes, to effectively proscribe racial classifications requires prohibition against the use or imposition of "goals and timetables." In some instances, statistics are useful in identifying discriminatory practices, and this bill would not preclude their use in a manner consistent with federal law. But the concept of "goals and timetables" connotes outcomes rather than opportunities. To express a "goal" in numerical terms -- and to induce compliance through timetables -- institutionalizes the very types of race and gender measures that the antidiscrimination laws were designed to eliminate. Too often "goals and timetables" are a euphemism for preferences; and too often private employers adopt preferences to fulfill the requirements of goals and timetables. The civil rights laws require that every decision must be made on a nondiscriminatory basis, and goals and timetables -- the statistical "bottom line" - - are no substitute for that guarantee. The assurance that the federal government will not require or encourage private entities from engaging in discriminatory practices will be ineffective so long as the government is allowed to insist on goals and timetables.
The bill limits only the federal government's power to discriminate or to require or encourage private entities to do so. In other words, it does not displace truly voluntary private sector "affirmative action" efforts that are otherwise consistent with federal law. Some have criticized the bill for leaving such practices intact. I do not share that criticism, for two reasons. First, it is not clear the extent to which such programs are truly voluntary or coerced by government regulations and enforcement actions. Once government coercion is removed, presumably only those programs that are truly voluntary will remain. Second, private enterprises are regulated primarily by the competitive marketplace, while the federal government is governed by the Constitution. The market will constrain practices that diminish efficiency. The Constitution requires a far higher standard of nondiscrimination through its guarantee of equal protection under law. A distinction between government action and private action is proper.
While eradicating discriminatory government policies and practices, the bill permits nondiscriminatory affirmative action. As I mentioned earlier, some federal statutes (such as the Small Business Administration 8(a) set-aside program) direct assistance toward socially and economically disadvantaged individuals; but in practice these statutes are administered to confer race and preferences regardless whether the beneficiaries are in fact disadvantaged. When this bill is enacted, the administrative agencies will no longer be permitted to implement these programs as race or gender preferences. But unless further congressional action is taken, the underlying programs will remain intact; and, for the first, the benefits will have to be targeted to individuals who are in fact disadvantaged.
Moreover, the bill expressly provides for nondiscriminatory outreach and recruitment efforts. In other words, the bill would allow efforts to enlarge the pool of qualified individuals, from which nondiscriminatory choices are made. Truly affirmative action is not about redistributing opportunities on the basis of race; it is about expanding the number of people who can compete on the basis of merit.
This issue is near and dear to the Institute for Justice. The people we represent in litigation around the country are mainly low-income and minority individuals. They encounter in their daily lives an array of barriers to opportunity -- inferior schools, welfare dependency, regulations that impede entrepreneurship, unsafe streets -- barriers that lead to huge statistical disparities because they render people unable to compete effectively for jobs, college admissions, and business opportunities. Race-based affirmative action has absolutely no relevance whatsoever to people who are outside the economic mainstream. In fact, it harms them because it sweeps these serious social problems under the carpet of racial preferences. We need to turn our attention away from redistribution policies toward removing barriers to opportunity.
Mr. Chairman, I hope that you and the other members of this Committee take appropriate pride in the historic enterprise in which you are engaged. Our nation's claim is staked in its doctrinal commitment to equal opportunity. For 200 years, the central aim of the civil rights movement was to curb government's power to classify individuals on the basis of race. With this bill, we are finally on the threshold of making good our nation's most cherished promise. We will all benefit from your resolve and from your success.
Judiciary
Homepage