Mr. Chairman and members of the Subcommittee, I am pleased for this opportunity to testify today on the topic of affirmative action.
The Commission has conducted, in the past, and is planning for later this spring, hearings on this very important issue. Before turning my comments to affirmative action, allow me to describe briefly the work of the Commission and its present composition.
As an independent, bipartisan, fact finding agency of the Federal Government, the Commission is mandated to collect, study and publish information concerning the denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or the administration of justice. The Commission reports its findings and recommendations to the President and the Congress. Last fall, the Congress added to the Commission's duties, the obligation to issue public service announcements and advertising campaigns to educate our nation's citizens on denials of equal protection of the laws under the Constitution and to discourage discrimination.
My colleagues on the Commission represent a diverse range of backgrounds, views and talents. They are: Vice Chairperson Cruz Reynoso, Professor of Law at the UCLA Law School; Carl A. Anderson, Vice President for Public Policy for the Knights of Columbus, and Dean and Professor of Family Law of the North American Campus of the Pontifical John Paul II Institute for Studies on Marriage and Family; Arthur A. Fletcher, President and CEO of Fletcher's Learning Systems, and Publisher of USA Tomorrow/The Fletcher Letter; Robert P. George, Associate Professor of Politics at Princeton University; Constance Homer, Guest Scholar in Governmental Studies, Brookings Institution; Russell G. Redenbaugh, Partner and Director of Cooke & Bieler, Inc., and Chairman and CEO of Action Technologies, Inc.; and Charles Pei Wang, Chairman, Asian American Council for Economic Development, Inc., and Secretary, United Way of New York City.
Because the Commission is an independent, bipartisan agency, my remarks on behalf of the Commission do not necessarily reflect the views of the Administration. Moreover, each member of the Commission has his or her own viewpoint on the civil rights issues that confront us; however, we share the common goal of eradicating unlawful discrimination and ensuring equal opportunity to all Americans. I, in particular, want to emphasize that although as a matter of history, the civil rights laws were passed to provide coverage to those Americans who lacked protection, the civil rights laws protect all Americans. That protection, of course, extends to everyone including white males.
The Commission has long been involved in studying and assessing the propriety and efficacy of various remedial measures, including affirmative action, to eliminate discrimination. The Commission has previously defined affirmative action as "active efforts that take race, sex, and national origin into account for the purpose of remedying discrimination." It is "a term that in a broad sense encompasses any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future." U. S. Commission on Civil Rights, Affirmative Action in the 1980's: Dismantling the Process of Discrimination, Clearinghouse Pub. No. 70, at 2 & n.6 (November 1981).
While the Commission has not adopted a position in the current debate surrounding affirmative action, it has previously supported affirmative action policy, properly construed, as an effective tool to correct past and present discrimination. Throughout, however, the Commission has remained steadfast in its opposition to the use of "quotas" by employers and colleges and universities, while equally tenacious in its support of "goals and timetables." See, e.g., U. S. Commission on Civil Rights, Report of the United States Commission on Civil Rights On the Civil Rights Act of 1990 (Jut. 1990).
The Commission first addressed the issue of affirmative action for equal employment opportunities in 1973. U. S. Commission on Civil Rights, Statement on Affirmance Action for Equal Employment Opportunities (1973). There, the Commission expressed its view that "the necessity for goals and timetables arose out of long and painful experience in which lip service to equal employment opportunity was paid by employers who then did little to correct the situation." In 1978, the Commission studied affirmative action more broadly, as applied in employment, federal contracting, and professional schools. U.S. Commission on Civil Rights, Statement on Affirmance Action, Clearinghouse Pub. No. 54 (October 1977). Again, the Commission concluded that "[t]he short history of affirmative action programs has shown such programs to be promising instruments in obtaining equality of opportunity." Id. at 12. The Commission acknowledged that "[t]he aspiration of the American people is for a 'colorblind' society, one that 'neither knows nor tolerates classes among citizens.' But," the Commission concluded, "color consciousness is unavoidable while the effects persist of decades of governmental-imposed racial wrongs. A society that, in the name of the ideal, foreclosed racially-conscious remedies would not be truly color-blind but morally blind. " Id.
Similarly, in 1981, the Commission noted that "[w]hen discrimination is widespread and entrenched, it becomes a self-regenerating process capable of converting what appear to be neutral acts into further discrimination. " U. S. Commission on Civil Rights, Affirmative Action in the 1980's: Dismantling the Process of Discrimination, Clearinghouse Pub. No. 70, at 2 (November 1981). Under such circumstances, the Commission concluded that "anti discrimination remedies that insist on 'color blindness' or 'gender neutrality' are insufficient." Id.
In the field of education, the Commission's early studies sanctioned affirmative action for minority students. The Commission found that "given the long and lamentable history of discrimination against minorities in higher education, consideration of race or minority status in the admissions process of law and medical schools is certainly justified and appropriate. " U. S. Commission on Civil Rights, Toward Equal Educational Opportunity: Affirmance Admissions Programs at Law and Medical Schools, Clearinghouse Pub. No. 55 (June 1978). This position was echoed in 1991 following the announcement by the Education Department's Office for Civil Rights that Title VI of the Civil Rights Act of 1964 barred funding of minority-targeted scholarships by institutions receiving Federal financial assistance. The Commission voiced its opposition to the previous Administration's interpretation of Title VI and urged President Bush "to take a strong stand in support of affirmative action in the recruitment of minority students, including the use of minority-targeted scholarships where necessary to achieve either of two important national interests -- remedying the invidious effects of discrimination and attaining the benefits of a diverse student body. n Letter to Hon. George Bush, President of the United States, from Hon. Arthur A. Fletcher, Chairperson, U. S. Commission on Civil Rights (Jan. 23, 1991).
In 1985, the Commission conducted a consultation on selected affirmative action topics in employment and business set-asides designed in part to determine whether "under representation or underutilization in employment should trigger a finding of discrimination and affirmative action." U. S. Commission on Civil Rights, Selected Affirmative Action Topics in Employment and Business Set-Asides, vol. 2, March 6-7, 1985 (opening statement of Hon. Clarence Pendleton, Chairman). Just three years ago, the Commission conducted a forum in Denver, Colorado "to gather information about alleged discrimination against minorities and women in obtaining economic contracts and employment opportunities at the multi billion dollar Denver International Airport [then] under construction." U. S. Commission on Civil Rights, Constructing Denver's New Airport: Are Minorities and Women Benefiting?, Clearinghouse Pub. No. 97 (July 1992).
Our subsequent evaluation of selected aspects of civil rights enforcement by the Departments of Transportation and Labor uncovered a broad range of deficiencies in the implementation of both departments' mandate to administer civil rights policies. The study further confirmed that enforcement of Title VI regulations to recruit women and minorities for inclusion in economic opportunities in connection with the Denver Airport was inadequate. "Without effective civil rights enforcement," the Commission concluded, "minorities and women will not have equal opportunities to benefit from the jobs and economic growth stimulated by these Federal programs, as guaranteed by our Constitution." A Report of the U.S. Commission on Civil Rights, Enforcement of Equal Employment and Economic Opportunity Laws and Programs Relating to Federally Assisted Transport anon Projects, transmittal letter (Jan. 1993).
The Commission's concern with opening doors and eliminating barriers to employment opportunities for women and minorities was also expressed during the National debate on the Civil Rights Act of 1990. The Commission issued a report in 1990 enumerating what was in its view the necessary elements of a model civil rights act. There, we encouraged Congress to incorporate into the proposed Civil Rights Act language that would clarify that legislation was not intended to promote employment quotas or to condone their usage as a means of avoiding liability in disparate impact cases. See Report of the U. S. Commission on Civil Rights On the Civil Rights Act of 1990 (July 1990). Following the veto of the 1990 act by President Bush, the Commission continued to weigh in on the debate, voicing its support for "the 20 years of experience which supports the notion that the employer must show 'business necessity' in order to uphold practices that keep women and minorities out of the workplace." Letter to Hon. George Bush, President of the United States, from Hon. Arthur A. Fletcher, Chairperson, U. S. Commission on Civil Rights (Oct. 21, 1991).
Since these reports of the Commission, much has changed, and yet, sadly, much has remained the same. This Nation has made great strides in addressing, through legislation, discrimination based on color, race, religion, sex, age, disability and national origin. Unhappily, however, evidence of discrimination against women and minorities persists. While statistical under representation is not equivalent to discrimination, such disparities pinpoint areas in which discrimination may be occurring. The recent report of the Glass Ceiling Commission found three levels of continuing artificial barriers ~ societal, internal and governmental -- to the advancement of women and minorities in corporate management. Lingering racial and gender stereotypes, internal recruitment policies, and poor government enforcement of anti discrimination in employment, independently and in combination, impede advancement of qualified women and minorities in the corporate sector. The Glass Ceiling Commission found that workers tend to be clustered in industries on the basis of se~ more than race. For example, almost 75 percent of working women in the corporate sphere are employed in service industries such as finance, insurance and real estate and the wholesale and retail trades.
The Urban Institute, in 1989 and 1990, conducted studies in which it found that discrimination against African-American and Hispanic job seekers is entrenched and pervasive. In the studies, recent college graduates of different races but similar job qualifications, dress, poise and personality were enlisted to test hiring practices in several industries in Washington, D.C., Chicago, and San Diego. Both studies, concluded that African Americans and Hispanics were systematically denied equal opportunity in the hiring process.
Since the Urban Institute studies, testing evidence has been used to support law suits filed by the NAACP against Lord & Taylor and by the Fair Employment Council of Greater Washington against BMC Marketing Corporation. That discrimination continues to plague our society is punctuated by significant settlements in litigation against State Farm Insurance, Lucky Stores, Denny's and Shoney's restaurant chains. The overwhelming evidence that discrimination remains widespread underscores the need to ensure effective remedies if this Nation is to advance the cause of equality and opportunity for all.
Affirmative action has been one tool designed to remedy the effects of past discrimination against women and minorities or to diversify a particular entity. The legality of affirmative action plans or legislation has been the subject of over a dozen Supreme Court cases since the concept was first introduced in 1961. In response to those challenges, the United States Supreme Court has structured a number of limitations and safeguards on the operation of such plans. Presently, State and local affirmative action plans are subject to a different standard of judicial review than are those enacted by Congress. Similarly, race-conscious affirmative action plans are subject to a higher standard than are gender-conscious affirmative action plans. Additionally, all governmental affirmative action plans generally are subject to the strictures of the Fourteenth or Fifth Amendments, and may be governed by applicable civil rights laws as well, while affirmative action plans of private employers are evaluated chiefly under the civil rights laws. Within these parameters, the Supreme Court- has indicated that affirmative action is lawful in the following contexts:
ù Court imposed remedies may include affirmative measures following a finding of unlawful discrimination under the Constitution, see Brown v. Board of Educ. II, 349 U.S. 294 (1955); Brown v. Board of Educ. I, 347 U.S. 483 (1954), or the Civil Rights laws, see Local 28, Shea Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986), and thus, may be properly imposed against both private and public actors.
ù Private and public employers may voluntarily institute affirmative action plans, consistent with Title VII of the Civil Rights Act of 1964, to remedy a conspicuous imbalance in a traditionally segregated job category within its work force if the plan is temporary and does not unnecessarily trammel the interests of non minorities, see United Steel Workers of America v. Weber, 443 U.S. 193 (1979), or males. Johnson v. Transp. Agency, Santa Clara County, 480 U.S. 616 (1987).
ù State and local governments may adopt and implement affirmative action plans narrowly tailored to correct the effects of past discrimination in which the specific governmental entity subject to the plan participated. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
ù Congress may implement affirmative action measures to redress societal discrimination, see Fullilove v. Klutznick, 448 U.S. 448 (1980), or to promote diversity. Metro Broadcasting, Inc. v. F.CC., 497 U.S. 547 (1990).
In short, the test of affirmative action programs is whether they are calculated to achieve their legitimate ends and whether they do so in a manner that deals fairly with the interests of all Americans.
Voluntary affirmative action measures together with private litigation have resulted in broadened opportunities for women and minorities even in the absence of strong, vigorous, and effective enforcement of the civil rights laws. Nevertheless, the government has a responsibility to exert leadership in alleviating invidious discrimination.
President Clinton, as did President Reagan over a decade ago, has convened a task force to review governmental affirmative action programs. See Affirmative Action in the 1980's, at 4. New and old challenges have been voiced in opposition to the continuation of affirmative action. Seldom do these challenges reflect, however, the variety of contexts and ways in which affirmative action is applied.
The Commission has prepared a briefing paper that provides a historical summary of the manner in which affirmative action has been referenced, implemented or interpreted within the Executive, Legislative and Judicial branches of the government. This document, which will be made available to all members of Congress and other organizations, may be useful in establishing the parameters within which reasoned debate may occur.
In furtherance of our statutory obligation, the Commission intends to exercise its authority to conduct hearings to provide the necessary factual basis for assessing the critical issue of continuing discrimination and the remedial efficacy of affirmative action plans and policies.
Mr. Chairman, this concludes my prepared statement. I will be pleased to answer any questions you might have.