I am not wedded at all to the concept of merit based upon tests, for example. I think one can use many, many different methods for determining eligibility. I think anything which is equal across the board for determining eligibility is appropriate so that the system, for example the Temple University system, which allowed threequarters in on tests and another quarter in on the basis of nonscholastically measurable alternatives, had a merit class, a class that was fairly reflective of merit. I would in no way suggest that other methods of allowing people in necessarily dilute the quality. What I do say is that when you say that a person is entitled to special treatment solely because of race, that is inappropriate because what is happening then is that there are situations where the wrong people receive the benefit. One of the major criticisms of the Harvard admissions model which was used by the Court in Bakke was that it gives an added plus to somebody who is a member of a certain racial category. But all those who are close to being admitted and who receive the plus may not be those who were subjected to racial discrimination, or at least to the degree of racial discrimination. A system which then evaluates who is more entitled would probably be a better system. To simply say that, because of your race, you get a plus does not deal with the problem. It does not deal with the problem of discrimination. It deals with categorical classes and fails to evaluate people as individuals. Again, any group entitlement concept is a concept that we reject. Senator HATCH. Thank you. This committee is an extremely interesting committee because we have a great number of these very important civil rights issues before the committee, not the least of which is the immediate one. We will be working soon to try and resolve problems with regard to the Voting Rights Act, for example. By the way, Bill, you may want to give some thoughts to that measure, if you would-as well as our other witnesses. I am extremely concerned about that bill. We are going to need the very best thinking we can get on that subject. We hope that all of you will aid us and help us with regard to it. It is a serious problem, one that must be extended by August of next year. There are widely divergent viewpoints throughout the Senate with regard to the Voting Rights Act. I would like to challenge all of you to give us the best you can on this. We are willing to read and study and look at your viewpoints. Of course, this committee also has jurisdiction over school busing, fair housing, the civil rights commission, and a variety of other civil rights issues. As you can imagine, as a freshman Senator, I have a lot to learn. I am certainly willing to try to do this. I have appreciated the differing points of view here today as well as the differing points of view that we have had in the past. We are trying to look at this from an all-embracing standpoint. In the Labor Committee, as well we will be looking at it from a slightly different standpoint. That is, how well do the EEOC and the OFCCP operate in this area? How is affirmative action being administered? These are questions that have to be answered; this is a major social question and we have to examine it. I will try to keep an open mind on it and I hope that all of you will also. With that, we will recess these hearings until next week when we will have further hearings. [The subcommittee was adjourned at 11:35 a.m.] AFFIRMATIVE ACTION AND EQUAL PROTECTION THURSDAY, JUNE 18, 1981 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, The committee met, pursuant to recess, at 9:55 a.m., in room 2228, Dirksen Senate Office Building, Senator Orrin Hatch (chairman of the subcommittee) presiding. Staff present: Stephen Markman, general counsel; Peter Ormsby, professional staff assistant; and Claire Greif, clerk. STATEMENT OF ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. The hearing will come to order. This marks the third in a continuing series of hearings by the Subcommittee on the Constitution on the subject of affirmative action and equal protection. As I have already observed at these earlier hearings, this represents the first effort on the part of Congress to explore thoroughly the issue of affirmative action, the first effort on the part of Congress more than a decade after the Philadelphia Plan, nearly a decade after the Griggs v. Duke case, three or four years after Bakke and Weber, and one long year after the Fullilove case. It is quite remarkable in my view that as important a public policy as affirmative action has developed and nearly become institutionalized in this country entirely without a genuine legislative mandate. This is not surprising since public opinion polls consistently show overwhelming percentages of the American people, of all races and colors, in opposition to the principles of affirmative action. Affirmative action is almost purely a creature of the executive and legislative branches of the national Government. It is long overdue that Congress, the elected representatives of the people, and others begin to have an imprint upon this policy. During these hearings, we will continue to explore the constitutional, legal, social, philosophical, and economic implications of affirmative action programs and policies. Whatever else these hearings achieve, and I frankly do not know how many of my colleagues in the Senate share my concerns about affirmative action, I am determined that Congress is not going to be able to remain silent much longer about affirmative action. We are not going to be permitted the continuing luxury of allowing other branches of Government to make all of the hard decisions about affirmative action. Affirmative action strikes far too deeply at traditional American values and principles to allow this state of affairs to continue any longer. It is my hope that these hearings and the record that they create and the focus that they place upon the issue will enable my colleagues to make a more informed decision about this matter when they are confronted with it. Let me clarify once more what this subcommittee means by affirmative action. It has been my experience that there are as many interpretations and definitions as there are individuals discussing the issue. By affirmative action, I am referring to public policies and programs which accord preferential treatment to individuals on the basis of race, color, sex, or national origin. I am referring to policies which require or permit quotas, timetables, goals, ratios, or numerical objectives on the basis of race, color, sex, or national origin. I am referring to policies which identify discrimination on the basis of statistics and charts and numbers, rather than on the basis of some demonstration of discriminatory intent or purpose. In short, I am referring to color-conscious public policies-policies that violate what Justice Harlan referred to as a color-blind Constitution in his famous dissent in Plessy v. Ferguson. Affirmative action is not-and I emphasize not-intended here to cover the development of public programs administered totally without racial classification that may be expected to result in enhanced opportunities for groups of individuals, a disproportionate share of whom may be minorities. I am looking forward to today's hearing with great anticipation. We are privileged to have with us today four of the most articulate and knowledgeable individuals in the Nation on the matter of affirmative action. While they have widely varying perspectives on this policy, each of them has demonstrated in his writings and in his activities a deep commitment in behalf of equal opportunities for all citizens. I am particularly proud to have these four gentlemen with us here today. I will introduce them, in turn, as they make their opening statements in our panel discussion. Last but not least, I might mention that we are not only examining this issue in the Subcommittee on the Constitution of the Judiciary Committee, but we will be examining these issues-particularly the way the EEOC and OFCCP function in the area of affirmative action-on the Labor and Human Resources Committee, which I also chair. We will continue to try in every way to have balanced hearings so that all points of view on this terribly important subject can be heard. Our first witness today will be Prof. Ralph Smith who is with the University of Pennsylvania School of Law. He has previously taught at Harvard, Boston College, and Northeastern University. He is a founding board member of the Affirmative Action Coordi nating Center and past chairman of the Section on Minority Groups of the Association of American Law Schools. He has written extensively on the subject of affirmative action and appeared as counsel for the amicus brief in the Bakke and Fullilove cases. Professor Smith, we are very happy to have you with us. We will begin with your testimony. STATEMENT OF RALPH R. SMITH, ASSISTANT PROFESSOR OF LAW, UNIVERSITY OF PENNSYLVANIA Mr. SMITH. Thank you, Mr. Chairman. Thank you for affording me the opportunity to share my thoughts on the status and the future of affirmative action. Senator HATCH. If I may just interrupt you, Professor Smith, you have an extensive statement which is very thorough. I am hopeful that you can summarize so we will have time for questions. I would hope that we could all summarize our statements, this morning, although we want to give you enough time to get your viewpoint across. Mr. SMITH. I think I can get someplace close to the 10 minute limit. Senator HATCH. We would appreciate it. Mr. SMITH. What I will attempt to do is summarize most of the statement and attempt at the beginning and the end of my remarks to put it in some sort of context for the Senator. Senator HATCH. If you need more time, we will be happy to grant it. But, if we can do it that way, it leaves time for questions. I think sometimes that is where we really get into this matter most comprehensively. Mr. SMITH. I do look forward to the discussion. You see, Senator, affirmative action remains one of the most important and one of the most misunderstood issues in the Nation's current agenda. I hope that my remarks here today will help to alleviate, in part, and not compound the confusion. I am really honored to have the pleasure of joining William Coleman, Martin Kilson, Vilma Martinez, and Robert Sedler in urging this committee to lend its weight and to raise its voice in support of affirmative action. I feel particularly privileged to add to the record not only my own prepared remarks but a statement from working women, a national membership organization with local affiliates in 13 cities. across the country. That statement, which is entitled, "In Defense of Affirmative Action: Taking the Profit Out of Discrimination," provides an insightful perspective on many aspects of affirmative action. This document is submitted as appendix A to my prepared statement. Senator HATCH. That will be inserted in the record. Mr. SMITH. I would also like to add to the record an excellent history and analysis of the Federal Contract Compliance Program, which was compiled by Barry Goldstein of the NAACP Legal Defense and Educational Fund. This document is entitled "The Importance of the Contract Compliance Program: Historical Perspective." It should be required reading for anyone seeking to understand |