L. Conclusion: Enforcement of the Program Since 1972 After the issuance of Revised Order No. 4, see section I, supra, and the review of the program by Congress during the passage of the Equal Employment Opportunity Act of 1972, see sections J and K, supra, the general scope of and enforcement mechanism for the compliance program were firmly in place. Since 1972, the major questions regarding the compliance program have related to enforcement: the preparation of appropriate regulations, the consolidation of the organizational structure, and the development of the necessary political will for enforcement. 25/ 24/ The development of the regulations, and the current proposed issuance of modified regulations for public comment, are matters beyond the scope of this history of the evolution of the compliance program. This outline reviews the general principles established by the various executive orders; an analysis of the regulatory development requires a detailed examination of the mechanics of the compliance program. The problems created by the fragmented nature of the 261 compliance program had been repeatedly recognized. The compliance program was administered by many separate federal agencies which operated under the supervision of the Labor Department. In 1978 the responsibility for enforcing Executive Order 11246 was consolidated. Prior to consolidation, 11 federal agencies shared the responsibility for enforcing the Order with the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor. Executive Order 12086, 43 Fed. Reg. 24/ The Secretary of Labor and the Solicitor of Labor outlined in separate meetings on May 11 and 12, 1981, to business and labor representatives as well as to representatives of those groups covered by the CFCCP that the administration expected to send proposed regulations to the OMB by the end of May. It is planned that the proposed regulations will be published for public comment at the end of June. 25/ The regulations published by the Carter administration on December 30, 1980, 45 Fed. Reg. 86216, and "frozen" by the Reagan administration, were developed over several years and after numerous consultations with representatives of contractors and covered groups. 26/ The Federal Civil Rights Enforcement Effort-1974, supra, p. 663; Comptroller General, Major Federal Equal Employment Opportunity Programs for the Private Sector should be Consolidated (1978), pp. 28-29; see 46501 (Oct. 10, 1978), consolidated all federal contract compliance functions into the Deaprtment of Labor. The OFCCP devoted substantial resources and efforts to the training of the 1,000 employees transferred from the 11 different agencies as well as to the integration of the The compliance program has been hampered by weak enforcement. In 1972, the Senate Committee on Labor and Public Welfare criticized the lack of enforcement: "until two days after introduction of this bill, no sanctions had ever may in certain instances prove too severe In a report issued in 1975, the General Accounting Office criticized the enforcement efforts: Compliance agencies are reluctant to initiate in compliance with the Executive order; instead, 26/(Footnote continued) generally, Comptroller General, The Equal Employment Opportunity Program for Federal Nonconstruction Contractors Can Be Improved (1975). 27/ Prior to 1971 the OFCCP, had occasionally succeeded in obtaining remedy for the victims of discrimination through the use of conciliation, see section I, supra. they rely on extended conciliations and negotia- From July 1, 1971, through March 31, 1974, the The General Accounting Office recommended that the Secretary of Moreover, a federal district court in California 28/ the Executive Order. Women's Equity Action League v. Weinberger, Civil Action No. 74-1720 (D.D.C.) After the clear statements in repeated Executive Orders and government reports, after the directions of Congress, and after several court orders, the OFCCP has undertaken serious efforts to enforce the nondiscrimination and affirmative action provisions of the Executive Order. The OFCCP still does not rely on its strongest sanction, debarment. In fiscal year 1980, the OFCCP only debarred three nonconstruction contractors and two construction All contractors. Office of Management and Budget Documents. 28/ One OFCCP official admitted that the case was "as solid as a rock." United States Civil Rights Commission, The Federal Civil Rights Employment Discrimination: A Sequel (1977), p. 143. "As a result of the suit, the OFCCP issued directions to the compliance agencies to clarify compliance review procedures to insure that reviews result in either enforcement actions for noncompliance or conciliation agreements to achieve compliance.'" Id. of the debarments were the result of a contractor's refusal or pay. After years of plans and commitments, the OFCCP has begun to implement regular efforts to enforce the public policies in the Executive Order. Senator HATCH. Our second witness will be Dr. Thomas Sowell, who is the senior fellow at the Hoover Institution at Stanford University. He has taught economics at Cornell, Brandeis University, and for many years at UCLA. Professor Sowell has been project director at the Urban Institute, a consultant to the Rockefeller Foundation's Urban Coalition, and the author of numerous studies on the subject of affirmative action. Professor Sowell's latest work is on the history of ethnic groups in America. We have been friends for a long time; there is no one that I admire and respect more. We are happy to have you here, Tom, and we will look forward to what you have to say. STATEMENT OF THOMAS SOWELL, SENIOR FELLOW, HOOVER INSTITUTION, STANFORD UNIVERSITY Dr. SOWELL. Thank you, Mr. Chairman. Like any other policy, affirmative action must be judged by what it actually does and not by its rhetoric, promises, or hopes. It is ironic that a policy that so stresses statistical results when confronting other people has so little to offer in the way of empirical evidence of its own effectiveness. I do not regard anecdotes as evidence in that sense. I am sure there are some very good anecdotes about the benefits that have come out of World War II, but most of us would have preferred to have gotten those benefits some other way. In the decade since numerical goals and timetables transformed the general concept of affirmative action into specifically quantitative terms, whether called quotas or by some other euphemism, several things have happened. Black family income, as a percentage of white family income, has declined. The income of black males without a college education and with relatively little labor force experience has also declined relative to that of whites of the same description. The income of black faculty members with Ph. D.'s has declined relative to that of white faculty members with Ph. D.'s These data are suggestive and not conclusive. However, I have looked in vain for the positive evidence of affirmative action. Advocates of affirmative action usually resort to one of two tactics as substitutes for real evidence. One is to lament that the minority gains that were dramatic during the 1960's have slowed, stopped, or reversed in the 1970's and to use that as a reason why we need affirmative action more than ever. This ignores the fact that affirmative action, in its current numerical sense, is the policy of the 1970's, in contrast to the straightforward equal opportunity policies of the 1960's. To say that the 1970's results show the need for more affirmative action is to say that the policy that failed is now needed more than ever, while the policy that was succeeded should not be tried. The other tactic is to lump together the equal opportunity and the affirmative action periods together and show the advancement of minorities today, compared to decades ago. No one is suggesting returning to the pre-civil rights era, so that is not even an issue. A third tactic may be worth mentioning, though not worth answering. It simply impugns the real motives of those who question affirmative action, saying, for example, that racism is "a necessary explanation of its critics' behavior, even if not a sufficient one." (Ralph Smith in Wayne Law Review, July 1980, p. 1348) The origins of this divine power, to know that one's adversaries are all wicked, is left unspecified. Much of the justification for affirmative action proceeds as if we were God on Judgment Day, looking back at history. Human beings can condemn history, but the past is beyond our reach. Every human decision has to consider future consequences, based on incentives and constraints created by their decisions. The question is: What incentives and constraints are created by equal opportunity laws and policies on the one hand and affirmative action laws and policies on the other? Equal opportunity laws and policies requiring decisions without regard to race, religion, sex, and so forth, simply penalize demonstrable individual discrimination. Higher costs are thus created for discriminatory employers than for nondiscriminatory employers. Affirmative action creates conflicting incentives. An employer's legal costs and administrative penalties are lowered in the short run by hiring from the list of Government-designated groups. But future liability for such costs and penalties are increased by the greater access of such employees to the courts if their future pay, promotion, and discharge records happen not to fit the assumptions of Federal agencies. It is not necessary that all such employees, or even most such employees, take legal action. If one such employee goes to court, the cost to the employer can run into the hundreds of thousands of dollars. The point here is not the plight of the employer but the likelihood that he will act in such a way as to avoid that plight and act in such a way as to make affirmative action counterproductive to minority applicants. The net effect of these opposite incentives to hire or not to hire from the Federal list of preferred applicants is not nearly as clearcut as in the case of equal opportunity policies. What is more clear is that this mixture of incentives makes more valuable than otherwise those particular minority applicants with sufficiently substantial track records and/or degrees to allow them to be hired with minimal fear that their future pay and promotions |