Proceedings

February 10, 1981

CHAIRMAN FLEMMING. I will ask the meeting to come to order.

I wish to welcome everyone to this consultation. Today's session is the first part of the Commission's consultation on its proposed statement on Affirmative Action in the 1980s: Dismantling the Process of Discrimination. A lengthier session will be held on March 10 and 11 in the main Commerce auditorium on Fourteenth Street between E and Constitution Avenues.

Today and on March 10, participants will assess the proposed statement from legal, policy, and enforcement perspectives. On March 11, 1981, participants will address how to design and implement affirmative action plans and how to monitor and evaluate them once they are in place. Based on the presentations at the consultation, the Commission will review the proposed document and issue a final statement, accompanied by a transcript of the consultation.

The proposed statement is the third document dealing specifically with affirmative action that this Commission has issued in the past 8 years. During that time, the issue of affirmative action has been extensively debated within all parts of the government and throughout the private sector.

That public debate has often been acrimonious, particularly over such terms as "goals," "quotas," and other types of so-called "preferential treatment." These terms arouse strong emotions, and perhaps because of this, the debate surrounding them has frequently centered on the terms themselves rather than on what are the most effective methods for combatting discrimination.

Although few people today argue against working toward the goal of a nondiscriminatory society, reasonable people will disagree about how to go about identifying and combatting discrimination.

Our goal, and that of the proposed statement, is to make that disagreement productive rather than destructive. Determining whether the proposed statement brings us closer to achieving that goal is the purpose of this consultation. We are optimistic about the proposed statement's usefulness, but we believe, as we state in the preface of the proposed statement, that its approach needs to be tested in the "court of public opinion and real world activities." We are, therefore, distributing the statement widely and we will welcome comments in writing from any interested person or groups.

In Affirmative Action in the 1980s, the Commission proposes a "problem-remedy" approach to affirmative action. This conceptual approach to affirmative action continually unites an understanding of affirmative action with an understanding of the problem of discrimination. The premise of the proposed statement is, the consensus on the remedy of affirmative action can best be achieved through consensus on the nature and extent of the contemporary problem of discrimination based on race, sex, and national origin.

This morning we are happy to welcome five distinguished legal experts who represent major civil rights organizations. I am going to ask Mr. Jack Hartog, who is a member of our General Counsel's staff and who has done a great deal of staff work on this proposed statement, to introduce the persons who have consented to be with us today and to participate in this discussion. After we have had the opportunity of listening to them, the Commission looks forward to engaging in dialogue.

I would like to say that in the 61⁄2 years or so that I have served on the Commission, I do not know of any statement that the members of the Commission have spent more time on than this proposed statement, and I again want to emphasize the fact that it is a proposed statement. We have not reached final

conclusions on it by any means, but we are following this process and at this point distributing it widely, inviting comments and reaction, and then having these formal consultations. After we have had the benefit of all of these reactions, we will evaluate them and then reach a decision as to what should be the content of, not our final statement on, affirmative action-but content of our statement on affirmative action in the year 1981. This is an evolving process. Mr. Hartog?

Assessments of Affirmative Action in the 1980s from a Legal Perspective

MR. HARTOG. Thank you, Chairman Flemming. This morning we are pleased to have with us Thomas Atkins, general counsel for the National Association for the Advancement of Colored People; Mr. Jack Greenberg, director counsel, National Association for the Advancement of Colored People and the Legal Defense and Education Fund, Inc.; Ms. Judith Lichtman, executive director, Women's Legal Defense Fund; Mr. Stan Mark, senior attorney, Asian American Legal Defense and Education Fund; and Ms. M. D. Taracido, president and general counsel, Puerto Rican Legal Defense and Education Fund.

The Mexican American Legal Defense and Educational Fund was also invited to the consultation, but due to a last minute scheduling conflict, they have been unable to appear. Their written comments, however, will be made part of the record of this proceeding.

Each of our participants will have up to 15 minutes to make their comments on the proposed statements. They have also prepared or are preparing written comments on the proposed statement. These will also be made part of the record of this proceeding.

We will proceed in alphabetical order, and I will introduce each speaker first and then they will give their comments; then I will introduce the next speaker. The first speaker will be Tom Atkins, general counsel for the National Association for the Advancement of Colored People.

The NAACP is the Nation's oldest and largest civil rights organization. It has been in the forefront of the effort to achieve racial equality in America. The NAACP has brought or participated in virtually all of the major civil rights litigation of our time, including litigation addressing the issue of affirmative action. The formative role of the NAACP in the

development of national civil rights law and policy is well established.

Mr. Atkins became general counsel of the NAACP following an illustrious career as administrator, State cabinet member, city councilman, and member of the Harvard University Board of Overseers. Mr. Atkins is a Phi Beta Kappa graduate of Northeastern University. He received the juris doctor degree from Harvard University in 1969 and is a member of the bar of the State of Massachusetts. Mr. Atkins was appointed general counsel of the NAACP in 1980.

Statement of Thomas I. Atkins, General Counsel, NAACP

MR. ATKINS. Thank you very much. Let me just correct one element of that introduction. I did not go to Northeastern University. My bachelor's is from Indiana University. I have an honorary Ph.D. from Northeastern.

I appreciate the opportunity to appear before the Commission and to comment on this statement which, as you will see in a moment, I consider to be a very excellent statement and one that will have a major impact.

I have, in light of the limitation on time-which I think is a good idea when you're dealing with lawyers-written out some comments, and I will, for the most part, read those because they say quickly what I might otherwise prolong.

I have several points I would like to make. The first is that I think this statement will contribute a great deal of light to an area that has tended, for the most part, to be covered with a lot of heat and not light. The Commission's status, enrolled as a teacher in the American society, is a very precious role, one that we think the statement will help to further.

In that connection, when the statement does achieve its final form, I would urge the Commission to see that it gets the widest circulation, and I would hope the copy marked number one will be sent to the President, who obviously needs the things it teaches about.

I would hope that you would also send copies of this to the Members of Congress and the Federal judges at all levels in our system. These are matters of which they can take judicial notice and, whether or not they take judicial notice, they ought to know about. Some of the decisions that come out of our courts indicate that some of them have not read

matters that would help them address issues of affirmative action.

On a more critical note, hopefully constructive criticism, I would suggest that more attention needs to be given to the nature and type of differences which characterize discrimination visited, on the one hand, on racial minorities, and, on the other hand, on women. There are some similarities, but there are also many striking differences. I believe that people have not in the past thought adequately about the differences, and as a result there has tended, over the last several years, to be near brush fires, increasing numbers of instances where minorities and women have seemed to be pitted against each other, seeking an inadequate amount of "setasides" or opportunities that previously were denied them.

The Commission can play a very constructive and positive role in focusing on the nature of the differences and focusing on the need for remedial action in each instance, but remedial action that is keyed to the problems that have been differently faced by these two groups of excluded people.

By the same token, within the category of racial minorities, there are similarities as to the nature of the exclusions that have been faced. But again there are differences, and it is important that those differences be pointed out. Failure to point the differences out will mean that the remedies will not be as sensitive and will not be tailored, and again in some instances will mean that needless competition will be engendered by those who ought to be working together.

We, for instance, recognize the critical difference in the discrimination faced by Hispanics, if for no other reason than the language difficulty. It poses a need in the relief area that frequently is simply ignored. The NAACP sees no conflict recognizing and supporting relief that is tailored to that lingually caused element of discrimination. Sometimes it is the basis for the discrimination. In other instances, it certainly ought to be a part of the relief, and we urge the Commission to focus in its final statement in a somewhat more expanded way on the need to tailor relief, to take into account the differences within the category of racial minorities.

We would also urge the Commission to take into account that in the area of affirmative action, frequently the type of remedies available, the laws that apply, will differ when applied to public versus the private sector. Here again there are many

similarities and problems. Indeed, they are very similar, and they flow from the same shared set of racist notions that frequently pervade our society. Nonetheless, in the public sector, there are frequently remedies available that are not available in the private sector, if for no other reason, based on the pragmatic assessment many judges and others, in the course of fashioning relief, will apply to the availability of resources. To some extent, were the Commission to focus on some of these differencesand I'm not suggesting atone, but to acknowledgethere, indeed, has developed a style that distinguishes public sector relief from private sector relief, and I believe the general area would be well served if you were to assist in explicating that difference. In recent years much has been made of the need to show intent to discriminate as a predicate for relief from segregation or exclusion. It is this tendency that cuts across education and housing and employment, public resources, etc. Indeed, it has intruded into the area of voting rights.

Your statement discusses the role of the EEOC in helping to insulate voluntary affirmative employment plans from collateral attack. It may be time to establish the principle that those challenging affirmative action measures or affirmative action plans, where the object is to redress historic exclusion and deprivation, must themselves show that those developing the plans or measures "intended to discriminate" against the white males who usually launched the collateral attacks on such efforts. Why should not there be a presumption of good faith and regularity on the side of the governmental or private actor whose efforts are aimed at fulfilling a frequently reiterated national goal of equalizing opportunity and reversing past discriminatory impacts?

The NAACP believes that the proposition that white males are being discriminated against in this country is so absurd on its face that those who seek to proffer this proposition should have a tremendous burden to bear. Perhaps they, too, should have to shoulder the heavy burden of proving intent. The Commission can do a lot to explicate the absurdity of the proposition but also, perhaps, to expand the discussion toward the kind of burden that one who would launch a collateral attack on affirmative action measures or plans should have to carry.

Finally, we would urge the Commission to include within this document-I know you have done it in other documents, but in this document-examples of some of the striking successes that have

flowed from the application of sensitively structured affirmative action measures, comprehensive affirmative action plans. The public has been led to believe that affirmative action is nothing more than a ripoff, that is, an effort to replace one form of discrimination with another form of discrimination.

There has been much loose talk that has been engendered by those on a political stump: it is good to run against minorities; it is good to hold women up as somehow raving maniacs when they ask merely to be placed in an equal status.

The Commission needs to tell and to teach this country that affirmative action not only is right and legally required, but that it has worked, and give some of the success stories in the public and private sectors through your State Advisory Committees. You can do it even on a more tailored basis. Show it by State, show it by region, so that those who are fashioning plans not only will know they are not asked to be heroes-we don't have very many of those in public sectors these days-and that they are not being asked to re-create the wheel, there are others who have been there before them and that it has worked and that they indeed can call somebody up and set a pretty good working model.

I would close simply by saying that I think if there were a major criticism I would make of the statement, Mr. Chairman, it is that the Commission's statement, I think, needlessly is defensive about the use of quotas. There is nothing wrong in this country with the use of preference. Ask the President, who has already begun preferring members of his party, about preferential treatment.

Ask the university admissions officers, who historically and continually prefer the sons and daughters of alumni, of faculty and staff members, of big donors. Ask the owner of a company what's wrong about preferring his son or his daughter to move up the lines of management. Ask the Fords, for in

stance.

This country, obviously, is no more against preferential treatment than it is against buses. It is a question for whom preference works and to where the bus will go.

We would urge this Commission not to defend itself when the need for quotas exists. There is nothing wrong with the word. We apologize to nobody for saying that where there has been systemic exclusion quotas may be the only way to correct, and if that bothers some people, let them be bothered. We know there has been some dissension

even with our own ranks-the ranks of civil rights organizations. But the NAACP views a rose by any other name is still a rose; if a rose is going to be called a quota, so be it. Call it that. For that, I thank you for the opportunity, but will conclude what I began with, that I read this as an excellent statement, one that was meticulously prepared, for which you and the other members of the Commission should commend your staff and, if you can, give them a raise.

Thank you.

MR. HARTOG. Thank you, Mr. Atkins.

Our next participant is Jack Greenberg, director counsel of the NAACP Legal Defense and Education Fund, Inc.

The NAACP Legal Defense and Education Fund, Inc., has for many years played an instrumental role in the civil rights movement in this Nation. Litigation brought by the NAACP Legal Defense and Education Fund has established far-reaching precedents governing practically every aspect of civil rights law enforcement, including the desegregation of public schools and accommodations, criminal justice, housing, employment discrimination, and affirmative action.

Mr. Greenberg has had a long and distinguished career with the fund. He was assistant counsel from 1949 to 1961 and has been director counsel since 1961. During his tenure with the fund, Mr. Greenberg has argued many of the leading civil rights cases of our time before the United States Supreme Court. He also teaches law at the Columbia University School of Law and is the author of two books, Race Relations and American Law and Judicial Process and Social Change. Mr. Greenberg.

Statement of Jack Greenberg, Director Counsel,
NAACP Legal Defense and Education Fund

MR. GREENBERG. Thank you, Mr. Hartog. I want to join Tom Atkins in commending the Commission and its staff on an excellent product and also join Tom Atkins in his observations. I don't disagree with any of them.

I would like to address myself to perhaps an additional dimension which, in your final product, may deserve some attention, and that is some additional social, economic, political, and, if you will, philosophical factors that might be addressed in a total treatment of the subject of affirmative action.

One of these areas is the role of affirmative action in today's racial economy, if you will.

To my thinking, it is the only encouraging thing we see going on in the civil rights picture today. The historic economic indicators of racial pathology remain with us, and I will just refer to only two of them. This Commission has put out many reports that detail these factors in a variety of ways. First, the steady 60 percent median black income remaining at approximately 60 percent that of white. It will go up a few points; it will go down a few points. But it doesn't seem to budge very far from that mark. Second, the historic black unemployment rate, which remains double that of white, and for teenagers much more than that-frequently as high as four times that of whites. That hasn't moved and that is not encouraging. Yet, at the same time, those of us who can look at the world around us know that some changes are taking place. We go into universities and we see many more black and other minority faces than we had ever seen 10 or 15 years ago. We walk down the corridors of corporations and we can make the same kind of observation. Why is that?

That is only because of affirmative action. We know, looking at statistics, the number of minority managers has gone up from about 3 to 8 percent, which is almost a tripling in the last decade or so. We know the number of minority law students has gone from 1 to about 10 percent over approximately the same period of time. And medical students have increased in approximately the same proportion over that period of time.

To me, a startling figure is that the percentage of minorities graduating from high school who are now attending college is approximately equal to the percentage of whites graduating from high school now attending college, and when I cite that figure to people they refuse to believe me, and I have to go back and check the statistics, and it's true.

Now, the fact is many more of this number go to 2-year colleges than 4-year colleges; many more fail to graduate. It is also true that the large black dropout rate occurs before high school graduation. So the percentage of blacks graduating high school is disproportionately smaller than the percentage of whites. Nevertheless, that is an enormous improvement that has occurred in recent years, and I would submit that it is substantially and primarily due to affirmative action.

If affirmative action programs were to be scrapped, then, to put it one way, the only game in

town would be gone. We would be left with the 60 percent median income rate and the double or quadruple, depending on your age, unemployment rate and nothing at all encouraging going on in this country holding out hope for a better and more equal future in years to come.

Turning to another one of what I might call these "ambient" considerations that perhaps deserve additional attention, I think it's time that instead of urging a single argument in favor of affirmative action, as the one that Tom made, and with which I agree, or in denying the validity of a single argument against affirmative action, such as it discriminates against white males, that we draw up a balance sheet and we frankly acknowledge that there are many advantages to affirmative action and that, indeed, there are some disadvantages to affirmative action. And we total it up and we state our conclusion. And my conclusion is: when you add up the merits and you add up the demerits and you balance one against the other, the argument is strongly in favor of affirmative action.

I think a comprehensive treatment, which I have not seen fully developed anywhere, is one worth making, and I would like to suggest some of the factors that should be put into this more comprehensive treatment. One is the argument that Tom made, and that is, affirmative action should be seen as a selection method and a selection procedure, which is one of many selection methods and selection procedures that we see here in this country, and not terribly dissimilar from those that are in use generally, and certainly not disputed by those who are opposed to affirmative action, that is, the children of the alumni.

I am reminded of an episode in the Bakke case that actually never came out in the case, and that is that the chancellor of the university had three picks of his own that did not have to go through the admissions committee, and he picked kids who-I'm sure they were qualified-were no more qualified than many others who applied, but whose primary qualification was that they were the children of influential people in the community. And among those were the son and the daughter-in-law of the president of the medical society in the same year Bakke was admitted. This sort of thing goes on all the time. Anyone who is connected with university education or American corporate life or anything else knows that people in charge of things do take into account friendships, influence, possible personal