CONTENTS OPENING STATEMENTS Page Sedler, Robert, professor of law, Wayne State University, Detroit, Mich Kilson, Martin, professor of government, Harvard University. Martinez, Vilma, Mexican American Legal Defense Fund Todorovich, Miro, University Center for Rational Alternatives. Smith, Ralph R., assistant professor of law, University of Pennsylvania........... Sowell, Thomas, senior fellow, Hoover Institution, Stanford University. Nagel, Thomas, professor of philosophy, New York University, New York, Bunzel, John H., senior fellow, Hoover Institution, Stanford University... Herrity, John F., chairman, board of supervisors, Fairfax County, Common- Lowery, Rev. Joseph E., president, Southern Christian Leadership Conference. Flowers, Wanda, legal counsel, Working Women... ALPHABETICAL LISTING AND MATERIALS SUBMITTED Skewing Affirmative Action's Purpose, by Morris B. Abram, from the New York Times, June 7, 1981. Bunzel, John H.-Continued Page Affirmative Action, Negative Results, by John H. Bunzel, from the No- 429 Prepared, Not Preferred, by John H. Bunzel, from the Staford magazine, 438 Written questions submitted by Senator Hatch, with responses 734 Hatch, Hon. Orrin G.: Opening statements.. 1, 153, 263, 473 Letter from Wm. Bradford Reynolds, Assistant Attorney General Civil The Affirmative Action Triology and Benign Racial Classifications- Evolving Law in Need of Standards, by Larry M. Lavinsky, from the Racial Preference and the Constitution: The Societal Interest in the Equal Participation Objective, by Robert Sedler, from the Wayne Law Affirmative Action Harms the Disadvantaged, by Thomas Sowell, from 348 Weber and Bakke, and the Presuppositions of "Affirmative Action," by "Affirmative Action" Reconsidered, by Thomas Sowell, from the Public Discrimination, Color Blindness, and the Quota System, by Sidney Hook, from the University Centers for Rational Alternatives, October 1971 ...... Uncertain Progress, by Sidney Hook, from the University Centers for Academic Freedom in Jeopardy-Time to Strike the Alarm Bell, by Sidney Hook, supplement to the University Centers for Rational Alter- Rites of Passage: Race, the Supreme Court, and the Constitution, by 94 What Is "Affirmative Action"? Fair Game? Inequality and Affirmative Action, by John C. Livingston, from the Texas Law Review, Vol. 58:845, Contractor Obligations Under Executive Order No. 11246 To Provide Financial Relief, by David A. Copus and Linda A. Rosenzweig, from the "Voluntary" Quotas, by Nathan Lewin, from the New Republic, Vol. 181. Living with Quotas, by Joseph Adelson, from Commentary May 1978. Loading the Economy, by Senator Orrin G. Hatch, from Policy Review. A Blueprint for Judicial Reform-The Son of Separate But Equal: The Su- preme Court and Affirmative Action, by Senator Orrin G. Hatch Benign Victimization, by Midge Decter, from Policy Review From Back To Patriarcy, by Daniel Amnéns, Arlington House, 1979. Summing Up-a Chronicle of Two Decades of Social Experiment. . . and the Page Disillusionment That Swept Ronald Reagan into the White House, by Theo- dore H. White, from the New York Times Magazine, April 25, 1982. Reverse Discrimination, by George F. Will, from Newsweek, July 10, 1978. The Constitutionality of Reverse Racial Discrimination, by John Hart Ely, The Case for Affirmative Action for Blacks in Higher Education, by John E. Fleming, Gerald R. Gill, and David H. Swinton, from Institute for the Study The Reverse Discrimination Controversy-A Moral and Legal Analysis, by Robert K. Fullinwider, from Rowman and Littlefield, Totowa, N.J.. Sour Grapes Are Spoiling the Federal Anti-Discrimination System, by Nell Justice Blind-Sided, by George F. Will, from the Washington Post, July 10, 1033 Regents of the University of California, Petitioner v. Allan Bakke, On Writ of Čertiorari to the Supreme Court of California, Supreme Court of the United United Steelworkers of America, AFL-CIO-CLC v. Weber et al., Certiorari to the United States Court of Appeals for the Fifth Circuit, Supreme Court of Washington, October term, 1978. H. Earl Fullilove et al., Petitioners v. Philip M. Klutznick, Secretary of Com- merce of the United States, et al., On Writ of Certiorari to the United States Court of Appeals for the Second Circuit, Supreme Court of the United AFFIRMATIVE ACTION AND EQUAL PROTECTION MONDAY, MAY 4, 1981 U.S. SENATE, COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, Washington, D.C. The subcommittee met, pursuant to notice, at 9:30 a.m., in room 2228, Dirksen Senate Office Building, Senator Orrin G. Hatch [chairman of the subcommittee] presiding. Present: Senator Grassley. Staff present: Stephen J. Markman, general counsel; Tom Parry, chief counsel; and Claire Greif, clerk. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. The U.S. Senate Subcommittee on the Constitution today convenes the first in what will be an extensive series of hearings on the subject of affirmative action and, in particular, the relationship beween affirmative action policies and the equal protection guarantees of our Constitution. During these hearings, it is my intent to explore thoroughly the implications of affirmative action programs for our Nation's values, its institutions, and its moving principles. The Subcommittee on the Constitution, in this course, will pursue such diverse matters as the legal issues surrounding affirmative action, the administration of affirmative action, the impact of affirmative action upon minorities and majorities, the economic and social effects of affirmative action, and alternatives to affirmative action. We will not, however, lose sight of what is the overriding matter of inquiry—is affirmative action constitutional? These hearings are long overdue, in my opinion. What is remarkable is that the affirmative action concept-one with so many important implications for what our Nation is all about-should have begun to take root within our system almost totally in the absence of legislative sanctions. It speaks to other difficulties in our political system that affirmative action has developed solely through judicial and executive branch decisions. Sixteen years after President Johnson issued Executive Order 11246, 12 years after the Philadelphia plan, 9 years after Griggs v. Duke Power, and 1 year after Fullilove v. Klutznick, it is about time that Congress start to take an active role in this matter. |