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Civil Rights
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Civil Rights
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Records of the White House Office of the Chief of Staff to the President (George H. W. Bush Administration)
Ed Rogers' Subject Files
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Originally Processed With FOIA(s):
FOIA Number:
1999-0285-F; 2025-0647-S
2025-0647-S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin: Chief of Staff, White House Office of
Series:
Rogers, Ed, Files
Subseries:
Subject Files
OA/ID Number:
04016
Folder ID Number:
04016-014
Folder Title:
Civil Rights
Stack:
Row:
Section:
Shelf:
Position:
G
15
23
1
Paul Weyrich
Coalitions for America
721 Second Street, NE
Capitol Hill
Washington, DC 20002
UPER
85:11 WV 06.
RECEIVED
VED
White House Chief of Staff John Sununu
0
YRRAY
THE NEW "ANTI-QUOTA" AMENDMENT TO H.R. 1 IS ACTUALLY
A PRO-QUOTA PROVISION
0
The amendment does nothing to change the other provisions in H.R. 1 that
will drive employers to use surreptitious quotas and preferences.
o
The amendment does not improve current law. On the contrary, it explicitly
authorizes all quotas that are "in accordance with employment discrimination
law" now in place. Therefore, any judicial decision permitting quotas could
provide a defense to the use of quotas under this amendment.
o
The definition of "quota" specifically allows quotas to be used so long as jobs
are filled with individuals who have the "necessary qualifications to perform
the job." Therefore, an employer is specifically permitted to fill quotas with
less qualified persons of a particular race, sex, or religion, so long as they are
marginally qualified.
For example, suppose an employer decided he did not want more than
3% Jews working in his company. All he has to do is adopt a quota of
97% Christians. This would not be outlawed by the new amendment so
long as all those he hired were minimally qualified.
o
The definition of "quota" is cleverly worded so as to make it easy to evade.
Under the definition, a quota is not a quota unless the fixed number or
percentage "must be attained."
Suppose, for example, that a company decides to have a quota of 50%
minority hires. The company then tells its managers that if they don't
meet the 50% quota for their department, the managers will not be
eligible for promotions. This would not be a "quota" under the
amendment since the managers are not required to adopt quotas (unless
they would like to be eligible for promotions).
0
This is the first time the architects of H.R. 1 have acknowledged in public that
they favor quotas. They are cynically counting on public gullibility to allow
them to pass off pro-quota language as an "anti-quota" amendment.
o
IT WON'T WORK.
WHY THE DEFINITION OF "BUSINESS NECESSITY" MATTERS
H.R. 1375
Situation
"New" H.R. 1
President's Bill
At the mayor's request, a
NO DEFENSE
DEFENSIBLE POLICY
fast food chain rejects
dropouts below age 18 for
jobs during school hours.
A trucking company
NO DEFENSE
DEFENSIBLE POLICY
promotes from within.
Dock workers (the pool for
future drivers) are not
allowed to have drunk
driving convictions.
A struggling company must
NO DEFENSE
DEFENSIBLE POLICY
close one of two plants. It
closes the older one (80%
female employees), not the
newer one (50% females).
A local school district
NO DEFENSE
DEFENSIBLE POLICY
requires all new faculty to
have master's degrees in a
substantive subject.
A state police force denies
NO DEFENSE
DEFENSIBLE POLICY
employment to any
applicant with a criminal
conviction.
To reduce health insurance
NO DEFENSE
DEFENSIBLE POLICY
costs, a mining company
refuses to hire those who
smoke (on or off the job).
An employer routinely
NO DEFENSE
DEFENSIBLE POLICY
rejects all applicants who
lie on their applications.
None of these employers is
biased against women or
USE QUOTAS
TREAT EVERYONE
minorities. They want to
THE SAME
keep their policies without
being sued. How?
Why the Latest Democratic "Compromise" Version of H.R. 1
Is Still a Quota Bill
H.R. 1375
Situation
H.R. 1 "Compromise"
President's Bill
A 21 year old Hispanic woman
applies to be a fire fighter. Because
of a court approved quota system
created when she was a child, the
NO
YES
job goes to someone with a much
lower score on the exam. She
wants to challenge the quota scheme
in court. Can she do it?
She goes to court and her case is
NO. SHE MUST PAY
YES. SHE PAYS
thrown out. Other civil rights
plaintiffs must pay their own
ALL LAWYERS.
ONLY HER LAWYER.
lawyers, but not their opponents'.
Is she treated the same?
A lawyer wants to hire law students
as interns because she chooses new
NO
YES
lawyers based on their performance
as interns. Can she do this?
A black-owned business, located in a
EMPLOYER MUST
EEOC MUST
white suburb where there is
PROVE HE DID NOT
IDENTIFY WHAT
prejudice against working for blacks,
hires mostly blacks by word-of-
CAUSE THE
THE EMPLOYER DID
mouth from a nearby city. EEOC
PROBLEM
WRONG
sues. What happens next?
The American Cancer Society
refuses to hire smokers. Can this
meet the "business necessity" test?
NO
YES
A factory is located near a bus stop
for a line that goes to a mainly
COURT FINDS HIGH
PLAINTIFF MUST
white area but not to any black
neighborhoods. The factory has
SCHOOL DEGREE
IDENTIFY WHICH OF
three criteria for new hires:
NOT REQUIRED BY
1. High School Degree.
THE SIX PRACTICES,
2. Must be 18.
"BUSINESS
IF ANY, CAUSED
3. No drug use.
NECESSITY."
"BAD NUMBERS."
No intentional discrimination takes
place, but the factory winds up with
EMPLOYER GUILTY.
"bad numbers."
The lawyer wants to hire only law
students as interns, the black
businessman wants the best workers
QUOTAS
HIRE ON MERIT
he can find, the Cancer Society
wants to avoid smokers, and the
factory owner wants to keep its
three criteria. But each is
determined to avoid lawsuits. How?
April 12, 1991
Governor John H. Sumunu
Chief of Staff
The White House
Washington, DC 20500
Dear Governor Sununu:
Many of the businesses and organizations which have consistently worked very
hard to advance equality of opportunity through fair and balanced civil rights
legislation are concerned over recent reports about developments between a few large
companies and representatives of the civil rights groups.
As reported in the Washington Post this week, it appears that negotiations
between these parties are about to reach a "make or break" point. Since the
legislation currently pending in the U.S. House of Representatives is limited to H.R.
1, a bill similar to the legislation successfully vetoed by the President last year, and
H.R. 1375, the President's bill, the undersigned are concerned that these negotiations
may undermine the President's efforts to achieve strong enforcement of equitable
federal equal employment statutes, Furthermore, many organizations representing
businesses of various sizes have been totally excluded from the discussions, and since
we are not familiar with the content of the pending proposals, we are quite concerned
that these negotiations may produce a measure that falls short of the President's goals
and does not accurately reflect our perspective.
We are writing, therefore, to state categorically that those few companies which
are involved in the ongoing negotiations do not necessarily represent the views of the
majority in the business community. We remain committed to supporting the
President's efforts and we offer any and all assistance you deem appropriate.
Sincerely,
Associated Builders and Contractors
Chamber of Commerce of the U.S.A.
Financial Executives Institute
Florists' Transworld Delivery Association
National-American Wholesale Grocers' Association
National Association of Wholesaler-Distributors
National Machine Tool Builders Association
National Restaurant Association
National Roofing Contractors Association
National Stone Association
National Truck Equipment Association
Sheet Metal and Air Conditioning Contractors' National Association
Society of American Florists
THE WHITE HOUSE
april 16, 1991
alan,
your letter re Civil Rights helped- -
right when we needed it! youre a pro-
Thanks
EdR.
THE WHITE HOUSE
WASHINGTON
Mr. Alan M. Kranowitz
Senior Vice President -
Government Relations
National Association of
Wholesale Distributors
1725 K Street, N.W.
Suite 710
Washington, D.C. 20006
N.A.W
Alan M. Kranowitz
Senior Vice President-Government Relations
April 15, 1991
TO:
The Honorable Ed Rogers
Executive Assistant to the Chief of Staff
The White House
FROM:
Alan M. Kranowitz
Senior Vice President-Government Relations
In an effort to set the record straight about the position of the business community on
pending civil rights proposals, a representative group of us quickly dispatched the attached
letter to Governor Sununu last week. We are pleased to share a copy with you.
Attachment
NATIONAL ASSOCIATION OF WHOLESALER-DISTRIBUTORS
1725 K Street, N.W. Suite 710 Washington, D.C. 20006 202/872-0885 FAX: 202/785-0586
April 12, 1991
Governor John H. Sununu
Chief of Staff
The White House
Washington, DC 20500
Dear Governor Sununu:
Many of the businesses and organizations which have consistently worked very
hard to advance equality of opportunity through fair and balanced civil rights legislation are
concerned over recent reports about developments between a few large companies and
representatives of the civil rights groups.
As reported in the Washington Post this week, it appears that negotiations between
these parties are about to reach a "make or break" point. Since the legislation currently
pending in the U.S. House of Representatives is limited to H.R.1, a bill similar to the
legislation successfully vetoed by the President last year, and H.R. 1375, the President's
bill, the undersigned are concerned that these negotiations may undermine the President's
efforts to achieve strong enforcement of equitable federal equal employment statutes.
Furthermore, many organizations representing businesses of various sizes have been totally
excluded from the discussions, and since we are not familiar with the content of the
pending proposals, we are quite concerned that these negotiations may produce a measure
that falls short of the President's goals and does not accurately reflect our perspective.
We are writing, therefore, to state categorically that those few companies which are
involved in the ongoing negotiations do not necessarily represent the views of the majority
in the business community. We remain committed to supporting the President's efforts and
we offer any and all assistance you deem appropriate.
Sincerely,
Associated Builders and Contractors
Chamber of Commerce of the U.S.A.
Financial Executives Institute
Florists' Transworld Delivery Association
National-American Wholesale Grocers' Association
National Association of Wholesaler-Distributors
National Machine Tool Builders Association
National Restaurant Association
National Roofing Contractors Association
National Stone Association
National Truck Equipment Association
Sheet Metal and Air Conditioning Contractors' National Association
Society of American Florists
THE WHITE HOUSE
WASHINGTON
March 20, 1991
MEMORANDUM FOR GOVERNOR SUNUNU
BK
FROM:
BOBBIE KILBERG
DEPUTY ASSISTANT TO THE PRESIDENT
FOR PUBLIC LIAISON
KATHY JEAVONS
ASSOCIATE DIRECTOR FOR PUBLIC LIAISON
SUBJECT:
The Orthodox Union and the Civil Rights Debate
The Orthodox Union (OU) may be ready to endorse the
Administration's Civil Rights proposal.
For your information, the OU represents nearly one million
American Jews through its 800 member synagogues nationwide. The
OU's Institute for Public Affairs is the think tank action center
responsible for representing and mobilizing the world's largest
Orthodox Jewish community. The Institute for Public Affairs
(IPA) has 1000 member synagogues and nearly half a million
members. The IPA serves as the Orthodox communities' link to the
Conference of Presidents of Major American Jewish Organizations
and the National Jewish Community Relations Advisory Council
(NJCRAC)
The significance of the OU's endorsement of our civil rights
proposal is threefold. First, it would be the first and only
major American Jewish organization to break with the civil rights
coalition. * Second, its lobbying ability is quite strong.
Third, its support for our proposal and opposition to H.R. 1
would prohibit NJCRAC from lobbying for or signing on to any
amicus brief in support of H.R.1. (NJCRAC is a powerful lobbying
force and member of the civil rights coalition firmly supporting
H.R.1. NJCRAC's charter states that any member organization
opposing NJCRAC's position on any given bill vetoes NJCRAC's
lobbying abilities on that bill.)
The OU's Executive Committee is meeting this evening and may
reach a decision on its position. We have been actively
promoting the Administration's package with OU's officers and
staff and have offered a meeting with Boyden Gray and other White
House officials. The OU did not want a White House meeting until
after their Executive Committee session. We have discussed the
situation with both Bill Kristol and Boyden Gray, and both will
*
Agudath Israel of America is a smaller Orthodox Jewish
organization that has been supportive of the Administration's
position throughout the civil rights debate.
CC:
David Demarest
Boyden Gray
Bill Kristol
Ed Rogers
THE WHITE HOUSE
WASHINGTON
October 23, 1990
MEMORANDUM FOR MARLIN FITZWATER
FROM:
JOHN UNDELAND, NEWS SUMMARY
RE:
REACTION TO THE CIVIL RIGHTS VETO
The following is a scorecard of reaction to the civil rights veto;
President took "slings and arrows" from mostly predictable corners.
Some of the highlights:
*
Several Dems say veto is designed to placate extreme right wing,
Reps. Lewis, Washington & AFGE's Sturdivant cite David Duke & KKK
*
Sens. Kennedy, Simon & NAACP's Hooks blame WH staff for the veto;
Hooks suggests some WH staff members are racist
*
Ron Brown, Jesse Jackson & Ralph Neas accuse President of trying
to "Willie Horton-ize" '90 campaign
* Rep. Hawkins not inclined to take up House override effort
* Sen. Kennedy puts political onus on GOP for Senate override
GOP members lay low following veto
*
GOP strategists say veto is political winner if quota element is
argued effectively
DEMOCRATS AND GROUPS OPPOSING
REP. HAWKINS
Hawkins, the chief sponsor, acknowledged Monday that a new push for
civil rights legislation likely will have to wait until next year.
Hawkins said he would not seek a House override vote unless he was
certain it would succeed. "I'm just not going to waste any more
time," he said, noting, "I've been assured the bill will be
introduced as soon as Congress meets next year."
(Mike Robinson, AP, 10/23)
Hawkins said Bush had "become commander-in-chief of a national
retreat from civil rights and the goal of equal justice."
(Linda Campbell, Chicago Tribune, 10/23)
"By relying on the same shop-worn excuses and code words that were
offered against every great piece of civil rights legislation,
George Bush plays on the worst of America's fears and the worst of
America's prejudices." (Murray & Moss, Washington Times, 10/23)
"I don't understand why they sent (Bush's compromise) to us, other
than political reasons. It's a collection of ideas we earlier
rejected."
(Thomas Ferraro, UPI, 10/22)
-erom-
-2-
SEN. KENNEDY
Kennedy predicted that the "vast majority" of Democrats in both
chambers would vote to override the veto, leaving it up to
Republican lawmakers to determine whether the bill became law.
"Perhaps out of loyalty to the President they are willing to vote
against civil rights. But sometimes loyalty asks too much -- and
this is one of those times. "
(Alexis Moore, Philadelphia Inquirer, 10/23)
Kennedy called Bush's veto "a sad day for America's ideals,' adding
that "Now it is up to Congress" to override him.
(Thomas Ferraro, UPI, 10/23)
"It is clear that some of the President's top advisers have wanted
him to veto a civil rights bill, and the President has finally
surrendered to their views."
(Paul Barrett, Wall Street Journal, 10/23)
"When the chips are down, the White House is against civil rights,"
Kennedy said following the veto. He called the action "tragic and
disgraceful."
(Mike Robinson, AP, 10/23)
"The President's last-minute proposal is a cynical attempt to
appear to support civil rights while actually satisfying the anti-
civil rights forces in his own party. The President's actions
demonstrate that he is more interested in appeasing extremists in
his party than in providing simple justice for the millions of
working women and minorities who face bias on the job."
(Thomas Ferraro, UPI, 10/23)
SEN. SIMON
"The President's decision is disturbing and difficult to
understand." He added that during negotiations on the measure, "we
often got the impression the White House staff was looking for
excuses not to support this bill, rather than for ways to achieve
a fair bill and a meaningful bill. Today that impression is all
the stronger."
(Mike Robinson, AP, 10/23)
SEN. MITCHELL
"The President
is deeply and regrettably wrong."
(Murray & Moss, Washington Times, 10/23)
"The President's characterization of this as a quota bill is wholly
inaccurate, Mitchell said on "Meet the Press."
(Karen Ball, AP, 10/21)
REP. FOLEY
"I doubt very much that we're going to go back and open up the bill
all over again...." He said Bush's proposed changes were just "a
recycling of previous complaints" and "for the most part, have
already been considered and rejected at some point during the
discussion of the legislation."
(Rita Beamish, AP, 10/21)
-more-
-3-
REP. DON EDWARDS
Edwards, chairman of the House Judiciary subcommittee on civil and
constitutional rights, called Bush's bill "a tired rehash of
policies considered and rejected by the Congress
We have
nearly compromised this bill to death." (Terence Hunt, AP, 10/23)
REP. BROOKS
"The President's veto
effectively dooms this legislation for this
Congress," said Brooks, chairman of the Judiciary Committee.
"Responsibility for this action rests solely at the door of the
White House."
(Paul Barrett, Wall Street Journal, 10/23)
REP. JOHN LEWIS
"By vetoing this bill, the President is giving cover to the likes
of David Duke, the Klan, the skinheads, and companies that
discriminate against minorities and women, Lewis said on the House
floor.
(CNN, 10/23)
Lewis said the president's actions "serve as a cover for the David
Dukes of the world and the Ku Klux Klan and others who engage in
discrimination based on race and sex. He's taking us back 30
years. I am appalled that the President in 1990 would veto a major
civil rights bill and hide behind calling it a quota bill."
(Alexis Moore, Philadelphia Inquirer, 10/23)
"I think the only thing that we can do right now in the civil
rights community is to encourage the citizens to turn out and vote,
to show their displeasure and sense of righteous indignation at the
polls with Mr. Bush, with those who didn't support the civil rights
bill.' Lewis predicted that while black leaders won't break off
communication with Bush, relations will take on a distinct chill.
"The civil rights forces will continue to talk and negotiate, if
not about this bill, about something else. But there is a rift,
there will be a schism, because his action was very divisive."
(Sonya Ross, AP, 10/23)
"The veto is going to help Democratic candidates. It will inspire
black voters to turn out. " (Thomas Edsall, Washington Post, 10/23)
REP. WASHINGTON
"I think he made a political decision at the end. He had to choose
between women and middle-class working people, and rich factory
owners and the Klan, and he came down on the side of the Klan and
the rich people," Washington said in a "Good Morning America"
interview. Asked about the President's objections regarding
quotas, Washington said, "That's just a buzz work to get the
attention of people who, like David Duke, are interested in Klan-
like activities."
(Reuter Transcript, 10/23)
REP. CONYERS
The Bush veto "guarantees that blacks, will want to stay in the
Democratic Party. The President's veto raises the question in many
people's minds as to whether the administration is trying to
placate the worst elements of our body politic."
-more-
(Alexis Moore, Philadelphia Inquirer, 10/23)
-4-
Conyers said it was "absolutely a straw argument to call it a quota
bill."
(Benjamin Shore, Copley, 10/22)
REP. BOXER
"This
veto is another body blow to middle-class America and to
middle-class women of America. Every American family or every
race, creed and color that has a working woman within it now has
lost the protection it needs from job discrimination.'
(CNN, 10/23)
REP. TORRICELLI
Torricelli contended that while "George Bush believes that he can
cast himself as the protector of working-class whites,' Democrats
will place the focus of the debate on women as well as minorities.
Bush's veto, combined with the impact of the budget debate over
taxes, "will confirm the most serious doubts people have about the
Republican Party -- that it is trying to protect those with
extraordinary wealth and is not really committed to working women
and minorities."
(Thomas Edsall, Washington Post, 10/23)
ANONYMOUS CONGRESSIONAL AIDE
"There was a time Sununu wanted to make a deal," said one
congressional source familiar with the lengthy negotiations over
the bill. "There was never a time Thornburgh and Gray wanted a
deal."
(David Lauter, LA Times, 10/23)
RON BROWN
"The issue for the President isn't quotas -- it's politics. George
Bush got to the White House by pandering to fear
Today he
chose Willie Horton over Abraham Lincoln."
(Terence Hunt, AP, 10/23)
"At the crossroads of his presidency, George Bush has made clear
where he and his Republican Party really stand."
(Steven Holmes, NY Times, 10/23)
GOV. CUOMO
"For the first time since 1866, when Andrew Johnson was President,
a president has vetoed a major piece of civil rights legislation
{Cuomo overlooks the Reagan veto of 1988 here}. (The act) was fair
and balanced, and I regret it did not become law."
(Susan Page, NY Newsday, 10/23)
MAYOR DINKINS
"The President is wrong. This is no quota bill. It is a justice
bill. It is a fairness bill. It is a rights bill."
(Sonya Ross, AP, 10/23)
-more-
-5-
JESSE JACKSON
Jackson said Tuesday the veto was "a call to a return to massive
direct action." He said that could include street demonstrations
and other forms of non-violent protest. Jackson accused Bush of
a "closed-door policy and he has a closed-mind policy -- he is
betraying the American dream."
(Sonya Ross, AP, 10/23)
Jackson charged that Bush, by raising the quota issue, was
employing a "race-conscious political scheme" that was intended to
help GOP candidates in white neighborhoods during the Nov. 6
elections. "It is a clear attempt to incite fear in white workers,
to incite fear in white businesses. We hope that President Bush
will not Willie Horton-ize the 1990 campaign as he did the 1988
campaign."
(Karen Ball, AP, 10/21)
BOB SHRUM, Democratic consultant
"There are no pluses politically for any president to veto a civil
rights bill. At a moment when maximum attention is focused on him,
Bush 'stands tall' by opposing civil rights and 'stands tall' by
opposing a surtax on millionaires."
(Watson & Talbott, Chicago Sun-Times, 10/23)
PAUL MASLIN, Democratic analyst
Maslin said he thought the issue would be a wash for Bush. He said
the President could gain some support from "bayou" voters, a
reference to conservative whites who backed David Duke in LA. But
Maslin said Bush might also lose support among suburban whites who
support civil rights, as well as among blacks.
(Watson & Talbott, Chicago Sun-Times, 10/23)
GEOFF GARIN, Democratic pollster
What Republicans are counting on is that "if George Bush says this
is quota bill, a lot of people will be inclined to take his word
for it. The quota issue is a hot button for a lot of white
voters."
(Peter Brown, Washington Times, 10/23)
RALPH NEAS, Leadership Conference on Civil Rights
Civil rights supporters scoffed at the [quotas] argument. "It's
pure poppycock. The bill has nothing to do with quotas. The
President's and his repeated efforts to pin the false label
of quotas on this legislation are part of a disreputable tactic to
appeal to public resentment and prejudice."
(Mike Robinson, AP, 10/23)
Neas said it was clear "the President has not put the politics of
Willie Horton behind him."
(Karen Ball, AP, 10/22)
Neas said Bush's veto "will victimize his presidency forever. He
joins Andrew Johnson and Ronald Reagan as the only presidents to
veto a civil rights bill."
(Terence Hunt, AP, 10/23)
"This veto will define the Bush presidency."
(Thomas Ferraro, UPI, 10/22)
-more-
-6-
"The rhetoric may be gentler and kinder, but the policies of George
Bush are no less dangerous and regressive than those of Ronald
Reagan and Ed Meese.'
(Ann Devroy, Washington Post, 10/23)
"The President's so-called alternative is dead on arrival (on
Capitol Hill). It's much worse than any previous White House
plan
" Neas labeled the Bush version a "cynical cover up" aimed
at masking the administration's opposition to progress.
(Karen Ball, AP, 10/21)
BENJAMIN HOOKS, NAACP
Asked on "Nightline" if the President vetoed the bill because of
a racist motive, Hooks said, "It is difficult for me to accuse Mr.
Bush of being racist. It is not difficult for me to accuse some
of his advisers of being racist
I'm at a loss to understand
why a man who's created such good will, who had done so many
magnificent things in the realm of racial relations, with one fell
swoop tried to destroy all of that for reasons I cannot
understand."
(Reuter Transcript, 10/23)
"Now that the bill has been returned to Congress, the NAACP is
committed to mobilizing its considerable resources to persuade
Congress to override the veto."
(Murray & Moss, Washington Times, 10/23)
Hooks called the veto a "shocking disappointment" and said the
civil rights community had made "every conceivable effort" to
address Bush's objections to the bill. "Instead the White House
has chosen to describe the measure as promoting quotas, which as
any objective analysis will show, it does not. We are at a loss
to understand why the White House maintains its position." Hooks
said the veto would mean "that the kinder, gentler nation that we
have been looking forward to won't come to pass."
(Thomas Ferraro, UPI, 10/23)
ARTHUR KROPP, People for the American Way
Kropp accused Bush of trying to "out-Reagan Reagan."
(Ann Devroy, Washington Post, 10/23)
JOHN STURDIVANT, American Federation of Government Employees
Sturdivant accused Bush of "political rhetoric designed to please
Jesse Helms, David Duke and their followers in the ultra-right-wing
of the Republican Party."
(Ann Devroy, Wahsington Post, 10/23)
THOMAS HOMBURGER, National Civil Rights Committee of the Anti-
Defamation League of B'nai B'rith
"We share the President's commitment against discriminatory quotes
and numerical preferences. But this act simply is not a quota
bill."
(Steven Holmes, NY Times, 10/23)
-more-
-7-
JUDITH LICHTMAN, Women's Legal Defense Fund
"President Bush today told millions of hard-working American women
struggling to support themselves and their families during
frightening economic times that it is okay for their bosses to
discriminate against them." (Ann Devroy, Washington Post, 10/23)
MARCIA GREENBERGER, National Women's Law Center
The veto showed "complete and callous indifference to working
women."
(David Lauter, LA Times, 10/23)
DICK GREGORY
In a last-minute appeal, black activist Gregory marched in front
of the White House Monday carrying a sign that read: "Mr.
President, before you veto the civil rights bill, please think
about the number of black African Americans you have sent to the
Persian Gulf willing to die for someone else's human rights."
(Terence Hunt, AP, 10/23)
JOHN CURTAIN, ABA
Curtain urged a congressional override. "We are deeply
disappointed that the President has vetoed this important
legislation, particularly after Congress included language
suggested by the White House to end any lingering concerns about
quotas and 'mixed motive' claims." (Thomas Ferraro, UPI, 10/22)
WILLIAM SCHNEIDER
Schneider said Bush's veto allows Democrats to paint him as "no
different than Ronald Reagan. That's news because Bush is supposed
to be different from Ronald Reagan. He's supposed to be kinder and
gentler." But Schneider said the damage to Bush will not be as
severe among blacks, who were skeptical of the President anyway,
as among some middle-class whites who don't want to support a
candidate to seems to be anti-civil rights.
(Sonya Ross, AP, 10/23)
REPUBLICANS AND GROUPS SUPPORTING
SEN. HATCH
"I don't see how anybody could dare change (a vote) at this point,"
Hatch said when asked about chances of an override in the Senate.
(Murray & Moss, Washington Times, 10/23)
Hatch said the veto would not hurt the President politically.
"Most people, knowing George Bush's moderate views, will probably
say there must be something wrong with the bill."
(Steven Holmes, NY Times, 10/23)
-елош-
-8-
SEN. SPECTER
Specter said a number of Republicans who voted against the measure
when it was brought before the chamber in July were uncomfortable
with voting to sustain a veto. "I have heard some word that
senators are unhappy about voting to sustain a veto. But I don't
know if it's sufficient to turn votes."
(Steven Holmes, NY Times, 10/23)
SEN. COCHRAN
"Politically he loses in the short term to the civil rights
activists, but what the President is doing is better for the
country" in the long term.
(Lee & Phillips, USA Today, 10/23)
ANONYMOUS WHITE HOUSE OFFICIAL
"It's just a few days of bad headlines. Otherwise, it means
nothing to most voters. They don't know. They don't care. It
doesn't mean a thing." (Murray & Moss, Washington Times, 10/23)
FRED STEEPER, RNC pollster
"If Bush does a good job labeling the bill as a quota bill, it will
be okay (for the GOP). Americans want to be fair, and reverse
discrimination in their minds has never been fair, even to make up
for past wrongs. That does not sell
Quotas
have
been
a
very
strong issue, one that has been hurting Democrats in presidential
elections."
(Thomas Edsall, Washington Post, 10/23)
MARC NUTTLE, RNC
Nuttle contended that the veto will help stop what he said was a
sharp, 10-to-12 percentage-point decline in voter identification
with the GOP during the past three weeks of the budget debate.
"This helps us get back to our themes of individual freedom versus
government intervention." (Thomas Edsall, Washington Post, 10/23)
CONGRESSIONAL CANDIDATE GARY FRANKS
During a debate Sunday night in Connecticut, Democratic former Rep.
TOBY MOFFETT said it was a disgrace that Gary Franks opposed the
bill. "Do not talk to me about civil rights,' said FRANKS, who is
black. "I had a cross burned in front of my house" when he was 9
years old.
(Donald Rothberg, AP, 10/23)
FORMER NJ GOV. KEAN
"I don't think it's going to play very well in the black
community," Kean said of the quota argument. Kean said
he
believed Bush did what he thought was right, "although I'd like to
have seen him sign it."
Kean said he wished the President had
found a way to negotiate a compromise. "What bothers me is, while
the disagreements loomed large, they are only over at most 10 to
20 percent of the bill." At the same time "certain people in the
political world wanted a presidential veto more than they wanted
a civil rights bill."
(Donald Rothberg, AP, 10/23)
-more-
-9-
ROGER STONE
"Given where he is on the budget battle, the President is wise to
stick to his guns on quotas, said Stone, a GOP consultant who has
been a strong advocate of the need for the GOP to reach out to
black voters. "It will anger a certain constituency. It will
also, if Bush continues to push his opposition to quotas, help him
with his base constituency."
(Donald Rothberg, AP, 10/23)
BOB TEETER
Tetter said it was essential that the President make it clear "he's
in favor of civil rights.' Teeter noted that in recent polls Bush
has received high marks from more than 40% of blacks
Teeter
insisted [the veto will not make blacks give Bush the low marks
they gave Reagan]. "He is not, has not been, will not be perceived
the same as Reagan. "
(Donald Rothberg, AP, 10/23)
FRANK DONATELLI
"He has made a real effort to reach out to the black community, and
this will obviously stall that effort. But I think it sends a
positive signal to many middle- and working-class Americans that
make up the core of the Republican coalition."
(Karen Hosler, Baltimore Sun, 10/23)
CLINT BOLICK, Landmark Legal Foundation
LLF, a conservative legal think tank, applauded the veto as "a
tremendous act of political courage" by the President. Bolick said
the civil rights leadership is "out of touch with the people it
claims to represent."
(Ann Devroy, Washington Post, 10/23)
###
Document No.
WHITE HOUSE STAFFING MEMORANDUM
10/22/90
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
VETO MESSAGE ON S. 2104 -- THE CIVIL RIGHTS ACT OF 1990
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
ROGICH
CARD
UNTERMEYER
CICCONI
ROGERS
DEMAREST
WINSTON
FITZWATER
PINKERTON
GRAY
BOSKIN
HAGIN
DELAND
HOLIDAY
GREEN
REMARKS:
The attached is for your information.
RESPONSE:
James W. Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
TO THE SENATE OF THE UNITED STATES:
I am today returning without my approval S. 2104, the
"Civil Rights Act of 1990." I deeply regret having to take this
action with respect to a bill bearing such a title, especially
since it contains certain provisions that I strongly endorse.
Discrimination, whether on the basis of race, national
origin, sex, religion, or disability, is worse than wrong. It
is a fundamental evil that tears at the fabric of our society,
and one that all Americans should and must oppose. That
requires rigorous enforcement of existing antidiscrimination
laws. It also requires vigorously promoting new measures such
as this year's Americans with Disabilities Act, which for the
first time adequately protects persons with disabilities against
invidious discrimination.
One step that the Congress can take to fight discrimination
right now is to act promptly on the civil rights bill that I
transmitted on October 20, 1990. This accomplishes the stated
purpose of S. 2104 in strengthening our Nation's laws against
employment discrimination. Indeed, this bill contains several
important provisions that are similar to provisions in S. 2104:
o
Both shift the burden of proof to the employer on the issue
of "business necessity" in disparate impact cases.
Both create expanded protections against on-the-job racial
discrimination by extending 42 U.S.C. 1981 to the
performance as well as the making of contracts.
Both expand the right to challenge discriminatory seniority
systems by providing that suit may be brought when they
cause harm to plaintiffs.
Both have provisions creating new monetary remedies for
the victims of practices such as sexual harassment.
(The Administration bill allows equitable awards up to
$150,000.00 under this new monetary provision, in addition
to existing remedies under Title VII.)
Both have provisions ensuring that employers can be held
liable if invidious discrimination was a motivating factor
in an employment decision.
2
Both provide for plaintiffs in civil rights cases to
receive expert witness fees under the same standards that
apply to attorneys fees.
Both provide that the Federal Government, when it is a
defendant under Title VII, will have the same obligation to
pay interest to compensate for delay in payment as a
nonpublic party. The filing period in such actions is also
lengthened.
Both contain a provision encouraging the use of alternative
dispute resolution mechanisms.
The congressional majority and I are on common ground regarding
these important provisions. Disputes about other, controversial
provisions in S. 2104 should not be allowed to impede the
enactment of these proposals.
Along with the significant similarities between my
Administration's bill and S. 2104, however, there are crucial
differences. Despite the use of the term "civil rights" in the
title of S. 2104, the bill actually employs a maze of highly
legalistic language to introduce the destructive force of quotas
into our Nation's employment system. Primarily through
provisions governing cases in which employment practices are
alleged to have unintentionally caused the disproportionate
exclusion of members of certain groups, S. 2104 creates powerful
incentives for employers to adopt hiring and promotion quotas.
These incentives are created by the bill's new and very
technical rules of litigation, which will make it difficult for
employers to defend legitimate employment practices. In many
cases, a defense against unfounded allegations will be
impossible. Among other problems, the plaintiff often need not
even show that any of the employer's practices caused a
significant statistical disparity. In other cases, the
employer's defense is confined to an unduly narrow definition of
3
"business necessity" that is significantly more restrictive than
that established by the Supreme Court in Griggs and in two
decades of subsequent decisions. Thus, unable to defend
legitimate practices in court, employers will be driven to adopt
quotas in order to avoid liability.
Proponents of S. 2104 assert that it is needed to overturn
the Supreme Court's Wards Cove decision and restore the law that
had existed since the Griggs case in 1971. S. 2104, however,
does not in fact codify Griggs or the Court's subsequent
decisions prior to Wards Cove. Instead, S. 2104 engages in a
sweeping rewrite of two decades of Supreme Court jurisprudence,
using language that appears in no decision of the Court and that
is contrary to principles acknowledged even by Justice Stevens'
dissent in Wards Cove: "The opinion in Griggs made it clear
that a neutral practice that operates to exclude minorities is
nevertheless lawful if it serves a valid business purpose."
I am aware of the dispute among lawyers about the proper
interpretation of certain critical language used in this portion
of S. 2104. The very fact of this dispute suggests that the
bill is not codifying the law developed by the Supreme Court in
Griggs and subsequent cases. This debate, moreover, is a sure
sign that S. 2104 will lead to years -- perhaps decades of
uncertainty and expensive litigation. It is neither fair nor
sensible to give the employers of our country a difficult choice
between using quotas and seeking a clarification of the law
through costly and very risky litigation.
S. 2104 contains several other unacceptable provisions
as well. One section unfairly closes the courts, in many
instances, to individuals victimized by agreements, to which
they were not a party, involving the use of quotas. Another
section radically alters the remedial provisions in Title VII of
the Civil Rights Act of 1964, replacing measures designed to
foster conciliation and settlement with a new scheme modeled on
a tort system widely acknowledged to be in a state of crisis.
4
The bill also contains a number of provisions that will create
unnecessary and inappropriate incentives for litigation. These
include unfair retroactivity rules; attorneys fee provisions
that will discourage settlements; unreasonable new statutes of
limitation; and a "rule of construction" that will make it
extremely difficult to know how courts can be expected to apply
the law. In order to assist the Congress regarding legislation
in this area, I enclose herewith a memorandum from the Attorney
General explaining in detail the defects that make S. 2104
unacceptable.
Our goal and our promise has been equal opportunity and
equal protection under the law. That is a bedrock principle
from which we cannot retreat. The temptation to support a
bill -- any bill -- simply because its title includes the words
"civil rights" is very strong. This impulse is not entirely
bad. Presumptions have too often run the other way, and our
Nation's history on racial questions cautions against
complacency. But when our efforts, however well intentioned,
result in quotas, equal opportunity is not advanced but
thwarted. The very commitment to justice and equality that is
offered as the reason why this bill should be signed requires me
to veto it.
Again, I urge the Congress to act on my legislation before
adjournment. In order truly to enhance equal opportunity,
however, the Congress must also take action in several related
areas. The elimination of employment discrimination is a vital
element in achieving the American dream, but it is not enough.
The absence of discrimination will have little concrete meaning
unless jobs are available and the members of all groups have the
skills and education needed to qualify for those jobs. Nor can
we expect that our young people will work hard to prepare for
the future if they grow up in a climate of violence, drugs, and
hopelessness.
5
In order to address these problems, attention must be given
to measures that promote accountability and parental choice in
the schools; that strengthen the fight against violent criminals
and drug dealers in our inner cities; and that help to combat
poverty and inadequate housing. We need initiatives that will
empower individual Americans and enable them to reclaim control
of their lives, thus helping to make our country's promise of
opportunity a reality for all. Enactment of such initiatives,
along with my Administration's civil rights bill, will achieve
real advances for the cause of equal opportunity.
Co Buil
THE WHITE HOUSE,
October 22, 1990.
Office of the Attorney General
ashington, B.C. 20530
JUSTITIA
90 OCT 22 PM2: 55
October 22, 1990
MEMORANDUM FOR THE PRESIDENT
FROM:
Par
DICK THORNBURGH
ATTORNEY GENERAL
SUBJECT:
S. 2104, the "Civil Rights Act of 1990"
This memorandum sets forth my views, and those of the
Department of Justice, on S. 2104, the "Civil Rights Act of
1990." Although the bill contains some provisions that we both
would like to see become law, S. 2104 is fatally flawed.
On May 17, 1990, in a Rose Garden speech marking the
reauthorization of the Civil Rights Commission, you outlined the
principles that would guide the approach of your Administration
to civil rights legislation. You stated that: (1) civil rights
legislation must operate to obliterate consideration of factors
such as race and sex from employment decisions; (2) it must
reflect fundamental principles of fairness that apply throughout
our legal system; and (3) it should strengthen deterrents against
harassment in the workplace based on race, sex, religion, or
disability, bonanza. but should not produce a new and unjustified lawyers'
S. 2104 is not consistent with these principles. It creates
powerful incentives for employers to adopt quotas in order to
avoid litigation. It shields discriminatory consent decrees from
legal challenge under many circumstances. And it contains
several provisions that will serve primarily to foster litigation
rather than conciliation and mediation.
I. INCENTIVES FOR EMPLOYERS TO ADOPT QUOTAS
Sections 3 and 4 of S. 2104 create strong incentives for
employers to adopt quotas. Although putatively needed to
"restore" the law that existed before the Supreme Court's opinion
in Wards Cove Packing Co. V. Atonio, 109 S. Ct. 2115 (1989),
these sections actually engage in a sweeping rewrite of the law
of employment discrimination.
In Griggs V. Duke Power Co., 401 U.S. 424 (1971), the
Supreme Court ruled that Title VII of the Civil Rights Act of
1964 prohibits hiring and promotion practices that
1
unintentionally but disproportionately exclude persons of a
particular race, sex, ethnicity, or religion unless these
practices are justified by business necessity. Law suits
challenging such practices are called "disparate impact" cases,
in contrast to "disparate treatment" cases brought to challenge
intentional discrimination.
In a series of cases decided in subsequent years, the
Supreme Court refined and clarified the doctrine of disparate
impact. In 1988, the Court greatly expanded the scope of the
doctrine's coverage by applying it to subjective hiring and
promotion practices (the Court had previously applied it only in
cases involving objective criteria like diploma requirements and
height-and-weight requirements). Justice O'Connor took this
occasion to explain with great care both the reasons for the
expansion and the need to be clear about the evidentiary
standards that would operate to prevent the expansion of
disparate impact doctrine from leading to quotas. In the course
of her discussion, she pointed out:
"[T]he inevitable focus on statistics in disparate impact
cases could put undue pressure on employers to adopt
inappropriate prophylactic measures
[E]xtending
disparate impact analysis to subjective employment practices
has the potential to create a Hobson's choice for employers
and thus to lead in practice to perverse results. If quotas
and preferential treatment become the only cost-effective
means of avoiding expensive litigation and potentially
catastrophic liability, such measures will be widely
adopted. The prudent employer will be careful to ensure
that its programs are discussed in euphemistic terms, but
will be equally careful to ensure that the quotas are met."
Watson V. Fort Worth Bank & Trust Co., 108 S. Ct. 2777,
2787-2788 (1988) (plurality opinion).
The following year, in Wards Cove, the Court considered
whether the plaintiff or the defendant had the burden of proof on
the issue of business necessity. Resolving an ambiguity in the
prior law, the Court placed the burden on the plaintiff.
Supporters of S. 2104 argue that this rule imposes an
unreasonable burden on employees, and have claimed that
legislation is needed to redress this imbalance. As you know,
your Administration is prepared to accept the shifting of that
burden to the defendant.
Sections 3 and 4 of S. 2104, however, go far beyond this
shift in the burden of proof. First, the bill effectively
creates a new presumption of discrimination whenever a plaintiff
shows a sufficient statistical disparity in the racial, sexual,
ethnic, or religious makeup of an employer's workforce, even if
the plaintiff fails to identify any employment practice that has
caused the disparity. Second, it defines "business necessity" in
2
an unduly restrictive way. Finally, it imposes unreasonable
restrictions on the type of evidence an employer may use in
proving business necessity. In combination, these provisions
will force employers to choose between (1) lengthy litigation,
under rules rigged heavily against them, or (2) adopting policies
that ensure that their numbers come out "right." Put another
way, the bill exerts strong pressure on employers to adopt
surreptitious quotas.
A. THE PRESUMPTION OF DISCRIMINATION ARISING FROM
STATISTICAL DISPARITIES
Under Section 4, a plaintiff may bring a disparate impact
case by alleging that a "group of employment practices results
in" significant statistical disparity. "Group of employment
practices" is very broadly defined in Section 3 to include any
"combination of employment practices that produces one or more
decisions with respect to employment
That definition provides no limitation whatsoever: all
practices that combine to produce, say, hiring decisions -- for
example, use of a high school graduation requirement, plus an
interview, plus job references, plus a requirement of a clean
criminal record -- all could be lumped together as a single
"group." Thus, if an employer's bottom line numbers are
"wrong,' the employer can be forced to prove that every practice
is required by "business necessity."
Section 4 includes language emphasizing this point.
Subsection (k) (1) (B) (i) states that "except as provided in clause
(iii), if a complaining party demonstrates that a group of
employment practices results in a disparate impact, such party
shall not be required to demonstrate which specific practice or
practices within the group results in such disparate impact"
(emphasis added). The exception in clause (iii) seems at first
to state the opposite, but actually takes away what it seems to
give. Specificity is not required where the defendant has
"failed to keep such records" as are "necessary to make [the]
showing" of specifically which "practice or practices are
responsible for the disparate impact.
Thus, the bill requires any employer whose workforce has the
"wrong" bottom line numbers to point to records showing that one
of its practices could have been challenged as "responsible for"
the disparate impact. This is not a mere recordkeeping
requirement: it is essentially a transfer from the plaintiff to
the defendant of the obligation to make out the bulk of the
plaintiff's prima facie case. The transfer of obligations is
merely disguised as a recordkeeping requirement. An employer who
cannot meet the burden created by this rule faces the prospect of
defending all of its employment practices under the business
necessity test.
3
This concealed obligation does not merely create all the
record-keeping burdens one would imagine, but also a classic
Catch-22: if an imbalance in the employer's workforce is caused
by something other than the employer's practices (by housing
patterns, for example), so that the employer could not possibly
have kept records showing which of its practices was responsible
for the imbalance (because none was), a prima facie case will
nevertheless be deemed to have been established because the group
of practices "results in" a disparate impact and the employer
cannot possibly explain it from his own records.
The notion of allowing plaintiffs to attack a "group of
practices" without showing that each member of the group has
caused a disparate impact has absolutely no basis in Supreme
Court precedent. All Supreme Court cases prior to Wards Cove
focused on the impact of particular hiring practices, and
plaintiffs have always targeted those specific practices. See
Griggs V. Duke Power Co., 401 U.S. 424 (1971) Albemarle Paper
Co. V. Moody, 422 U.S. 405 (1975) Dothard V. Rawlinson, 433 U.S.
321 (1977) ; New York City Transit Authority V. Beazer, 440 U.S.
568 (1979) ; Connecticut V. Teal, 457 U.S. 440 (1982) ; Watson V.
Fort Worth Bank & Trust Co., 108 S. Ct. 2777 (1988). The new
rule created in S. 2104 is inconsistent with a fundamental
principle of civil litigation: that the plaintiff is obliged to
identify what act of the defendant is responsible for the
plaintiff's injury. Even apart from other defects in Sections 3
and 4 of this bill, the treatment of "groups of practices"
creates extremely powerful incentives for employers to adopt
quotas rather than go through the litigation necessary to
establish the "business necessity" of every one of their
employment practices.
B. THE BUSINESS NECESSITY DEFINITION AND THE EVIDENTIARY
RESTRICTIONS
The risk of surreptitious quotas created by the bill's
provisions on "groups of practices" is compounded by S. 2104's
unreasonably restrictive definition of "business necessity" and
by evidentiary restrictions imposed on employers trying to meet
the "business necessity" test. I will discuss each in turn.
1. The Business Necessity Definition
S. 2104 forces employers to defend any employment practice
"involving selection" by showing a "significant relationship to
successful performance of the job." This standard is new; it is
found nowhere in any holding of the Supreme Court. On its face,
it is defective because a narrow requirement of this type denies
that there can be legitimate and desirable selection or promotion
practices aimed at objectives other than successful job
performance. Moreover, its very novelty guarantees that it will
4
generate litigation for employers seeking to defend themselves.
Finally, the bill's peculiar treatment of prior cases is likely
to suggest to courts that ambiguities should be resolved against
employers. In combination, these defects again make it likely
that employers will adopt quotas rather than risk expensive
litigation whose outcome will be highly uncertain.
First, simply taking the definition literally, S. 2104 would
preclude employers from using hiring or promotion practices
serving many legitimate business objectives. Consider, for
example, an employer with a policy under which promotions are
given only to employees who receive "outstanding" ratings in
their current jobs. The justification for such a policy might be
that it provides an incentive for all employees to perform in an
outstanding manner, thereby promoting overall efficiency within
the firm. Under S. 2104, however, the employer could not rely on
that justification. Rather, he or she would have to attempt to
prove that outstanding performance in an employee's current job
was "significant[ relat[ed] to successful performance" of the
next job. In many cases, this might be impossible.
There is no sound policy reason for confining in this way
the justifications an employer may offer for its selection
practices. Nor were such restrictions required by Supreme Court
decisions prior to Wards Cove. See, e.g., Griggs V. Duke Power
Co., 401 U.S. 424, 432 (1971) ; New York City Transit Authority V.
Beazer, 440 U.S. 568, 587 n.31 (1979) ; Watson V. Fort Worth Bank
& Trust Co., 108 S. Ct. 2777, 2790 (1988) (plurality opinion).
Indeed, the Wards Cove dissent itself made clear that under
Griggs any "valid business purpose" would suffice. Wards Cove
dissenting). Packing Co. V. Atonio, 109 S. Ct. 2115, 2129 (1989) (Stevens, J.,
The statement in S. 2104 that the definition of business
necessity is intended to codify Griggs cannot alter the
inconsistency between the bill's text and the language of Griggs,
or the inconsistency between the bill's text and almost two
decades of Supreme Court precedent interpreting Griggs. Instead,
it merely guarantees confusion as courts attempt to sort out
precisely what Congress had in mind. This confusion will be
time-consuming and very expensive. And it will bring no benefit
to the victims of discrimination.
Finally, in attempting to interpret the confusing definition
of "business necessity," some courts would likely come to the
conclusion that Congress intended to bring about certain highly
undesirable results. First, the bill states that it is designed
to overrule Wards Cove's "treatment of business necessity as a
defense." Part of that treatment of business necessity, though,
was the Court's rejection of the view that an employer is
required to show that the "challenged practice [is] 'essential'
or 'indispensable' to the employer's business." Wards Cove
5
Packing Co. V. Atonio, 109 S. Ct. 2115, 2126 (1989). As the
Supreme Court noted, "this degree of scrutiny would be almost
impossible for most employers to meet, and would result in a host
of evils," including quotas. Id. Rather, the Court quite
reasonably found that "the dispositive issue is whether a
challenged practice serves, in a significant way, the legitimate
employment goals of the employer." Id. at 2125-2126 (citing
Watson and Beazer as well as Griggs). On this issue, as pointed
out above, the dissent in Wards Cove is in agreement.
In light of these statements, a statutory provision
overruling "the treatment of business necessity" in Wards Cove
could reasonably be interpreted by many courts as returning the
bill's definition of business necessity to the widely criticized
standard included in the original incarnation of S. 2104
("essential to effective job performance"). This inference would
be strengthened by two other provisions of the bill: Section 2
("Findings and Purposes") and Section 11 ("Construction").
Working in tandem, Sections 2 and 11 would likely lead some
courts to resolve ambiguities in the bill against prior decisions
by the Supreme Court and against defendants.
2. Evidentiary Restrictions
Finally, employers who must attempt to meet the business
necessity test must do so by means of "demonstrable evidence."
This is a new term invented by the bill, and no definition is
provided. The bill contains a long list of types of evidence
that courts may "receive," but the bill does not say that any of
these necessarily constitutes "demonstrable evidence.' Courts
will likely understand the use of this new term (particularly in
light of Sections 2 and 11 of the bill) to mean that Congress is
referring to some category of evidence that is narrower than the
category of evidence on which courts would otherwise rely. The
effect of this provision, then, will apparently be to indirectly
raise the burden of proof on the defendant beyond what it would
otherwise be.
I am not aware that any justification has been offered for
restricting the kind of evidence on which courts may rely in this
context. Nor do I believe that it is advisable to force the
courts to engage in guessing games about the meaning of a novel
term like "demonstrable evidence." As with several other aspects
of Sections 3 and 4 of S. 2104, this provision will cause
uncertainty among attorneys who must advise employers about the
meaning of the law, and it will cause confusion in the courts.
No good purpose will be served, and a great deal of pointless
expense legislation. will be imposed on those who must live under this new
6
C. CONCLUSION
So far as I am aware, there is no reported judicial decision
indicating any need for a legislative modification of the manner
in which the courts handle "group[s] of employment practices"
under disparate impact theory. The rule created in S. 2104,
moreover, is contrary to fundamental principles of civil
litigation, and it is likely to lead in practice to unjust
results.
There is no sound policy reason for the imposition of
artificial restrictions of the kind created by S. 2104 on the
justifications that employers may offer for legitimate employment
practices. Similarly, there is no sound policy reason for
imposing on defendants evidentiary restrictions that exist
nowhere else in the law and that are not even clearly spelled out
in the proposed statute.
The effect of these proposed changes in the law is clear:
these provisions, if they are enacted, would exert strong
pressure on employers to avoid having to defend their employment
practices; the only practicable way for employers to do this
would be to avoid the statistical disparities that would require
them to mount such a defense. In short, many employers will see
no real alternative to adopting quotas.
II. CHALLENGE FUNDAMENTAL FAIRNESS AND THE INSULATION OF QUOTAS FROM LEGAL
The bill in its current form also promotes quotas through
its treatment of discriminatory consent decrees. It does this by
totally denying certain individuals access to the courts to
challenge illegal agreements -- in which these individuals had no
part opportunities. -- prescribing quotas that exclude them from employment
Section 6 of S. 2104 would overrule the Supreme Court's
decision in Martin V. Wilks, 109 S. Ct. 2180 (1989). That case
arose in the context of a civil rights action, but it turned on
principles of fairness and access to court that apply in every
situation. The Court held that white firefighters who had not
been parties to a consent decree that mandated racial preferences
could have their day in court to contend that the decree violated
their civil rights.
Section 6 would in many circumstances cut off this right and
deny some persons, who were never notified of these decrees and
had no chance to challenge them, their right to sue. For
example, a plaintiff denied a promotion as a result of a
discriminatory consent decree in place ten years before the
7
plaintiff was hired would in some circumstances be precluded by
Section 6 from challenging the decree.
At the outset, it must be stressed that only certain
settlements or consent decrees can be successfully challenged
after Martin V. Wilks: those containing provisions that violate
an innocent third party's rights under Title VII or the
Fourteenth Amendment. The only justification offered for this
provision is the systemic interest in the finality of judicial
resolution of disputes. But while that interest is important, it
should not be pursued at the cost of the requirement of
fundamental fairness that underlies our judicial system, in which
individuals are traditionally guaranteed a meaningful opportunity
to assert their interests in court before they are bound by
judicial action.
Moreover, the concern at which Section 6 is assertedly
directed, viz. the fear of repeated challenges to the same
decree, is largely chimerical. Existing legal doctrines are
already adequate to head off nonmeritorious challenges to
decrees. The doctrines of law of the case, res judicata, and
stare decisis will allow courts to deal with them summarily at
little expense in time or money to the parties. In addition, the
rules of joinder make it relatively easy for parties to ensure
that affected people have their day in court in the original
action. The threat of an award of attorney fees against the
losing party who brings a frivolous suit is a further deterrent
to such challenges.
The bill's treatment of discriminatory seniority systems is
in stark contrast with its treatment of discriminatory consent
decrees. In dealing with seniority systems, Section 7 (b) of the
bill appropriately corrects a defect in current law by allowing a
plaintiff to challenge a discriminatory seniority system or
practice at the time it is applied to the plaintiff. Current law
requires the challenge to be made at the time of the adoption of
the seniority system. Consistent with the view taken by your
Administration, proponents of S. 2104 have rightly argued that
this is unreasonable and should be corrected by legislation.
So far as I am aware, S. 2104's sponsors have given no
explanation for this inconsistency between Sections 6 and 7 (b) of
their bill. The effect of it, however, is quite clear: unlike
seniority systems, consent decrees have frequently contained
provisions establishing hiring and promotion quotas or racial
preferences. Section 6 prevents legal challenges to such
provisions. Thus, far from enhancing civil rights, Section 6
severely abridges them.
Section 9 contains a provision complementing the provisions
in Section 6. For the first time, Title VII would say that
certain civil rights plaintiffs -- those challenging the legality
8
of quotas adopted under a consent decree -- could be required to
pay attorneys fees where their lawsuit was neither frivolous nor
otherwise unreasonable. The clear effect would be to discourage
many challenges to illegal discrimination. The creation of
fundamentally unfair obstacles to the vindication of our
citizens' civil rights has no place in a civil rights bill.
Proponents of S. 2104 argue that Section 13 of the bill,
which states that nothing in the bill "shall be construed to
require or encourage an employer to adopt hiring or promotion
quotas," is a sufficient answer to the concerns raised here and
in Part I of this memorandum. In fact, however, Section 13 is
entirely unresponsive to them. The problem with Sections 3 and 4
is not that they directly require or encourage quotas, but rather
that employers will in fact choose to adopt quotas in order to
avoid having to defend their hiring practices under the
unreasonable litigation rules established by the bill. And the
problem with Section 6 is not that it requires quotas, but that
it insulates them from challenge. In fact, in its present form,
Section 13 has an exception from the anti-quota language (and
from all other provisions in the bill) for quotas that might be
contained in some court-ordered remedies, affirmative action
plans, or conciliation agreements.
III. EXPANSION OF REMEDIES UNDER TITLE VII AND PROVISIONS
AFFECTING THE INCENTIVES FOR LITIGATION
Section 8 of S. 2104 radically alters the Civil Rights Act
of 1964 by making available unlimited compensatory damages, as
well as punitive damages and jury trials, in most cases under
Title VII.
As you noted in your May 17 speech, federal law should
provide an adequate deterrent against harassment in the
workplace, and additional remedies are needed to accomplish this
goal. Although S. 2104 imposes a partial cap on punitive
damages, thereby setting an important precedent in the area of
federal tort remedies, the expansion of remedies contained in
Section 8 is excessive. Section 8 is not confined to filling the
gap where existing remedies are inadequate, such as in many cases
of sexual harassment. Rather, it imports into our employment
discrimination laws the entire panoply of tort remedies, punitive
damages, and jury trials, which runs counter to the concepts of
mediation and conciliation upon which Title VII is based. This
will create unnecessary and counterproductive litigation, serving
the employees. interests of lawyers far more than the interests of aggrieved
Other provisions in S. 2104 will also contribute
unnecessarily to fostering litigation instead of conciliation.
An amendment to 42 U.S.C. 2000e-5(k), for example, permits
plaintiffs to recover attorneys fees for continuing to litigate
9
even if the judgment they ultimately obtain is less favorable
than a settlement offer they rejected. Similarly, a new
paragraph (2) in 42 U.S.C. 2000e-5k creates special rules
impeding waiver of attorney's fees as part of settlement, which
will inevitably discourage settlements because defendants will
not be able to estimate accurately the total cost of the
settlement to which they are being asked to agree.
Several other provisions of this bill have little to do with
promoting civil rights. Rather, they seem principally designed
to give plaintiffs special and unwarranted litigation advantages.
Section (a) gives plaintiffs 2 years, rather than 180 days (or,
in certain cases, 300 days), to file discrimination claims.
Section 11 creates a special legislative rule of construction for
civil rights cases that seems intended to encourage courts to
resolve cases in favor of plaintiffs whenever possible. And
Section 15 unfairly applies the changes in the law made by S.
2104 to cases already decided.
IV. CONCLUSION
S. 2104, in the form in which it has been presented to you,
is seriously flawed. While it contains certain desirable
provisions, these sections are greatly outweighed by the portions
of the bill that are objectionable in the particulars specified
above. Taken as a whole, S. 2104 would do far more to disrupt
our legal system and to disappoint the legitimate expectations of
our citizens for equal opportunity than it would to advance the
goal, to which you and I are both committed, of strengthening the
laws against employment discrimination.
10
JOSEPH R. BIDEN, JR., DELAWARE, CHAIRMAN
EDWARD KENNEDY, MASSACHUSETTS
STROM THURMOND, SOUTH CAROLINA
ORRIN G. HATCH, UTAH
HOWARD M. METZENBAUM, OHIO
ALAN K. SIMPSON, WYOMING
DENNIS DECONCINI, ARIZONA
CHARLES E. GRASSLEY, IOWA
PATRICK J. LEAHY, VERMONT
ARLEN SPECTER, PENNSYLVANIA
HOWELL HEFLIN, ALABAMA
United States Senate
GORDON J. HUMPHREY, NEW HAMPSHIRE
PAUL SIMON, ILLINOIS
HERBERT KOHL, WISCONSIN
COMMITTEE ON THE JUDICIARY
RONALD A. KLAIN, CHIEF COUNSEL
DIANA HUFFMAN, STAFF DIRECTOR
JEFFREY J. PECK. GENERAL COUNSEL
WASHINGTON, DC 20510-6275
TERRY L. WOOTEN, MINORITY CHIEF COUNSEL
AND STAFF DIRECTOR
October 15, 1990
FYI
ED
The Honorable Malcolm Wallop
237 Russell Senate Office Building
Washington, D.C. 20510
Dear Malcolm:
I hope you will join me in voting against the Conference
Report on the Civil Rights Act of 1990. As you may know, I was
approached two weeks ago by representatives of the civil rights
community about the possibility of resolving some of the major
areas of disagreement about the Civil Rights Act of 1990. I
understand that some have inquired about my role in the ensuing
discussions with representatives of the civil rights groups,
and I am writing to explain what occurred.
I agreed to meet with representatives of civil rights
groups in the hope that we might be able to resolve major
problems in the bill and reach a compromise that could be
supported by the civil rights community, Congress, and the
Administration. It was always my understanding, however, that
any compromise had to be agreed to by all three sides. I also
made it clear that if all three sides did not agree, I would
support the President's position. As you know, we were
unsuccessful in our efforts.
There were many problems with the product of our
discussions. On some key issues, it did not contain my
preferred language. Further, other important issues were left
unaddressed. But, in the spirit of compromise, I was willing
to try to resolve our differences. It has been made clear to
me, however, that the Administration cannot support S. 2104,
even if it includes the revisions contained in the most recent
Conference Report. The Administration still believes that the
numerous problems with the bill have not been adequately
resolved. And, when one takes into account each of the
provisions in all 30 pages of the legislation, I can understand
their criticisms. I have voiced many of the same concerns
repeatedly during the consideration of this bill. Moreover,
one of the changes made in the Conference Report to reflect a
concern I voiced in these meetings, a change which did not
reflect my preferred proposal in the first place, was largely
vitiated in the Joint Statement of the Conference Committee, as
explained in item 3.
- 4 -
resolution, the bill allows these allegations to fester in
the workplace, exacerbating tension and uncertainty.
10. Modifies the statute of limitations so that it runs not
just from the time of the alleged illegal occurrence, as
under current law, but also from the time the alleged
illegal occurrence "has been applied to affect adversely
the person aggrieved, whichever is later." This language
overturns at least three Supreme Court decisions, United
Airlines V. Evans, 431 U.S. 553 (1977) Delaware State
College V. Ricks, 449 U.S. 250 (1980) i Chardon V.
Fernandez, 454 U.S. 6 (1981). This opens the door to many
stale claims. For example, suppose an employer lays off
an employee for intentionally discriminatory reasons in
1990, but the employee does not bring a Title VII action
within six months (or within two years, if this bill is
adopted). Under current law, this person has foregone his
or her Title VII claim. If the person is later rehired in
1995, under this bill the person can seek retroactive
seniority lost since 1990 and two years of backpay.
Moreover, he or she will be able to seek uncapped
compensatory damages and punitive damages of $150,000 or
the total of his or her backpay and compensatory damages
for lowered earnings, pain, suffering, and other damages
since 1990. Oddly, here again, civil rights plaintiffs
get two bites of the apple after being harmed. But, an
innocent person harmed by implementation of a consent or
litigated judgment is effectively barred from bringing a
constitutional or statutory civil rights claim.
11. Helps lawyers by overturning a 1986 Supreme Court decision
by Justice Stevens, Evans V. Jeff D., 475 U.S. 717, which
allows a defendant, such as an employer, to condition a
lump sum settlement offer on the plaintiff's waiver of
attorney's fees, leaving the plaintiff to work out the fee
with his or her lawyer. This provision of the bill will
likely have a serious adverse impact on the ability of
parties to settle cases.
12. Encourages lawyers to drag out cases by overturning a 1985
decision by Justice Stevens in Marek V. Chesny 473 U.S. 1
(1985), thereby making the recovery of attorney's fees
much easier. Under current law, suppose a plaintiff
rejects an employer's formal settlement offer and the
plaintiff later obtains a judgment for less than the
amount of the employer's offer. The plaintiff is not
entitled to attorney's fees he incurs from the date he
rejected the offer. Under this bill, however, the
plaintiff is entitled to such fees after rejecting the
offer. This is a further incentive not to settle a case
and to pursue it all the way to trial.
- 5 -
13. Seeks to preserve affirmative action preferences for
minorities and women, with no protection for white males.
Thus, an employer may seek to prefer voluntarily
minorities and women at the expense of others. The bill
provides no protection for those who might be adversely
affected. Moreover, if a consent or litigated judgment in
favor of minorities or women is entered in a case,
innocent nonparties adversely affected by the
implementation of such a judgment are denied their day in
court to assert their constitutional and civil rights.
14. Permits uncapped expert witness fee costs, overturning a
1987 Supreme Court decision, Crawford Fittings Co. V. J.
T. Gibbons, Inc., 107 S.Ct. 2494. The current limit is
$30 per day.
15. Requires broad construction of at least 70 other civil
rights statutes. This provision would give bureaucrats
and federal judges carte blanche to revise current
interpretations of these laws.
16. Retroactively applies the bill. Persons now in litigation
will be adversely affected by the bill.
Accordingly, for the same basic reasons I have set forth
in earlier correspondence and statements, I will vote against
the Conference Report on S. 2104, the Civil Rights Act of 1990,
and will support the President if he vetoes the legislation.
Sincerely,
C
Orrin G. Hatch
United States Senator
OGH:mdt
08. 03. 90 03:17 PM *CONG. BOEHLERT D. C. P02
RELEASE
HOUSE
Congressman Sherwood Boehlert
REPRESENTATIVES U.S. OF
25th Congressional District
New York
1127 LONGWORTH H.O.B.
WASHINGTON, D.C. 20515
PHONE (202) 225-3665
$90.4
FOR IMMEDIATE RELEASE
AUG. 3, 1990
CONTACT: HANK PRICE
202-225-3665
202-543-0931
NOTE: Rep. Boehlert supported the LaFalce substitute and
voted for final passage.
STATEMENT OF
U.S. REPRESENTATIVE SHERWOOD BOEHLERT
PASSAGE OF CIVIL RIGHTS ACT OF 1990
The sad fact of the matter is the civil Rights Bill of 1990
proved to be first and foremost an exercise in new political
power.
Regretfully, both sides concentrated on maneuvering for
partisan advantage and in the process failed to adequately focus
on the primary objective: more progress toward eliminating the
last remaining vestiges of discrimination.
I was here in 1964 as an enthusiastic young staff member and
shared the euphoria upon passage of the Civil Rights Act of 1964.
I am still here in 1990 in a different capacity, and am more
saddened than heartened by the contrast.
Lyndon Johnson's "we shall overcome" still echoes in my
ears.
We need to. I hope and pray we will.
-30-
NOTE: I sat attentively through the debate and tried my
best to be alert to developments in and around the chamber. In
the final analysis I became convinced the majority was more
interested in putting the President on the spot than they were in
advancing the cause.
Blacks and the GOP
ATTN:
John
SUNUNL
BETTING ON BUSH
For once, Republicans have a chance to uphold
MANDELA FOR
CUOMI
principle and advance their interests
MANDI
at the same time: wooing black voters
RIGHTS
back to the party of Abraham Lincoln
by defeating a civil-rights bill.
CLINT BOLICK
A
MONTH or so ago, during a
common-sense principles that most
Administration's benign neglect of op-
conversation about the Ken-
Americans can easily support.
portunities to fashion a genuine civil-
nedy-Hawkins civil-rights bill,
By definition, the bill's sponsors
rights strategy based on individual
I made two bets with Arch Parsons of
cannot satisfy those principles. The
rather than group rights.
the Baltimore Sun. First, that Presi-
heart of the bill-provisions overturn-
I urged the White House to shift the
dent Bush will veto the bill if it is ap-
ing six Supreme Court decisions of
terms of the debate. I suggested that
proved without significant changes.
last year, especially the Wards Cove
the President immediately appoint a
Second, that he will win 18 per cent of
decision-violates all three. The mo-
highly credible commission on eco-
the black vote in 1992 if he does.
tive behind it is to induce employers to
nomic mobility, headed by someone
Washington pundits would assure
adopt quotas "voluntarily" by rig-
like Tom Kean (who received over half
Arch that he'll soon pocket a crisp dol-
ging the rules against them in statis-
the black vote when he won re-election
lar bill from the first bet, and a second
tics-based employment-discrimination
as governor of New Jersey in 1985). In
one too if his memory hangs in for two
cases. Under Wards Cove, plaintiffs
terms of strengthening civil-rights
years. Moreover, most pundits would
may use statistics to prove discrimina-
laws, he could add compensatory and
insist that my first bet is inconsistent
tion, but they bear the burden of proof
punitive damages for victims of egre-
with my second. If Bush vetoes this
every step of the way. Under Ken-
gious discrimination (as an alternative
civil-rights bill-or any civil-rights
nedy-Hawkins, statistics by them-
to quotas, which help not known vic-
bill-he's doomed among black voters.
selves would establish a presumption
tims but a whole class of presumed
The reason I'm bucking conven-
of discrimination, with employers
victims). Finally, and most impor-
tional wisdom is that I sense that
bearing the burden of proving their in-
tantly, he could urge legislative action
something important is happening be-
nocence. Facing that threat, employ-
on educational choice, economic op-
neath the surface in the debate over
ers would almost always seek the safe
portunity, and anti-crime measures
the civil-rights bill. That leads me to
harbor of informal quotas. No middle
aimed at helping minorities.
believe that if Bush plays his cards
ground exists: to modify or overturn
As it turned out, Bush had plenty of
right, he will in fact double the black
Wards Cove is to create an irresistible
time to devise such a strategy if he
vote he received in 1988-a develop-
impulse for quotas. Of course, anyone
had wanted to, since it took Ted Ken-
ment that would make him invincible
who has read the newspapers lately
nedy and Ralph Neas, a top lobbyist
in 1992. And-again contrary to popu-
has every right to be skeptical about
for the civil-rights establishment, over
lar wisdom-playing his cards right
Bush's resolve.
half a year to come up with a bill to
requires him to veto the bill if Con-
overturn the six Court rulings. But
gress passes anything resembling the
Scooping the Democrats
Bush did nothing, announcing that no
original version.
action was necessary with respect to
At a Rose Garden ceremony on May
J
UST AFTER the Supreme Court
the recent Court decisions.
17, Bush laid down three conditions
issued its Wards Cove ruling, the
for acceptance of a civil-rights bill: it
White House called me to ask for
can't require or encourage racial quo-
ideas for a "Civil Rights Act of 1989."
Mr. Bolick is director of the Landmark
tas, it can't be absurdly complex, and
Amazingly, the Bush Administration
Legal Foundation Center for Civil Rights in
it can't reverse the due-process princi-
Washington, D.C., and author of the forth-
wanted to scoop the Democrats. Hoo-
coming Unfinished Business: A Civil
pie that a person is innocent until
ray! I thought; our time has come at
Rights Strategy for America's Third Cen-
proven guilty. These are refreshing,
last, after eight years of the Reagan
tury (Pacific Research Institute).
AUGUST 6, 1990 / NATIONAL REVIEW 33
Meanwhile, several House Republi-
with constituency groups ranging from
other pirouette and sign the bill. His
cans got themselves into trouble by
minorities to feminists to labor unions,
Rose Garden reversal, apparently the
signing on to a bill by freshman Repre-
all focusing on different objectives
result of a last-minute blitz by Attor-
sentative Tom Campbell, a bright and
which Neas had to put into a single,
ney General Richard Thornburgh and
ambitious California Republican who
saleable package. Once introduced,
other top advisors, may prove little
wanted to establish his civil-rights
the bill failed to generate much enthu-
more than a negotiating ploy. He
credentials. He convinced several con-
siasm. Until the inexplicable decision
clearly still wants to sign a bill and
servatives to join him, but when they
by Senator Jack Danforth (R., Mo.) on
subsequently has negotiated with
realized they had been co-sponsoring a
May 17 to join the bill, sponsors in-
Kennedy, leading most commentators
quota bill, they abandoned Campbell
cluded only liberals and the usual
to suggest he'll sign the bill with
and demanded the White House pro-
maverick Republicans. Southern Dem-
merely cosmetic alterations. But I
vide an alternative.
ocrats were lying low, perhaps haunt-
don't think so.
The Administration obliged, but the
ed by the quota specter, which could
If George Bush caves in on quotas,
product did not quite meet the stand-
bleed away white votes. By mid June,
he will risk losing support among
ards of a viable alternative. The Ad-
the bill had fewer than fifty Senate
white voters and creating additional
ministration bill proposed to overturn
sponsors, a very low number for a
constituencies for the likes of David
two of the six decisions targeted
civil-rights bill.
Duke. So Bush needs to appear firm.
by Kennedy-Hawkins, while keeping
But if he vetoes the bill, won't he write
Wards Cove intact. But the way the
Re-Enter the President
off any chance of increasing his share
Administration sliced it, the law
of the black vote? Here's where the
would make monetary damages avail-
E
NTER the President again. On
pundits have it wrong.
able to victims of racial harassment
May 14, he announced through
Ben Hooks and his allies have de-
but not sexual harassment. No one
his spokesman, Marlin Fitzwa-
clared the civil-rights bill a "litmus
-liberals, conservatives, or the busi-
ter, that he wanted to sign a civil-
test" for Bush, and threaten he'll get
ness community-liked that alterna-
rights bill, and that his differences
no black votes if he vetoes it. Ronald
tive. The point man for the bill, Don
with Kennedy-Hawkins were minor.
Reagan capitulated to such threats on
Ayer, couldn't defend it, a factor that
He scheduled three days of meetings
several occasions (such as housing and
may have contributed to his recent de-
with civil-rights leaders, along with a
voting rights), and he still didn't end
parture from the Justice Department.
sprinkling of dissenters. The Washing-
up with many black votes. Richard
But the other side was having its
ton Post reported that he was ready to
Nixon tried a different approach-out-
liberaling the liberals on minority set-
asides and the like-and he didn't get
MANDELA
many black votes either. Maybe Pres-
CUOMO
MANDELA
ident Bush has learned something
from this.
RIGHTSAC
The answer may lie in the second
half of his Rose Garden speech-the
half the media didn't report. Bush
called for a new vision on civil rights
based on individual "empowerment,"
consisting of efforts to help poor people
help themselves. He spoke specifical-
ly about education vouchers, tenant
management and ownership of public
housing, and day care.
It was just a sketch, but it could
turn into a real strategy, and one that
could finally break the sixty-year
COATTAILS
Democratic lock on the black vote. If
this seems a bold prediction, consider
problems too. After the Court's deci-
sign the bill, sending conservatives
the objective: we're not talking about
sions came down last June 16, the
and the business community into de-
competing for a majority of black
NAACP's Ben Hooks threatened wide-
spair.
votes, at least not initially, but rather
spread civil disobedience and an-
Both sides were invited to the Rose
for a mere doubling of the 9 per cent
nounced a mass march on Washing-
Garden ceremony on Thursday of that
of the black vote that Bush received in
ton. When the troops failed to heed the
week; but when the rhetorical smoke
1988. That's only about one out of
call, Hooks was forced to reclassify the
had cleared, it was the bill's support-
every ten blacks who didn't vote for
mass rally as a more modest "silent
ers who were devastated. Instead of
him the first time. Assuming Bush can
vigil," which registered barely a blip
endorsing the bill, Bush reiterated his
hold onto most of his white voter base
on the evening news.
opposition to quotas and implied that
(and a quota-bill veto would help), this
It also took considerable effort by
he would veto the bill if his core prin-
modest increase in black support is all
Neas and his allies to satisfy the di-
ciples were not satisfied.
he'd need virtually to ensure his re-
verse strands of the civil-rights lobby,
Of course, the President could do an-
election by a wide margin; if Republi-
34 NATIONAL REVIEW / AUGUST 6, 1990
cans generally could duplicate the
tor, and The New Republic, all of
whom she'll support in the upcoming
feat, it could lead to control of the
them sympathetic to civil-rights
gubernatorial campaign.
Senate.
aims, have each editorialized against
Some in the Bush Administration
the bill or its underlying logic. Like-
(such as Housing and Urban Develop-
A Nod to Hooks
wise, the moderate Democratic Lead-
ment Secretary Jack Kemp, Equal
ership Council, meeting this spring in
Employment Opportunity Commission
T
HIS WOULD represent a
New Orleans, explicitly endorsed the
Chairman Evan Kemp, and EEOC
major shift in approach. Bush
goal of equal opportunity as opposed to
Vice Chairman Rosalie Silberman)
would continue to give occa-
equality of outcomes, thus rejecting
and their supporters in Congress
sional nods to Ben Hooks, avoiding
the premise that lies at the heart of
(Representatives Steve Bartlett and
the remoteness, hostility even, of the
Kennedy-Hawkins.
Newt Gingrich) have taken note of
Reagan era. But Bush-or at least his
Meanwhile. this skepticism is mani-
the political potential of empower-
advisors-seems to realize that Hooks
festing itself at the grassroots. The
ment. My bets with Arch Parsons
needs him more than vice versa. The
NAACP's membership rolls are hem-
are based on the premise that Bush
civil-rights establishment responds to
orrhaging-it lost a hundred thou-
has noticed it too.
every problem with a new bill, and if
sand over the past ten years. Were it
Though any civil-rights bill has im-
it can't get one passed, it has nothing
not for ever-increasing corporate con-
portant symbolic value among blacks
to offer its constituents.
tributions, the venerable organiza-
and therefore carries significant veto
Likewise, if Bush merely meets
tion would have to close up shop.
risks, this bill, because of its complex-
Hooks's present demands, he's got
Self-help groups, on the other hand,
ity, simply won't set the grassroots on
nothing over the Democrats, who will
are flourishing. Though typically non-
fire. If Bush ends up going toe to toe
always be able to offer more in the
ideological, they are passionately com-
with Ben Hooks in the inner city, for
way of government regulations and
mitted to individual autonomy and are
once it will be the Republicans who
handouts. Hence, Bush should take
therefore potentially ripe for Republi-
offer the tangibles (vouchers, tenant
his case directly to black voters, offer-
can courtship. Exemplified by Robert
management, etc.) while the civil-
ing them policies that will really make
Woodson's National Center for Neigh-
rights establishment argues about ab-
a difference to their lives.
borhood Enterprise, these groups re-
stractions (burdens of proof, statistical
As with many political shifts, this
ject welfare and quotas in favor of in-
inferences, and so on).
one started with the academics. Schol-
dividual and community initiative. A
Thus far, many civil-rights groups
ars such as Thomas Sowell, Walter
new civil-rights bill means absolutely
are ambivalent about empowerment
Williams, and Charles Murray all con-
nothing to these people, but such ini-
initiatives. The head of the Milwaukee
demned the welfare state and race-
tiatives as enterprise zones, tenant
NAACP chapter, for instance, has
conscious affirmative action as doing
management, and education vouchers
joined the teachers' unions in taking
nothing to help blacks make economic
can mean a great deal.
Polly Williams's education-choice pro-
advances. Their indictment of race-
My own organization, the Land-
gram to court-a lawsuit my group is
conscious measures was echoed by
mark Center for Civil Rights, is a
actively resisting on behalf of black
converts-James Coleman, Nathan
legal arm of the empowerment move-
parents and their children. This leaves
Glazer, Morris Abram, Glenn Loury-
ment, challenging regulatory barriers
the road clear for Bush to emerge as
and later by others, including William
to entrepreneurial opportunities and
the "empowerment" President.
Julius Wilson and Harvard law profes-
defending empowerment efforts where
sor Randall Kennedy, who remain un-
they are attacked by entrenched inter-
No-Lose Issue
abashedly liberal.
ests. After two years in this business,
In particular, Wilson's The Truly
I am struck by the potential for at
EPUBLICANS in recent years
Disadvantaged (1987) demonstrated
least modest political realignment.
R
have run away from this issue,
that race preferences helped mainly
Bertha Gilkey, a tenant-manage-
which is odd since it is a no-
those who didn't need the help, while
ment activist in St. Louis, used to be
lose issue. For once, Republican prin-
leaving unaddressed problems of eco-
a Black Panther. Now she sees liber-
ciples and interests are coinciding,
nomic mobility and development of
als as her principal adversaries and
and that offers the prospect for a con-
human capital. Wilson's book made it
Republicans as allies. In Wisconsin,
siderable change in the political land-
acceptable for thoughtful liberals to
black state Representative Polly Wil-
scape.
question race-conscious strategies as a
liams recently pushed through the
My own objective is to promote a
solution to problems of minorities.
nation's first-ever education-voucher
new agenda; my principal venue is the
Kennedy-Hawkins has run head on
program, which (if it survives legal
courtroom, not the legislature. The po-
into this burgeoning skepticism. Com-
challenge) will provide one thousand
litical ramifications are secondary to
mentators across the political spec-
poor Milwaukee children the chance
me. But if George Bush decides to
trum are recognizing the bill as a
to attend high-quality nonsectarian
carry the empowerment banner, it
turning point, presenting a clear
private schools. Mrs. Williams, Jesse
might just advance the cause by
choice between continuing down the
Jackson's Wisconsin campaign coordi-
twenty years or so-and quite possibly
road of quotas or embarking on a new
nator, joined forces with conserva-
bring America closer to making good
direction for civil rights. William
tive Republican Governor Tommy
on its commitment of opportunity for
Raspberry, Charles Krauthammer,
Thompson to overcome efforts by
all Americans.
Edwin Yoder, Stuart Taylor of Legal
white liberals to defeat the vouch-
That's fine with me-and besides,
Times, the Christian Science Moni-
er proposal. She leaves little doubt
I'll be two bucks richer.
AUGUST 6, 1990 / NATIONAL REVIEW 35
News from Senator
BOB DOLE
(R - Kansas)
SH 141 Hart Building, Washington, D.C. 20510
FOR IMMEDIATE RELEASE
CONTACT: WALT RIKER
JULY 16, 1990
(202) 224-5358
CIVIL RIGHTS
TOMORROW THE SENATE WILL DECIDE WHETHER TO INVOKE CLOTURE ON THE so-
CALLED CIVIL RIGHTS ACT OF 1990.
PRESIDENT BUSH HAS CONSISTENTLY SAID THAT HE WANTS TO SIGN A CIVIL RIGHTS
BILL THIS YEAR. HE HAS SAID THAT HE WANTS A BILL THAT IS SOUND, THAT IS
REASONABLE, AND ONE THAT PROMOTES RACIAL JUSTICE, NOT QUOTA JUSTICE.
AND I, FOR ONE, AS REPUBLICAN LEADER OF THE SENATE, WANT TO HELP PUT THAT
THE BILL ON THE PRESIDENT'S DESK.
THE PRESIDENT HAS DIRECTED HIS TOP ADVISORS, INCLUDING CHIEF OF STAFF
JOHN SUNUNU, WHITE HOUSE COUNSEL BOYDEN GRAY AND ATTORNEY GENERAL DICK
THORNBURGH, TO NEGOTIATE IN GOOD FAITH WITH SENATOR KENNEDY AND WITH THE OTHER
PROPONENTS OF THE CIVL RIGHTS ACT. THESE NEGOTIATIONS BEGAN IN ERNEST MORE
THAN THREE WEEKS AGO. THERE WERE MANY LENGTHY NEGOTIATIONS LAST WEEK.
AND NEGOTIATIONS ARE CONTINUING TODAY.
COMMON GROUND
WE ALL AGREE THAT SECTION 1981 SHOULD BE EXPANDED TO COVER RACIAL
HARASSMENT ON THE JOB.
WE ALL AGREE THAT WORKERS SHOULD BE PERMITTED TO CHALLENGE DISCRIMINATORY
SENIORITY PLANS EVEN AFTER THESE PLANS HAVE BEEN ADOPTED.
WE ALL AGREE THAT THERE MUST BE ADEQUATE REMEDIES IN THE LAW TO DETER
SEXUAL HARASSMENT ON THE JOB.
AND WE ALL AGREE THAT ANY MAJOR REVISION TO THE FEDERAL CIVIL RIGHTS LAWS
MUST PROMOTE CONCILIATION, NOT LITIGATION.
so, THERE ARE MANY AREAS OF COMMON GROUND BETWEEN THE ADMINISTRATION AND
THE BILL'S PROPONENTS HERE IN CONGRESS. BUT THIS COMMON GROUND IS SHAKY
GROUND. AND IT WILL COLLAPSE IF THE BILL'S PROPONENTS DO NOT SHOW SOME
WILLINGNESS TO ADDRESS -- IN MEANINGFUL WAYS -- THE VERY LEGITIMATE CONCERNS
RAISED BY THE PRESIDENT AND HIS ADVISORS.
THE LANGUAGE IN THE KENNEDY-JEFFORDS SUBSTITUTE DEFINING THE TERM
"BUSINESS NECESSITY' IS UNACCEPTABLE. IN MY OPINION, AND IN THE OPINION OF
THE PRESIDENT, THIS LANGUAGE IS so EXTREME. so FAR REMOVED FROM THE JUDICIAL
HISTORY OF TITLE VII. THAT IT WILL HAVE ONE INEVITABLE RESULT -- DE FACTO
RACIAL AND ETHNIC QUOTAS IN THE WORKPLACE.
IF WE REALLY WANT TO CODIFY THE GRIGGS DECISION, AS THE BILL'S PROPONENTS
URGE US TO DO, THEN LET'S DO IT. WE OUGHT TO DEFINE "BUSINESS NECESSITY" IN
THE VERY SAME WAY THAT THE GRIGGS COURT DEFINES IT. AND WE SHOULD NOT DISTORT
THE CRIGGS DECISION BY DEFINING "BUSINESS NECESSITY WITH NEW WORDS THAT HAVE
NEW AND UNCLEAR LEGAL MEANINGS.
THE SECTION IN THE KENNEDY-JEFFORDS SUBSTITUTE OVERTURNING THE MARTIN
VERSUS WILKS DECISION IS ALSO EXTREME.
WHEN I WAS IN LAW SCHOOL, I LEARNED THAT EVERYONE WAS ENTITLED TO HIS OR
HER DAY IN COURT. BUT THE SUBSTITUTE WOULD THROW THIS TIME-TESTED AND
CHERISHED PRINCIPLE OUT THE WINDOW BY PRECLUDING THOSE WHO HAVE BEEN HARMED -
- IN SUBSTANTIAL AND DEFINABLE WAYS -- FROM SEEKING REDRESS THROUGH THE COURT
SYSTEM.
FINALLY, THE REMEDIES SECTION IN THE KENNEDY-JEFFORDS SUBSTITUTE SEEMS TO
HAVE BEEN CRAFTED BY THE TRIAL LAWYERS ASSOCIATION.
I AGREE THAT A DAMAGES REMEDY UNDER TITLE VII -- IN ADDITION TO BACK-
PAY -- MAKES A LOT A SENSE. WITHOUT QUESTION, THE WOMEN OF THIS COUNTRY
NEED A STRONGER REMEDY TO DETER, AND COMPENSATE FOR. SEXUAL HARASSMENT IN THE
WORKPLACE.
BUT THE COMBINATION OF UNLIMITED COMPENSATORY DAMAGES, UNLIMITED PUNITIVE
DAMAGES, AND UNLIMITED JURY TRIALS IS AN UNNECESSARY BURDEN ON OUR NATION'S
EMPLOYERS AND A BONANZA FOR THE PLAINTIFF'S BAR.
KEEP DIALOGUE ALIVE
MY DISTINGUISHED COLLEAGUE, THE MAJORITY LEADER. HAS OUTLINED A VERY
AMBITIOUS SCHEDULE LEADING UP TO THE AUGUST RECESS. THE SENATE IS SCHEDULED
AMBITIOUS SCHEDULE LEADING vr 10 106 ADD
extended rage
6.
TO CONSIDER THE FARM BILL, THE DEBT LIMIT, CAMPAIGN FINANCE REFORM, THE
DEPARTMENT OF DEFENSE REAUTHORIZATION BILL, AND ANY APPROPRIATIONS BILL THAT
MAY BE AVAILABLE.
IF THE SENATE IS TO COMPLETE ACTION ON THESE BILLS, AS WELL AS COMPLETE
ACTION ON A CIVIL RIGHTS BILL THAT THE PRESIDENT CAN SIGN, THEN THE PROPONENTS
OF THE SO-CALLED CIVIL RIGHTS ACT OF 1990 MUST BE WILLING TO SHOW SOME
FLEXIBILITY. AND THEY MUST BE WILLING TO TAKE THE NEGOTIATING PROCESS
SERIOUSLY.
THE CLOTURE VOTE TOMORROW DOES NOT PROMOTE THE NEGOTIATING PROCESS. IT
DOES NOT PROMOTE COMPROMISE. AND IT DOES NOT PROMOTE THE CAUSE OF RACIAL
JUSTICE IN THIS COUNTRY.
A VOTE AGAINST CLOTURE IS A VOTE FOR RACIAL JUSTICE, NOT QUOTA JUSTICE.
AND IT'S A VOTE TO KEEP THE DIALOGUE ALIVE.
###
DRAFT/SUBJECT TO REVIEW AND REVISION
DRAFT
7/9/90 5:00 pm
Dear Ted:
I very much appreciate your letter of June 29 on civil rights. I
too am grateful for the time you have spent with me and with
others in trying to develop an effective and fair civil rights
bill that would receive bipartisan support.
What has been frustrating to me in the process is the realization
that there may be common ground achievable on the principles of
what the bill should address, and how it should address them.
Converting what may be general agreement to mutually agreeable
language has been very elusive.
During the process, I have had the feeling that at least part of
the problem was that the negotiations may have gotten into a duel
over whose language to use. Pride of authorship shouldn't be
allowed to stand in the way of agreement, and I thought I would
take one last crack at cutting through these difficulties.
The Administration's basic concern is that the bill as crafted
now, will, even if unintentionally, compel businesses to adopt
quota policies in hiring and promotion as the only or best
defense against the likelihood of legal action.
The key to a solution, I believe, is to use language directly
from Griggs, language that has become the basis of what we agree
was a functioning process at eliminating discrimination. The
Griggs decision and those Supreme Court decisions based on the
Griggs holdings have become an effective framework that we,
together, have agreed is well worth preserving.
Thus, I propose the following language to address the concerns we
have raised and the issues you have identified in our
discussions.
On the definition of business necessity, I think we can
accommodate your desires by including language from Griggs.
Rather than "substantially and demonstrably related to effective
job performance, which is not a formulation that Griggs actually
uses, how about "has a manifest relationship to the employment in
question"? (This is on page 432 of the case.)
On "job performance plus" and related issues, consistent with
preserving to Griggs and its framework, we must take account of
the very recent case (Watson in 1988) that for the first time
expanded disparate impact theory to cover subjective hiring
practices. The definition of business necessity
must therefore accommodate the special characteristics of such
practices. It should also permit employers to pursue business
goals besides those related to job performance per se. (This
would address issues such as the non-smoking criterion you have
commented on.)
I think this could be accomplished with language that the Court
used back in 1979. In New York Transit Authority V. Beazer, just
eight years after Griggs, in an opinion written by Justice
Stevens (author of the principal Wards Cove dissent), joined by
Chief Justice Burger (author of Griggs) and by Justice Blackmun
(who wrote the other dissent in Wards Cove), the Court upheld the
practice of excluding methadone users even from non-safety-
sensitive jobs with the Transit Authority, explaining that the
"legitimate employment goals of safety and efficiency ... are
significantly served by -- even if they do not require -- [the
employer's] rule." 440 U.S., page 587.
Merging the two sets of language together would produce the
following:
"The term 'justified by business necessity' means that
the challenged practice or group of practices has a
manifest relationship to the employment in question
or that the respondent's legitimate employment goals
are significantly served by -- even if they do not
require -- the challenged practice or group of
practices."
This formulation codifies Griggs and its progeny, just as you
have urged. In order for the formulation to be acceptable
however, we also would need to agree explicitly, and with a
record, that there would be no legislative history changing or
clouding its meaning. Instead, the legislative history should be
confined to the following:
"The definition of 'business necessity' is drawn
from Chief Justice Burger's opinion in Griggs V.
Duke Power Co., 401 U.S. 424, 432 (1971) and Justice
Stevens' opinion in New York Transit Authority V.
Beazer, 440 U.S. 568, 587 (1979). The definition is
intended to have the same meaning that the term
'business necessity' has been given by the United
States Supreme Court in Griggs and its progeny.'
Finally, I am still troubled by the proposed language on the
"group of employment practices" issue. I agree with you that if
a test is shown to produce a disparate impact, the employer
should have to justify the test; but that doesn't mean the
employer should have all of its practices subjected to judicial
scrutiny as a matter of course.
I have noted that you are concerned about a question that arose
in a case called Sledge V. J.P. Stevens, where the defendant's
hiring process was basically a "black box" to the plaintiff
because the defendant had no articulable hiring standards. I'm
somewhat puzzled by the conclusions drawn from the case, since as
I understand it, even after Wards Cove, the plaintiff won that
case under the rule reaffirmed in Wards Cove.
Basically, I continue to fear language that causes more problems
than it solves, or language with unintended consequences that
would stimulate a quota-based defensive position. The language
in your letter creates an exception that will swallow up the
basic rule and thus permit challenges to employers' hiring based
on their having the "wrong" demographic distribution. Still,
consistent with our willingness to work out the differences, I
suggest legislative history specifically endorsing the result in
the Sledge case, along with our rewrite of your "group of
practices" section to reduce that risk while permitting
appropriate challenges to groups of practices that produce a
disparate impact. I attach both. These suggestions, along with
the new proposal on business necessity, would substantially
alleviate our concerns about quotas in this part of the bill.
This is really as far as we can go on these points. Can't we
agree on this effort to base the language directly on Griggs and
Beazer as a way out of strugging with intended or unintended
impacts of new words.
If we can deal quickly with these issues so directly related to
our concerns on the quota implications and the potential for
quota practices that could result from your proposed bill, then I
am sure we can develop a way to handle the remaining issues.
Sincerely,
John H. Sununu
The Honorable Edward Kennedy
United States Senate
Washington, D.C. 20510
THE WHITE HOUSE
WASHINGTON
Date 6/8/98
TO:
Rd Ragers
FROM:
JEFF VOGT
Assistant Director/Business Liaison
Office of Public Ju Liaison
Room 129 OEOB, Ext. 7983
The attached is for:
Information
Review & Comment
Direct Response
Appropriate Action
Draft Reply
Signature
File
Other
Please Return By
COMMENTS:
Proposed CEOs for
Ciril Rights meeting 1
W.ll pall lates re: thus
Thanks- 1
D-
THE WHITE HOUSE
WASHINGTON
CEOS
Allen Jacobson
3M
George Fisher
Motorola
John Clendenin
Bell South
Bob Mallott
FMC
James K. Baker
Arvin Industries
Kirk Fordice
Fordice Industries
Bill VanSant
Blount, Inc.
H. Brewster Atwater
General Mills
The Backgrounder
Herîtage Foundation
773
No.
The Heritage Foundation 214 Massachusetts Avenue N.E. Washington, D.C. 20002 (202) 546-4400
June 7, 1990
FULFILLING AMERICA'S PROMISE:
A CIVIL RIGHTS STRATEGY FOR THE 1990S
INTRODUCTION
The U.S. Congress currently is considering legislation that its proponents
claim will help to create equal opportunities for blacks and other minorities
and reduce the racism that persists in America. Far from that, however, the
proposed Civil Rights Act of 1990 will preserve and expand America's apart-
heid-like system of racial hiring quotas and do nothing to promote the eco-
nomic opportunities for what is becoming a permanent under class of minor-
ity Americans. Ironically, the plight of these poor is used to justify the new
civil rights law, yet the remedies proposed do not address their condition. In-
stead, the racial quotas encouraged by the Act at best may benefit only edu-
cated and upper income minorities.
Despite the civil rights gains of the last 25 years, one-third of the nation's
black population remains in poverty and one-fourth of all Hispanic Ameri-
cans live in poverty. What is needed is a civil rights bill that advances the op-
portunities of these and other poor Americans.
Outdated Thinking. The Civil Rights Act of 1990 represents an outdated
view of how minority Americans can gain equality of opportunity. Sponsored
by Senator Edward Kennedy of Massachusetts and Representative Augustus
Hawkins of California, both Democrats, the bill offers 1960s-type solutions to
a problem that requires a progressive new strategy for the 1990s. To be sure,
many of the civil rights strategies employed in the 1950s and 1960s made cru-
cial strides toward equal opportunity for minority Americans. That civil rights
movement and the landmark statutes it achieved broke down barriers and
won widespread support among Americans. But many of the veterans of
those early battles still are locked into the thinking of that era. They focus on
racial quotas, preferences, and statistical-base racial balancing mechanisms as
Note: Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt
to aid or hinder the passage of any bill before Congress.
a weapon for advancing minorities, rather than on crafting strategies to give
minorities the basic tools needed to take advantage of the opportunities hard
won by Martin Luther King and other leaders of the original civil rights move-
ment.
Fortunately, however, a new generation of minority Americans is beginning
to question the relevance today of those old remedies. These Americans are
proposing new solutions to propel civil rights beyond the old formula and
into a new era of expanded opportunity and true equality of opportunity. The
debate in Congress challenges conservatives and liberals alike to fashion a
civil rights agenda that goes far beyond the outmoded approach of Ken-
nedy/Hawkins.
Ending a Paternalistic View. What is needed are not racial quotas and set-
asides, but an empowerment strategy that will unleash the capacity of individ-
uals who have been excluded from the mainstream. This will require lawmak-
ers to view differently those whom they wish to help. For too long govern-
ment in practice has treated low-income Americans as people who do not
have the capacity to make choices to better themselves. This paternalistic
view has had a devastating effect on minority communities because it has en-
couraged entire racial groups to believe that they cannot succeed without dis-
crimination in their favor and continuous aid from government. That has
spawned a generation dependent on government, with low self-esteem and lit-
tle hope for effecting change in their lives. With it has come broken families,
soaring crime and school dropout rates, and shattered community institutions
that once played a vital role in holding minority communities together.
The liberal civil rights agenda now being advanced in Congress perpetuates
the myth that the poor and all minorities are somehow handicapped and must
be given special preferences and handouts to succeed. This approach neces-
sarily embraces racial quotas and the massive social welfare programs that
have failed to create opportunities for the economically disadvantaged.
Unfilled Capacity. The conservative vision of progress, however, rests on a
very different premise: that low-income and minority Americans actually
have enormous unfilled capacity for achievement. By removing regulatory
barriers to economic opportunity and creating an environment in which these
individuals are empowered to take charge of their lives, conservatives believe
that capacity for achievement will be realized.
This conservative view of progress suggests a two-pronged civil rights strat-
egy. The first prong is vigorous enforcement of civil rights laws. Discrimina-
tion remains an all-too familiar fact of life for many Americans. Government
must prosecute cases of discrimination against individuals to the full extent of
the law. Title VII of the 1964 Civil Rights Act, moreover, should be strength-
ened to include a remedy of damages against those who willfully discriminate.
Building on this enforcement strategy, the conservative civil rights strategy
would call for aggressive court and legislative action to challenge modern-day
Jim Crow laws that stifle minority business development. Examples include
the 1931 Davis Bacon Act, which freezes out minority firms from government
construction contracts, and onerous occupational licensing laws for profes-
2
sions ranging from cosmetology to child care. These barriers to economic op-
portunity, seemingly neutral in their impact on the races, actually dis-
proportionately harm minority entrepreneurs trying to use the opportunities
promised by the civil rights statutes. These remaining legal barriers, more-
over, pose the greatest hurdles to the poor - the very people who have been
left behind by today's civil rights movement.
-Attacking Quotas. This enforcement strategy also would attack racial quo-
tas that act as a ceiling to housing and educational opportunities for minori-
ties. Strict adherence to racial and ethnic composition ratios in public
schools, for example, has capped the number of minority students who can at-
tend magnet schools, even when those schools are operating far below capac-
ity. These and similar racial quotas that limit the number of Asian Americans
admitted to universities should be challenged by all who genuinely believe in
civil rights.
The second prong of the conservative civil rights agenda is individual em-
powerment to control one's own life. In many respects this is the essence of
civil rights and the key to true independence. As Robert Kennedy stated in
1966, "reliance on government is dependence - and what the people of our
ghettos need is not greater dependence, but full independence. ,,1 Conserva-
tives thus want to fulfill the promise of the civil rights movement by pursuing
a legislative strategy designed to remove government-imposed barriers that
stifle economic opportunities for the poor. Such barriers prevent the poor
from making such fundamental decisions as where they will live and who will
educate and care for their children.
The conservative empowerment strategy calls for enterprise zones in low-
income minority communities to reduce tax and regulatory impediments now
frustrating the entrepreneurial spirit of those communities. It calls for a rejec-
tion of the public education double standard that condemns poor, primarily
minority students to second-rate schools, by injecting competition into the
American education system. Parental choice and education vouchers for low-
income families are needed to empower parents as consumers with the ability
to make choices in a market that now is open only to those who are not poor.
This strategy also means vesting community groups with the power and re-
sponsibility to deliver services currently managed by bureaucrats. Public hous-
ing tenants, for example, should be allowed to manage and eventually to own
their own housing units, building on the successes of such efforts in Boston,
St. Louis, and Washington D.C. Empowerment also means that government
must make good on its fundamental responsibility of protecting its law-abid-
ing citizens from crime, creating an environment in which they can prosper.
Thus innovative ideas like a police ROTC for students from low-income com-
munities can be an important element of the conservative civil rights strategy.
1 Quoted from "Empowerment: A Vision for the 1990s," Task Force on Empowerment, House Republican
Research Committee, U.S. House of Representatives.
3
George Bush has a tremendous opportunity to forge a new civil rights
agenda that fulfills the equal opportunities promised by the original civil
rights movement. He should start by vetoing the Kennedy/Hawkins bill and
the destructive racial quotas that it promotes. The President already has
made a solid step in this direction, promising in a May 17, 1990, speech to
veto any civil rights bill "whose unintended consequences are quotas." Next,
he should propose new policy initiatives that express his vision of civil rights,
rooted in empowerment and a firm commitment to prosecute actual discrimi-
nation. In what may prove to be a historic speech on civil rights, Bush on May
17 first articulated the critical connection between civil rights and empower-
ment, proclaiming that any changes in civil rights law must embrace "a
broader agenda of empowerment." As John F. Kennedy did in 1961, Bush
should issue an executive order that puts forth his vision of an empowerment
civil rights agenda. This executive order should instruct the federal govern-
ment to implement Bush's civil rights strategy of removing racial and eco-
nomic barriers to individual independence.
THE STATE OF CIVIL RIGHTS
Since its origins in the American revolutionary era, the quest for civil rights
always has meant securing for individuals the power to control their own des-
tinies. The past quarter-century has witnessed both major triumphs and seri-
ous setbacks in this quest. The civil rights laws of the 1960s opened the doors
of opportunity to millions of previously excluded Americans in such crucial
areas as employment, education, voting, and public accommodations.
Indeed, Washington Post columnist Courtland Milloy, who is black, has writ-
ten that "black Americans are probably America's greatest success story. En-
slaved a little more than a hundred years ago, there are now 2 million of them
living affluently. ,,2 Milloy notes that between 1967 and 1987 the number of
black households earning $50,000 or more grew from 212,000 to 764,000, an
2 Michael Novak, "The Invisible Man," American Enterprise Institute, On the Issue, from Forbes, February 19,
1990.
4
increase of 360 percent. The total income of America's 28 million blacks is
larger than the gross domestic product of all but ten nations. 3 Since the mid-
1960s, moreover, the number of African-American elected officials has quad-
rupled. And black politicians now govern four of America's six largest cities.
In recent years, however, the focus of many civil rights policies has shifted
from securing equal opportunity to securing equal outcomes among racial
and ethnic groups, through quotas, set-asides, busing, and welfare. Though ad-
vocated as temporary measures necessary to undo rapidly the lingering ef-
fects of past discrimination, these devices have grown increasingly en-
trenched. 4 Indeed, many "establishment" civil rights leaders' 5 demand adher-
ence to this agenda as a civil rights litmus test.⁶
Little Help for Disadvantaged. This agenda is destructive for many rea-
sons, but the most damning indictment- delivered by critics spanning the
philosophical spectrum from Charles Murray to William Julius Wilson - is
that it hasn't worked. 7 Sociologist Wilson, of the University of Chicago, notes
that while many blacks have enjoyed economic progress in recent years, for
millions of others "the past three decades have been a time of regression, not
progress." As Wilson explains, "[R]ace-specific policies. , although benefi-
cial to more advantaged blacks , do little for those who are truly disadvan-
taged. ,,8 Adds Robert Woodson, President of the Washington, D.C.-based Na-
tional Center for Neighborhood Enterprise, a grass roots organization that
promotes self-help solutions to local community problems, "Affirmative ac-
tion does not help the black dishwasher or the untrained black youth. A
3 Ibid.
4 See, e.g., Clint Bolick, Changing Course: Civil Rights at the Crossroads (New Brunswick, N.J.: Transaction
Books, 1988), P. 53-78.
5 See, e.g. Clint Bolick, In Whose Name? The Civil Rights Establishment Today (Washington, D.C.: Capital
Research Center, 1988).
6 National Urban League President John E. Jacob, for instance, asserts that "[t]he goal of parity is the one
constant that must be shared by anyone who presumes to hold a leadership position in the black community."
John E. Jacob, "Black Leadership in a Reactionary Era," The Urban League Review (Summer 1985), p. 42-43.
7 See Bolick, Changing Course, pp. 84-91. As economists James P. Smith and Finis R. Welch recently
concluded, "[A]ffirmative action apparently has [had] no significant long-range effect" on the wage gap between
blacks and whites. Closing the Gap: Forty Years of Economic Progress for Blacks (Santa Monica, California: The
Rand Corporation, 1986), p. 95. Rather, the principal effect of race-conscious strategies, according to William
Julius Wilson, is a "growing economic schism between lower-income and higher-income black families." William
Julius Wilson, The Truly Disadvantaged (Chicago: University of Chicago Press, 1987), p. 110.
8 Ibid., pp. 110 and 42. Wilson's dismal economic prognosis was largely confirmed by the recent report of the
Committee on the Status of Black Americans. Gerald David Jaynes and Robin M. Williams, eds., A Common
Destiny (Washington, D.C.: National Academy Press, 1989).
9 Robert L. Woodson, "Race and Economic Opportunity," NPI Policy Review Series, National Center for
Neighborhood Enterprise, 1989, p. 3.
5
civil rights agenda that promotes racial set-asides for the middle-class, writes
Washington Post columnist William Raspberry, "is like demanding that the so-
ciety supply aspirin for your uncle because your nephew has a headache. Isn't
it time to abandon this bait-and-switch game in favor of truth in labeling?"¹⁰
The Victims of Racial Politics
The failure of race-specific assistance programs to arrest the growing cleav-
age between disadvantaged and more successful blacks is borne out by census
data. There has been, as Harvard political economist Glenn Loury has shown,
"significant improvement in the earnings of employed black workers over the
period 1940-1980.' 11 But, says Loury, the average gains in black workers'
earnings have not been "enjoyed equally by all black workers." In fact, earn-
ings inequality within the black population has increased during the last 25
years, and remains greater than income differentials among white workers.
Fact: In 1959, the bottom 40 percent of black men earned 8 percent of the
total earnings of all black men. By 1984 that bottom 40 percent earned only 4
percent of total earnings. Conversely, the top 20 percent of black men in 1959
earned 50 percent of total black male earnings. By 1984 this same 20 percent
earned 60 percent of the total. 12
Fact: From 1970-1986, the proportion of black families with incomes over
$35,000 grew from 15.7 percent to 21.2 percent, and the proportion with in-
comes over $50,000 nearly doubled, from 4.7 percent to 8.8 percent. Yet dur-
ing the same period, the proportion of black families with incomes of less
than $10,000 also grew, from 26.8 percent to 30.2 percent.
What is the cause of such disparities? If racism were the answer, it would
present a barrier for all blacks. And as Loury concludes, "[E]mployment dis-
crimination is not a major factor." Rather, he points out, such practical fac-
tors as education contribute significantly to income differentials among
blacks as well as between blacks and whites. Annual earnings of college-edu-
cated black males, for example, rose by 6 percent relative to whites between
1969 and 1984. The disintegration of the traditional family among poor
blacks, however, accounts for much of this disparity: The poverty rate for
black families headed by a single mother is 50 percent - more than four times
the rate for intact, two-parent black families. The median income of two-par-
ent black families now is 88 percent that of comparable white families, and
13
the disparity is closing at a rate of 5 points a year.
10 "Playing on White Guilt," Washington Post, May 14, 1990.
11 Testimony of Professor Glenn C. Loury, before the Committee on Labor and Human Resources of the U.S.
Senate, concerning S. 2104, the Civil Rights Act of 1990, February 23, 1990.
12 Ibid.
13 "Restoring the Black Family," Family (The Family Research Council), September/October 1989. Woodson,
op. cit., p. 11.
6
Fact: Between 1960 and 1988 the percentage of black women aged 15-44
married with a spouse present in the household declined from 51.4 percent to
29.1 percent. For whites, the decline was 69.1 percent to 54.5 percent. Be-
tween 1960 and 1988 the percent of black children living with a black married
couple fell from 67 percent to 38.6 percent, while the number of black chil-
dren living with a never-married person rose by more than 1400 percent,
from 2.1 percent to 29.3 percent. By 1988, 61.2 percent of black children were
born to an unmarried woman.¹⁴
Liberal solutions of quotas, forced integration, and other race-based ap-
proaches to civil rights clearly do not empower most blacks. Black men, par-
ticularly, are even more alienated from the economic mainstream. The last 25
years, for example, have witnessed a pronounced downward trend in the num-
ber of black men participating in the labor force. Fact: In 1962, almost 60 per-
cent of young black males were employed, but by 1985 only 44 percent were
employed. 15 The reason for this dramatic decline was not that jobs disap-
peared - in fact, it was a period of remarkable job creation. Nor is racism the
culprit. The principal destructive influence was a burgeoning welfare system
that subsidized family breakups and nonemployment.
Victim Identity. Liberal civil rights policies also have had a more insidious
effect on the economic advancement of blacks. Shelby Steele, Associate Pro-
fessor of English at San Jose University, has written that the prevalence of ra-
cial quotas and preferences has ingrained in blacks an identity of themselves
as victims. This identity as victim, argues Steele, who is black, perpetuates a
sense of low-self esteem among blacks and a feeling of powerlessness, which
stifles individual initiative and responsibility. Writes Steele:
Social victims may be collectively entitled, but they
are all too often individually demoralized. Since the
social victim has been oppressed by society, he
comes to feel that his individual life will be
improved more by changes in society than by his
own initiative. Without realizing it, he makes society
rather than himself the agent of change. The power
he finds in victimization may lead him to collective
action against society, but it also encourages
16
passivity within his own life.
Steele notes that after the death of Martin Luther King, the civil rights
movement's message of equal opportunity was supplanted by a focus of
blacks as victims entitled to special reparations from white society. "The 1964
civil rights bill," writes Steele, "was passed on the understanding that equal
14 Loury. op. cit.
15 Novak, op. cit.
16 Shelby Steele, "I'm Black, You're White, Who's Innocent," Harpers, June, 1989.
7
opportunity would not mean racial preference. But in the late 1960s and early
1970s, affirmative action underwent a remarkable escalation of its mission
from simple anti-discrimination enforcement to social engineering by means
of quotas, goals, timetables, set-asides and other forms of preferential treat-
ment.
,,17 These policies remain the agenda of the liberal civil rights establish-
ment.
Recent Supreme Court rulings, however, may signal a turning point for the
future direction of civil rights policy. In a series of decisions last year, 18 the
Court called squarely into question the use of racial quotas as well as the as-
sumptions on which race-conscious measures are based. 19 Yet old guard civil
rights leaders and their congressional allies reacted to these rulings swiftly
and predictably, condemning them and urging "corrective" legislation. Sena-
tor Kennedy and Representative Hawkins introduced legislation to overturn
most of the rulings and further expand the scope of the civil rights laws.
WHY THE KENNEDY/HAWKINS BILL FAILS MINORITY AMERICANS
Undergirding the Kennedy/Hawkins legislation is the assumption that
every significant difference in statistical outcomes among racial or ethnic
groups is attributable to discrimination and curable by quotas. 20 This as-
sumption is flawed. While discrimination remains a serious obstacle for mi-
norities, it is not the primary barrier to opportunity afflicting the economi-
cally disadvantaged. Observes the National Center for Neighborhood
Enterprise's Woodson, "Vague cries for 'peace, jobs, and freedom' are mean-
ingless when a permanent (and growing) underclass of more than one-third
of all black Americans, unskilled and undereducated, remains untouched by
civil rights gains, the war on poverty, increased black political power, and a
mammoth social welfare industry. ,,21 Civil rights policies that fail to recog-
nize this fact and to confront real obstacles to progress are doomed to repeat
the failures of the past.
At the heart of the Kennedy/Hawkins bill are provisions that will make it
all but impossible for employers to defend themselves against a claim of dis-
criminatory hiring practices. Under the proposed law, a business that fails to
17 Shelby Steele, "A Negative Vote on Affirmative Action," New York Times Magazine, May 13, 1990.
18 City of Richmond v. J.A. Croson Co., 109 S.Ct. 706 (1989) (striking down Richmond's minority contract
set-aside program); Wards Cove Packing Co. v. Antonio, 109 S.Ct. 2115 (1989) (making it less difficult for
employers to defend employee selection practices against discrimination charges that are based solely on
statistics without evidence of discrimination); Martin V. Wilks, 109 S.Ct. 2180 (1989) (allowing challenges to racial
quotas contained in consent decrees by those who are affected); and Patterson V. McLean Credit Union, 109
S.Ct. 2362 (1989) (holding that the Civil Rights Act of 1866, which prohibits discrimination in the making of
contracts, does not cover instances of racial harassment).
19 See Clint Bolick, "The Supreme Court and Civil Rights: A Challenge for George Bush," Heritage Foundation
Backgrounder No. 728, September 28, 1989.
20 See Bolick, Changing Course, pp. 56-60.
21 Woodson, op. cit., p. 3.
8
meet certain racial and ethnic percentages in the composition of its work
force must prove that such disparities are not due to discrimination. This is a
reversal of normal legal standards. Usually, a claimant must prove that a de-
fendant has violated some legal standard in order to prevail. Under the pro-
posed legislation, however, the claimant need only show that racial hiring per-
centages have not been met, and the burden then shifts to the employer to
prove the absence of discrimination. Thus the employer is presumed guilty un-
less innocence is proved.
Insurmountable Standard. In addition to this shifting of the burdens, the
legislation proposes another hurdle that will make it impossible for an em-
ployer actually to prove that he or she does not discriminate. Under the Ken-
nedy/Hawkins bill, if the work force of a business fails to meet the prescribed
racial composition, the only way that an employer can rebut the presumption
of discrimination is by proving that his or her hiring criteria bears "a substan-
tial and demonstrable relationship to effective job performance." This is an
insurmountable legal standard, and a reversal of the Supreme Court's 1989
ruling in Wards Cove Packing Co. v. Antonio that a business need only show
that a challenged hiring practice "serves, in a significant way, the legitimate
goals of the employer." Under the elevated hurdle proposed by the Ken-
nedy/Hawkins bill, such reasonable and non-racial hiring criteria as requiring
a high school or college diploma could fail to meet the "substantial and de-
monstrable" test necessary to rebut a claim of discrimination. A company
that merely shows that it applies the same standards to everyone, regardless
of race, will be found guilty of discrimination.
Faced with such hurdles, rational employers will turn to racial quotas as the
only reasonable means to protect themselves from lawsuits. To avoid litiga-
tion, employers will have no recourse but to hire a certain percentage of their
employees based not on merit or qualifications, but solely on the basis of
race. Indeed, writing in the weekly lawyers' newspaper Legal Times, liberal
columnist Stuart Taylor, Jr. notes that the bill would "pressure employers sur-
reptitiously to use quotas to improve their statistics." This is not a positive di-
rection for civil rights. As George Bush said in his May 17 Rose Garden
speech on civil rights, "The focus of employers in this country must be on pro-
viding equal opportunity for all workers, not on developing strategies to avoid
litigation."
Presumption of Discrimination. Another adverse impact of the Ken-
nedy/Hawkins bill would be to establish "quota ceilings" on the number of
minorities employed in low-skilled jobs. One of the issues in the Wards Cove
case was a disparity in the company's work force between the number of mi-
norities employed in low-skilled factory jobs and upper-level management po-
sitions. Under the proposed Kennedy/Hawkins bill, such a disparity would
create the presumption of employer discrimination. The result: rather than
hiring more minorities for management level positions, many employers sim-
ply would reduce the number of minorities employed in low-skilled positions
so as to avoid the unequal percentages that would result in liability.
9
By its narrow focus on statistical disparities and racial quotas, the Ken-
nedy/Hawkins bill would codify the racial divisions that continue to fuel racial
tensions between whites and minorities. Rather than equal opportunity for
all, the bill would offer racial entitlements for a select few. What is needed in-
stead is a positive civil rights strategy geared toward empowering all individu-
als with the independence they need to make the choices necessary to suc-
ceed. The two key elements of this new civil rights agenda are vigorous en-
forcement of anti-discrimination laws and progressing from the old agenda of
affirmative action to a new strategy of affirmative empowerment.
CONSERVATIVES AND THE CIVIL RIGHTS LAWS
The conservative civil rights agenda must be more than opposition to racial
quotas. Conservatives must assert a strong affirmative commitment to enforc-
ing civil rights laws and prosecuting discrimination. Civil rights law enforce-
ment officials should take their lead from U.S. Appeals Court Judge Clarence
Thomas, who served as chairman of the U.S. Equal Employment Opportunity
Commission (EEOC) from 1982 to 1990. Thomas demonstrated that vigorous
civil rights law enforcement need not mean quotas. He reorganized and
streamlined a previously ineffective agency; he established a policy of full re-
lief for victims of discrimination (the EEOC previously settled for quotas,
which employers were happy to accept); and he shifted the agency's focus
away from cases involving statistics to those involving individual victims - the
very people who could not find help elsewhere. As a consequence, Thomas
was able to secure more relief for more victims of discrimination than ever
before had been obtained.
The new civil rights strategy should reject quotas as an unfair and racially
divisive remedy, and instead seek tough penalties against discriminators and
full relief for victims of actual discrimination. This would require amending
the employment provisions of the 1964 Civil Rights Act to strengthen dam-
age remedies, 22 an approach supported by Clarence Thomas, former Attor-
ney General Edwin Meese, and former Assistant Attorney General William
Bradford Reynolds. In the desegregation context, conservatives should push
for monetary damages instead of busing. Rather than merely reassigning stu-
dents to achieve racial balance, damages in the form of education vouchers
should be a remedy available to successful plaintiffs. Currently, the preferred
judicial remedy in desegregation cases are such "equitable remedies" as bus-
ing and racial quotas. These forms of relief advance "group" rather than "indi-
vidual" remedies. Yet as Clarence Thomas demonstrated during his tenure at
the EEOC, remedies that focus on individual relief are possible and far more
effective. A remedy of education vouchers would secure better the goal of
equal opportunity by enabling parents to choose the best education opportu-
nities available for their children.
22 See Bolick, "The Supreme Court and Civil Rights," p. 8.
10
Economic Barriers. Aggressive enforcement of civil rights laws also means
pursuing litigation and legislation to remove regulatory barriers to economic
opportunity. In the courts and legislatures, conservative civil rights advocates
should join with members of minority groups to challenge on civil rights
grounds such economic barriers as the 1931 Davis-Bacon Act, which prevents
minority firms from securing government construction contracts. This law re-
quires that inflated "prevailing wages" be paid on all government construc-
tion contracts. In practice, this has meant that only firms willing and able to
pay union scale wages can secure government construction contracts. Such
firms typically are large, established, white-owned businesses that can afford
to pay inflated wages. Smaller, more competitive minority firms that cannot
absorb such costs thus are prevented from securing the contracts, even
though they can perform the work at lower cost. The law also discourages the
hiring of low-skilled workers by establishing high entry-level wages. The pre-
dictable combined impact of these restrictions is the disproportionate exclu-
sion 23 of minority entrepreneurs and laborers, which was an explicit goal of the
bill.
Limiting Competition. Occupational licensing laws and regulations that re-
strict the formation of new businesses also should be confronted for their dis-
parate impact on minorities. Many of these restrictions are unrelated to pub-
lic health or safety objectives, and in fact often are promoted by the profes-
sions themselves to limit competition. Like the Jim Crow laws of an earlier
era, these laws often impede minority participation in professions and busi-
nesses. Taxicab regulations, for example, strictly limit the number of entrepre-
neurs in a business that otherwise would be easily accessible to minorities. Li-
censing laws also exclude from professions those who are demonstrably quali-
fied, but who cannot satisfy arbitrary and formalistic requirements. These li-
censing restrictions commonly are prevalent in such entry-level trades and
professions as cosmetology, barbering, photography, stenography, interior
decorating, and pool cleaning.
More rigorous enforcement of civil rights laws also requires confronting
quota "ceilings" in education and housing. To achieve racial balance in public
schools and housing, government authorities set rigid quotas that operate to
exclude minorities. Example: In California universities, Asian American stu-
dents are excluded from admission because they are "overrepresented"
among eligible candidates for admission. 24 Example: In Kansas City magnet
schools, black youngsters are denied admission so the school district can hold
seats empty for white students. 25 These experiences illustrate how race-based
23 See Congressional Record-House, February 28, 1931, pps. 6504-6521.
24 See Dan C. Heldman, "Ending College Admission Quotas Against Asian-Americans," Heritage Foundation
Executive Memorandum No. 240, June 30, 1989; Representative Dana Rohrabacher, "College Admission Quotas
Against Asian-Americans: Why Is the Civil Rights Community Silent?" Heritage Lectures No. 236.
25 See "Blacks sue over KC desegregation plan," The Washington Times, July 17, 1989.
11
policies, however well-intentioned, can ultimately harm the very individuals
they are purported to benefit.
Affirmative Action
If one term exists in the American lexicon that conservatives need to recap-
ture, it is "affirmative action." Conservatives generally have been perceived
to be "opposed" to affirmative action. If affirmative action means quotas,
such opposition is warranted. But "affirmative action" need not be synony-
mous with quotas; conservatives, therefore, should not be considered adver-
saries of affirmative action as it was originally intended.
Affirmative action as practiced in the mid-1960s recognized that many indi-
viduals were ill equipped, for reasons of past discrimination, to take advan-
tage of the equal opportunities secured to them for the first time by the newly
enacted civil rights laws. Affirmative action thus meant providing tools to en-
able those who had been held back by discrimination to compete effectively
in the market. It did not mean racial hiring quotas.
Origin of a Term. The term first was used by John F. Kennedy in his Execu-
tive Order No. 10925, issued in 1961. As Hoover Institution economist
Thomas Sowell has noted, Kennedy's order specifically provided that affirma-
tive action was not intended as a system of racial quotas or hiring prefer-
ences. Instead, it was an effort to disseminate information about federal jobs
to encourage previously excluded groups to apply, and to insure fairness in
hiring and promotion regardless of race. Thus, Kennedy ordered federal con-
tractors to "take affirmative action to ensure that the applicants are em-
ployed, and that employees are treated during employment, without regard to
their race, creed, color, or national origin. ,,26
Senator Hubert Humphrey, the Minnesota Democrat and architect of the
Civil Rights Act of 1964, also took pains to distinguish affirmative action
from racial quotas. During Senate debate on the civil rights bill, Humphrey
instructed his colleagues that the bill "does not require an employer to
achieve any kind of racial balance in his work force by giving preferential
treatment to any individual or group. ,,27 But Thomas Sowell recounts that
"the original meaning of 'affirmative action,' as a general attempt to inform
and recruit applicants from groups long excluded from employment and
other opportunities, quickly gave way to its current meaning - choosing
among applicants on the basis of numerical group results.
The firm opposition to racial quotas expressed by most liberals in the 1960s
was well founded. Quotas (sometimes called "goals and timetables") could
26 Thomas Sowell, Civil Rights: Rhetoric or Reality? (New York: William Morrow & Company, Inc., 1984) p. 39.
27 Ibid.
28 Thomas Sowell, "Weber and Bakke, and the Presuppositions of 'Affirmative Action," in W.E. Block and M.A.
Walker, eds., Discrimination, Affirmative Action, and Equal Opportunity (Vancouver: The Fraser Institute,
1982), p. 61.
12
not accomplish the original - and still salient - objectives of affirmative ac-
tion. All quotas do is to redistribute opportunities as part of a zero-sum
game: every person's gain means another's loss. Quotas, moreover, do not
help the economically disadvantaged gain the skills necessary to compete ef-
fectively. Thus affirmative action comprised solely of quotas has aided better-
qualified minority candidates while not addressing the real-world needs of
people outside the economic mainstream. As William Julius Wilson argues,
future affirmative action must consist of efforts "targeted to truly disadvan-
taged individuals regardless of their race or ethnicity.
CONSERVATIVES AND EMPOWERMENT
The second element of a new civil rights agenda is individual empower-
ment. This empowerment means giving individuals the opportunity to realize
their potential and achieve economic independence by giving them the power
to choose the conditions under which they live - such as how their family will
be educated and where they will live. Liberal social welfare programs do not
empower the poor. Rather they empower government and an industry of so-
cial service providers that prospers by managing the lives of the poor. The
conservative idea of empowerment, by contrast, derives from the movement's
roots in market economics and classical liberalism - - power not as control
over others but as the freedom to control one's own affairs, the essential in-
gredient of liberty.
A civil rights strategy based on empowerment focuses on enabling individu-
als to choose how they will improve their condition. The aim is to help low-in-
come Americans by expanding opportunities rather than by merely redistrib-
uting them. The impetus for such efforts is not the coercive power of govern-
ment, but consumer choice in the market. To achieve empowerment, the new
civil rights strategy must confront remaining systemic obstacles that prevent
individuals from controlling their own destinies. At least four such obstacles
exist: stifling regulation of entrepreneurial opportunities, poor public schools,
the welfare system, and crime. All of these barriers disproportionately bur-
den people outside the economic mainstream, who disproportionately are mi-
norities.
An empowerment strategy to unlock the pent-up capacity of lower-income
minority Americans requires many actions on several fronts. Among them:
1) Remove obstacles to entrepreneurs. Economic liberty is a fundamental
civil right. Yet this liberty to pursue a livelihood free from excessive or arbi-
trary interference is the forgotten civil right. This right was destroyed by the
1873 Slaughter-House cases³⁰ in which the Supreme Court ruled erroneously
that economic liberty was not included among privileges or immunities of citi-
29 Wilson, op. cit., p. 117.
30 83 U.S. 36 (1873).
13
zenship protected by the Fourteenth Amendment. As a consequence, entre-
preneurial opportunities are burdened by a pervasive array of regulations at
every level of government, from the 1931 Davis-Bacon Act and federal mini-
mum wage laws to local occupational licensing laws and government-con-
ferred business monopolies. These laws, most of which were enacted not to
promote public health or safety but to limit competition, stifle the tradition of
bootstraps capitalism that is America's beacon to the enterprising poor. In es-
sence, these restrictions cut off the bottom rungs of the economic ladder, so
vital to the poor and those who have suffered discrimination, thereby destroy-
ing traditional methods for upward mobility. 31
Conservatives should champion an Economic Liberty Act, which would re-
quire governmental entities to limit regulations restricting entry into trades
or businesses to demonstrable public health, safety, or welfare objectives.
Conservatives also should challenge as civil rights violations the most arbi-
trary and oppressive economic regulations. 32 In this way, conservatives not
only would help complete the legal work of the original civil rights move-
ment, but would open the most important door to economic independence:
self-employment and business creation.
2) Introduce parental choice into education. Education is the key to prog-
ress. It is the great equalizer of the races, the most powerful tool for eliminat-
ing racism. But interposed between precious educational opportunities and
those who need them the most stand America's often substandard public
schools. And the greatest number of victims of that system are those who
have no other choice - the inner city schoolchildren whose opportunities for
advancement are crushed at schools that seem answerable to no one. Minori-
ties disproportionately are the victims of America's dismal public school per-
formance. Dropout rates for black and Hispanic students exceed those for
whites, especially in urban areas. In the Chicago public schools, for example,
the 1988-1989 school year dropout rate for whites was 13.9 percent, com-
pared with a 23.3 percent rate for Hispanics and a 60.9 percent rate for
blacks. 33 These young dropouts may in one sense be making a rational
31 See Bolick, Changing Course, p. 94-104.
32 Landmark Legal Foundation's Center for Civil Rights last year successfully challenged a District of
Columbia ordinance prohibiting street corner shoe shine stands, and is currently challenging Houston's
"anti-jitney law" and a National Park Service regulation that has destroyed the native Virgin Islander charter
boat industry.
33 Chicago Public Schools, Board of Education. Chicago defines a dropout as any student, sixteen or older,
who has been removed from the enrollment roster for any reason other than death, extended illness, graduation,
or completion of an equivalency program. Also included are transferring students whose records have not been
requested by another public or private school.
14
choice: why stay in a substandard public school? But the tragedy is that unlike
individuals of moderate and upper incomes, these low income students and
their families have no opportunity to transfer to better schools.
America needs to empower low-income minorities and others as consum-
ers with a choice of schools, by providing to parents a portion of the dollars
spent on schooling in the form of a tax credit or voucher to purchase the edu-
cation that best suits their children's needs. Studies show that choice and com-
petition in education work, particularly for those who have lacked the most
basic educational opportunities. 34 Moreover, polling shows that vouchers are
especially popular among inner city minority parents. 35 Returning to parents
choice of, control over, and responsibility for the education of their children
is the first step in expanding educational opportunities.
The successes of educational choice initiatives in such states as Minnesota
and in low income communities, like East Harlem, New York, should con-
tinue to be highlighted and serve as a model for expanded efforts. Conserva-
tives, too, should craft educational empowerment strategies that support and
build on such educational voucher plans as that achieved in Milwaukee, Wis-
consin, owing to the efforts of State Representative Annette "Polly" Wil-
liams, a black Democrat who represents low-income inner city constituents.
3) Make welfare a ladder, not a permanent crutch. The welfare system has
fueled a self-perpetuating cycle of dependency, which has influenced minori-
ties disproportionately. Intended as a temporary helping hand in the case of
the able-bodied, the welfare system not only has encouraged millions to re-
main on its rolls, but also in most instances has rewarded destructive behavior
and penalized those who sought to become independent. Example: if a father
walks out on his family, they become eligible for welfare. If instead of leaving,
he takes a low-paying job to try to fulfill his responsibility, the family often is
financially worse off.
The welfare system is particularly damaging to minorities because many of
these families are at the margin, where welfare is an attractive option. More-
over, the "official" leadership of the black and Hispanic communities has
added to the problem by urging government to increase benefits for those on
34 See Clint Bolick, "A Primer on Choice in Education: Part I - How Choice Works," Heritage Foundation
Backgrounder No. 760, March 21, 1990.
35 Alec M. Gallup, "The 18th Annual Gallup Poll of the Public's Attitudes Toward the Public Schools," Phi
Delta Kappan, September 1986, pp. 58,59. A 1989 Gallup/Phi Delta Kappan poll found that 67 percent of
non-whites favor educational choice.
15
the rolls, while doing little to support proposals to reward those who strive to
become independent.
The federal government should encourage economic emancipation by re-
ducing dependency on welfare and rewarding those who work. This strategy
requires a major reform of the welfare system and anti-poverty programs to
encourage independence and reward those who take their responsibilities se-
riously. Among the key reforms needed: 36
Expand the Earned Income Tax Credit, which supplements the earn-
ings of very low-paid workers through the tax code. 37 This would reward
work, encourage many on welfare to climb the ladder of employment, and en-
sure that families would move out of poverty if they joined the work force.
Make some form of work mandatory for all welfare programs serving
the able-bodied.
Attach a portion of the earnings of all absent fathers, married or un-
married, if their family is on welfare. If the father claims to be unemployed,
require him to enroll full time in a government work program.
Encourage home ownership among the poor through "urban home-
steading" programs, and an acceleration of tenant management of public
38
housing.
Enact "enterprise zone" legislation, which would reduce tax and regu-
latory barriers to job creation in the inner city.
4) Crack down on Crime. The new civil rights agenda should emphasize
the most fundamental of civil rights: freedom from crime. Personal security is
the primary justification for government. Government, however, is failing to
protect its law-abiding minority citizens against crime.
Crime falls disproportionately on minorities, creating an additional barrier
to those striving for economic independence and social responsibility. Black
households in 1988, for example, were 60 percent more likely to be burglar-
ized and three times more likely to be robbed than white households. Black
households suffer more than twice the number of motor vehicle thefts and al-
36 See also, Stuart M. Butler, "Razing the Liberal Plantation: A Conservative War in Poverty," in National
Review, November 10, 1989, p. 27; Stuart M. Butler, "Welfare," in Charles L. Heatherly and Burton Yale Pines,
eds., Mandate For Leadership III: Policy Strategies for the 1990s (Washington, D.C.: The Heritage Foundation,
1989) p. 253; Stuart M. Butler and Anna Kondratas, Out of the Poverty Trap (New York: The Free Press, 1987).
37 See Stuart M. Butler, "The Peace Dividend: It Belongs to the People, Not Congress," Heritage Foundation
Backgrounder No. 752, February 9, 1990.
38 See John Scanlon, "People Power in the Projects: How Tenant Management Can Save Public Housing,"
Heritage Foundation Backgrounder No. 758, March 8, 1990.
16
most 65 percent more incidents of aggravated assault than whites. 39 The prob-
ability of being murdered is six times greater for blacks than for whites. 40 His-
panics, too, are far more likely than whites to be victims of crime. From 1979-
1986, for example, Hispanic Americans were victims of violent crime at a rate
twice that of non-Hispanics. 41
If conservatives and the inner-city poor can make common cause on any
issue, it should be crime. Strong anti-crime measures directed toward urban
centers, along with meaningful protection of victims' rights, form the founda-
tion of an effort to better secure vulnerable individuals in their persons and
their property. Creating a crime-free environment in poor communities will
require several changes in the law to favor the victim over the victimizer.
Among them: "victim's rights" laws that compel criminals to make restitution
to their victims, and require prosecutors to take the victim's interests into ac-
count in sentencing and probation. Government also should reprioritize its
law enforcement strategy in poor communities. Law enforcement should
focus on preventing and prosecuting crimes against persons and property in
the ghettos, and increasing penalties for such crimes.
Ridding America's minority communities of the source of crime also will
require empowerment strategies to involve communities in the fight. One
idea that merits study is a proposal currently before Congress to create a po-
lice ROTC program for poor communities. 42
Under the plan, students would receive college tuition in exchange for
serving on the police force of their community after graduation. Such addi-
tions to urban police forces would free more officers to perform such vital
functions as foot patrol on the streets of poor communities.
WHAT GEORGE BUSH SHOULD DO
Obviously, George Bush can do a great deal to advance a conservative strat-
egy on civil rights one that will do far more to advance civil rights than the
Kennedy/Hawkins legislation. He enjoys enormous popularity among both
white and minority Americans. The time is ripe for a Bush-led civil rights
strategy that would build on the foundation laid in the 1960s. The President
thus should draw on his popularity and credibility by restoring momentum to
a quest for civil rights that has strayed off course for the past generation. Al-
ready, Bush has taken an important step in this direction with his May 17
Rose Garden speech on civil rights. In that ground-breaking speech, he
vowed to veto any civil rights bill that would promote racial quotas, and he re-
39 See Joseph Perkins, ed., A Conservative Agenda For Black Americans (Washington, D.C.: The Heritage
Foundation, 1987, 1990) pps. 31-32.
40 Bolick, Changing Course, pp. 116-118.
41 "Hispanic Victimization," Bureau of Justice Statistics, January 1990.
42 S. 1299, "The Police Corps Act of 1989." Sponsors include Republican Senators Specter, Heinz, Rudman,
Coats, and Lott. Democrats include Senators Sasser, Bradley, Lieberman, and Dodd.
17
defined civil rights to include empowerment strategies for the poor. Next, the
President should:
1) Veto the Kennedy/Hawkins bill. To sign into law a civil rights bill that
promotes racial quotas would be to surrender to racism. And to sign a civil
rights bill that fails to include empowerment initiatives for the poor would ig-
nore the civil rights of those who are struggling the most. The Kennedy/Haw-
kins bill champions a failed policy agenda and does little to solve the most
pressing civil rights problems. If the bill passes Congress, Bush should veto it
and immediately shift the terms of the debate from quotas to empowerment.
2) Issue an Executive Order on Empowerment. In 1961 President John F.
Kennedy issued Executive Order 10925 that mandated affirmative action
throughout the federal government. Now, nearly three decades later, George
Bush should issue a new executive order building on Kennedy's vision and
propelling government into a new era of civil rights action.
This executive order should require all federal agencies, departments, and
offices to review existing policies and regulations and eliminate those that sti-
fle the economic empowerment of minorities. Like Kennedy's executive
order, Bush should require the federal government to take affirmative action
to recruit minorities and also to break down barriers to their economic lib-
erty. Bush should order the federal government to restructure affirmative ac-
tion to encourage empowerment efforts aimed at increasing human capital
and removing obstacles to the economically disadvantaged.
The Bush executive order also should require that every new government
regulation be accompanied by an "Empowerment Impact Statement" that ad-
dresses how the regulation would help to empower low-income Americans to
manage their own affairs and attain economic liberty.
3) Establish a Commission on Economic Mobility. In his 1961 Executive
Order, Kennedy established the President's Committee on Equal Employ-
ment Opportunity to "scrutinize and study employment practices of the Gov-
ernment of the United States, and to consider and recommend additional af-
firmative steps which should be taken by executive departments and agencies
to realize more fully the national policy of nondiscrimination. Bush like-
wise should appoint a presidential commission to examine contemporary ob-
stacles to minority opportunities, and to recommend within a specified time
period legislation designed to eradicate those obstacles. This effort should be
similar to that which preceded the development of the Age Discrimination in
Employment Act of 1967. By establishing this Economic Mobility Commis-
sion Bush would lay the groundwork for opening far more opportunities for
economically disadvantaged minorities than would the Kennedy/Hawkins
bill.
4) Strengthen Damage Provisions of the Civil Rights Act. Under the Civil
Rights Act of 1964, an employer found guilty of discrimination need only pro-
vide a job and back pay to the aggrieved party. This penalty is not sufficient to
deter future discrimination. To remedy this, Bush should propose to Congress
18
amendments to the law to allow recovery of treble punitive damages against
employers who willfully or persistently violate the law.
5) Propose a Comprehensive Welfare Reform. Congress in 1988 enacted
the Family Support Act. Touted as a major reform of the welfare system that
would reduce welfare dependency, the legislation in fact is little more than an
expansion of existing programs. Moreover, a Congressional Budget Office
analysis of the statute predicts that it will actually add people to the welfare
rolls.
Bush should explain to Americans that there will be no progress in the war
against poverty until there is a change in the strategy used to fight the war. He
should assemble a cabinet-level task force, led by Housing and Urban Devel-
opment Secretary Jack Kemp, to develop a comprehensive series of welfare
reforms to promote the empowerment of poor Americans.
6) Coordinate Empowerment Efforts. The beginning of an empowerment
infrastructure already exists. In addition to public policy organizations dedi-
cated to self-help, Secretary of Housing and Urban Development Jack Kemp
and Education Secretary Lauro Cavazos are pushing empowerment strategies
in their agencies. In Congress, Representative Steve Bartlett, the Texas Re-
publican, has formed an empowerment caucus comprised of conservative and
moderate Republicans. And the moderate Democratic Leadership Council
last month endorsed a policy plank calling for equal opportunity rather than
equal results. These developments reflect a growing determination among
conservatives to confront civil rights issues, and a growing receptivity to what
conservatives have to say.
Outside of Congress, organizations and individuals are showing what can
be accomplished by poor Americans if they are given the opportunity to use
the capacities they have. The public housing tenant management movement,
for example, has brought dignity and hope to dozens of once crime-ridden
and blighted projects. An education reform movement has spawned more
than 300 new black independent schools, most of them created by parents
and community groups in poor neighborhoods. Robert Woodson's National
Center for Neighborhood Enterprise has helped to highlight the successes of
numerous additional empowerment efforts nationwide, and provided techni-
cal assistance to self-help groups in minority communities. And the National
Association of the Southern Poor, headed by Donald Anderson, has carried
the self-help message to rural Southern communities, sparking a rejuvenation
of formerly crime-ridden and depressed communities.
George Bush needs to draw greater attention to the movement for minority
empowerment. He needs to give this movement at least equal standing in the
debate over civil rights, and to instruct agency officials to do likewise. As long
as the perception exists that only minority leaders espousing the tired liberal
agenda are legitimate spokesmen for black and Hispanic Americans, the eco-
nomic emancipation of these groups will be painfully slow.
7) Repeal the Davis Bacon Act. The 1931 Davis Bacon Act is the federal
equivalent of local Jim Crow laws that prevent minorities from competing for
19
economic opportunities. The law's requirements that federal construction
contracts pay the "local prevailing wage" inflates wage rates. The result: many
small minority firms that cannot afford to pay such inflated rates are excluded
from government construction contracts. The law also discriminates against
minority tradesmen who are willing to work for less than union wages. In fact
discriminating against black workers seems to have been one of the reasons
for passing the 1931 law. Said Alabama Congressman Miles Allgood during
the February 28, 1931, floor debate on the bill, "That contractor has cheap
colored labor and it is labor of that sort that is in competition with white
labor
This
bill
has
merit
it is very important that we enact this mea-
43
sure.
Despite its devastating impact on black firms and tradesmen, and its effect
of increasing federal construction costs by $1.5 billion annually, the 60-year-
old Davis Bacon Act remains law. The reason: Congress refuses to abolish it
out of fear of offending organized labor. George Bush should launch a cam-
paign to convince Congress to repeal the Act. As part of this effort, he should
instruct Labor Secretary Elizabeth Dole and other appropriate executive
branch agencies to conduct a thorough examination of the Act's impact on mi-
norities. Bush should make repeal of the Davis Bacon Act the centerpiece of
his civil rights strategy to eliminate the remaining vestiges of America's Jim
Crow laws.
8) Require that Congress be Subject to Civil Rights Laws. Congress rou-
tinely exempts itself from the laws it passes, including the nation's major civil
rights statutes. Although the executive branch is subject to the provisions of
the 1964 Civil Rights Act, Congress is not. Thus the 37,000 employees of the
legislative branch are without the civil rights protection guaranteed to all
other Americans. This has led some observers to describe Congress as the
"last plantation." Undeterred, however, Congress is attempting to exempt it-
self from new civil rights laws. The Kennedy/Hawkins bill, for example, fails
to require that Congress comply with its provisions.
George Bush, in his May 17 Rose Garden speech, called on Congress to
apply to itself all existing and proposed civil rights laws. This is sound policy.
Bush should hold Congress to that standard, and refuse to sign any civil rights
bill that fails to subject Congress to its provisions.
43 Congressional Record - House, February 28, 1931, p. 6513.
20
CONCLUSION
In his February testimony before the Senate Labor and Human Resources
Committee, Harvard's Glenn Loury summed up the current civil rights chal-
lenge:
Today the nation faces a challenge different in
character though perhaps no less severe in degree
than that which occasioned the civil rights
revolution. It is important, though, to be clear about
just what that challenge is, and what it is not. The
bottom stratum of the black community has
compelling problems which can no longer be
blamed solely on white racism, which will not yield
to protest marches or court orders, and which force
us to confront disquieting aspects of lower class
black urban society. The profound alienation of the
ghetto poor from mainstream American life has
continued to grow worse in the years since the
triumphs of the civil rights movement, even as the
successes of that movement has provided the basis
for an impressive expansion of economic and
political power of the black middle class. Finding
ways to effectively address the problems of the
inner-city poor, of all races, is the challenge which
confronts us today. 44
The abandonment of employment and educational objectivity and the re-
flexive use of quotas exacerbate racism and fail to address the serious prob-
lems faced by America's truly underclass. What is needed are efforts to con-
front remaining obstacles so that minorities can take advantage of the oppor-
tunities secured by the civil rights laws. The economic barriers separating mi-
norities from the American mainstream are the type of barriers that affirma-
tive action originally was intended to overcome: practical obstacles, some the
result of discrimination and some not, that prevented individuals from secur-
ing the opportunities promised by civil rights laws. By pursuing an affirmative
action strategy of redressing problems of economic mobility and human capi-
tal development, the unfinished business of the civil rights movement can be
completed.
Conservatives since the 1960s have consigned themselves to a marginal
role in the civil rights debate, acting as opponents to civil rights or passive by-
standers while liberals dictated the terms of the debate. Many civil rights poli-
cies of the past quarter century have failed to aid the most disadvantaged indi-
viduals in our society. These policies also have perpetuated racial divisions
44 Loury, op. cit.
21
among Americans. This dismal status quo can change only if conservatives re-
claim the moral high ground and assume a positive leadership role in civil
rights issues in the coming decade. This leadership can be achieved by pursu-
ing a strategy of vigorous law enforcement and individual empowerment.
Prepared for The Heritage Foundation by
Clint Bolick
Director, Landmark Legal Foundation Center for
Civil Rights
and
Mark B. Liedl
Director of Special Projects
The Heritage Foundation
All Heritage Foundation papers are now available electronically to subscribers of the "NEXIS" on-line data
retrieval service. The Heritage Foundation's Reports (HFRPTS) can be found in the OMNI, CURRNT, NWLTRS,
and GVT group files of the NEXIS library and in the GOVT and OMNI group files of the GOVNWS library.
22
ER
THE WHITE HOUSE
WASHINGTON
May 30, 1990
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
ROGER B. PORTER
RBP
SUBJECT:
Civil Rights Developments
Yesterday afternoon I convened another meeting to discuss
recent developments with regard to civil rights legislation.
Given all the players in the executive branch, the Congress,
and in outside organizations, it is important that we compare
notes frequently and make certain our efforts are coordinated.
This is an issue on which we do not want to be sending mixed
signals.
The meeting included Boyden Gray, Jim Cicconi, Marianne
McGettigan, Tony Schall from Justice (John Dunne was out of
town), David Fortney (Labor), and Lee Liberman and Fred Nelson
from the Counsel's Office.
Our discussion focused on the following:
1. Marianne McGettigan was informed by a reliable source
that the Senate Committee Report (which you told Senator
Kennedy was a precondition to further discussions) may be ready
for our review as early as tomorrow, May 31.
2. Tony Schall reported that John Dunne has not yet held
meetings with the Arthur Fletcher group and will not do so
until we have reviewed a copy of the Senate Committee Report
and have had time to review it.
3. Marianne McGettigan and Fred Nelson reported on a
meeting they held earlier in the day at the request of several
business groups including the Chamber of Commerce, the Business
Roundtable, the Labor Policy Association, and the National
Association of Manufacturers. The business group
representatives indicated they were most concerned about the
remedies portion of the bill and the potential for an explosion
in litigation as a result of extending broadly compensatory and
punitive damage awards. They also indicated they are starting
to motivate their members. We have heard this before on other
issues. We will wait and see.
4. We agreed that the approach we have developed on Wards
Cove is a sound one, but that we may be on a slippery slope
with respect to remedies.
-2-
5. Our discussion of remedies concluded that:
a. Given the President's statement in the Rose Garden
that he supports remedies adequate to deter on-the-job
harassment based on sex, religion, or national origin, etc.
there is an expectation that he will support a change in
current law regarding remedies for on-the-job harassment; and
b. That this will undoubtedly be used by proponents
of Kennedy-Hawkins to open the remedies door much further.
6. In an effort to limit the expansion of remedies we
agreed that:
a. We need better intelligence from both the House
and the Senate as to where several key Members of Congress
stand and how they would vote if this were the only unresolved
issue in the bill.
b. Our office, working with the Counsel's Office,
Justice, and Labor would develop a set of options and arguments
for limiting the expansion of remedies to on-the-job harassment
and precluding the use of jury trials.
C. There is a need to provide a standard to which
members of Congress could repair, particularly if this is the
last remaining issue. This will need to be positive given what
we are picking up with respect to the intransigence of some
women's groups to accepting anything less than full Section
1981 remedies.
CC: C. Boyden Gray
James W. Cicconi
Marianne McGettigan
X
Document No. 140899SS
WHITE HOUSE STAFFING MEMORANDUM
5/16/90
---
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
PRESIDENTIAL REMARKS: CIVIL RIGHTS COMMISSION
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
ROGICH
BATES
UNTERMEYER
CARD
ROGERS
CICCONI
"
WINSTON
DEMAREST
PINKERTON
FITZWATER
GRAY
HAGIN
REMARKS:
The attached has been forwarded to the President.
RESPONSE:
James W. Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
THE WHITE HOUSE
WASHINGTON
1990 MAY 10 An
May 16, 1990
INFORMATION
MEMORANDUM TO THE PRESIDENT
THROUGH:
CHRISS WINSTON
FROM:
MARK LANGE my
SUBJECT:
REMARKS FOR THE CIVIL RIGHTS COMMISSION
I. SUMMARY
On Thursday, May 17, at 10:00 a.m. you will make remarks at
the gathering of the leaders of the U.S. civil rights movement.
The event will take place in the Rose Garden and your remarks are
twelve minutes in length and will be on speechcards.
II. DISCUSSION
The attached remarks cite the advance of democracy around
the world as an added impetus for civil rights vigilance here at
home -- and outline three principles that should guide any new
legislation. The remarks also suggest that Congress should be
held to the same civil rights standards as the private section.
In particular, you emphasize a common understanding that new
legislation should avoid the unintended consequence of racial
quotas. Instead, you call for a broader agenda of empowerment
for all minorities.
(Lange/Cawley)
May 16, 1990
1990 MAY 16 PM 3.53
3:30 p.m.
[AFFIRM.DOC]
PRESIDENTIAL REMARKS: NATIONAL COMMISSION ON CIVIL RIGHTS
THE ROSE GARDEN
THURSDAY, MAY 17, 1990
10:00 A.M.
Thank you all. Attorney General Thornburgh. Chairman
Fletcher, Commissioners Buckley, Ramirez, and Redenbaugh
[RED-in-bao]; Wilfredo Gonzalez, Regional Directors and State
Advisory Committee Chairpersons:
It's an honor to have you here today. We meet at a very
hopeful moment worldwide. A time when the thundering cry for
freedom is being heard and answered from Panama to Johannesburg
to Warsaw. Around the world, peoples warring against tyranny,
citizens struggling against state control, economies weary of
bureaucratic central planning, all are looking to America as
reason for hope -- the bright star by which to chart their course
to freedom.
So it's all the more crucial now that we look carefully to
the kind of country we are -- to the state of democracy here in
the land of liberty. We are called upon to ensure that this
democracy means opportunity, for all who call it home. 11
Few have worked harder to deliver the promise of democracy,
to make an enduring dream a living reality, than the men and
women assembled here today -- and particularly, these men and
women behind me.
From its earliest origins, the Commission on Civil Rights
has been an independent, bipartisan voice for justice. The
2
Commissioners, the Directors, the Advisory Committees, all share
a cultural diversity, and an intellectual and moral conviction,
that are truly America's best. These men and women have earned
our admiration. Today, they deserve our thanks.
Joining a new Chairman, and my friend of many years, Art
Fletcher, are two outstanding additions: Carl Anderson and
Russell Redenbaugh [RED-in-bao]. I know Bob Dole shares my
admiration for Russell -- a man of impressive credentials -- who
knows, as all Americans should know, that physical disability
will not be a barrier to service in this Administration. That's
why I remain firmly committed to the landmark "Americans with
Disabilities Act" to help ensure equal rights and opportunities
for these Americans. Today I'd like to announce a new member of
the Civil Rights Commission: Mr. Charles Pei Wang [PAY WAING] --
President of the China Institute in America, and an outstanding
new addition.
Over the last few days I've met to discuss pending civil
rights legislation with leaders representing America's rich
tapestry of cultural, religious, and ethnic diversity. I got, as
I knew I would, a great deal of sound advice. These leaders,
this Commission, the Congress, and this Administration, all share
a common conviction for equal opportunity. It's a responsibility
I have always taken very seriously -- especially now, when our
most vital export to the world is democracy.
We must make sure that we as a nation lead by example. We
must see that true affirmative action is not reduced to an empty
3
slogan -- and that this principle has real, living meaning, for
all Americans. We will leave nothing to chance, and no stone
unturned, as we work to advance America's civil rights agenda.
This nation's progress against prejudice -- from the 1964
Civil Rights Act, to the Voting Rights Act, to the Fair Housing
and Age Discrimination in Employment Acts -- it has all hinged on
the principle that no one in this country should be excluded from
opportunity. So, we're committed to enacting new measures --
like the Hate Crimes Statistics Act, the HOPE initiative, and
revitalized enforcement of restrictions against employment bias.
This Administration seeks equal opportunity and equal
protection under the law for all Americans -- goals that I know
are shared by Senator Kennedy and Representative Hawkins. So
we've supported efforts to ensure an individual's ability to
challenge discriminatory seniority systems. We've also moved to
stiffen the penalties for racial discrimination in setting or
applying the terms and conditions of employment.
Today, as we work to ensure that America represents
democracy's highest expression, I want to begin by offering three
principles that must guide any amendments to our civil rights
laws.
These principles are firmly rooted in the spirit of our
current laws -- and after the extensive discussions we've had
this week, I think they're principles on which all of us --
including the leadership on the Hill -- can agree. So I will
enthusiastically support legislation that meets these principles.
4
First, civil rights legislation must operate to obliterate
consideration of race, color, religion, sex, nation of origin,
age, or disability from employment decisions. We seek civil
rights legislation that is more effective, not less. The focus
of employers in this country must be on providing equal
opportunity for all workers -- not on developing strategies to
avoid litigation. No one here today would want me to sign a bill
whose unintended consequences are quotas -- because quotas
violate the most basic principles of our civil rights tradition,
and the promise of democracy.
The surest, most insidious symptom of the perpetuation of
injustice was well understood by Dr. Martin Luther King, Jr.
Nearly 30 years ago he knew, as Americans of all walks of life
know today, that quotas are wrong. He wrote, in fact, that
"tokenism can now be seen not only as a useless goal, but as a
genuine menace. It is a palliative which relieves emotional
distress, but leaves the disease and its ravages unaffected."
We want to eradicate the disease. And America's minority
communities deserve more than symptomatic relief. They deserve
systematic solutions -- strategies that transcend statistics.
We should empower and ennoble our minority communities. We
should seek systematic change that allows every American to
excel. During my meetings this week, I invited the civil rights
leadership to work with me to craft a bill, in the spirit of our
record of civil rights legislation, that moves us toward this
5
goal. I am confident that this can be done. I want to sign a
civil rights bill; I cannot sign a quota bill.
Second, civil rights legislation must reflect fundamental
principles of fairness that apply throughout our legal system:
individuals who believe their rights have been violated are
entitled to their day in court, and an accuser must shoulder the
burden of proof. In every case involving a civil rights dispute,
constitutional protections of due process must be preserved.
And third, Federal law should provide an adequate deterrent
to sexual or religious harassment, or harassment on the basis of
disability in the workplace, and should ensure a speedy end to
such discriminatory practices. In improving the remedies,
however, our civil rights laws should not be turned into a
bonanza for lawyers, encouraging litigation at the expense of
conciliation, mediation, or settlement.
Let me add that Congress should subject itself to the same
requirements it prescribes for others. In 1972, the Civil Rights
Act of 1964 was justly applied to executive agencies and state
and local governments. Congress, however, is not yet covered.
This inconsistency must be remedied, to give Congressional
employees and applicants the full protection of the law. The
Congress should join the Executive Branch in setting an example
for private employers.
We seek strategies that work -- putting power where it
belongs: in the hands of people. And that means new ideas, like
giving poor parents the power of an alternative, and choice in
6
where to send their kids to school -- so that all can have access
to the best. It means more tenant control and ownership of
public housing. Tax credits for child care, to give parents more
flexibility and choice. And policies that underwrite prosperity,
by encouraging capital flow to businesses in poor neighborhoods.
The door is open wider now than it has ever been -- and
together we can open it still wider. Today, an expanding economy
is working in the service of civil rights. Let's not set back
the clock. Let us look past the differences that divide us, to
the shared principles and better natures we have within us.
To the Civil Rights leadership assembled here today: I have
offered you my hand, and my word, that together we will make
America "open and equal to all." This administration is
committed to action that is truly affirmative -- positive action,
in every sense -- to strike down all barriers to advancement, of
every kind, for all people. We will tolerate no barriers, no
bias, no inside tracks, no two-tiered systems, no glass ceilings,
and no rungless ladders. 11
Now is the time to extend a hand to all that struggle on the
other side -- and to devote our energies to a broader agenda of
empowerment, that all might join in this new age of freedom.
Thank you, and God bless you all.
# # #
WR
THE WHITE HOUSE
WASHINGTON
for JHS
CIVIL RIGHTS LEGISLATION
MEETING WITH HISPANIC LEADERS
MAY 16, 1990
11:15 A.M.
1.
Mr. Fred Alvarez, Former Assistant Secretary
Department of Labor for Employment Standards
Partner, Pillsbury, Madison, & Sutro / San Francisco, CA
2.
Emilio Bermiss, Chairman
National Puerto Rican Forum
3.
Ms. Esther Buckley, Commissioner
Civil Rights Commission
4.
Mr. Mario Diaz, Chairman
G.I. Forum of the United States
5.
Ms. Patricia Diaz Dennis, Partner
Jones, Day, Reavis, & Poague
6.
Mr. Ruben Franco, President
Puerto Rican Legal Defense & Education Fund
7.
Mr. Tony Gallegos, Commissioner
Equal Employment Opportunity Commission
8.
Mr. Willie Gonzalez, Executive Director
Civil Rights Commission
9.
Ms. Regina Montoya, Partner
Akin, Gump, Strauss, Hauer, & Feld / Dallas, TX.
10. Mario Moreno, Washington, D.C. Counsel
Mexican & American Legal Defense & Education Fund
11. Harry Pacheon, President
National Association of Latino Elected Officials
12. Jess Quintero, Vice President / Eastern Region
League of United Latin American Citizens
13. Mr. Joe Ramirez, Vice President, & Deputy General Counsel
Labor and Employment Relations, AT&T
14. Mr. Jaime Ramon, General Counsel
Office of Personnel Management
15. Raul Yzaguirre, President
National Council of La Raza
ER
THE WHITE HOUSE
WASHINGTON
CIVIL RIGHTS LEGISLATION
for THE
MEETING WITH VARIOUS CONSTITUENCIES
MAY 16, 1990
1:15 P.M.
1.
Clint Bolick
Director of Center for Civil Rights
Landmark Legal Center for Civil Rights
2.
Susan Bracken
Executive Director
Eagle Forum
3.
Anne Bryant
Executive Director
American Association of University Women
4.
Alan Cheung
Director of Public Affairs
Organization of Chinese Americans
5.
Justin Dart
Chairman
President's Committee on Employment of People with
Disabilities
6.
Linda Dorian
Executive Director
The National Federation of Business and Professional Women's
Clubs, Inc.
7.
Meyer Eisenberg
Chairman, National Legal Affairs Committee
Anti-Defamation League of B'nai B'rith
8.
Judy Golub
Associate Washington Representative
American Jewish Committee
9.
Pat Harrison
President
National Women's Economic Alliance
10. Michael Hill
Assistant Director, Office of Government Liaison
U.S. Catholic Conference
11. Paul Igasaki
Executive Director
Japanese American Citizens League
12.
Evan Kemp
Chairman
Equal Employment Opportunity Commission
13. Judy Lichtman
President
Women's Legal Defense Fund
14. Mark Liedel
Director of Special Projects
Heritage Foundation
15. Jordan Lorence
Litigation Director
Concerned Women for America
16. Ralph Neas
Executive Director
Leadership Conference on Civil Rights
17. Ricky Silberman
Vice Chairman
Equal Employment Opportunity Commission
18. Carey Stacy
President
National Association of Women Business Owners
19. David Zwiebel
Director of Government Affairs and General Counsel
Agudath Israel
THE WHITE HOUSE
WASHINGTON
MAY 13, 1990
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
JEFF VOGT ASSISTANT DIRECTOR, PUBLIC LIAISON
SUBJECT: MONDAY, 11:30 A.M. CIVIL RIGHTS LEGISLATION MEETING
WITH ATTORNEYS, BUSINESS, ASSOCIATION AND FOUNDATION
LEADERS
Sir, attached is the list of attendees and talking points for the
Civil Rights legislation meeting on Monday at 11:30 a.m. in the
Roosevelt Room.
Also attached for your information is the President's briefing
memorandum for his meeting with black leaders at 1:30 p.m.
Thank you.
cc: Bobbie Kilberg
THE WHITE HOUSE
WASHINGTON
CIVIL RIGHTS LEGISLATION MEETING
CORPORATE PERSONNEL MANAGERS, ATTORNEYS, ASSOCIATION
AND FOUNDATION LEADERS
MONDAY, 11:30 A.M., THE ROOSEVELT ROOM
Michael Baroody, Senior Vice President
National Association of Manufacturers
Marshall Phelps, Vice President, Human Resources
IBM Corporation
Ken Cribb, President
Inter Collegiate Studies Institute
Fred Krebs, Department Affairs Manager, Business-Government
Policy
U.S. Chamber of Commerce
John Galles, Executive Vice President
National Small Business United
Lillian Gorman, Senior Vice President, Human Resources
First Interstate Bank
Katherine Hagen, Attorney and Human Resource Specialist; Leader
of Business Roundtable Human Resources Task Force
AT&T Corporation
Eugene L. Hartwig, Senior Vice President, General Counsel &
Secretary; Past Chairman of ABA Labor & Employment Law Section
Kelly Services, Inc.
William J. Kilberg, Partner
Gibson, Dunn & Crutcher; Former Solicitor, U.S. Department of
Labor
Sharon Lambly, Vice President, Human Resources
Hershey Foods Corporation
Lloyd Loomis, Senior Corporate Counsel, Employee Relations
ARCO
Susan Meisinger, Vice President, Government Affairs
Society for Human Resource Management
Donald Miller, Vice President, Human Resources
Dow Jones
Thomas B. Moorhead, Vice President, Human Resources
Carter-Wallace Pharmaceutical Corp., Incorporated
John Stirk, Vice President, Government Affairs
General Dynamics
John Motley, Vice President, Government Relations
National Federation of Independent Business
Lois Rice, Senior Vice President, Government Affairs
Control Data Corporation
John Satagaj, President
Small Business Legislative Council
Joshua Smith, Chairman
Maxima Corporation; Chairman, President's Minority Business
Development Commission
Mary Tavenner, Vice President
National Assocation of Wholesaler-Distributors
Calvin E. Tyler, Senior Vice President, Personnel
United Parcel Service
Paul Weyrich, President
Free Congress Research and Education Foundation
THE WHITE HOUSE
WASHINGTON
TALKING POINTS
CIVIL RIGHTS LEGISLATION MEETING WITH CORPORATE PERSONNEL
MANAGERS, ATTORNEYS, ASSOCIATION AND FOUNDATION LEADERS
MONDAY, MAY 14, 11:30 A.M.
THE ROOSEVELT ROOM
Thank you for coming today. I know some of you have come a
long distance to be here, and we are grateful to you.
:
We want to get your views on the potential effects of the
Kennedy/Hawkins bill and your views on the Bush legislation.
As you know, the Kennedy/Hawkins bill, in its present form,
would in effect institute a quota system in hiring and
promotion. This Administration is opposed to quotas and
does not believe they are consistent with the equal
employment vision that we all share.
--
Because most of you are corporate human resource managers,
and thus will be on the front lines having to deal with this
legislation, should it become law, we have called this
meeting to get your input. I would like to discuss the
major points of both the Bush and Kennedy-Hawkins bill as
they affect you. In particular, I'd like you to address
the issues surrounding statistical imbalances, the issues of
quotas, remedies and challenges to consent decrees. I am
also open to discussing any other aspects of the bills with
you.
--
As you know, this President is committed to civil rights and
equal employment opportunity. The first 17 months of this
Administration has seen good progress:
a) The Civil Rights Commission has been reauthorized and
under the able leadership of Art Fletcher it has been
revitalized.
b) The President strongly supports the intent of the
Americans with Disabilities Act -- which is well on its way
to enactment -- to fulfill his pledge to help bring more
disabled into the workplace and into the mainstream. We
want to achieve this objective without adversely affecting
the business community's productivity.
c) And, finally, the President recently signed into law the
Hate Crime Statistics Act.
President Bush has a solid record against discrimination and
harassment in employment.
THE WHITE HOUSE
WASHINGTON
MEETING ON CIVIL RIGHTS LEGISLATION WITH BLACK LEADERS
DATE: MAY 14, 1990
TIME: 1:30 P.M.
LOCATION: ROOSEVELT ROOM
THROUGH: DAVID DEMAREST CufaDo
ASSISTANT TO THE PRESIDENT FOR
COMMUNICATIONS
FROM: BOBBIE KILBERG
BK
DEPUTY ASSISTANT TO THE PRESIDENT FOR
PUBLIC LIAISON
I. PURPOSE a
To listen to the views of Black leaders about the Bush and
Kennedy-Hawkins civil rights bills presently pending in
Congress.
II. BACKGROUND
You will have three listening sessions with relevant
constituency groups on the pending civil rights legislation.
This session will be with leaders from the Black community
and it will be followed on March 16 with two additional
sessions: a meeting of Hispanic leaders and a meeting that
will include representatives from the Jewish, Catholic and
Asian communities, women's organizations, the disabled
community, and conservative think-tanks.
This session with Black leaders will include individuals who
are supporters of Kennedy-Hawkins as well as individuals who
oppose Kennedy-Hawkins and are supportive of the Bush
legislation. Proponents of Kennedy-Hawkins will be in the
clear majority around the table. We have made a concerted
effort to invite a number of Black leaders who disagree with
the Kennedy-Hawkins bill so that you would be presented with
full arguments from both perspectives.
We have asked the attendees to address the specific
provisions of the bills and expect that they will
concentrate on the issues surrounding statistical
imbalances, the issues of quotas, remedies and challenges to
consent decrees. The participants understand that this is a
listening session and it is thus appropriate for you not to
give specific substantive responses to their arguments.
Art Fletcher, Civil Rights Commission Chairman, will
moderate the discussion.
III. PARTICIPANTS
The President
Attorney General Thornburgh
Governor Sununu
Boyden Gray
Roger Porter
Fred McClure
Please see attached list for outside participants.
IV. SEQUENCE OF EVENTS
President enters Roosevelt Room and greets guests.
President makes brief opening remarks.
President turns to Art Fletcher to open discussion and
moderate.
President listens to participants.
President departs
V.
MEDIA COVERAGE
Press Pool.
Talking Points provided by Office of Public Liaison and Office
of Policy Development.
THE WHITE HOUSE
WASHINGTON
CIVIL RIGHTS LEGISLATION
ATTENDEES TO MEETING WITH BLACK LEADERS
Julius Chambers
Director Counsel (President)
NAACP Legal Defense Fund
William Coleman
Chairman of the Board, NAACP Legal Defense Fund
Former Secretary of Transportation
Drew Days, III
Law Professor, Yale University
Former Assistant Attorney General for Civil Rights
Arthur Fletcher
Chairman, U.S. Civil Rights Commission
Former Assistant Secretary for Employment Standards,
Department of Labor
Thaddeus Garrett
President, Garrett & Co.
Former Assistant to Vice President Bush for Domestic Policy
Benjamin Hooks
Executive Director
NAACP
Dorothy Height
President
National Council of Negro Women
John Jacob
President and CEO, National Urban League
Chairman, Black Leadership Forum
Eddie Williams
President
Joint Center for Political Studies
Ramona Edelin
President
National Urban Coalition
Keith Butler
Detroit City Councilman
Leonard Coleman
Chairman, One to One Foundation (NJ.)
Vice President, Kidder, Peabody
Robert Woodson
President
National Center for Neighborhood Enterprise
Shelby Steele
Professor of English
San Jose State University
Buster Soaries
Assistant Pastor, Shiloh Baptist Church (Trenton, NJ)
Connie Newman
Director
Office of Personnel Management
THE WHITE HOUSE
WASHINGTON
MAY 11, 1990
MEMORANDUM FOR GOVERNOR SUNUNU
ANDY CARD
JIM CICCONI
BOYDEN GRAY
FRED MCCLURE
ROGER PORTER
JOE HAGIN
ED ROGERS
BILL KRISTOL
MARIANNE MCGETTIGAN
LEE LIEBERMAN
MICHAEL JACKSON
FROM:
DAVID DEMAREST 3k ANDD
BOBBIE KILBERG
BK
SUBJECT:
MEETINGS WITH CONSTITUENCY GROUPS ON CIVIL RIGHTS
LEGISLATION
The following are the meeting schedules for the President and
Governor Sununu:
The President
Monday, May 14; 1:30 p.m., Roosevelt Room: Black Leaders
Wednesday, May 16; 11:15 a.m., Roosevelt Room: Hispanic Leaders
Wednesday, May 16; 1:15 p.m., Roosevelt Room: Other
Constituencies
Governor Sununu
Monday, May 14; 11:30 a.m., Roosevelt Room: Corporate Personnel
Managers, Attorneys, Association and Foundation Leaders
Tuesday, May 15; 5:00 p.m., Roosevelt Room: Union Leaders
Please let us know which meetings you plan to attend by calling
Terri Woods at ext. 7900.
The Attorney General will attend all five meetings.
THE WHITE HOUSE
WASHINGTON
of
DATE: 5-9-90
TO: Ed Rogus
FROM:
DAVID M. CARNEY
Special Assistant to the President
and Deputy Director,
FYI,
Office of Political Affairs
Bobbio Kilbey has
in cludis his Hurbad
on the List of Corporate at
union Types to meet
w/potus on civil Rishb - 1
# 15 Pae 2
The allou
THE WHITE HOUSE
WASHINGTON
CIVIL RIGHTS LEGISLATION MEETING: CORPORATE PERSONNEL MANAGERS,
LAWYERS, ASSOCIATION REPRESENTATIVES AND UNIONS
1. Calvin E. Tyler, Jr., Senior Vice President, Personnel
United Parcel Service
2. James R. Simpson, Vice President, Human Resources
Times-Mirror, Inc.
3. Thomas Morehead, Vice President, Human Resources
Carter-Wallace Pharmaceutical Co., Inc.
4. Lloyd Loomis, Senior Corporate Counsel, Employee
Relations
ARCO
5. Lillian Gorman, Senior Vice President, Human Resources
First Interstate Bank
6. James R. Gilland, Senior Vice President & General Counsel
Prudential Insurance Co.
7. Donald Miller, Vice President, Human Resources
Dow Jones
8. Frank P. Doyle, Senior Vice President, Corporate
Relations
General Electric
9. Donald Reed, Vice President, Human Resources
Nynex
10. Arch H. Rambeau, Vice President, Human Resources
General Dynamics Corp.
11. Eugene L. Hartwig, Senior Vice President, General Counsel &
Secretary; Past Chairman of ABA Labor & Employment Law
Section
Kelly Services, Inc.
12. Richard McAloon, Vice President, Corporate Human Resources
Aetna Life & Casualty Co.
13. Michael Baroody, Senior Vice President
National Association of Manufacturers
14. Christine Russell, House Legislative Affairs Director
U.S. Chamber of Commerce
15. William J. Kilberg
Managing Partner, Gibson, Dunn & Crutcher
Former Solicitor, U.S. Department of Labor
16. Alan Kranowitz, Vice President
National Association of Wholesaler-Distributors
17. Larry Gold, General Counsel
AFL-CIO
18.
International Teamsters Union
19.
Marine Engineers Beneficial Association
20. Susan Meisinger, Vice President, Government Affairs
Society for Human Resource Management
THE WHITE HOUSE
WASHINGTON
CIVIL RIGHTS LEGISLATION
POSSIBLE ATTENDEES TO MEETING OF BLACK LEADERS
1.
Julius Chambers
Director Counsel (President)
NAACP Legal Defense Fund
2. William Coleman
Chairman of the Board, NAACP Legal Defense Fund
Former Secretary of Transportation, Ford Administration
3.
Drew Days, III
Law Professor, Yale University
Former Assistant Attorney General for Civil Rights, Carter
Administration
4.
Arthur Fletcher
Chairman, U.S. Civil Rights Commission
Former Assistant Secretary, Department of Labor, Nixon
Administration
5.
Thaddeus Garrett
President, Garrett & Co.
Former Senior Aide, Vice President Bush
6.
Benjamin Hooks
Executive Director
NAACP
7.
Dorothy Height
President
National Council of Negro Women
8.
John Jacob
President and CEO, National Urban League
Chairman, Black Leadership Forum
9.
Eddie Williams
President
Joint Center for Political Studies
10. Tom Sowell
Senior Fellow
Hoover Institution
11.
Bob Woodson
President
National Center for Neighborhood Enterprise
12. Glen Loury
Professor
John F. Kennedy School of Government
Harvard University
13.
Alan Keyes
President
Citizens Against Government Waste
14.
Walter Williams
Economist
George Mason University
THE WHITE HOUSE
WASHINGTON
May 4, 1990
MEMORANDUM FOR THE PRESIDENT
FROM:
C. BOYDEN GRAY \s\
SUBJECT:
Civil Rights
The House Committee amendment made recently to the Kennedy-Hawkins bill
will not significantly alleviate the pressure that the legislation
would put on employers to adopt hiring quotas. Several other
significant problems with the bill also remain.
Under the bill's original language, a business whose workforce does not
mirror the racial, ethnic, sexual, or religious composition of the pool
of available workers would have to demonstrate that its hiring
practices are demanded by "business necessity" as "essential to
effective job performance." The new version retains the "business
necessity" language, but defines that test as requiring the employer to
prove by "objective evidence" that its employment practices "bear a
substantial and demonstrable relationship to effective job
performance." That standard contrasts with present law requiring
employers to produce evidence that a challenged hiring practice is job
related.
The bill as revised thus imposes complicated new litigation risks on
employers, shifting the burden of proof and requiring that a practice
be not merely job related but "substantially" and "demonstrably" so.
It also adds difficult new evidentiary requirements. Employers not
wanting to run the risk of costly litigation inevitably would
concentrate on hiring by race, sex and religion rather than by
qualification.
Employment criteria helpful to job performance but not sufficiently
"substantial" or not "demonstrably" so through "objective" scientific
evidence--would not meet the new standard. The bill would leave courts
free to conclude that unless the employer ensures the requisite
statistical balance:
O A fast food restaurant interested in keeping kids in school could
not refuse to hire drop-outs as hamburger grillers, because it could
not prove that a school degree is "substantially" related to
effective job performance.
o A factory could not refuse to hire employees with admitted records
of past illegal drug use (although the bill makes an exception
allowing employers to refuse to hire current users or possessors of
drugs.)
O Police forces in many communities could not refuse to hire people
with criminal records.
Why legitimate, job related criteria should be impermissible,
especially in today's competitive world market, is not clear.
Moreover, by shifting the burden of proof to employers whose "numbers
are off" and by eliminating the requirement that plaintiffs identify
the employment practice complained of, the bill would alter the nature
of our civil rights laws to permit attacks based simply on "bottom
line" statistics.
The bill has other problems:
O It would unconstitutionally deny a day in court for workers who
wish to challenge quota systems approved by courts in settlement of
litigation to which the new victims were not party.
o It would upset Title VII's current remedies system by providing
for jury trials leading to compensatory and punitive damages for
intentional violations (a matter of special concern to business
groups, especially in light of the ADA).
o It provides that all civil rights laws and remedial schemes are to
be "broadly construed", rather than simply read according to their
terms as enacted.
O Several other technical difficulties also remain.
CC: Andrew H. Card, Jr.
Edward M. Rogers, Jr.
Coalitions for America
115/39
Paul M. Weyrich
721 Second Street
National Chairman
Eric Licht
Capitol Hill
President
Washington, D.C. 20002
M. Kimberly Roberts
(202) 546-3003
Director
Library Court
Social Issues
Stanton
Defense & Foreign Policy
Kingston
Budget & Economic Policy
721 Group
Judicial & Legal Policy
Carroll Group
Catholic Coalition
The Omega Alliance
Young Activist Coalition
Resistance Support Alliance
Freedom Fighter Policy
Jewish/Conservative Alliance
February 16, 1990
MEMORANDUM
TO: John Sununu
FROM: Paul Weyrich
OW
RE: Administration Alternative to the Kennedy Civil Rights Bill.
SITUATION: My understanding is that the administration has been asked by
House Republicans to prepare an alternative to the election - year Democratic Civil
Rights Bill. My further understanding is that the administration is considering
forwarding a proposal which would reverse two of the Supreme Court cases
addressed by the Kennedy bill, but would contain none of the administration's own
priorities.
ANALYSIS: An examination of the administration's alternatives on guns, Clean
Air, minimum wage, etc., has led me to the following conclusions:
(1) The administration will get no credit in the press for embracing any
portion of the Kennedy agenda short of 100%.
(2) The administration's alternative on the gun bill contained a greater
percent of its own priorities than any of the other administration
alternatives -- death penalty, habeas corpus, and exclusionary rule. It
was subject to fewer attacks in the press than the other alternatives
precisely because an attack on the administration bill was tantamount to
an attack on the death penalty.
(3) By introducing a substitute consisting of little more than a portion of
Kennedy's agenda, the administration would create impetus for the
Kennedy bill, subject itself to additional unnecessary attacks in the press,
and increase the political damage to Republicans which will result from
this issue.
RECOMMENDATION: Republicans are not without their own civil rights agenda
items. My recommendation is that the administration add some of these items to its
alternative. For example:
- Senator Humphrey has introduced legislation to extend civil rights protection to
baby girls facing abortions solely on the basis of sex.
- A variety of senators have sought to legislatively prohibit the ability of judges to
impose state income and property taxes by judicial fiat.
- Because the Kennedy bill seeks to remove court jurisdiction to review civil
rights settlements on constitutional issues (i.e., "court stripping"), bills to remove
court jurisdiction to release dangerous criminals from overcrowded jails might
be appropriate. Surely, it is an important civil right of minority citizens to be safe
in their homes and neighborhoods.
- Absolute prohibitions on quotas -- including provisions to protect Asian -
Americans who are currently facing discrimination by so - called "liberal"
institutions -- might be considered.
Whether or not any of these particular amendments appeal to you, the point is
that the administration substitute should contain the administration's objectives, in
addition to Ted Kennedy's objectives.
I will be happy to work with House Republicans in order to arrange an extension
of time to work on this.
ID# 115139
THE WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
INCOMING
DATE RECEIVED: FEBRUARY 20, 1990
NAME OF CORRESPONDENT: MR. PAUL M. WEYRICH
SUBJECT: RECOMMENDS AN ADMINISTRATION ALTERNATIVE TO
THE KENNEDY CIVIL RIGHTS BILL
ACTION
DISPOSITION
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REFER QUESTIONS AND ROUTING UPDATES TO CENTRAL REFERENCE
(ROOM 75, OEOB) EXT-2590
KEEP THIS WORKSHEET ATTACHED TO THE ORIGINAL INCOMING
LETTER AT ALL TIMES AND SEND COMPLETED RECORD TO RECORDS
MANAGEMENT.
OVERVIEW
Attached are a brief summary, legislative history,
regulations, court battles, and political ramifications as
they relate to Title X of the Public Health Service Act.
Most important facts are:
1.
Opposition to the reauthorization of Title X is the
top priority of every pro-life/pro-family group in
the nation;
2.
Current Title X regulations are being challenged in
the courts and will most likely result in a
pro-life victory at the Supreme Court if Title X is
not reauthorized;
3.
Senator Kennedy's S. 110 is strictly a political
scheme to create trouble for the President and GOP.
Kennedy's bill puts the President in a no-win
situation which will make both pro-life and
"pro-choice" forces angry.
4.
The White House must do everything in its power to
keep S. 110 from reaching the Senate floor.
TITLE X OF THE PUBLIC HEALTH SERVICE ACT
I. PROBLEM: KENNEDY'S BILL - S. 110
[see tab 3]
A. The bill would badly damage the Administration's case in
court. The bill itself states that grantees should
promote all "options", which in the context of the
ongoing litigation means abortion counseling and
referral. In addition Kennedy's committee report
explicitly repudiates the the pro-life regulations. The
following is from the Kennedy committee report (Com.
Rep. No. 101-95, 101st Cong., 1st Sess. 15 [1989] :
"The Committee reasserts its support of the
mandate in the existing [1981 guidelines] Title X
guidelines for nonreproductive counseling and
referral upon request for all options concerning
unintended pregnancy."
B. The bill opens the door for federal funding of reserch
on new abortion inducing drugs, such as RU-486 - the
French abortion pill. The Committee report does not
define the following language in the bill: "
bringing
to the marketplace, of new and improved contraceptive
devices, drugs, and methods
"
C. The bill would also open the door for future funding of
abortion counseling services at school-based clinics.
The bill authorizes the Secretary to " make grants to
or enter into contracts with public and nonprofit
private entities to establish community-based
information and education programs to assist individuals
in making responsible choices concerning human
sexuality, pregnancy " This provision would erode
the roles of state law, local values, and parental
responsibility.
D.
In addition, OMB and HHS have voiced opposition to the
bill on fiscal and administrative grounds.
E.
If this bill reaches the floor, it will probably pass
without significant modification. Pro-abortion forces
in the House are waiting to see what comes out of the
Senate before releasing from the appropriate committee.
Thus, the President would be faced with a non-win
situation: if he signs, right to life forces will
consider him as caving-in on abortion, pro-RU-486, and
pro-school based clinics --- if he vetos, pro-abortion
forces will consider him anti-contraception and anti-
family planning. The bottom line is, Democrats plan to
use this as a major way of creating trouble for the
President.
II. SOLUTION: Keep this bill off the Floor.
A. We think it is unlikely that Senator Mitchell would
bring up this bill unless he knew that there were 60
firm votes to invoke cloture on a certain filibuster.
We know that Senator Kennedy is trying to round up
commitments from 60 Senators. Obviously, he will need
the help of several Republicans. We know that he
already has commitments from: Durenberger, Chafee,
Cochran, Cohen, Heinz, Jeffords, Kassebaum, Simpson,
Specter, Stevens, and Wilson. The White House should
seek to pursuade some of these Senators to withdraw
their commitment. Best prospects from this group are:
Cochran, Simpson and Chafee--all members of the
Republican leadership. Durenberger should be with us as
he regularly votes pro-life.
In addition, we need to forestall a further defection
among Republicans. The following are known to be prime
targets of Kennedy: Roth, Warner, Boschwitz, and
Hatch. Senator Hatch is a key player, if he firmly came
out in opposition to Kennedy's bill, many would follow
his example. Whatever can be done to bring Hatch along
will help a great deal.
B.
Senator Dole must make it clear at the next Republican
Policy luncheon that the Kennedy bill is a political
attack on the President. The Republican Leader should
be asked to lobby the above-named senators as soon as
possible. Further, he should be asked to use his
relationship with Senator Mitchell to keep S.110 off the
Floor. Possibly he could strike a deal involving other
legislation.
C.
If the bill reaches the floor, the Administration must
issue a prompt and clear veto message: the bill
promotes abortion, repudiates pro-life regulations, and
is contrary to the Administrations block-grant proposal.
D.
If this bill stays off the floor, the House probably
will not do anything with Title X. It is essential to
use the strong arm of the White House.
III. LEGISLATIVE HISTORY
[see tab 1]
A.
Title X of the Public Health Service Act was enacted in
1970, before abortion was legal, by Pub. L. 91-572.
Among other things, it authorized the Secretary of HHS
to make grants to public and private nonprofit entities
to establish and operate family planning projects.
Section 1008 of Title X, 42 U.S.C. 300a-6 contains the
following prohibition which has not been altered since
1970:
"None of the funds appropriated under this
title shall be used in programs where abortion is a
method of family planning.'
B.
Congressional intent clearly created a wall of
separation between Title X programs and abortion as a
method of family planning. The following is from Conf.
Rep. No. 91-1667, 97th Cong., 2nd Sess. 8-9 (1970) :
"It is, and has been, the intent of both
Houses that the funds authorized under this
legislation be used only to support preventive
family planning services, and other related
medical, information and education activities. The
conferees have adopted the language contained in
section 1008, which prohibits the use of such funds
for abortion in order to make clear this intent."
In addition, Congressman Dingell, a chief sponsor of
section 1008, made the following floor statement (116
Cong. Rec. 37375 [1970]) :
"With the 'prohibition of abortion' the
committee member clearly intended that abortion is
not to be encouraged or promoted in any way through
this legislation."
IV. THE 1981 GUIDELINES - THE EROSION OF CONGRESSIONAL
INTENT
[see tab 1]
A.
In 1981 HHS issued revised Title X program guidelines.
Like previous editions of the guidelines, they did not
incorporate prior HHS Office of General Counsel (OGC)
opinions providing guidance on abortion counseling,
referral and program separation. However, unlike prior
guidelines, the new guidelines actually reversed
Congressional intent and required Title X projects to
engage in abortion-related activities under certain
circumstances.
V. THE REAGAN/BUSH REGULATIONS
[see tab 1]
A.
On February 2, 1988, as printed in the Federal Register,
regulations were issued establishing clearer standards
for compliance with section 1008. The regulations focus
the emphasis of the Title X program on its traditional
mission and stated intent of Congress: the provision of
preventive family planning services, and the specific
prohibition of abortion counseling.
VI. COURT BATTLE
[see tab 2]
A.
Once the pro-life regulations were issued in 1988, they
were immediately challenged by the ACLU, Planned
Parenthood and other pro-abortion groups in three
separate lawsuits. The U.S. Court of Appeals for the
Second Circuit has upheld the regulations; rulings are
awaited from the First and Tenth Circuits. Most are
optimistic that the Supreme Court will ultimately uphold
the Reagan/Bush regulations.
HUMAN
SERVICES
USA
DEPARTMENT OF HEALTH & HUMAN SERVICES
Public Health Service
HEALTH
of
DEPARTMENT
Washington DC 20201
FINAL RULES PROHIBITING USE OF TITLE X FUNDS IN PROGRAMS IN
WHICH ABORTION IS A METHOD OF FAMILY PLANNING
FACT SHEET
Created in 1970 (P.L. 91-572), the Title X program is a
categorical grant program which provides funding for a
broad range of family planning services, including
contraceptive services, natural family planning,
infertility services and treatment for sexually
transmitted diseases.
Administered by the Office of Population Affairs in the
Public Health Service, Title X supports approximately
4,000 family planning clinics through 89 grantees and
serves an estimated 4.3 million individuals. Over 85
percent of Title X clients are low-income and
approximately one-third are adolescents. The FY `88
budget for the program is approximately $140 million.
Section 1008 of the Public Health Service Act states,
"No funds appropriated under this Title shall be used
in programs where abortion is a method of family
planning."
Because of continuing concern that the Department has
provided inadequate guidance about the scope of this
prohibition, the Department published a notice of its
proposal to issue new regulations on September 1, 1987.
The Department received approximately 75,000 comments
during the 60-day public comment period from September
1 to November 2, 1987, with a majority supporting the
proposed rules.
The final regulations were printed in the Federal
Register on February 2, 1988. They govern the use of
federal Title X family planning funds expended to
provide services in family planning clinics, including
those in county health departments and hospitals as
well as private non-profit organizations.
The rules apply only to Title X projects. Programs not
receiving Title X funds are not governed by these
rules. The rules do not interfere with activities paid
for with funds from another federal program or with
non-federal funds.
The regulations limit Title X funding to those programs
which:
--
do not include abortion as a method of family
planning;
-- do not provide counseling and referral for
abortion;
-- maintain physical and financial separation
from prohibited abortion activities; and
-- do not engage in any activities that
encourage, promote, or advocate abortion as a
method of family planning.
In response to public comments, the Department made
several modifications and clarifications in the final
regulations to:
-- address concerns about informed consent for
family planning services by clarifying that
the restrictions in the regulation in no way
preclude providers from providing information
on risks and benefits of a particular method
of contraception (e.g., information
accompanying oral contraceptives or IUDs
contains information on mortality rates from
use of different methods of family planning,
including abortion);
-- modify the requirements for physical and
financial separation so that the
determination of separation is made on a
case-by-case basis according to specific
review of criteria established by the
Secretary;
-- make it clear that when a Title X client is
in need of emergency medical care (as in the
case of an ectopic pregnancy), she should be
referred immediately for emergency medical
treatment.
Separate lawsuits have been filed in the District
Courts in Denver, Boston and New York challenging the
statutory and constitutional bases of the regulations.
The Department is currently enjoined from enforcing
them with respect to certain grantees under two
separate permanent injunctions entered in the Colorado
and Massachusetts cases. Those injunctions cover
members of the National Family Planning and
Reproductive Health Association, Inc. (NFPRHA), and the
Commonwealth of Massachusetts, and most affiliates of
Planned Parenthood Federation of America, Inc., among
others. The Department has filed appeals in both of
those cases.
In the third case, on June 30, 1988, Judge Stanton in
the United States District Court for the Southern
District of New York issued an order dismissing the
lawsuits filed by the American Civil Liberties Union
(ACLU), the State of New York and others plaintiffs
finding that the regulations are within the scope of
Secretary's authority under Title X and are
constitutional. The plaintiffs filed an appeal in this
case.
On May 8, 1989, the U.S. District Court of Appeals for
the First Circuit in Boston affirmed the District
Court's ruling and upheld the permanent injunction with
respect to the enforcement of the regulations. The
Department requested an en banc rehearing in the First
Circuit and that request has been granted. This case
will be reheard in December, 1989. As part of the
agreement to rehear the case, the First Circuit vacated
its earlier affirmation of the District Court's ruling.
In the appeal of the New York case, the Second Circuit
Court of Appeals on November 1, 1989, upheld the
regulations on both statutory and constitutional
grounds.
Arguments have been heard in the appeal of the Colorado case
but there has been no decision.
On August 12, 1988, the Office of Population Affairs
sent guidance to the regional offices stating that
except where the Department was enjoined from enforcing
the regulations, they were to proceed to implement the
regulations at the time grant awards are made. All
grant applicants are required to provide a
certification that they are or are not covered by one
of the court injunctions.
The Department is proceeding to implement the
regulations where practicable and where not enjoined,
and is examining difficult implementation situations on
a case-by-case basis.
On May 31, 1989, Judge Skinner of the U.S. District
Court for Massachusetts ruled that a state that is
covered by an injunction but that wishes to comply
voluntarily with the regulations is free to do so.
November 2, 1989
United States Senate
MEMORANDUM
John:
Per your request.
2/26
Pls. CCM when
youre discuss ready to
The Plannned Parenthood Federation
For women, abortion is a tough decision.
For President Bush and
gets $30 million a year from
10. Vennedy's bill would
Tom Tauke,
it was a snap.
President Bush:
Whatever your personal feelings about abortion,
Twice this year, Congressman Tauke
you have a responsibility to protect the private
personal and
choice of others. Stop trying to overtum Roe 12
increase this.
went out of his way to endanger the lives
private decisions.
Wade. Stop interfering in women's lives.
and privacy of women all across America.
Most others in Congress aren't
In February, he joined President Bush
NAME
doctors and women either.
in asking the U.S. Supreme Court to
But unlike Congressman Tauke
ADDRESS
overturn Roe V. Wade, the case that made
abortion safe and legal in all fifty states.
and President Bush, they respect the
American majority view that abortion
Congressman Tauke:
More recently, he voted against
federal Medicaid help for victims of rape
must remain a private decision, free of
Whatever your personal feelings about abortion,
government interference.
and incest too poor to afford their own
you were elected to represent the rest of us. We
Tom Tauke went out of his way to
don't want Roe v. Wade overturned. We want to
health care. Even before President Bush
urge the Court to make abortion
keep abortion legal and safe.
went out of his own way to veto it.
Tom Tauke is not a doctor. So he
dangerous and illegal again. For every
NAME
woman. No matter what the circum-
probably doesn't know thousands of
stances. Then he turned his back on
ADDRESS
women were maimed and killed in
women who are poor and need medical
bloody back-alleys before the Supreme
help because of rape and incest.
Court upheld safe and legal abortion in
Forward my messages to President Bush and Rep. Tauke. I 11 also
It's time we let both of them know
enclose a donation to support all Planned Parenchood does to reduce
1973.
the need for abortion, through family planning services and education,
their irresponsible actions threaten the
while ensuring its safety: $15 $30 $45 other.
Nor is he a woman. And maybe that's
health and privacy of women.
why he finds it so easy to dismiss the
deep concern and outrage most women
And that's something we care about
Planned Parenthood
here in Iowa. Just like the rest of
of Mid-lowa
feel when a few politicians decide to
America.
P.O. Box 4557, Des Moines, IA 50306
make headlines out of such intensely
Please mail the coupon.
Des Moines Register 12-10-89
CONFIDENTIAL AND URGENT
To:
Governor John Sununu (c/o Jacki Kennedy)
From:
Darla St. Martin, Assoc. Executive Director (626-8826)
Douglas Johnson, Legislative Director (626-8820)
Re:
Senator Kennedy's Title 10 bill (S. 110)--
substantive and political problems
Date:
February 8, 1990
We are concerned that an important opportunity may soon be lost to prevent
the pro-abortion forces from advancing their agenda under the guise of
"family planning." If the White House does not intervene now, we could face
a messy and probably avoidable veto situation next summer.
The subject of our concern is Senator Kennedy's bill (S. 110) to revamp
Title X ("Title 10"), the major federal birth-control program. As we
discussed briefly during your Jan. 23 meeting with the assembled pro-life
leaders, this bill is substantively one of the greatest threats to pro-life
interests likely to be acted on this session. All major components of the
pro-life coalition-- NRLC, the Family Research Council, the Southern Baptist
Convention, the U.S. Catholic Conference, etc.-- consider stopping this bill
a top pro-life priority.
Here's why: Title X was originally established in 1970 as a contraceptive-
only program, but pro-abortion HHS administrators and many of the service
providers later transformed it into an arm of the abortion industry.
Although Title X funds cannot be used directly to pay for abortion
procedures, by 1981 Title X guidelines actually required grantees to counsel
and refer for abortions. The revised Reagan-Bush Title 10 regulations,
issued in 1988, would prohibit promotion of abortion, and return the program
to its original contraceptive-only mission.
These pro-life regulations have been challenged by the ACLU, Planned
Parenthood and other pro-abortion groups in three separate lawsuits. The
U.S. Court of Appeals for the Second Circuit has upheld the regulations;
rulings are awaited from the First and Tenth Circuits. We are optimistic
that the Supreme Court will ultimately uphold the regulations. That would
remove $30 million a year from Planned Parenthood-- the nation's largest
chain of abortion clinics, which is already running full-pages ads against
Tom Tauke and others-- which would be given instead to organizations which
agree to stick to contraception rather than abortion.
Kennedy's bill, however, would badly damage the Administration's case in
court. The bill itself states that grantees should promote all "options,"
which in the context of the ongoing litigation means abortion counseling and
referral. Kennedy's committee report explicitly repudiates the
Administration's regulations in two places.
There are also very troublesome provisions which could open the door to
future funding of abortion counseling services at school-based clinics and
CONFIDENTIAL MEMO TO GOVERNOR SUNUNU, PAGE 2
federal funding of research on new abortion-inducing drugs, such as the
French abortion pill. Moreover, the OMB has voiced opposition to the bill
on fiscal and administrative grounds.
Nevertheless, if the bill reaches the Senate floor anytime soon, it will
probably pass without significant modification, and probably rather quickly
clear the House as well. Even if ameliorating amendments are adopted in the
House, they could be dropped in a conference chaired by Kennedy and Henry
Waxman. The final product of Kennedy and Waxman will be fully acceptable to
the pro-abortion lobby.
The pro-abortion lobby, and the press, are already beginning to beat the
drums that the President is "against family planning" if he does not support
Kennedy's bill (see attached). If the bill reaches the White House, the
far-reaching pro-abortion ramifications of the bill are likely to be
downplayed or ignored in much of the press coverage. A veto could be
sustained, but it would be messy.
Thus, a little White House energy at this point, to keep the bill off the
Senate floor or delay its consideration, would be well invested.
Yesterday, Senator Kennedy was heard to privately ask Senator Mitchell,
"When will you schedule the Title 10 bill?" To which Mitchell responded, "I
will schedule it as soon as you get Dole to sign off on it." We
respectfully urge, therefore, that you advise Senator Dole of the
substantive and political reasons why this bill should be kept off the floor
for as long as possible.
Secondly, Senator Hatch has been of two minds on the bill, which contains
$1.8 million in funding for a special project in Utah. Senator Hatch, too,
would benefit from your guidance regarding the reasons why this bill should
not move forward.
Thank you for your consideration of these requests.
f-Janily Planning
THE WHITE HOUSE
WASHINGTON
February 22, 1990
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
FRED McCLURE
ROGER B. PORTER
SUBJECT:
Amendments to Family Planning Reauthorization
If our effort to prevent Senate consideration of the Title X
reauthorization (S. 110) fails, many amendments may be offered.
This memorandum summarizes those we may wish to support.
The following caveats should be noted:
1.
Any reauthorization bill that the present Congress
sends to the President will erode our position in the
courts. We do not feel we can prevail on any amendment
that would protect sufficiently the ban on abortion
counseling now being contested in the courts. Thus
Congressional inaction remains our best outcome.
2.
As soon as the Senate turns to the bill, we can expect
a cloture petition to be filed. If cloture is invoked,
a very narrow germaneness rule then applies. To be
germane, an amendment must (1) change a number, figure,
or date, (2) strike a provision, or (3) limit
authorities created by the legislation. Most of our
amendments would fail the post-cloture test of
germaneness. Non-germane amendments pending when
cloture is invoked receive no further consideration.
Also, debate is limited to thirty hours post cloture.
3.
Any apparent success in the Senate is unlikely to last;
House/Senate differences will be resolved in a
conference with Rep. Henry Waxman and Sen. Edward
Kennedy as the key actors.
The amendments are:
Amendments in the nature of a substitute
Two total substitutes for the Kennedy bill would resolve both the
threat to the counseling regulation and our other concerns about
S. 110.
-2-
-
The Administration bill
Secretary Sullivan sent the Administration bill to the
Congress last June. Our bill would make Title X a program
of grants solely to states, leaving policy decisions to the
states while maintaining the abortion prohibition. It could
be offered as an amendment in the nature of a substitute.
Its germaneness in a post-cloture situation is not yet
known.
-
A simple, straightforward reauthorization
This amendment would continue the program in its current
structure for two or three years at the funding level in the
President's budget and drop all other provisions of S. 110.
Fixes relating to the abortion counseling regulation
If any of these is offered and rejected, the legislative history
thus created makes our chance of prevailing in the abortion
counseling litigation near zero. Raising these amendments
entails significant risks. The versions are ranked according to
their ability to strengthen our position, most to least.
-
Write the challenged abortion counseling regulation into the
statute.
-
Add statutory language to repudiate the report language on
the abortion counseling rule: "Nothing in this act shall be
construed to permit abortion counseling by Title X
grantees."
-
Strike the item in the "findings" section of S. 110 that
says "sound medical practices require that all individuals
be fully informed of their options." This language serves
as the hook for report language squashing the abortion
counseling rule.
-
Try to raise the offensive report language to the statutory
language: "Every grantee shall counsel that abortion is an
option." This would provide an up or down vote on the
unvarnished statement of our opponents' position.
Amendments beyond those on the counseling rule -- GERMANE
-
Allow only those organizations which do not provide abortion
services to be eligible for Title X funding.
-3-
-
Prohibit Title X funds from being used to promote
homosexuality. This is a concern of Senator Humphrey's
based on the New Hampshire grantee who created the "Mutual
Caring, Mutual Sharing" curriculum.
-
Require parental consent before a minor can receive Title X
services.
-
Require that parents be notified when a minor obtains Title
X services.
Amendments beyond those on the counseling rule -- NON-GERMANE
-
Fold the Title X program into the Maternal and Child Health
block grant.
-
Make Title X services available solely on a means tested
basis.
The list of non-germane and barely germane amendments can be
made nearly endless.
In addition to the amendments we may wish to advocate or
encourage Senators to propound, we must decide whether our
opposition to the bill in its present form extends to threatening
a veto.
A veto threat will cast a long shadow on the debate.
Without a veto threat, those opposed to the Administration's
position will see 50 votes rather than 67 as the number they must
hold as a coalition. Gathering fifty votes can be done with
little difficulty by S. 110's proponents. Without the veto
threat they will see no reason to give on anything.
116014
Family
Research Council
T.M.
Gary L. Bauer, President
February 19, 1990
The Honorable John Sununu
Chief of Staff
The White House
Washington, D.C. 20500
Dear Governor Sununu:
The Family Research Council, a division of Focus on the Family,
joins the Administration in opposing S. 110, the Family Planning
Amendments of 1989. We believe it is possible to hinder movement
of S. 110 on the Senate floor through several approaches.
The Council's opposition to S.110 is multifold. We oppose the
general increase of Title X funding, plus the new authorization of
$10 million dollars specifically designated for "community-based
information and education programs" and the separate authorization
of $10 million dollars for the expansion and promotion of the
development, marketing, and evaluation of new contraceptive
devices, drugs, and methods.
In a time of concern over budget constraints coupled with alarm at
the deterioration of the cohesive American family unit,
we believe that an intensive study of Title X and its effectiveness
in decreasing teenage pregnancies should be undertaken before
additional funding occurs.
As stated in the November/December, 1989 issue of Family Policy,
nearly twenty years have passed since Congress adopted legislation
establishing Title X of the Public Health Service Act.
Expenditures and clientele have grown dramatically. The American
taxpayer has spent $2.1 billion over the past twenty years,
providing services to an estimated 1.5 million teenagers annually.
As a result, teenage pregnancy is not declining, but rather, it is
escalating. This should raise questions to both lawmakers and the
public as to the effectiveness of the Title X program, its future,
and what alternatives can be offered to both parents and teenagers.
Our opposition to the $10 million authorization for community
information centers is based on a concern that these will provide
federal funding for school-based clinics. Opposition to the
separate authorization for funding of contraceptive research opens
the door, we believe, for research regarding abortifacients.
Family Research Council
A division of Focus on the Family
601 Pennsylvania Avenue, N.W., Suite 901
Washington, D.C. 20004
(202) 393-2100
The involvement of parents in the Title X program is limited at
best. The future of the program must be based on inclusion of
parental authority and consent, whether on the state and/or federal
levels. An example can be seen in the state of Minnesota, where
a parental notice law for abortion went into effect in 1981. By
1985, data supplied by the Minnesota Department of Health indicated
the number and rate of pregnancies, births, and abortions all
dropped significantly for girls under age 18. This suggests that
parental involvement is a significant deterrent to adolescent
sexual activity.
The Council will view this vote as a pro-life vote.
It is our understanding that the chief sponsor of the bill, Senator
Edward M. Kennedy (D-Massachusetts) plans to bring S. 110 to the
Senate floor in March if he has the sixty votes necessary to invoke
cloture. We would like to make the following recommendations.
1. We recommend that the cloture vote for S. 110 be regarded
as a party-line vote.
2. If cloture is not invoked, we ask for Administration
support of amendments addressing the funding of school
based health clinics, contraceptive research that
includes abortifacients, and an amendment which allows
for parental consent prior to services rendered with
Title X funds.
Enclosed is a copy of Family Policy, a copy of the Administration's
position as stated in a letter from Secretary Sullivan to Senator
Kennedy, copies of newspaper articles and an additional copy of a
memorandum sent to you on January 24, 1990 with an addendum.
Thank you for your consideration of this matter. I trust that we
will be able to work together on this issue. If you or your staff
have any questions, please do not hestitate to contact me or
Elizabeth Kepley at 393-2100.
Sincerely,
Gary L. Bauen
Gary L. Bauer
President
GLB:eyk
Enclosures
Family
Research Council
T.M.
Gary L. Bauer, President
DATE:
JANUARY 24, 1990
MEMORANDUM TO: THE HONORABLE JOHN SUNUNU
CHIEF OF STAFF, THE WHITE HOUSE
FROM:
ELIZABETH KEPLEY, DIRECTOR OF GOVERNMENT RELATIONS
RE:
S.110, THE FAMILY PLANNING AMENDMENTS OF 1989
Senator Edward Kennedy's priority for the second session of the
101st Congress is to enact S.110 and S.120, two blockbuster pieces
of legislation. S. 110, the Family Planning Amendments of 1989,
throws open the door to federal funding of school-based clinics and
contraceptive research. S.120, the Adolescent Pregnancy
Prevention, Care and Research Grants Act of 1989, turns the only
federal program advocating abstinence and family values into
another Planned Parenthood funding mechanism.
Expected floor action at this time is February. Senator Kennedy
has the necessary votes to pass S.110, but there are grave concerns
that we have with the bill. Three areas of concern are
1) funding of school based health clinics, 2) funding of
contraceptive research that includes abortifacients and 3) the lack
of parental consent. Any of these areas, successfully addressed
in amendment form, could derail the bill. Grassroots activity in
the Senate will create the momentum necessary for House victories.
A multi-pronged strategy is necessary. The first prong is to
generate grassroots against the Senators who may vote to invoke
cloture. Senator Kennedy claims to have 60 commitments to invoke
cloture. This is not accurate. There are "soft" spots in his
cloture list. Several offices have indicated that they have not
made a commitment to Senator Kennedy regarding a cloture vote.
The following four divisions are Senators who are on Kennedy's
cloture list. Each Senator's name is on the list for the following
reasons. 1) No commitment has been made. 2) A commitment has been
made, but the Senator ie either a Republican, up for re-election,
is pro-life and must view this as a pro-life vote, or must see this
as a partyline vote (see category 4.)
1. Senators up for re-election in '90 and who are on list
Boren -- staff indicates that they've asked Senator Kennedy's
office to take his name off the list
Cochran -- no commitment or decision has been made, although
he is on the list
Hatfield -- has agreed to vote to invoke cloture, but is up
for re-election
Simpson -- position yet to be determined regarding cloture
Family Research Council
A division of Focus on the Family
601 Pennsylvania Avenue, N.W., Suite 901 Washington, D.C. 20004 (202) 393-2100
The Honorable John Sununu
Chief of Staff, The White House
Page Two
2. Senators that have had a pro-life voting record
Durenberger
DeConcini
3. Senators who need constituent activity regarding a
vote against invoking cloture
Wilson
Hollings
Stevens
4. Republicans who have agreed to invoke cloture and who are
pro-abortion
Chafee
Kassebaum
Packwood
Jeffords
Rudman
Specter
If you have any questions, please do not hesitate to call me at
393-2100.
Family
Research Council
T.M.
Gary L. Bauer, President
DATE:
FEBRUARY 19, 1990
ADDENDUM TO MEMORANDUM
DATE OF MEMORANDUM: JANUARY 24, 1990
TO:
THE HONORABLE JOHN SUNUNU
CHIEF OF STAFF, THE WHITE HOUSE
FROM:
ELIZABETH KEPLEY
DIRECTOR OF GOVERNMENT RELATIONS
RE:
S.110, THE FAMILY PLANNING AMENDMENT OF 1989
Republican Senators who have not made a formal agreement to invoke
cloture are as follows. Republicans not appearing on this list are
mentioned under various categories in the memorandum.
Armstrong
Bond
Boschwitz
Burns
Coats
D'Amato
Danforth
Dole
Domenici
Garn
Gorton
Gramm
Grassley
Hatch
Helms
Humphrey
Kasten
Lott
Lugar
Mack
McCain
McClure
McConnell
Murkowski
Nickles
Pressler
Roth
Symms
Thurmond
Family Research Council
A division of Focus on the Family
601 Pennsylvania Avenue, N.W., Suite 901
Washington, D.C. 20004
(202) 393-2100
Wallop
Warner
In addition, Senators John Heinz (R-PA) and William S.
Cohen (R-ME) has indicated they will vote for cloture.
HUMAN
THE SECRETARY OF HEALTH AND HUMAN SERVICES
SECURITY
WASHINGTON, D.C. 20201
USA
The Honorable Edward M. Kennedy
Chairman, Committee on
JUN 23 1000
Labor and Human Resources
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This is in response to your request for a report on S. 110,
a bill "To revise and extend the programs of assistance under
title X of the Public Health Service Act."
In summary, we oppose this legislation for several reasons.
First, it is inconsistent with the Administration's 1990 proposal
that the current title X categorical family planning program
become a program of direct grants to States. In addition, we
oppose the proposed increased authorization levels. Finally, we
believe that two provisions which would expand current program
authorities and provide separate authorizations for these
activities are unnecessary.
The bill would revise and extend the title X family planning
program for three years, authorizing $163 million in fiscal year
1990, $171 million in fiscal year 1991, and $179.5 million in
fiscal year 1992. While continuing the Secretary's authority to
make grants and contracts with public or private nonprofit
entities to provide family planning services, the bill would
repeal the current authority to make formula grants to States for
family planning services. Technical assistance, clinical
training, and training for educators and counselors would be
included as specific areas for which the Secretary would be
authorized to make grants and contracts. A separate
authorization of $10 million for fiscal year 1990 would be
provided for community-based information and education programs
to provide information to parents and adolescents about the
availability of a broad range of acceptable and effective family
planning methods and services. Current authority for biomedical
research would be continued and a separate $10 million
authorization would be included to expand the ongoing work of the
National Institutes of Health (NIH) to promote the development,
marketing, and evaluation of new contraceptive devices, drugs,
and methods. Finally, the Secretary would be given a new
responsibility to collect specific family planning data on an
annual basis.
Page 2 - The Honorable Edward M. Kennedy
S. 110 is inconsistent with the Administration's proposed
1990 budget, which proposes that the current title X categorical
grant program become a program of direct grants to States for the
provision of acceptable and effective family planning services,
training, service delivery improvement research and information
and education activities. Funding would be authorized for the
proposed program of State administered grants at $138.3 million
in fiscal year 1990 and would contain many of the characteristics
of the block grant programs in order to increase State
flexibility and thereby give States the ability to make the most
effective use of the funds to serve their populations. Within
this framework, several key provisions of the current program
would be retained, such as the prohibition on abortion as a
method of family planning, the requirement for priority in
serving low-income families, the requirement that acceptance of
services be voluntary, and the encouragement of family
participation. We believe that a State administered program of
family planing grants is the best approach to the delivery of
family planning services to low-income persons in a manner that
is flexible and best meets local needs and priorities.
In addition, the provisions of S. 110 which would expand the
authority and provide separate authorizations for contraceptive
research as well as information and education activities are
inconsistent with Administration policy. The proposed expanded
authorities are unnecessary since current authorities are
sufficiently broad to allow for such activities and, indeed, the
Department is already conducting such activities. Sections 301
and 448 of the Public Health Service Act already provide broad
authority for contraceptive research, development and evaluation,
as well as dissemination activities of the type proposed in
S. 110. Further, under the Administration's proposed program,
States also would have such broad and flexible authority. We
oppose expanding the authorities and increasing authorizations
for these specific activities.
We therefore recommend that the bill not be favorably
considered.
We are advised by the Office of Management and Budget that
enactment of S. 110 would not be in accord with the program of
the President.
Sincerely,
/s/ Louis W. Sullivan, M.D.
Louis W. Sullivan, M.D.
Secretary
'w>$h
Times
11. Feb 14,1990
Mr. Bush gets sandbagged
Last summer as Metro buses tooled
and the Massachusetts government of Mi
around town bearing Planned Parenthood
chael Dukakis from seeking injunctions and
posters that depicted a bedraggled little girl
filing suits claiming that abortion advocates
under a caption that blamed Sen. Jesse
have a First Amendment right to federal
Helms for killing her mother, Sen. Edward
money. The U.S. Court of Appeals in New
Kennedy was pushing a bill through the Sen-
York has upheld the Reagan regulations in
ate Labor and Human Services Committee
one suit; in two others, appeals are pending.
that would ensure the continued flow of "Ti-
Everyone agrees that if the issue goes to the
tle X" subsidies to Planned Parenthood. If
Supreme Court, the administration wins and
Mr. Kennedy can gather 60 votes to shut off
Planned Parenthood loses.
a filibuster, the bill probably will pass Con-
Mr. Kennedy does not want that to happen.
gress and land on the
If the president
president's desk
TITLE X FUNDING AND ABORTIONS
signs his bill, the reg-
PERFORMED ON WOMEN 15-19 YEARS OLD
next October - just
ulations will be
$170
before the congres-
superceded, the
160
sional elections.
court cases will be
-
=
150
Proponents of le-
mooted and federal
.
140
galized abortion be-
-
subsidies will con-
-
-
139
lieve they have the
tinue flowing to
E
120
Title X Appropriations
president sand-
Planned Parenthood
110
bagged. Mr. Ken-
and other organiza-
100
nedy's "Family Plan-
78
'79
'80
'81
'82
'83
'84
'85
tions that help teen-
73
'74
'75
'76
'77
ning Amendmentsof
500,000
age girls gain abor-
1990," as he calls
tions without their
400,000
them, aren't about
parents' knowledge
"family planning,"
300,000
or consent. This is
which the president
200,000
Abortions
where the sandbag-
claims to support,
ging comes in: If
but about whether
100,000
President Bush ve-
the federal govern-
0
toes the "Family
'78
'79
'80
'81
'82
to
'$4
'85
ment should funnel
73
74
75
76
'FI
Planning Amend-
approximately $150
Chart by Paul Woodward / The Washington Times
ments" on election
million a year into clinics that channel teen-
eve, you can be sure that he will be accused
age girls to abortionists while preventing
of bedding down with the "anti-abortion"
their parents from knowing about the ordeal.
lobby while saying no to contraception too.
Two years ago, the Reagan administration
The president can avoid that setup by de-
issued regulations that withheld family plan-
manding discipline among Republican sen-
ning grants (Title X money) from agencies
ators. If he doesn't, he will have to veto the
that referred women to abortionists. The law
bill in October and face the political heat.
that created the grants program (which then-
Either way, he ought to point out that there is
Rep. George Bush sponsored) explicitly
no evidence that federal "family planning"
states that "no funds appropriated under this
programs reduce teen-age abortions (see
Title shall be used in programs where abor-
chart). Besides, the federal government has
tion is a method of family planning." But that
no business standing between children and
did not deter the Planned Parenthood Feder-
parents in order to substitute the state's val-
ation of America, other pro-abortion lobbies
ues and moral guidance for the family's.
THE WALL STREET JOURNAL, FRIDAY, FELRUARY 2, 1990 p. A 16
Bush Backs Away From Birth-Control Program
As Congress Braces for a Tough Fight on Issue
By KENNETH H. BACON
Staff Reporter of THE WALL STREET JOURNAL
nence and adoption as an alternative to
Abortion-rights groups mobilized after
WASHINGTON-"No one has to feel
abortion."
the Supreme Court ruled last year in Web-
timid about discussing birth control any-
Rep. James Scheuer (D., N.Y.), who
ster vs. Reproductive Health Services that
more," Rep. George Bush declared back in
worked with Mr. Bush to pass the Family
states can limit the right to abortion. "In
1970.
Planning Services Act, says, "It's bizarre
the post-Webster environment. a lot of
that 20 years later he's acting the way he
members who are anti-abortion want to be
Today, though. at least one person does
is.' After loyally following Mr. Reagan's
for something positive for women," says
feel timid about the issue: President
opposition to abortion and family-planning
lobbyist William Hamilton of the Planned
George Bush, who for political and budget-
programs, political pressure from abor-
Parenthood Federation of America.
ary reasons is trying to distance himself
tion-rights groups may force Mr. Bush to
Nevertheless, the Bush administration
from the very federal birth-control pro-
adopt a softer line, Mr. Scheuer predicts.
not only opposes the funding increase but
gram he co-sponsored two decades ago.
"It's going to take some courage and a
wants to change the current program-
The program is the Family Planning
lot of pragmatism," Mr. Scheuer adds. But
which makes grants to 88 public and pri-
Services and Population Research Act of
so far. Mr. Bush shows no signs of support-
vate agencies that run family-planning
1970, which supports a nationwide network
ing an expansion of the program he helped
clinics-into a program that sends the
of birth-control clinics. The Reagan-Bush
pass.
funds directly to the states. Such "block
administration wasn't kind to the pro-
By federal standards, the program is in-
grants" would encourage local control over
gram: During a decade of concern about
expensive and small. But the money helps
the program, making it more efficient and
AIDS, teen-age pregnancy and abortion, it
finance some 4,500 public and private fam-
flexible, the administration argues.
nonetheless was cut from a high of $162
ily-planning clinics, which see about 4.3
Conservatives believe that block grants
million in 1980 to $139 million this fiscal
million women a year. The clinics provide
would make it easier for them to change at
year. The president proposes the same
birth-control services, basic reproductive-
the state level one of their primary objec-
level of funding for next year.
health care and counseling, as well as
tions to the federal family-planning pro-
Now, as Congress prepares formally to
some testing for AIDS and other sexually
gram-the fact that it allows teen-agers to
reauthorize the program for the first time
transmitted diseases. Many of the women
receive birth-control assistance without
since 1985, birth-control supporters are
are low-income, and about one-third are
parental knowledge or consent. During his
confident they have the votes to boost
teen-agers.
presidential campaign, Mr. Bush said: "I
funding for the family-planning program to
Birth-control advocates cite a Univer-
am against supplying birth-control aids to
over $200 million. The administration,
sity of California finding that every $1
minors without parental consent." Some
though, opposes the increase, leading some
spent on family-planning services saves
birth-control advocates worry that Mr.
critics to suggest that it is kowtowing to
the state $11.20 in later medical, welfare
Bush might veto a bill that doesn't require
anti-abortion activists. Many of these ac-
and other costs. They also say that im-
parental consent for teen-agers.
tivists dislike the program because some
proved family planning is the best way to
The other major objection the adminis-
reduce the one million pregnancies and
tration and abortion opponents have to the
of the same organizations that receive
money under the bill also act as abortion-
400,000 abortions unmarried teen-agers
family-planning act is that it allows feder-
referral centers.
have each year.
ally funded clinics to discuss abortion with
Family-planning forces say such
Federal family-planning funds come
women and to refer them to abortion
from a variety of sources. Medicaid, which
clinics. "Title X [as the family-planning
charges miss the point. "A reasonable per-
son would say if you're upset about the
provides health care to the very poorest,
law is called 1 is currently a major source
level of abortion in this country, you would
will spend about $274 million on family
of funds for certain organizations which
put as much money as you can into pre-
planning this year, and far smaller
treat abortion as simply one birth-control
amounts will come from the federal mater-
option among many, complains Richard
vention [of pregnano says Jeannie Ro-
nal and child health-care program. But the
Glasow, education director of the National
soff, president of the Alan Guttmacher In-
services these funds provide frequently
Right to Life Committee.
Funding for Family
come through clinics. "These health cen-
The Reagan administration issued regu-
Planning Clinics
ters are often the first place that low-in-
lations barring clinics funded under the act
come women receive medical care, but
from providing counseling or referrals for
Federal funding for family planning clinics,
less than one-half of those eligible for the
abortions, but courts have enjoined those
in millions of dollars
program are currently being served," says
rules from taking effect in most parts of
$170
Sen. Edward Kennedy (D., Mass.).
the country while considering challenges.
Dr. Daniel Federman of the Harvard
Administration officials fault current
160
Medical School says adolescent sexual ac-
family-planning programs for not doing
tivity in the U.S. isn't any greater than in
more to encourage abstinence as the best
other Western countries, "but our rates of
defense against out-of-wedlock teen preg-
150
pregnancy, abortion and childbearing are
nancy and sexually transmitted diseases.
greater than for any other Western coun-
Under the Reagan-era Adolescent Family
140
try" because of "the lack of broadly avail-
Life Act, the government spends $9 million
able, effective and regularly used family
a year to support family and community-
130
planning and contraception."
based efforts to promote sexual abstinence
Last year, the Senate Labor and Human
for unmarried adolescents. Among other
120
Resources Committee voted to reauthorize
things. the program has funded abstinence
1980
'82
'84
'86
'88
'90
and bolster the family-planning program.
projects in which teen-agers have made
Source: Senate Labor and Human Resources Committee
Sen. Kennedy, the panel's chairman, says,
posters saying: "Pet your dog, not your
he has lined up 60 supporters for the bill,
date" and "Don't be a louse, wait for your
stitute, a family-planning research organi-
enough to head off expected filibuster at-
spouse.'
zation.
tempts from opponents. In the House, the
Yet, charges Scott Swirling, executive
bill's chief sponsor, Rep. Henry Waxman
director of the National Family Planning
(D., Calif. ), believes that the bill will pass,
and Reproductive Health Association,
in part because the changing politics of
President Bush "has totally ignored pre-
abortion have created a more favorable
vention of pregnancy and focused on absti-
climate.