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FOIA Number: 2012-0741-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Public Liaison
Series/Staff Member:
Alexis Herman/Ruby Moy
Subseries:
OA/ID Number:
5074
FolderID:
Folder Title:
Affirmative Action
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Section:
Shelf:
Position:
S
29
5
11
2
Draft: February 5. 1995 (rev'd)
\data\affirm.2
Affirmative Action¹
I. The Need
A. Political
There is no generally understood core set of civil rights policies identified with New
Democrats. The corollary is that Clinton's civil rights "definition" is hazy. The political
challenge is to provide the intellectual content, and then a message and communication
strategy to match.
Civil rights liberals, including most Blacks, assume Bill Clinton is "sympathetic" to the
traditional aspirations, but have nagging anxiety about whether this sympathy equates to
reliable support for efforts to reverse the Reagan Era retrenchments, or even reliable support
for current legal doctrines and public policies, such as business set-asides. Civil rights
conservatives assume Clinton is generally liberal in his racial sentiments, and then divide into
two camps: the cynics expect pandering to the Democratic base in as disguised a way as
possible, but conservatives looking for a reason to support the President hope they will see
significant cracks in the orthodoxy.
In truth, many civil rights liberals may also hope for a crack in the orthodoxy -- at least in
the expression of the orthodoxy -- because they fear that the old approaches and the old
language have stalled our progress and produced a crisis in persuasion.
Finally, there is a strong measure of weariness among civil rights liberals. After a difficult
decade of wedge politics, and after the frightening deployment of Federal resources on the
opposite side of the barricades in several key litigation and policy battles, there is a deep
hunger for a politics of healing, grounded in moral vision rather than electoral calculus.
Beneath that hunger is an even deeper need among civil rights liberals and among minorities
-- a need to know "Is the cause safe? Are we safe?"
I Notes:
This essay is written with reference to issues of race-based affirmative action, with specific concern for
the political issues related to the African American community.
This essay does not represent Clinton Administration policy, nor the policy of any office, agency or
official.
1
B. Substantive
The Administration faces several policy issues that we should address within a thoughtful
(conceptual and political) framework, rather than piecemeal. The broad categories of
immediate importance include:
The permissible reach of judicial remedies in school and employment cases, especially
when de jure discrimination and disparate treatment have ended, and the remedy seeks
to address lingering effects embedded in a web of economic and social joint causation.
The reach of voluntary affirmative action in employment and higher education, when
such measures benefit individuals who are not themselves identified victims of specified
acts of discrimination.
The use of set-asides to enhance business opportunities.
The upcoming California ballot initiative which, in the view of civil rights traditionalists,
uses "color blindness" and anti-discrimination rhetoric to eviscerate affirmative measures
by the State.
II. Basic Policy Framework
A. Moral Costs
Preferences have a moral cost, and therefore (i) must be justified and (ii) must be narrowly
tailored, in means and duration, to fit that justification.
1. There is an important ethical distinction between preferences adopted as a remedy for past
discrimination or exclusion, and those adopted to further other important ends such as
diversity. The former purposes, being remedial in nature, generally carry more weight.
They have, however, a factual predicate of wrongdoing and specific injury which makes
them more difficult to use as justification for a racial preference.
2. There is an important doctrinal distinction between preferences adopted by a court for
adjudicated remedial purposes, and those adopted voluntarily by governments or private
persons.
Voluntary government actions deserve special scrutiny because, as the product of a
political process, there is the familiar risk of majority tyranny. The Croson requirement
of legislative findings is a valuable safeguard. provided it is not interpreted to require
findings comparable in detail and specificity to what would be required in court to prove
intentional discrimination against a specified individual. It is, in essence, a requirement
of deliberation which forces a political legislature to think and weigh carefully. This is
2
a valuable check on state power. though not an absolute one.
Voluntary government actions also deserve scrutiny because as wrong as it is when we
injure one another, it is even worse when we are injured by our government. We
therefore have a heightened collective duty to prevent abuses at the hand of government.
Voluntary private actions deserve scrutiny (but not generally as much as governmental
action) because of the risk that even well-intentioned private action will do unnecessary
and unwarranted injury to the interests of non-beneficiaries. Private action may not
fairly balance the ethical costs and benefits.
B. Defining Affirmative Action and Preferences
1. Varied Tools.
Affirmative action is a family of tools -- a range of measures which in practice stretches
from low-intensity outreach. all the way to court-ordered goals and timetables and, in very
rare cases, quotas.
Quotas are and should be rarely employed, and never outside the court-approved
remedial context. Voluntary quotas, public or private, should be prohibited.
Set-asides are a form of affirmative action. If they establish a rigid numerical test,
they are quotas.
2. Merit.
Affirmative action, when used properly, is consistent with merit. There are very rare
instances when, in a court-ordered remedy, some aspects of merit have to take a back seat
to righting a wrong. But these instances are and must be rare.
When people design their affirmative action, they should make every effort to define
a preference narrowly as a criterion for pulling someone into a pool for further
consideration or, when the ultimate hiring or other decision is made, as a tie-breaking
factor among comparably qualified individuals.
"Comparably qualified" means just that. Qualifications that are sham devices to
exclude mean nothing. Qualifications that are not reasonably related to the work or
other tasks involved mean nothing. And when the "merits" are vague. the selection
process highly subjective, and the history suggests exclusion, then it is especially
important to be inclusive in defining what "qualified" actually means.
3
Merit is important; indeed, it is an American value. It is one of the principles that
distinguish us from other societies and cultures, now and historically, where life,
liberty and happiness were contingent on heredity, caste and privilege.
But we should also recognize that in many areas of our social and economic life; we
look for "qualified" people or firms, and then use something other than merit to make
the ultimate decision. We often make final decisions among the qualified randomly,
or based on convenience, familiarity, or instinct. This is natural and fine, assuming
the selection isn't tainted with prejudice. But we shouldn't confuse these nonformal
ways of selecting among comparably qualified individuals with rigorous systems of
pure merit. They are not. And modifying such "fuzzy" systems to include narrowly
tailored affirmative action is just not as ethically objectionable as interfering with
selection mechanisms truly based on merit.
C. Narrowly Tailoring Preferences: Preferences Have Costs
Because preferences are not costless in ethical or moral terms, any preference or
affirmative action measure should be tailored to minimize the injury (actual or perceived)
to the interests of non-beneficiaries. We must be especially concerned with legally
cognizable interests, but not with those interests alone. And we must be especially
concerned with non-beneficiaries who have not in any way benefited personally from
patterns of exclusion.
1. "Tailoring" means:
Clarify what the objective is. That is, state the intended result in terms of removing
any vestiges of exclusion or securing the benefits of inclusion. This means being
clear about what the evidence is that leads us to believe there is a problem in the first
place -- typically a gross imbalance, viewed in the totality of the circumstances.²
Understand the interests at stake, on all sides.
Try to state what constitutes acceptable progress and success. When will the
preference have served its purpose and no longer be needed?
Consider the range of measures in increasing order of intrusiveness. One way of
listing these is:
(i) review selection criteria to eliminate those not justified under true principles
of merit;
(ii) broad outreach and recruiting;
2
This tracks a formulation developed by the Department of Education, during the Clinton Administration,
to test the legality of minority scholarship programs.
4
(iii) targeted. group-specific outreach and recruiting;
(iv) pulling qualified minorities into the pool of "finalists";
(v) soft goals or targets;
(vi) quotas.
Select the least intrusive measure that holds reasonable promise of effectiveness.
2. This emphasis on least intrusive methods is fundamental, but potentially controversial in
two respects. It is fundamental because it acknowledges that there is an ethical cost to
racial preferences, and that we must judge in a given instance whether that cost justifies
the progress that will result. By tailoring preferences to the least intrusive method, we
minimize the ethical cost, and hopefully the divisiveness and social costs as well.
Effectiveness is, of course, not an absolute. There is no running away from the balancing
implied by this formulation. But facing that difficulty within a framework that attempts
to respect the needs and aspirations of all concerned, is the best way out of the mess we
are in.
This approach is potentially controversial because, first, it makes clear to conservatives that
there will be circumstances -- and not rare ones -- when tailored race-conscious measures
are desirable. But, second, the approach makes clear to liberals that they do not have a
monopoly on virtue: that public policies and private practices must reflect ethical
sensitivity both to the intended beneficiaries of preferences and to the unintended
consequences for others.
III. Communications Framework: Curative and Remedial V. Aspirational and Empowering
A. An Edge for Pointed Clarity
To communicate the contrasts between our approach and those of the divisive Right and
Old Left, we must sharp draw lines:
Discrimination still exists. Agencies must clearly communicate research and
enforcement data demonstrating that old-fashioned discrimination is alive and too
well. Evidence produced by "testers" -- matched pairs of minority and majority job
applicants, for example -- is especially compelling.
Some voluntary and remedfal measures are too extreme. We should point to
examples that are unnecessarily intrusive, burdensome or injurious. And we should
describe better alternatives
Some specific measures that have been sharply criticized were, in fact, fully justified
by the particular circumstances. Administration officials should explain a few of
these pointedly, defending the appropriate use of tough medicine.
5
B. Curative and Remedial V. Aspirational and Empowering
As much as anything else, civic discourse on civil rights needs a language of healing rather
than division. Beyond the more narrowly justifiable matters of blame-based cure and
remedy, we pursue affirmative action and diversity to empower the individual beneficiaries
and because we have aspirations as a nation to build strength through inclusiveness. These
are alternatives to the language of blame, guilt and reparations.
There is more to affirmative action than providing a remedy to a proven incident of
discrimination involving a victim and a perpetrator -- the remedial context. There is also
the more general problem of addressing the lingering social and economic effects of past
wrongs. These are manifest as contributing factors to the disadvantage suffered by many
individually, and disproportionately by African Americans in the aggregate. This is the
curative context.
But these are not enough. Both remedy and cure are terms that invoke the moral categories
of victims and perpetrators, of innocence and fault. They invoke the analytical framework
of cause and effect, of damages and reparations. As such, the terms are not politically
effective when too many in the public simply do not believe in the predicate of wrongdoing,
or feel that the preference benefits individuals whose own link to the wrongdoing is too
remote to justify the preference. Indeed, the terms are inherently divisive, precisely because
they invoke the language of blame. This does not mean that this framework is invalid or that
we should scrap it. But we have to recognize the limits to its usefulness.
An alternative framework stresses the affirmative value of inclusiveness. First, inclusion is
a means of empowering individuals to realize their full potential and thus contribute to the
well-being of their families and communities. Second, inclusiveness benefits America as a
whole, because our lives are richer as a result of social diversity, and because our
communities and our economy are stronger when all of us are full participants -- carrying
both a full load of responsibilities, and a full complement of opportunities. These are
unifying themes of empowerment and aspiration.
C. Reacting V. Leading
From a political standpoint, there is an enormous difference between providing necessary
reactions to the legislative or litigation developments thrust upon us, versus leading in a way
that:
sets the agenda for public discourse, rather than conveying the misimpression that
New Democrats are politically timid about engaging in a debate on the issues;
proclaims commitment and purpose by using edges, in a non-combative way, to make
fundamental purposes clear -- identifying some measures we are for, and some we
are against;
6
in content, communicates to civil rights traditionalists that New Democrats have not
abandoned the Democratic commitment to continuing racial progress -- meaning both
racial harmony and steady, tangible progress in eliminating discrimination and its
lingering consequences;
communicates to civil rights conservatives and revisionists that New Democrats are
prepared to abandon, and even criticize, private and governmental techniques that are
too divisive and intrusive for the results they produce; and
strategically mixes narrowcasting to key constituencies and voter blocs, with
broadcasting to the Nation as a whole. Reliance exclusively on narrowcasting sends
a message that the commitment is a politically contingent one, rather than the product
of a deeply rooted value.
D. Litigation V. Policy
Perhaps because civil rights discussions are heavily populated with lawyers, they quickly
become debates over recent and pending litigation. We debate policy choices within the
framework of contested legal doctrines, and even mistakenly believe that most key policy
decisions are about what to write in briefs and how to amend a civil rights or set-aside
statute. This legalistic conception is a dangerously limited one.
Purging the lingering effects of past racial wrongs must go beyond rights-based litigation and
legislation to address directly the impediments to opportunity. For example, quality K-12
schools, combatting teen pregnancy, and the community security agenda must be seen by
civil rights traditionalists as absolutely critical measures for saving the next generation. (To
this list one might add voter registration and participation.) The Administration can make
that link, and a populist and forceful demand that we make progress on that social policy
agenda will translate for many as a demand for racial progress. Which it is.
Even within the narrower range of conventional civil rights measures, it is a mistake limit
policy debate to the questions presented in litigation. Research is a good example.
Government and foundation funding cutbacks, together with the growing "political
correctness" of conservative retreat on civil rights matters, jeopardize our intellectual capital.
There is too little understanding of effective techniques of outreach, recruitment, affirmative
action, conflict management, persuasion and so forth. There is too little basic data about the
extent and consequences of continuing discrimination in employment, housing, credit,
delivery of public services, etc. (The FY 1996 Budget includes several proposed investments
to help rebuild our capacity, including resources for the Civil Rights Division to use "testers"
for research and enforcement purposes, and added funding for the EEOC and the Civil
Rights Commission.)
7
E. Policy V. Pulpit
The legalistic perspective misses the point in a more fundamental way, because its focus is
on public policy rather than civic virtues and the private practices those virtues engender.
It is a cliche to note the President's role as First Preacher and Chief Teacher. That role is
often trivialized as First Lobbyist, and it can be dangerously inflated to that of Tiresome
Moralist. In between, however, is an honorable role that calls us to our better selves, and
recalls the Nation to its deeper meaning. The closing message of the State of the Union was
quite explicitly in this vein. The question is how to sustain it in general, and how to apply
it specifically in the civil rights arena.
We make the civil rights agenda the domain of political tacticians, career litigators and
governance mechanics. But that is the wrong field of battle. Almost without exception,
when Bill Clinton has spoken from his soul on civil rights matters he has communicated all
the qualities and themes needed to lift the national discourse from the trench warfare over
legal doctrine to the vastly more important plane of civic virtues.
It is also clear that communication on this higher plane can and should include a strong
personal element, with Bill Clinton speaking about his own experiences and those of his
family. His credibility as a leader, and his commitment to racial progress, are most firmly
reinforced when he speaks with conviction about how he has witnessed the rewards of
inclusiveness, and how he has come to know the scarring consequences of exclusion.
F. Some Action Items
Translating the points above into concrete action items is difficult. Here are some
possibilities:
Work with California Democrats to formulate a Clinton-backed alternative ballot
proposition for California, and organize voters around it.
Plan three high-profile Presidential speeches over the next 9 months explicitly on the
civil rights agenda, delivered on the plain of values, virtues and aspirations. On
selected policy speeches in education, employment, the Middle Class Bill of Rights,
etc., occasionally add an explicit linkage to the civil rights "opportunity agenda."
Have certain cabinet officers reinforce the Presidential message above with parallel
speeches of their own. Have a media strategy of background interviews with
thoughtful essayists and opinion-makers.
Identify two or three programs or practices -- Federal or State -- that overstep the
bounds. For example, a minority set-aside that is too rigid or not narrowly drawn.
Identify a civil rights agency to strengthen with a high-visibility initiative. For
8
example: new resources at EEOC to eliminate the backlog, or new resources at the
Civil Rights Commission to rebuild a respectable research capability.
Develop an initiative with a coalition of religious leaders, including broadcasters.
IV. Conclusion
From the perspective of civil rights liberals, the Reagan-Bush years were a period of
unnerving and even frightening behavior by the White House, the Department of Justice, and
the Congress. At times hostile, at times begrudgingly benign, the political branches have
reminded anxious minorities that politics is a game designed for the majority. Compounding
the anxiety, the Judiciary has similarly moved rightward, in accord with the Framers' design.
The lesson is that even those doctrinal gains rooted in Constitutional interpretation are
evidently contingent on politics as well, albeit with a lag.
The divisive quality of racial politics was largely quiescent on the national political stage
after George Wallace's 1968 bid and until the activist revisionism of Meese and Reynolds
ushered in what civil rights liberals understood to be an era of peril. They now ask whether
that era is over, and what will come next.
9
DRAFT
THE WHITE HOUSE
WASHINGTON
AFFIRMATIVE ACTION MEETINGS AND CALL STRATEGY
I.
MEETINGS
White
WHO
PURPOSE
DATE
House
POTUS
Members of
To consolidate support of our
Week of
Congress
strategy and to ensure that any
March 6th
independent initiatives planned are
consistent with our message.
(Breakfast)
POTUS
Leading
To give the President an
Week of
Opinion
opportunity to: (1) test his
March
Makers/Think
assumptions about affirmative
13th
Tank Types
action, and (2) to create a universe
of spokespersons externally to
(Dinner)
support his strategy.
VPOTUS
Business
To help position affirmative action
Week of
Leaders
issues as an economic mainstream
March
Visible on
issue, rather than in terms of the
13th
Affirmative
historical debate on race and quotas.
Action
(Lunch)
George S.
Civil Rights
To keep the administration engaged
Week of
and Senior
Leadership
with the historical coalition that has
March 6th
Staff
Coalition
worked on civil rights legislation
under Bush and Reagan and
through the 1990's.
George S.
Women's
To shift the debate away from race
Week of
and Senior
Leadership
and get input from women, who are
March 6th
Staff
Organizations
receiving clear benefits.
George S.
Minority
Set-asides will emerge as the key
Week of
and Senior
Business
issue of affirmative action. We
March
Staff
Leaders
need to develop alternative
13th
strategies to continue to foster
economic inclusion and access.
NNAe
George S.
Media
These are friendly reporters who
Week of
and Senior
want to be supportive on these
March
Staff
issues; early cultivation can help us
13th
N
position our strategy.
II.
CONFERENCE CALLS
The following categories of stakeholders should be cultivated through a conference call
strategy with George Stephanopoulos and other senior staff in the next two weeks:
Historical Political and Social Leadership
Additional 'Think Tank Types' (We will not be able to accommodate everyone at the
dinner.)
Famous Americans
I will follow up with a detailed schedule of dates, times and participants next week.
Attached is the proposed list of invitees by category for each of these meetings and calls.
use
0050
THE WHITE HOUSE
WASHINGTON
AFFIRMATIVE ACTION MEETINGS AND CALL SHEET
CIVIL RIGHTS ADVOCATES
Pat Wright, Disability Rights Education Defense Fund
Antonia Hernadez, MALDEF
Art Crapp, People for the American Way
Hugh Price, National Urban League
Elaine Jones, NAACP Legal Defense Fund
Mary Frances Berry, U.S. Civil Rights Commission
Myrlie Evers, NAACP
Joe Lowery, Southern Christian Leadership Conference
Coretta King, MLK Center for Non-Violence
Marsha Greenberger, National Women's Law Center
Judy Lichtman, Women's, Legal Defense Fund
Ralph Neas, Leadership Conference on Civil Rights
Barbara Arnwine, CEO, Lawyer's Committee on Civil Rights
Dorothy Height, National Council of Negro Women
Raul Izaguirre, National Council of La Raza
Jesse Jackson, Rainbow Coalition
David Saperstein, Union of Hebrew Congregations
Wade Henderson, NAACP Washington Office
Laura Murphy Lee, Director ACLU
Karen Narasaki, Asian Pacific American legal Consortium
Judy Conover, Executive Director, League of Women Voters
Anne Bryant, Executive Director, AAUW
Audrey Haynes, Executive Director, Buisiness and Professional
Women
John Sturdivant, AFGE
Al Shanker, AFT
Gloria Jackson, CLUW
Doug Fraser, UAW
Steve Yokich, UAW
Nancy Kreiter, Women Employed (Chicago)
Lane Kirkland, AFL-CIO
Tom Donahue, AFL-CIO
Barbara Jordan, University of Texas at Austin
Antonia Hernandez, President & General Counsel Mexican American
Legal Defense & Education Fund
Juan A. Figueroa, Persident & General Counsel Puerto Rican Legal
Defense & Education Fund
CONGRESSIONAL LEADERS
(Lorraine Miller)
- Caril Rt, Hir
still Rivo/ but - b
I
am
Juliany
E/gh of why AA irs 1 & 1
AND Ometo,
og Oc
" Create and enront in which
news Can previce"
Suppline Co X statemed
no P off action
- Card Dts Can Come
everybook has passed
became Donant me
mere discributed again
- Can / use
politic of exclase resent
whA of be are about
CORPORATE LEADERS
Hugh McColl, CEO, Nations Bank
Sen
Richard Rosenburg, CEO, Bank of America
Robert Allen, CEO, AT&T L Hold)
Bah
Robert Holland Jr. CEO, Ben & Jerry's
Warren Shaw, CEO, Chancellor Capitol Management
Craig Wetherup, CEO, Pepsi Bottling Co.
Vernon Jordan, Akin & Gump
Earl Graves, CEO, Earl Graves Enterprises
Jeny Jushi
Hugh Robinson, Southland Corp, Dallas
Liz Claiborne, CEO, Liz Claiborne Clothing
Ed Artzt, CEO, Proctor & Gamble
William Smithburg, CEO, Quaker Oats Company
Palp Rolp Jane Same
Paul Allaire, CEO, Xerox Corporation
cope
Reginald K. Brack, CEO, Time Warner
Justin Dart,
Jahn Jahn &
Ellen Gordon, Tootsie Roll Industries
Toni Fay, Time Warner
Manny Jackson
Howard Gittis, Vice Chair & Chief Administrative Officer REVLON
DEMOCRATIC LEADERSHIP COUNCIL
FAMOUS AMERICANS
Bill Cosby, Actor
Barbara Striesand, Actress, Political Activist
Steven Spielberg, Director
Denzel Washington, Actor
Sidney Poitier, Actor
Harry Belafonte, Actor/Singer
John Denver, Actor/Singer
Robert Redford, Actor
Paul Newman, Actor
Joan Woodward, Actress
Oprah Winfrey, Talk show host
Whoopie Goldberg, Actress
Connie Chung, News Anchor
James Earl Jones, Actor
Lou Gossett, Jr., Actor
Edward J Olmos, Hispanic Actor
alm P ousent
a
FORMER GOVERNMENT CIVIL RIGHTS TYPES
Elliot Richardson, Former Nixon Cabinet Secretary
Bob Mathias, Former Republican Senator from Maryland
Birch Bayh, Former Democratic Senator from Indiana
Arthur Fletcher, Former Chair of Civil Rights Commission
Arthur Flemings, Former Secretary of HEW, Citizens Commission on
Civil Rights.
Bob Brown, Minority Business Advisor to Nixon
Timothy Jenkins, National Black Republican Council
Jim Joseph, Council on Foundations, Wash, D.C.
George Schultz, Former Cabinet Secretary
Ray Marshall, Former Labor Secretary under Carter
Shirley Hufstedler, Former Secretary of Education under Carter
Carl McCall, New York State Treasurer
Clifford Alexander, EEOC - Former Chair
HISTORICAL POLITICAL AND SOCIAL LEADERS
Andrew Brimmer, Brimmer & Associates
Bill Coleman, Former Secretary of Transportation (Reagan)
Leon Higgenbotham, Retired Federal Judge
Shirley Hufftedler, Los Angeles firm with Christopher
Roger Wilkins, Historian, George Mason University
Mary Frances Berry, U.S. Civil Rights Commission
Father Theodore Hesberg, Former President, Notre Dame
Julius Chambers, Chancellor, North Carolina Central
Marian Wright Edelman, Children's Defense Fund
Taylor Branch, Author
John Hope Franklin, Author
Clifford Alexander, Former Secretary of the Army, Carter
Peter Yarrow
Arnie Aronson
David Saperstein
Hyman Bookbinder
Rev. Leon Sullivan, Founder of OIC
Dra. Antonia Pantoja, Founder of ASPIRA
MEDIA
Ellen Goodman, Syndicated Columnist, Boston Globe
Dewayne Wickman, Syndicated Columnist USA Today
Clarence Page, Chicago Sun Times
Bob Herbert, NY Times
Bill Moyers, Syndicated Columnist
Mary McGory, Syndicated Columnist
Lynn Povitch, Working Woman Magazine
Carl Rowan, Syndicated Columnist
Bill Rasberry, Syndicated Columnist
Simeon Booker, Jet Magazine
Barbara Reynolds, Syndicated Columnist, USA Today
Gwen Ifill, NBC
Juan Williams, The Washington Post
Julian Bond, PBS
Juan Gonzalez, Columnist, NY Daily News
MINORITY BUSINESS LEADERS
Bob Johnson, BET
Clarence Avant, Motown
Percy Sutton
Maynard Jackson
Andy Young
Parrin Mitchel
George Pla, CEO, Cordoba Corporation
Maria Elena Torano, CEO, META
Raydean Acevedo, President, RMCI
Teresa McBride, President, McBride & Associates
Linda Alvarado, CEO, Alvarado Constructions
Ed Romero, CEO, Advanced Sciences, Inc.
Harriet Michele, CEO, National Association Minority Suppliers,
Inc.
Ernie Green, Lehman Brothers
Emma Chappell, CEO, United Bank
Ragan Henry, US Radio
James Wade, Wade Broadcasting
J. Bruce Llewellyn, Coco-Cola Phila. Franchise
THINK TANK TYPES
Eddie Williams, Joint Center for Political and Economic Studies
Robert Greenstein, CEO Center for Budget and Policy Priorities
Isabelle Sawhill, Urban Institute
Peggy McIntosh, Wellesley College Center for Research on Women
Charles Ogletree, Jr. Professor, Harvard Law School
Willaim Julius Wilson, Professor of Social Policy, University of
Chicago
Angela Blackwell, Vice-President, Rockefeller Foundation
Franklyn Williams, Ford Foundation
Cornell West, Harvard University
Chang Lin Tien, U.C. Berkeley Chancellor
Eamon Kelly, President of Tulane University
Joe Scott, Professor, University of Washington
Darlene Hines, John Hannah, Professors, Michigan University
Joan Scott, Institute for Advanced Studies, Princeton University
RoseBeth, M. Kantor, Harvard Business School
Joyce Lander, Howard University
Chuck Lawrence, Georgetown Law
Henry Louis Gates, Chair, Afro-American Studies - Harvard
Ricardo Fernandez, President, Lehman College
R'scc
EARL F. HILLIARD
1007 LONGWORTH BUILDING
7TH DISTRICT, ALABAMA
WASHINGTON, DC 20515
pen.
HOLACA
(202) 225-2665
COMMITTEE ON AGRICULTURE
DISTRICT OFFICES:
SUBCOMMITTEE ON LIVESTOCK.
305 FEDERAL BUILDING
DAIRY AND POULTRY
SUBCOMMITTEE ON ENVIRONMENT,
Congress of the United States
BIRMINGHAM, AL 35203
CREDIT. AND RURAL DEVELOPMENT
(205) 328-2841
204 FEDERAL BUILDING
COMMITTEE ON SMALL BUSINESS
house of Representatives
TUSCALOOSA, AL 35401
(205) 752-3578
SUBCOMMITTEE ON MINORITY
ENTERPRISE. FINANCE AND
301 FEDERAL BUILDING
URBAN DEVELOPMENT
Mashington, DC 20515-0107
MONTGOMERY, AL 36104
SUBCOMMITTEE ON RURAL
(205) 262-4724
ENTERPRISES. EXPORTS. AND
109 FEDERAL BUILDING
THE ENVIRONMENT
SELMA, AL 36701
(205) 872-2684
March 9, 1995
Ms. Alexis Herman
Assistant To The President
And Director of Public Liaison
MAR
THE WHITE HOUSE
1600 Pennsylvania Avenue, N.W.
Second Floor, West Wing
Washington, D.C. 20500
Dear Ms. Herman:
Re: Submission of Materials on Affirmative Action
Per our conversation on Wednesday, March 8, 1995, please find enclosed materials on
Affirmative Action, which should be of good use to you. Should you have questions, feel free
to telephone me directly at: (202) 225-5125.
Thanks again for your good efforts.
Sincerely,
Earl F. Hilliard
Member of Congress
EFH/vw
Enclosures (2)
Affirmative Action Reports
(Compiled by CRS for Congress)
PRINTED ON RECYCLED PAPER
95-223 A
CRS Report for Congress
Affirmative Action Revisited:
Legal Overview and Prospectus
Charles V. Dale
Legislative Attorney
American Law Division
Kevin B. Greely
Legislative Attorney
American Law Division
January 30, 1995
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AFFIRMATIVE ACTION REVISITED:
LEGAL OVERVIEW AND PROSPECTUS
SUMMARY
The U.S. Supreme Court has accepted for review during its 1994-95 Term
a series of cases that could refine, and possibly alter, the future course of federal
civil rights enforcement in the school desegregation, federal contracting and
employment, and voting rights contexts. Directly implicated by each of these
decisions is the scope of governmental power--in the courts, the Congress, and
the executive branch--to employ racial preferences or other "affirmative action"
remedies to compensate discrimination victims and to more fully integrate racial
and ethnic minorities into the social and economic mainstream.
Adarand Constructors U. Pena asks the Court to review a federal highway
funding program that awards incentive payments to prime contractors who
subcontract with "disadvantaged" small businesses owned by minorities and
women. The Court will also review recent judicial orders in lengthy litigation
to desegregate the Kansas City, Mo. public schools. Missouri U. Jenkins
concerns the proper scope and duration of federal judicial supervision of local
school desegregation efforts and, in particular, may clarify for litigants and
lower federal courts the end point of federal oversight when local districts have
met their affirmative obligation to desegregate and achieved "unitary" status.
The constitutional implications of race-conscious governmental action will also
dominate review of pending congressional redistricting cases from Louisiana and
Georgia in light of the Court's 1993 ruling in Shaw U. Reno. Other cases that
may soon percolate up for High Court review involve a race-conscious policy for
admission of minority law students to the University of Texas, a redux of the
highly publicized Bakke controversy of nearly two decades ago; the legality of
race as a factor in a school board decision to dismiss a white public school
teacher; and an October 1994 decision by the Fourth Circuit invalidating a race-
based scholarship program administered by the University of Maryland for the
exclusive benefit of black students.
The cases docketed for review this term may occasion reexamination by a
newly reconstituted Court of various legal issues which were either unresolved
by these earlier precedents or which were decided by narrow Court majorities
possibly no longer prevailing after recent changes in judicial personnel.
Principal among these unsettled issues are the standards to govern judicial
review of Congressionally enacted "minority set-asides" under the Constitution
and the scope and duration of federal authority to enforce race conscious
remedies for discrimination in the employment and education. This report
explores the doctrinal development of federal affirmative action law from the
perspective of cases currently pending before the High Court.
TABLE OF CONTENTS
Introduction
1
Disadvantaged Business and Minority Preference in Federal
Procurement Law
4
Supreme Court Precedent on Minority Preference
and Set-Aside Laws
8
The Adarand Decision and Its Legal Implications
13
Affirmative Action in Employment
18
Court-Ordered Affirmative Action Remedies
20
Voluntary Affirmative Act
22
Recent Developments and Prospects
25
Affirmative Action in Education: School Desegregation
and the Minority Scholarship Controversy
30
Missouri U. Jenkins: Chronology of Litigation and
Summary of Arguments
30
Brief Overview of the Supreme Court's School
Desegregation Jurisprudence
33
Implications of Jenkins
35
Minority Scholarships and the Constitution
36
Racial Gerrymandering, the Voting Rights Act,
and the Constitution
38
AFFIRMATIVE ACTION REVISITED:
LEGAL OVERVIEW AND PROSPECTUS
INTRODUCTION
The U.S. Supreme Court has accepted for review during its 1994-95 Term
a series of cases that could refine, and possibly alter, the future course of federal
civil rights enforcement in the school desegregation, federal contracting and
employment, and voting rights contexts. Directly implicated by each of these
decisions is the scope of governmental power--in the courts, the Congress, and
the executive branch--to employ racial preferences or other "affirmative action"
remedies to compensate discrimination victims and to more fully integrate racial
and ethnic minorities into the social and economic mainstream.
Adarand Constructors U. Pena¹ asks the Court to review a federal highway
funding program that awards incentive payments to prime contractors who
subcontract with "disadvantaged" small businesses owned by minorities and
women. The Court will also review recent judicial orders in lengthy litigation
to desegregate the Kansas City Mo. public schools. Missouri v. Jenkins²
concerns the proper scope and duration of federal judicial supervision of local
school desegregation efforts and, in particular, may clarify for litigants and
lower federal courts the end point of federal oversight when local districts have
met their affirmative obligation to desegregate and achieved "unitary" status.
The constitutional implications of race-conscious governmental action will also
dominate review of pending congressional redistricting cases from Louisiana³
and Georgia⁴ in light of the Court's 1993 ruling in Shaw v. Reno. 5 Other cases
that may soon percolate up for High Court review involve a race-conscious
policy for admission of minority law students to the University of Texas, a redux
of the highly publicized Bakke controversy of nearly two decades ago;⁶ the
legality of race as a factor in a school board decision to dismiss a white public
1
16 F.3d 1537, cert. gr. No. 93-1841, 63 U.S.L.W. 3213 (S.Ct. 10-4-94).
2
11 F.3d 755 and 13 F.3d 1170, cert. gr. No. 93-1823, 63 U.S.L.W. 3211 (S.Ct. 10-4-94).
3
Hays U. Louisiana, 839 F. Supp. 1188 (W.D.La. 1993), cert. gr. sub. nom. Louisiana V. Hayes,
No. 94-558, 63 U.S.L.W. 3454 (S.Ct. 12-13-94).
4
Johnson v. Miller, 1994 U.S. Dist. LEXIS 13043 (S.D.Ga. 1994), cert. gr. sub. nom. Miller v.
Johnson, No. 94-631 (Jan. 6, 1995).
5
113 S.Ct. 2816 (1993).
6
Hopwood v. Texas, 1994 U.S. Dist. LEXIS 11870 (W.D.Tex. 8-19-94).
CRS-2
school teacher;⁷ and an October 1994 decision by the Fourth Circuit
invalidating a race-based scholarship program administered by the University
of Maryland for the exclusive benefit of black students.
Affirmative action developed as a basic tenet of federal constitutional law
during the 1960's as first, the Warren, and then Burger Courts grappled with
the intractable problem of racial segregation in the nation's public schools.
Judicial rulings from this period recognized an "affirmative duty," cast upon local
school boards by the Equal Protection Clause, to desegregate formerly "dual
school" systems and to eliminate "root and branch" the last "vestiges" of state-
enforced segregation.⁹ These holdings ushered in a two decade era of "massive"
desegregation--first in the South, and later the urban North--marked by federal
desegregation orders frequently requiring drastic reconfiguration of school
attendance patterns along racial lines and extensive student transportation
schemes. As in the Kansas City case, school districts across the nation still
operating under these decrees have increasingly sought to be declared in
compliance with constitutional requirements in order to gain release from
federal intervention.
Since that earlier era, Congress and the Executive Branch have crafted a
wide range of federal laws and regulations authorizing, either directly or by
judicial or administrative interpretation, "race-conscious" strategies to promote
minority opportunity in jobs, housing, education, voting rights, and
governmental contracting. The historical model for federal laws and regulations
establishing minority participation "goals" may be found in Executive Orders
which since the early 1960's have imposed affirmative minority hiring and
employment requirements on federally financed construction projects and in
connection with other large federal contracts. Presently, Executive Order 11246
as administered by the Office of Federal Contract Compliance Programs
(OFCCP) requires that all employers with federal contracts in excess of
$50,000.00 must file written affirmative action plans with the government.
These are to include minority and female hiring goals and timetables to which
the contractor must commit its "good faith" efforts. Similar affirmative action
measures to redress the exclusion of minorities from federal government
employment were enacted as part of the Equal Employment Opportunity Act
Amendment of 1972 and the 1978 Civil Service Reform Act.
Affirmative action for minority entrepreneurs soon became a focus of efforts
by the Small Business Administration (SBA) and other federal agencies to assist
"socially and economically disadvantaged" small businesses under a variety of
federal programs. Increasingly, an "affirmative action" model, in the form of
7
United States v. Board of Education of the Township of Piscataway, 832 F. Supp. 836 (D.N.J.
1993).
8 Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994).
9
See e.g. Green v. County Board, 391 U.S. 430 (1968); Swann v. Board of Education, 402 U.S.
1 (1971); Keyes v. Denver School District, 413 U.S. 189 (1973).
CRS-3
participation "goals" or "set-asides" for members of racial or ethnic minorities,
and businesses owned or controlled by these or other "disadvantaged" persons,
found legislative expression in a broad range of federal programs, from
education, defense, and transportation funding to space technology.
The famous Bakke decision in 1978 launched the contemporary
constitutional debate over state-sponsored affirmative action. 10 One five-
Justice majority there invalidated a rigid state medical school admissions quota
for minorities as a remedy for "societal discrimination" where the institution
itself was not shown to have discriminated in the past. But another five
Justices would have found that institutional interests in student diversity and
academic freedom nonetheless warranted nonexclusive consideration of race in
educational admissions. The Bakke rationale was carried forward in Wygant U.
Jackson Board of Education, where a divided Court ruled unconstitutional the
provision of a collective bargaining agreement that protected minority public
school teachers from layoff at the expense of more senior white faculty members.
While holding the specific layoff preference for minority teachers
unconstitutional, seven Wygant Justices seemed to agree in principle that a
governmental employer is not prohibited by the Equal Protection Clause from
all race-conscious affirmative action to remedy its own past discrimination.
Another series of decisions approved of congressionally mandated racial
preferences to allocate the benefits of contracts on federally sponsored public
works projects, 11 and in the design of certain broadcast licensing schemes, 12
while condemning similar actions taken by local governmental entities to
promote public contracting opportunities for MBEs. 13 However, in each of
these cases, the Justices failed to achieve a consensus on most issues, with bare
majorities, pluralities, or--as in Bakke--a single Justice, determining the "law" of
the case.
By the mid-1980's, the Supreme Court had approved the temporary
remedial use of race- or gender-conscious selection criteria by private employers
under Title VII of the 1964 Civil Rights Act. 14 These measures were deemed
a proper remedy for "manifest racial imbalance" in "traditionally segregated" job
categories, if voluntarily adopted by the employer,¹⁶ or for entrenched patterns
of "egregious and longstanding" discrimination by the employer, if imposed by
judicial decree.¹ 16 In either circumstance, however, the Court required that
10
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
11
Fullilove v. Klutznick, 448 U.S. 448 (1980).
12
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, reh'g denied, 497 U.S. 1050 (1990).
13
City of Richmond v. J.A. Croson, Co., 488 U.S. 469 (1989).
14
42 U.S.C. §§ 2000e et seq.
15
United Steelworkers v. Weber, 443 U.S. 193 (1979).
16
Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
CRS-4
affirmative action "goals" or "quotas" be sufficiently flexible, of temporary
duration, and so hedged with safeguards as to prevent "reverse discrimination"
against white male employees. Similarly, the Justices approved of affirmative
action by public employers to increase promotional opportunities for women and
minorities, either as a voluntary measure or pursuant to Title VII court
decree.
17
The cases docketed for review this term may occasion reexamination by a
newly reconstituted Court of various legal issues which were either unresolved
by these earlier precedents or which were decided by narrow Court majorities
possibly no longer prevailing after recent changes in judicial personnel.
Principal among these unsettled issues are the standards to govern judicial
review of Congressionally enacted "minority set-asides" under the Constitution
and the scope and duration of federal authority to enforce race conscious
remedies for discrimination in the employment and education. This report
explores the doctrinal development of federal affirmative action law from the
perspective of cases currently pending before the High Court.
DISADVANTAGED BUSINESS AND MINORITY PREFERENCE IN
FEDERAL PROCUREMENT LAW
The central issue presented for the High Court's consideration in the
Adarand appeal concerns the appropriate standard of constitutional review for
racial classifications enacted by the Congress to accomplish a remedial or other
"benign" legislative purpose. Currently, dual lines of precedent recognize a basic
distinction in judicial treatment of race-conscious affirmative action mandated
by Congress and similar remedies implemented by the states or localities. A
tradition of deference for Congress' role as "co-equal" enforcer of constitutional
equal protection has twice led the Court to affirm racial preferences in federal
legislation to promote minority group participation in federal procurement and
broadcast licensing proceedings. By contrast, the Court has insisted on "strict"
review of state or local affirmative action measures. Accordingly, state agencies
or units of local government have been held to a constitutional standard calling
for "trial-like" rigor in regard to evidentiary findings of past discrimination and
remedial precision to a degree that has not infrequently led to judicial
invalidation of these efforts. As a preface, however, this section briefly reviews
federal statutory laws regarding federal contracts and minority goals or
disadvantaged business set-asides.
The Small Business Act, as amended, provides a statutory prototype for a
host of federal programs to promote opportunity for minorities as contractors
or subcontractors on federally funded projects. First, the "Minority Small
Business and Capital Ownership Development" or § 8(a) program authorizes the
Small Business Administration (SBA) to enter into all kinds of construction,
supply, and service contracts with other federal departments and agencies. The
17
United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480
U.S. 616 (1987).
CRS-5
SBA acts as a prime contractor and then "subcontracts" the performance of these
contracts to small business concerns owned and controlled by "socially and
economically disadvantaged" individuals, Indian Tribes or Hawaiian Native
Organizations. 18 To establish § 8(a) eligibility requires a demonstration by
minority entrepreneurs of "socially disadvantaged" status or that they "have been
subjected to racial or ethnic prejudice or cultural bias because of their identities
as members of groups without regard to their individual qualities." However,
certain racial and ethnic groups, including Blacks, Hispanics, Native Americans,
and Asian Pacific Americans as defined by the law, and implementing SBA
regulations, are "presumed," absent contrary evidence, to be socially
disadvantaged. 20 Any individual not a member of one of these groups must
"establish his/her individual social disadvantage on the basis of clear and
convincing evidence" in order to qualify for § 8(a) certification. In either
circumstance, the § 8(a) applicant must, in addition, show that "economic
disadvantage" has diminished its capital and credit opportunities, thereby
limiting its ability to compete with other firms in the open market.2¹
Similarly, the "Minority Small Business Subcontracting Program"
authorized by § 8(d) of the Small Business Act incorporates the same definition
for purposes of that and other federal procurement programs requiring SBA
determination of disadvantaged status. 22 Prime contractors on major federal
contracts are obliged by $ 8(d) to maximize minority participation and to
negotiate a "subcontracting plan" with the procuring agency which includes
"percentage goals" for utilization of small socially and economically
disadvantaged firms. To implement this policy, a clause required for inclusion
in each such prime contract states that "[t]he contractors shall presume that
socially and economically disadvantaged individuals include Black Americans,
Hispanic Americans, Native Americans, Asian Pacific Americans, and other
minorities, or any other individual found to be disadvantaged by the
Administration pursuant to § 8(a). Accordingly, SBA has discretion in
designating a firm or individual as socially and economically disadvantaged for
18
15 U.S.C. § 637(a).
19
15 U.S.C. § 637(a)(5).
20
13 CFR § 124.105(b).
21
The statute, 15 U.S.C. § 637(a)(6)(A), defines economic disadvantage in terms of:
socially disadvantaged individuals whose ability to compete in the free
enterprise system has been impaired due to diminished capital and credit
opportunities as compared to others who are not socially disadvantaged,
and such diminished opportunities have precluded or are likely to preclude
such individuals from successfully competing in the open market.
22
15 U.S.C. § 637(d). See also 13 CFR § 124.106.
CRS-6
purposes of both the § 8(a) and § 8(d) programs in conformity with specified
criteria,
23
These obligations, first codified in 1978 as an amendment to the SBA, were
augmented a decade later by the Business Opportunity Development Reform Act
of 1988. 24 Congress there directed the President to set annual, government-
wide procurement goals of at least 20% for small businesses and 5% for
disadvantaged businesses, as defined by the SBA. Simultaneously, federal
agencies were required to continue to adopt their own goals, compatible with the
government-wide goals, in an effort to create "maximum practicable opportunity"
for small disadvantaged businesses to sell their goods and services to the
government. The goals may be waived where not practicable due to
unavailability of DBEs in the relevant area and other factors. 25 While the
statutory definition of DBE includes a racial component, in terms of
presumptive eligibility, it is not restricted to racial minorities but also includes
persons subjected to "ethnic prejudice or cultural bias."26 It also excludes
businesses owned or controlled by persons who, regardless of race, are "not truly
socially and/or economically disadvantaged."²"
In addition, Congress has frequently adopted "set-asides" or other forms of
statutory preference for the "socially and economically disadvantaged," minority
groups, and women as part of specific grant or contract authorization programs.
Thus, minority business set-asides or preferences have been included in major
authorization or appropriation measures for agriculture,28 communications,
defense,29 education,30 public works,³¹ transportation,82 foreign
23
15 U.S.C. § 637(d) (emphasis added). Criteria set forth in the regulations permit an
adminstrative determination of socially disadvantaged status to be predicated on "clear and
convincing evidence" that an applicant has "personally suffered" disadvantage of a "chronic and
substantial" nature as the result of any of a variety of causes, including "long term residence in
an environment isolated from the mainstream of American society," with a negative impact "on
his or her entry into the business world. "13 C.F.R. § 124.105(c).
24
P.L. 100-656, § 502, 102 Stat. 3887, codified at 15 U.S.C. § 644(g)(1).
25
See e.g. 49 C.F.R. §§ 23.64(e), 23.65 (setting forth waiver criteria for the Department
of Transportation).
26
15 U.S.C. $ 637(a)(5).
27
See 49 C.F.R. Pt. 23, Subpt. D, App. C.
28
7 U.S.C. § 2279 (outreach and assistance for socially disadvantaged farmers and
ranchers).
29
10 U.S.C. § 2323 establishes a goal of awarding five percent of the total value of
Department of Defense (DOD) procurement contracts to minority firms, historically black colleges
and universities, and other minority institutions through fiscal year 2000.
30
10 U.S.C. § 1069f (25% allotment for institutional aid to minority and historically black
colleges and universities); 20 U.S.C. § 1070a-41 ("priority" funding for model programs serving
minority and economically disadvantaged students); 20 U.S.C. § 1112d ("special consideration" for
CRS-7
relations,
33
energy
and
water
development,
34
banking,⁸⁵
scientific
teacher training program given to minority and historically black colleges and universities); 20
U.S.C. § 5889(c)(50% of subgrant funds for local reform and professional development to be
awarded institutions with disproportionate percentage of disadvantaged students); 20 U.S.C §
6031(c)(5)(initiatives and programs to increase participation of historically underutilized" minority
researchers and institutions); 42 U.S.C. § 293d (priority funding to institutions that increase
enrollment of disadvantaged students in health professions programs by 20% over three years and
benefits to be "equitably allocated among various racial and ethnic populations"); P.L. 103-322, 108
Stat. 1796, § 31001 (10% of amount for contracts and subcontracts for crime education and
substance abuse programs to be expended on small businesses controlled by socially and
economically disadvantaged individuals and minority educational institutions.
31
The Local Public Works Capital Development and Investment Act of 1976, 42 U.S.C.
§§ 6701 et seq., was amended the following year by the Public Works Employment Act of 1977,
P.L. 95-28, 91 Stat. 116, to add a requirement that applicants for public works grants assure that
ten percent of the grant would be expended for "minority business enterprises." This requirement
was upheld by the U.S. Supreme Court in Fullilove v. Klutznick, 448 U.S. 448 (1980).
32
Section 105(f) of the Surface Transportation Act of 1982, P.L. 97-424, 96 Stat. 2097
(1983) as reauthorized and extended by the Surface Transportation and Uniform Relocation
Assistance Act of 1987, P.L. 100-17, 101 Stat. 132 (1987) provided for a ten percent set-aside for
work to be performed by minority small businesses under that Act. The Intermodel Surface
Transportation Efficiency Act, P.L. 102-240, 105 Stat. 1914, § 1003 (b) continues the minority
business set-aside for transportation funding through fiscal year 1997. 49 U.S.C. 47107 requires
federally aided airport operators to insure "to the maximum extent practicable" that at least 10%
of contracts for consumer services to the public be placed with disadvantaged businesses.
33
Section 402(d) of the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986,
P.L. 99-399, 103 Stat 853, required that ten percent of the total value of contracts for embassy
construction and maintenance over a five year period be awarded to minority construction firms
in the U.S. A similar ten percent set-aside from development assistance funds and funds for
African famine relief was included in $ 579 of P.L. 101-167, 103 Stat. 1195, making fiscal 1990
foreign operations appropriations. Under the federal Anti-Aparteid Act, heads of federal
departments and agencies are "to the maximum extent practicable" to procure goods and services
in South Africa from minority-owned businesses. 22 U.S.C. § 5031. P.L. 103-306, 108 Stat 1608,
§ 555 allocates not less than 10% of certain foreign operations appropriations funds for activities
by socially and economically disadvantaged individuals, and black and minority educational
institutions.
34
42 U.S.C. § 13556 (10% of funding on contracts and subcontracts under the Energy
Policy Act to to be awarded disadvantaged business enterprises and minority educational
institutions); 42 U.S.C. § 7141 (Department of Energy management, technical assistance, and loan
program for minority business enterprises; Section 303 of the fiscal 1990 Energy and Water
Development Appropriations Act made by P.L. 101-101, 103 Stat. 641 required "to the fullest
extent possible" that at least ten percent of the funds for the Superconducting Super Collider be
made available to small disadvantaged businesses and minority educational institutions.
35
12 U.S.C. § 1441 (r)-(w) provides for various incentives, including "preference points"
on proposals and minority capital assistance programs, to preserve and expand bank ownership
by minorities and women; authorizes establishment of Resolution Trust Corporation (RTC)
guidelines to achieve parity in distribution of RTC contracts, and "reasonable goals" for
subcontracting, to minority and women-owned businesses and firms; and provides a "[f]irst priority
for disposition of assets" of a failed depository institution in a minority neighborhood to other
minority-owned individuals, firms, or financial institutions. 12 U.S.C. § 1823 (f)(12) authorizes
Federal Deposit Insurance Corporation approval of minority bank acquisition by minority holding
company without regard to asset size. See also 31 U.S.C. § 3718 (10% of contracts for collection
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research, 36 and space exploration.37 Other federal laws, mainly education,
appear to target federal efforts or financial largess to enhance minority
participation in program benefits but without directly mandating minority
preferences or set-asides. 38 While not exhaustive, these programs are indicative
of the range and varied nature of minority group preferences embedded in
current federal statutory law.
Supreme Court Precedents on Minority Preference and Set-Aside Laws
A triad of Supreme Court rulings currently defines the constitutional
parameters of legislative power--federal, state, or local--to adopt minority
participation goals or set-asides with respect to governmental contracts or in the
expenditure of public funds. Of particular importance to the Aderand appeal
may be the current Court's views respecting the reach of constitutional
standards promulgated by the 1989 ruling in City of Richmond v. J.A. Croson,
Co.. 39 Although the Croson holding pertained to local governmental action,
and the lead opinion by Justice O'Connor specifically distinguished the powers
of Congress, intervening changes in Court composition could reopen that issue
for further inquiry in Aderand.
The Supreme Court in Croson struck down as an equal protection violation
a municipal ordinance which reserved 30% of city-financed construction
services to be awarded to socially and economically disadvantaged law firms).
36
42 U.S.C. § 1862d (12% of National Science Foundation grants for research facilities
modernization must be set-aside for historically black and minority colleges and universities); P.L.
101-549, Title X, 104 Stat. 2708 (10% of total federal funding for clear air research allotted to
disadvantaged business enterprises).
37
The NASA Administrator is required by 42 U.S.C. § 2473b to annually establish a goal
of at least eight percent of the total value of prime and subcontracts awarded in support of
authorized programs to be made to small disadvantages businesses and minority educational
institutions.
38
See, e.g., 10 U.S.C. $2191 (Secretary of Defense shall take "all appropriate actions" to
encourage minority applications for graduate fellowships in science and mathematics); 20 U.S.C.
§§ 1134 et seq. (Grants to Institutions and Consortia to Encourage Women and Minority
Participation in Graduate Education); 20 U.S.C. § 1135c-2 (Minority Science and Engineering
Improvement Programs); 20 U.S.C. § 1431(a)(7)(Grants to minority higher educational institutions
for training special education personnel); 20 U.S.C. §§ 2986(c), 2987(b)(2), 2988(b)(2)(F), 2989(b)(5)
("Special consideration" to be given demonstration projects and programs in math and science
serving minorities and other "historically underrepresented and underserved populations"); 20
U.S.C. § 3156a (Selection procedures for National Geography Studies Centers to "take into
account" needs of minorities and other historically underrepresented groups); 20 U.S.C. § 5004
(Services of American Competitiveness funds recipients shall be made available to minorities and
other underrepresented and underserved groups);and 42 U.S.C. § 1862c(d)(4)(National Science
Foundation planning guidelines to consider unique research facilities needs of minority
institutions).
39
488 U.S. 469 (1989).
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contracts for minority owned businesses. Typical of its earlier skirmishes over
affirmative action, only an imperfect judicial consensus was reached on
controlling principles. However, for the first time, a six-member majority led by
Justice O'Connor agreed that the Constitution requires all governmental
classifications by race, whether invidiously discriminatory or motivated by a
"benign" remedial purpose, be subjected to "strict judicial scrutiny." Measured
against this standard, the Richmond set-aside program was flawed both by
absence from the legislative record of "specific" and "identified" instances of past
discrimination in city contracting and because of the plan's "gross
overinclusiveness." That is, it applied not only to blacks but to various other
groups, Indians, Eskimos, and Aleuts, for example, as to whom "there is
absolutely no evidence of past discrimination." Thus, Justice O'Connor could
find no "compelling" governmental objective for the plan other than "outright
racial balancing."
Strict judicial review, in the O'Connor view, meant that to pass
constitutional muster any race conscious decisionmaking by state or local
government must have adequate remedial justification, in terms of a
demonstrable record of "specific" and "identified" past discrimination by the
governmental body or those with whom it does business. In addition, the
remedial measure had to be "narrowly tailored," limited in scope and duration,
and subject to "waiver" in situations where "the particular MBE seeking a racial
preference has [not] suffered from the effects of past discrimination by the city
or prime contractors."40 For the majority, racial preferences were a remedy of
last resort, reserved for "extreme case[s]" of "systematic" discrimination or
deliberate "patterns" of racial exclusion, after all "race neutral devices" are
exhausted.
The record of past discrimination in Croson consisted mainly of statistical
disparities in contract awards and minority trade membership based on general
population figures, "conclusionary" statements by the plan's proponents, and
"nationwide" factfinding by Congress relative to discrimination in the
construction industry. Such "generalized" evidence of "societal discrimination,"
by Justice O'Connor's reckoning, was not sufficiently "specific" because it failed
to reveal either the number of "qualified" MBE's in the relevant market or the
"percentage of total city construction dollars" going to them.
Croson plainly suggested, however, that Congress has far more authority
than the states and localities to enact MBE set-asides and other race-conscious
remedies pursuant to its enforcement power under §5 of the Fourteenth
Amendment as interpreted by the ruling a decade earlier in Fullilove U.
Klutznick.⁴¹ That authority, as recast by Justice O'Connor from the Court's
40
488 F.2d at 508.
41
448 U.S. 448 (1980).
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earlier §5 jurisprudence,⁴ includes the quite expansive "power to define
situations which Congress determines threaten principles of equality and to
adopt prophylactic rules to deal with those situations." It was this principle
coupled with Congress' spending power that formed the basis of the Fullilove
decision to uphold the 1977 Public Works Employment Act, including a
provision requiring that at least 10% of any grant thereunder be set aside for
MBE's. 43 Although the 6-3 ruling in Fullilove yielded no majority opinion, it
affirmed broad congressional power to find facts and employ race conscious
remedies for past discrimination on a nationwide basis.
Chief Justice Burger in the main Fullilove opinion wrote that Congress
need not "act in a wholly 'color-blind' fashion" when seeking to avoid
discriminatory use of federal funds, and while racial classifications required close
examination, Congress was entitled to "appropriate deference" as a "co-equal
branch" with the courts in enforcing equal protection guarantees. The Chief
Justice also found that the commerce clause and §5 of the Fourteenth
Amendment supplied the Congress with coextensive power to reach the practices
of both private contractors on federally funded projects and state and local
governments, respectively.⁴⁴ By exercise of these powers, the Chief Justice
said, "Congress not only may induce voluntary action to assure compliance with
existing federal statutory or constitutional antidiscrimination provisions, but
also, where Congress has authority to declare certain conduct unlawful, it may,
as here, authorize and induce state action to avoid such conduct."46
Although Fullilove indicates that congressional race-conscious remedial
action must be supported by adequate findings of discrimination, in contrast to
Croson's mandate upon the states and localities, this requirement appears to be
minimal. First, Congress was not required to make findings of discrimination
in any formal sense resembling those of a court or administrative agency. In
reviewing the sufficiency of congressional factfinding, the Court looked beyond
the legislative history of the set-aside provision to more than a decade of
legislative hearings and reports, as well as submissions to Congress by the U.S.
42
See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)( "Correctly viewed, §5 is a positive
grant of legislative power authorizing Congress to exercise its discretion in determining whether
and what legislation is needed to secure the guarantees of the Fourteenth Amendment.").
43
42 U.S.C. $6705(f)(2)(the included minorities were "Negroes, Spanish-speaking,
Orientals, Indians, Eskimos, and Aleuts").
44
Of Congress' "unique remedial powers" under § 5, the Burger opinion states:
Here we deal. not with the limited remedial powers of a federal court, for example,
but with broad remedial powers of Congress. It is fundamental that in no organ of
government, state or federal, does there repose a more comprehensive remedial power
than in the Congress, expressly charged by the Constitution with competence and
authority to enforce equal protection guarantees.
448 U.S. at 483 (plurality opinion).
45
Id., at 483-484.
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Civil Rights Commissions and other outside agencies, pertaining to minority
exclusion from public contracts on a nationwide basis. 46 Second, Fullilove
rejected the requirement explicit in Croson of "specific" or "identified" findings
that seem to limit remedial action to discrimination traceable to particular
sources. Rather, the Chief Justice relied upon findings of effects from societal
discrimination, including conclusions based solely on statistics that
disproportionately few MBEs had obtained contracts before the set-aside. Nor
did the Court demand that Congress act only to remedy federal government
discrimination in disbursement of contract funds or, possibly as in Croson, only
to remedy discrimination that is found to violate a federal statute or the
Constitution.
In his Fullilove concurrence, Justice Powell relied on the legislative history
noted above to find that "Congress reasonably concluded that private and
governmental discrimination had contributed to the negligible percentage of
public contracts awarded minority contractors."⁴ He also found that the
means chosen by Congress, particularly in light of the flexible waiver provisions,
were "reasonably necessary" to address the problem identified. Justice Powell
then presaged Croson by suggesting that other governmental entities might have
to make a greater showing than Congress before undertaking race-conscious
measures. "The degree of specificity required in the findings of discrimination
and the breadth of discretion in the choice of remedies may vary with the nature
and authority of the governmental body."
Metro Broadcasting Inc. built on Fullilove by effectively extending an
intermediate standard of equal protection review to congressionally mandated
affirmative action for racial minorities. The Court there held 5 to 4 that
Congress may impose benign race-conscious measures that are substantially
related to achieving important governmental objectives, even where there is no
congressional purpose to compensate victims of past governmental or societal
discrimination. Justice Brennan wrote for the majority that this deferential
review standard derives from "Congress' institutional competence as the national
legislature," and from its power under the Commerce and Spending Clauses, not
simply from its remedial powers under $5 of the Fourteenth Amendment.
At issue in Metro Broadcasting Inc. were two Federal Communications
Commission minority preference policies regarding broadcast licensing that had
been adopted--and ratified by Congress-primarily to promote programming
diversity rather than as a remedy for past discrimination. Justice Brennan
noted, first, that broadcast diversity is an important governmental objective.
The FCC's conclusion that there is a nexus between minority ownership and
broadcast diversity was also supported, he found, by congressional findings and
46
The legislative basis of the congressional factfinding behind the 10% set-aside in
Fullilove is exhaustively surveyed in the Chief Justice's opinion in that case, 448 U.S. at 456-467,
the separate concurrence of Justice Powell, Id., at 505-506, and in Justice Marshall's Croson
dissent.
47
Id., at 503.
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empirical evidence, and could be fairly inferred without racial or ethnic
stereotyping.4 Finally, Justice Brennan observed that the preferences had
been adopted only after other race-neutral measures failed to enhance broadcast
diversity, and did not unduly burden nonminorities. Although the specific
details of the FCC minority preference programs were set by the agency, and not
by Congress itself, the Court held that "when a program employing a benign
racial classification is adopted by an administrative agency at the explicit
direction of Congress, we are 'bound to approach our task with appropriate
deference to the Congress."49
Generally speaking, therefore, the Croson decision mandated "strict judicial
scrutiny" of state and local affirmative action programs, and implied the
necessity for trial-like findings of "specific" and "deliberate" past discrimination
affecting local contracting activities to support race-conscious relief. Fullilove
and Metro Broadcasting Inc., on the other hand, appear to permit Congress
broader latitude to act on the basis of historical and nationwide data concerning
past minority exclusion or other important governmental purposes. Similarly,
Croson indicates that numerical affirmative action remedies are not an expedient
for the elimination of "racial imbalance" or minority workforce
underrepresentation, as revealed by general population or labor force statistics.
The program must instead be "fine-tuned" as a response to disparities caused by
discrimination between the level of minority participation in the affected activity
as compared to the availability of "qualified" minorities in the area labor force.
Congress, by contrast, would not seem inhibited by these same limitations under
Fullilove.
48
The Court looked beyond the immediate legislative history of the appropriation riders
in question to various congressional documents dating back to 1969 for findings on which it could
rely. 497 U.S. at 573-577. It also pointed to several bills that had apparently failed of enactment
because of insufficient evidence to support the program diversity rationale. But several other
instances of explicit congressional recognition of a nexus between minority ownership and
viewpoint diversity were ultimately persuasive. Id. at 578-79. The Court noted, for example,
Senator Ernest Holling's statement that a June, 1988 report by the Congressional Research
Service "clearly demonstrates that minority ownership of broadcast stations does increase the
diversity of viewpoints presented over the airwaves." (citing 134 Cong. Rec. 18982 (1988).
49
Id. at 563. In dissent, Justice O'Connor, joined by the Chief Justice and Justices Scalia
and Kennedy, protested the majority's "repudiation" of Croson's "affirmation that the
Constitution's equal protection guarantees extend equally to all citizens." She argued that
Fullilove was concerned with "Congress' power under §5 of the Fourteenth Amendment to remedy
past discrimination in the states-a power not invoked here." Justice Kennedy, joined by Justice
Scalia, regretted that "after a century. we interpret the Constitution to do no more than move
us from 'separate but equal' to 'unequal but benign."
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The Adarand Decision and Its Legal Implications
In Adarand, the Supreme Court will review an affirmative action program
implemented by the Federal Highway Lands Program, a component of the
Federal Highway Administration within DOT, under § 502 of the Small Business
Act. As discussed earlier, that law establishes a government-wide goal of at least
five percent participation by "socially and economically disadvantaged
individuals" (DBEs) in all federal procurements as measured by the total value
of all prime contract and subcontract awards. The overall annual goal for the
government is set by the President with individual goals determined jointly by
the head of each federal agency and the Office of Federal Procurement Policy so
as to provide the "maximum practicable opportunity" for DBEs "to participate
in the performance of contracts let by such agency."⁶ Pursuant to § 502 the
DOT in Adarand had developed a "race-conscious subcontracting compensation
clause (SCC)" program. The SCC did not allocate or set-aside a specific
percentage of subcontract awards for DBEs or require a commitment on the part
of prime contractors to subcontract with minority firms. Rather, "incentive
payments" varying from 1.5% to 2% of the contract amount were paid to prime
contractors whose subcontracts with one or more qualified DBEs exceeded 10%
of total contract value.
The SCC program was challenged by Adarand, a white-owned construction
firm whose low bid on a subcontract for highway guard rails was rejected in
favor of a higher bidding DBE. A federal district court rejected arguments that
particularized findings of past discrimination and strict judicial scrutiny under
Croson were required or that the program was fatally over- or under-inclusive.
The existence of a waiver mechanism, an annual DBE certification process, and
procedures for qualifying nonminority firms not presumptively included as
disadvantaged assured a "narrowly tailored" program.
The Tenth Circuit appeals court affirmed. Like the trial court, the
appellate tribunal opted for a "lenient standard resembling intermediate
scrutiny" rather than the "strict" judicial review standard of Croson as
appropriate for congressionally mandated affirmative action and held that
Fullilove was controlling. The fact that the SCC program was "fashioned and
specified by an agency and not by Congress" did not alter its view since the
"benign race-conscious program" was consonant with the congressional directive
of § 502. Specifically, it was Congress and not the agency that had mandated
annual goals to assure "maximum practicable opportunity" for DBE participation
in the procurement process and had established a rebuttable presumption that
businesses owned by certain racial minorities are "socially and economically
disadvantaged." Accordingly, no particularized findings of past discrimination
were required to support the SCC program under Fullilove.
In addition, the appeals court found the program "narrowly tailored" to
Congress' remedial purpose. First, since the "qualifying criteria. .[are] not
limited to members of racial minorities" and "minority businesses that do not
50
15 U.S.C. § 644(g).
CRS-14
satisfy the economic criteria cannot qualify for DBE status," the program
effectively avoided the dual constitutional vices of under- or over-
inclusiveness. 51 Second, the program's 10% threshold was "an optional goal,
not a set-aside" since it was "entirely at the discretion of the prime contractor"
whether to accept or forego the monetary DBE subcontracting incentives.⁵²
Finally, in the court's view, the program was consistent with Fullilove as
"appropriately limited in. .duration' because federal procurement and
construction contracting practices are subject to regular 'reassessment and
reevaluation by Congress."53
Adarand poses for the Court's reexamination a host of legal issues derived
from, but only partially explored, in the Fullilove/Croson/Metro Broadcasting
trilogy of decisions. The constitutional path charted by judicial determination
of the Adarand appeal could dramatically influence affirmative action law and,
perhaps more fundamentally, the role of Congress as civil rights enforcer.
Inevitably, the Court may first be invited to revisit the basic dichotomy between
congressional and state and local power to enact race-conscious remedies for
"societal discrimination" seemingly etched into law by its earlier decisions.
Significantly, the petitioners in Adarand argue that no such distinction was ever
intended by a majority of Justices in the earlier decisions. Therefore, they
contend that the same burden with respect to governmental fact-finding and
remedial precision imposed by Croson upon the states and localities should
likewise apply to federally mandated affirmative action efforts.54 The Justice
Department's brief, however, responds that under Fullilove and Metro
Broadcasting "intermediate rather than strict scrutiny applies" to the DOT
program and that "the federal government can, by virtue of the enforcement
clause of the Fourteenth Amendment, engage in affirmative action with a freer
hand than the states and municipalities."⁶
If the Court directly confronts this issue, and resolves it in favor of the
Adarand petitioners, the decision could have broad repercussions for federal
affirmative action programs which confer preferences on minority or socially and
economically disadvantaged businesses and institutions. In the post-Croson era,
constitutional lawsuits have challenged the operation of race-conscious
preferences, set-aside programs, or other "sheltered market" arrangements
designed to increase minority participation in public contracting activities by
state and local governments. While the lower courts remain divided, several
challenges have succeeded and the state or local program has been found infirm
51
Id. at 1547.
52
Id. at 1542 n. 9.
53
Id. at 1547 (quoting Fullilove, 448 U.S. at 489 (Opinion of Burger, C.J.)).
54
Petition for writ of certiorari, No. 93-1841, pp. 7 et seq. (filed 5-17-94).
55
Brief for the Respondents in Opposition, on petition for writ of certiorari No. 93-1841
(filed 8-4-94) (quoting Milwaukee County Paver's Ass'n v. Fiedler, 922 F.2d 419, 423-24 (7th Cir.),
cert. denied, 500 U.S. 954 (1991).
CRS-15
under Croson. Almost universally cited by these courts has been reliance by the
governmental unit on gross and nonspecific demographic statistics to prove past
discrimination against minority entrepreneurs in the relevant labor market. 56
Other major faults have been failure to "narrowly tailor" the remedy, whether
a minority participation goal or other form of racial preference, to any
disparities revealed by statistics and anecdotal proof of discrimination,57 the
failure to properly limit the program in scope and duration;5 or neglecting
first to consider race-neutral alternatives, such as bonding and credit assistance
programs, to ameliorate minority underutilization.⁶⁹
Of course, other aspects of the DOT program may provide the High Court
with alternative grounds for decision. Oral arguments in the case on January
17, 1994, for example, indicated that there may be procedural defects in the case
that could preclude a broad ruling on the constitutional merits. Because the
petitioner failed to challenge the bidding process administratively before filing
suit, and did not demonstrate in the courts below whether the minority
subcontractor in the case had been included in the "disadvantaged business"
category because of race or for nonracial reasons, the Solicitor General argued
that Adarand Constructors may lack legal standing to sue. Reportedly,
56
See e.g. O'Donnell Construction Co. v. District of Columbia, 963 F.2d 420 (D.C.Cir.
1992) (D.C. set-aside of 35% of construction contracts for local MBEs disapproved because many
nondiscriminatory reasons could explain disparity between percentages of MBEs participating in
public construction contracts and overall percentages of MBEs); Arrow Office Supply Co v. City
of Detroit, 826 F. Supp. 1072 (E.D. Mich. 1993)(neither "statistical" study comparing estimates of
minority contractors with blacks in population, nor testimony revealing difficulties most MBEs
face "as a result of their size" rather than "direct intentional invidious discrimination" would
justify the city's sheltered market program); Concrete General v. Washington Suburban Sanitary
Commission, 779 F. Supp. 370 (D. Md. 1991)(MBE participation goal of 25% improper because it
focused on general population figures and substantially exceeded the percentage of available
qualified MBEs). Cf. Concrete Works of Colorado, Inc. v. City and County of Denver, 1994 U.S.
App. LEXIS 26848 (10th Cir. 94)(disparity index based on "absolute" number of MBEs in the
local market without regard to their size may overstate their underutilization as city contractors).
57
E.g. Main Line Paving Co. v. Board of Education, 725 F. Supp. 1349 (E.D. Pa.
(evidentiary basis for the program was too general, since it related to race-neutral practices,
and the remedy overbroad in that it did not provide for an individualized determination that
those benefitting from the plan were victims of past discrimination). But see also Associated
General Contractors of California v. Coalition, 950 F.2d 1401, 1416-18 (9th Cir. 1991)(use of a bid
preference rather than a quota, the definition of beneficiaries on the basis of experience of prior
bid discrimination, the ability of nonminority contractors to participate via joint venture option,
and the limited geographical scope of the preference assured that the program was narrowly
tailored).
58
E.g. Associated General Contractors v. New Haven, 791 F. Supp. 941, 948 (D. Conn.
1992)(failure to document discrimination against any "disadvantaged" business other than
disadvantage based on race made program overinclusive and thus not appropriately tailored to
its asserted remedial purpose).
59
See e.g. Main Line Paving Co., supra n. 51; Contractors Association U. City of
Philadelphia, 6 F.3d 990 (3d Cir. 1993)(city's use of such race-neutral measures as a revolving
loan fund, a technical assistance and training program, and bonding assistance efforts
distinguished the program from that in Croson).
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questioning by several Justices seemed to support the theory that the since the
white contractor challenges the presumptive equation of race with economic
disadvantage, it should be required to show that the presumption worked to its
detriment and that no valid nonracial basis existed for the disadvantaged status
of the minority subcontractor in the case.⁶⁰ A ruling by the Court that
petitioner lacked standing would almost inevitably defer to another day any
constitutional consideration of the affirmative action issue.
The Justice Department also argues that although the incentive program
"employs race as a factor," it is neither a minority set-aside, as in Croson, nor a
preference based on race. Rather, it focuses upon "disadvantage," a status
defined by social and economic criteria not limited to members of racial
minorities and from which nondisadvantaged minorities are excluded.
Petitioner's reply brief responds that the statute is "race-based" since it
presumes disadvantage "on the basis of race or ethnic status" and imposes on
third parties the burden of challenging a minority group member's DBE
status.⁶¹ Adarand, therefore, could clarify whether all governmental use of
racial criteria is subject to equivalent constitutional scrutiny or whether varying
legal standards may pertain according to the nature of the racial classification
in question. Considerable ambiguity in the caselaw persists on this point at
present. For instance, while the decision in Croson specifically concerned the
Richmond "30% quota," Justice O'Connor's opinion speaks without
differentiation in terms of "racial classifications," "preferences," and "race-
conscious" remedies, potentially affecting a broad array of state-sanctioned
affirmative action. In certain circumstances however, the Court has approved
of race or gender as a "plus" factor in job promotion⁶² and academic
admissions⁶⁹ decisions by state authorities provided that it was not the "sole"
or "exclusive" factor considered. Adarand may provide important guidance on
this matter.
Alternatively, the Court could strictly review the SCC program in Adarand
on the rationale that it was a creature of the Executive branch, pursuant to
legislative authorization, without direct congressional involvement or oversight.
Such an approach might preserve a role for the Congress as co-equal enforcer
of equal protection, consistent with Fullilove and Metro Broadcasting, while
simultaneously requiring Croson-style rigor in the design and implementation
of race-conscious remedies by federal agencies. It would be at odds, however,
with court of appeals rulings which since Croson have uniformly rejected any
requirement for additional factfinding at the state or local level to support
60
See N.Y. Times, "Affirmative Action Challenge Seems to Perplex High Court," D20,
col.7 (January 18, 1995).
61
Reply to Opposition, No. 93-1841, pp. 1-4 (filed 8-30-94).
62
Johnson v. Transportation Agency, 480 U.S. 616 (1987).
63
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
CRS-17
administrative implementation of federal contracting goals. 64 In effect,
Congress rather than the Executive would assume active responsibility for
determining the scope and details of administration for any federal program to
promote minority opportunities in federal contracting and other areas.
Notwithstanding these possibilities, Fullilove and Metro Broadcasting could
stand on precarious footing if the Court were to revisit these precedents in light
of Croson. Since Metro Broadcasting, the author of that decision-Justice
Brennan--has left the Court, to be replaced by Justice Souter, whose views on
affirmative action are unknown. Justice Marshall, also an advocate of broad
congressional authority to enact affirmative action remedies, has been replaced
by Justice Thomas. Lamprecht U. FCC,65 Justice Thomas' last decision on the
D.C. Circuit Court of Appeals, held that the diversity rationale would not suffice
to justify an FCC policy--identical to the one for minorities in Metro
Broadcasting--that gave women a preference in obtaining broadcast licensing.
Justice Thomas wrote that there was insufficient empirical evidence of a nexus
between female-owned stations and discrete woman's programming to uphold
the congressionally sanctioned policy.
Justice Thomas joins four other Justices who dissented from the ruling in
Metro Broadcasting. Justice O'Connor--writing for herself, the Chief Justice,
and Justices Scalia and Kennedy--conceded in that dissent that Congress
possesses greater powers to enforce race-conscious remedies than the state and
localities under $5 of the Fourteenth Amendment. But that section, in their
view, only allowed Congress to move to remedy racial discrimination by the
states. The policies at issue in Metro Broadcasting, Justice O'Connor reasoned,
"concern only the administration of federal programs by federal officials" and
were not intended as remedial measures. Accordingly, Justice O'Connor
contended that they did not merit the relaxed review that the Court afforded the
set-aside programs in Fullilove.⁶⁶ Justice Kennedy also expressed his
misgivings for the Fullilove result in a concurring opinion in Croson.
The process by which a law that is an equal protection
violation when enacted by a State becomes transformed to an
equal protection guarantee when enacted by Congress poses
64
See, e.g., Harrison & Burrowes Bridge Contractors v. Cuomo, 981 F.2d 50 (2d Cir.
1992); Ellis v. Skinner, 961 F.2d 912, 916 (10th Cir.), cert. denied, 113 S.Ct. 374 (1992); Tennessee
Asphalt v. Farris, 942 F.2d 969 (6th Cir. 1991); Milwaukee County Paver's Ass'n v. Fiedler, 922
F.2d 419, 423-424 (7th Cir.), cert. denied, 500 U.S. 954 (1991).
65
958 F.2d 382 (D.C.Cir. 1992).
66
497 U.S. at 603-04 (O'Connor, J., dissenting)("The Constitution's guarantee of equal
protection binds the Federal Government as it does the States, and no lower level of scrutiny
applies to the Federal Government's use of race classifications.").
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a difficult proposition for me; but as it is not now before us,
any reconsideration of that issue must wait some further
case.⁶⁷
Adarand may be that case.
It appears, therefore, that a five member majority of the U.S. Supreme
Court may be ready to reexamine doctrines that have previously supported wide-
ranging applications of congressionally enacted race- and gender-conscious
remedies. 68 The Court in the past has been largely content to uncritically defer
to congressional line drawing explicitly based on race or gender when legislating
for "benign" purposes of remedying past societal discrimination or promoting
diversity. A new consensus may now be forming on the Court to apply more
"searching" scrutiny to the factual basis underlying the congressional judgment
and to require greater legislative justification for any distinctions drawn.
Most vulnerable, it appears, may be federal minority set-aside policies which,
according to the O'Connor view, concern federal action rather than state action
and are thus unsupported by Congress' §5 enforcement authority. At the very
least, the federal government's burden of justification for race or gender-
conscious policies of this nature may be more onerous than before.
AFFIRMATIVE ACTION IN EMPLOYMENT
The evolution of federal law and policy regarding affirmative action in
employment may be traced to a series of executive orders dating to the 1960's
which prohibit discrimination and require affirmative action by contractors with
the federal government. The Office of Federal Contract Compliance Programs,
an arm of the U.S. Department of Labor, currently enforces the E.O. 11246, as
amended, by means of a regulatory program requiring larger federal contractors,
those with procurement or construction contracts in excess of $50,000, to make
a "good faith effort" to attain "goals and timetables" to remedy underutilization
of minorities and women. The executive order program was upheld early on by
the lower federal courts as a constitutionally valid governmental response to
racial segregation in the construction trades and other affected industries.
Public and private employers with 15 or more employees are also subject
to a comprehensive code of equal employment opportunity regulation under
67
488 U.S. at 518.
68
Chief Judge Mikva, in his dissent from Justice Thomas' majority opinion in Lamprecht,
958 F.2d at 404, observed that:
The Supreme Court, of course, may now decide to overrule Metro
Broadcasting and to require strict scrutiny of Congress' affirmative action
policies, as the four dissenters urged. But as appellate judges, our duty is
to follow Supreme Court precedents, not to anticipate them. And it
strikes me as impossible to reconcile the Supreme Court's decision in
Metro Broadcasting with my colleagues decision today.
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Title VII of the 1964 Civil Rights Act.⁶⁹ Except as may be imposed by court
order to remedy "egregious" violations of the law, however, or by consent decree
to settle pending claims, there is no general statutory obligation on employers
to adopt affirmative action measures. But the EEOC has issued guidelines to
protect employers and unions from charges of "reverse discrimination" when
they voluntarily take action to correct the effects of past discrimination. Federal
departments and agencies, by contrast, are required to periodically formulate
affirmative plans for their employees⁷⁰ and a "minority recruitment program"
to eliminate minority "underrepresentation" in specific federal job categories. 71
A major aspect of the legal debate over affirmative action has concerned the
appropriate role or purpose to be served by the remedy in employment
discrimination litigation. One theory emphasizes compensation for actual
victims of past discrimination, while another focuses more upon the elimination
of barriers to equal opportunity for all members of a previously excluded class
of individuals. In a series of cases during the 1980s the Justice Department
argued, largely without success, that victim compensation was the only proper
remedial objective and that class-based affirmative action remedies, which
benefit women and minorities who are not themselves actual victims of an
employer's past discrimination, are illegal. The employment cases to date
appear largely to have repudiated that position. However, in Croson, Justice
O'Connor implied that individual victimization may be the benchmark for any
finely-tuned "waiver" procedure necessary for salvaging the Richmond set-aside
and other affirmative action programs. This aspect of Croson may warrant
further examination when the Court next reviews an employment case.
Basically, judicial precedents on affirmative action in employment have
developed along two concurrent but not necessarily coterminous lines. One line
of decision delineates the permissible scope of affirmative action imposed by
judicial decree to remedy proven violations of Title VII or the Constitution. The
69
42 U.S.C. §§ 2000e et seq.
70
Section 717 of 1972 Amendments to Title VII of the 1964 Civil Rights Act empowers
the Equal Employment Opportunity Commission to enforce nondiscrimination policy in federal
employment by "necessary and appropriate" rules, regulations, and orders and through
"appropriate remedies, including reinstatement or hiring of employees, with or without backpay."
42 U.S.C. § 2000e-16(b). Each federal department and agency, in turn, is required to prepare
annually a "national and regional equal employment opportunity plan" for submission to the
EEOC as part of "an affirmative program of equal employment opportunity for all. employees
and applicants for employment." 42 U.S.C. § 2000e-16(b)(1).
71
Section 717 was reinforced in 1978 when Congress enacted major federal civil service
reforms including a mandate for immediate development of a "minority recruitment program"
designed to eliminate "underrepresentation" of minority groups in specific federal job categories.
5 U.S.C. § 7201. The EEOC and Office of Personnel Management have issued rules to guide
implementation and monitoring of minority recruitment programs by individual federal agencies.
Among various other specified requirements, each agency plan "must include annual specific
determinations of underrepresentation for each group and must be accompanied by quantifiable
indices by which progress toward eliminating underrepresentation can be measured." 5 C.F.R. §
720.205(b)(1991).
CRS-20
other involves the validity of voluntary affirmative action plans by public and
private employers. Several basic principles emerge from this developing body of
caselaw. A fundamental prerequisite to the adoption of minority employment
goals or preferences is a remedial justification rooted in the employer's own past
discrimination and its persistent workplace effects. Stricter probative standards
mandated by the Constitution may bind public employers in this regard than
pertain to private employers under Title VII. However, a "firm basis" as revealed
by a "manifest imbalance," or "persistent" and "egregious" underrepresentation,
of minorities or women in affected job categories has judicially been viewed an
essential predicate to race preferential affirmative action. Second, beyond
demonstrable past discrimination by the employer, all affirmative action plans
are judged in terms of their adverse impact on identifiable nonminorities. Thus,
those remedies, like the minority layoff provision in Wygant, which immediately
effect the displacement of more senior nonminority employees, are most suspect
and least likely to pass legal or constitutional muster. At the other end of the
spectrum, hiring and promotional goals or preferences that do not "unnecessarily
trammel" the "legitimate expectations" of nonminority candidates are more likely
to win judicial acceptance. Finally, all "race-conscious" affirmative action
remedies must be sufficiently flexible, of temporary duration, and "narrowly
tailored" so as to avoid becoming rigid "quotas."
Court-Ordered Affirmative Action Remedies
Even before the Supreme Court had spoken, all eleven U.S. Circuit Courts
of Appeals, in cases dating back to the very inception of the 1964 Civil Rights
Act, had approved use of race or gender preference to remedy "historic,"
"egregious," or "longstanding" discrimination. This line of judicial authority was
ratified by the Court's rulings in Local 28, Sheetmetal Workers v. EEOC⁷² and
United States U. Paradise. 73 The former involved contempt proceedings against
a union with an established history of racial and ethnic discrimination for its
willful violation of a judicially imposed 29% minority membership goal. To
remedy years of union evasion, amounting to contempt of court, the Second
Circuit had approved an order reinstating the minority membership goal and
requiring that job referrals be made on the basis of one apprentice for every four
journeymen. The Supreme Court affirmed, five to four.
Justice Brennan wrote for a plurality of four Justices that Title VII does
not preclude race-conscious affirmative action as a "last resort" in cases of
"persistent or egregious" discrimination, or to dissipate the "lingering effects of
pervasive discrimination," but that, in most cases, only "make whole" relief for
individual victims is required. The plurality also felt that by twice adjusting the
union's deadline, and because of the district court's "otherwise flexible
application of the membership goal," the remedy had been enforced as a
72
Supra n. 16.
73
Supra n. 17.
CRS-21
"benchmark" of the union's compliance "rather than as a strict racial quota."
Rounding out the five Justice majority for affirmance was Justice Powell who
emphasized the history of "contemptuous racial discrimination" revealed by the
record, and the temporary and flexible nature of the prescribed remedy. In
separate dissents, Justices White and O'Connor found the referral quota
excessive because economic conditions in the construction industry made
compliance impracticable, while then-Chief Justice Burger and Rehnquist read
Title VII to bar all judicially-ordered race-conscious relief benefitting nonvictims.
A parallel situation was presented by United States U. Paradise. 74 In 1972,
to remedy nearly four decades of systematic exclusion of blacks from the ranks
of the Alabama State troopers, the district court ordered a hiring quota and
enjoined the state from discriminating in regard to promotions. Seven years
later, a series of consent decrees calling for new nondiscriminatory promotion
procedures was approved to rectify the total dearth of black troopers in upper
ranks. In the interim, however, the court ordered a one-to-one racial quota for
the rank of corporal and above, provided sufficient qualified blacks were
available, until 25% of each rank was black. Only one round of promotions for
corporal was made before the quota for that and the sergeant rank was
suspended.
Justice Brennan, whose plurality opinion was again joined by Justices
Marshall, Blackmun, and Powell, considered several factors in determining
whether the plan violated the equal protection rights of white troopers: the
necessity of the relief and the efficacy of alternative remedies, the plan's
flexibility and duration, the relationship between the plan's numerical goals and
the labor market, and the plan's impact on the rights of third parties.
Significantly, the order did not require the promotion of anyone and could be
waived in the absence of qualified minority candidates, as it already had been
with respect to lieutenant and captain positions. It was also tied to the
percentage of minorities in the area workforce (25%). Finally, because it did not
bar white advancement, but merely postponed it, the plan did not impose
unacceptable burdens on innocent third parties.
Justice Brennan therefore concluded that the promotion quota was
"narrowly tailored" and justified by the government's "compelling" interest in
eradicating the state's "pervasive, systematic, and obstinate exclusion" of blacks
and its consistent history of resistance to the court's orders. Justice Stevens,
who provided the fifth vote for the Court's judgment, stated in a separate
opinion that the district court did not exceed the bounds of "reasonableness" in
devising a remedy. Justice O'Connor, joined in dissent by Justice Scalia and the
Chief Justice, found the plan "cannot survive strict scrutiny" because the one-to-
one promotion quota is not sufficiently tied to the percentage of blacks eligible
for promotion. Finally, Justice White, in a two sentence dissent, stated simply
that the district court "exceeded its equitable powers."
74
Supra n. 17.
CRS-22
Voluntary Affirmative Action
The remedial justification for voluntary affirmative action in employment
was fully explored in the Court's constitutional analysis in Wygant. The
collective bargaining agreement between the school board and the teachers'
union in that case provided a hiring preference for minority teachers coupled
with layoff protection until the minority composition of the faculty mirrored
that of the student body systemwide. Seniority was to govern layoff except that
in no event were overall minority faculty percentages to be reduced. In the face
of a constitutional challenge by ten laid-off white teachers, the Court voided the
minority layoff provisions although no particular rationale commanded majority
support.
Seven members of the Wygant Court agreed that some forms of voluntary
affirmative action may be constitutionally justifiable on the part of a
governmental entity itself guilty of past discrimination. The plurality opinion
of Justice Powell applied his strict scrutiny test from Bakke: the "limited use
of racial classification" must be justified by the "compelling" purpose of
remedying "prior discrimination by the governmental unit involved," and
"narrowly tailored" to that goal. Neither the board's asserted interest in the
presence of minority teachers as critical "role models" or to ameliorate "societal
discrimination" was sufficient, however, absent "convincing" evidence of the
board's own past discrimination. Moreover, while innocent nonminorities could
be made to share some of the burden, the remedy must not be too intrusive
upon their rights. Because the minority layoff protection in Wygant "impose[d]
the entire burden of achieving racial equality on particular individuals,"
innocent third parties were impacted too heavily, Justice Powell concluded. In
this respect, he felt the layoff provision was distinguishable from preferential
hiring decisions which "diffuse" the burden more generally. Reserving judgment
on the hiring issue, Justice White concurred that the layoff remedy went too far
because it displaced more senior white employees in favor of minorities who
were not actual discrimination victims. In a separate concurrence, Justice
O'Connor aligned herself with the Powell view that societal discrimination will
not justify voluntary affirmative action remedies and that the layoff plan was
infirm because overbroad and not "narrowly tailored" to the board's past
discrimination.
The Justices sparred over the nature of the evidence that might support an
informal conclusion of past governmental discrimination. The plurality opinion
suggested "sufficient," "convincing," and "strong" evidence as benchmarks, while
Justice O'Connor considered a "firm basis" acceptable. None of the Justices
seemed to view "formal findings" of past governmental discrimination a
constitutional prerequisite to voluntary affirmative action. Justice O'Connor
and three of the dissenters (Marshall, J., joined by Brennan and Blackmun, JJ.)
noted that such a requirement would chill voluntary efforts to end race
discrimination and purge its effects. Only Justice Stevens, in a separate dissent,
would have abandoned any requirement for showing past discrimination in favor
of the educational interest in "an integrated faculty."
CRS-23
Significantly, Wygant was a constitutional case decided on Fourteenth
Amendment equal protection principles. Less remedial justification may be
required, however, for voluntary affirmative action plans adopted by public or
private employers to comply with Title VII of the 1964 Civil Rights Act. The
first such case to reach the High Court, United Steelworkers U. Weber,⁷⁵ upheld
a voluntary affirmative action plan by a private employer, including a minority
quota for a craft training program, to rectify "manifest racial imbalance in
traditionally segregated job categories." The Court required no specific finding
of past discrimination by the employer, deciding the case instead on the basis of
the historically well established record of nationwide bias in trade union
membership.
In 1974, the employer and union in Weber negotiated an affirmative action
plan to increase the percentage of blacks in skilled craft positions from 2% to
the level of their overall participation in the area workforce, or 39%. By
reserving half of the company's craft training program slots for minorities,
several white employees were passed over in favor of less senior blacks. There
was no evidence that the underrepresentation of minorities in craft jobs was
attributable to past discrimination by the employer. Nonetheless, relying on
general judicial and research findings relative to nationwide patterns of minority
exclusion from trade union membership, the Supreme Court ruled 5 to 2 that
the "racial preferences" in the program were a lawful means to combat "manifest
racial imbalance" in craft positions resulting from "old patterns of racial
segregation and hierarchy."
Conceding that Title VII could literally be read to bar all race-conscious
employment practices, the Court decided that the purpose of the Act, not its
literal meaning, was controlling. The legislative history and context from which
the Act arose, Justice Brennan wrote, compelled the conclusion that the primary
purpose of Title VII was to "open employment opportunities for Negroes in
occupations which have traditionally been closed to them." Accordingly, "[i]t
would be ironic indeed" to read the statute to preclude "all voluntary, private,
race conscious efforts" to abolish workplace segregation. Moreover, the specific
plan in question, mandating a 1 to 1 racial ratio until a specific minority
participation rate is achieved, was permissible affirmative action because it did
"not unnecessarily trammel the interest of white employees." In this regard, the
Court emphasized:
The plan does not require the discharge of white workers
and their replacement with new black hires. Nor does the
plan create an absolute bar to advancement of white
employees; half of those trained in the program will be
white. Moreover, the plan is a temporary measure; it is not
intended to maintain racial balance, but simply to eliminate
manifest racial imbalance. Preferential selection of craft
trainees at the. .plant will end as soon as the percentage of
75
443 U.S. 193 (1979).
CRS-24
black skilled craft workers in the.
.plant approximates the
percentage of blacks in the local labor force.⁷⁶
Weber, therefore, permits private employers to implement certain forms of
temporary affirmative action to advance minority employment opportunities,
even where such measures have an incidental adverse impact on white workers.
Johnson U. Transportation Agency⁷⁷ reviewed a voluntary affirmative
action plan adopted by a public employer, the Transportation Agency of Santa
Clara County, California. That plan authorized the agency to consider the
gender of applicants as one factor for promotion to positions within traditionally
segregated job classifications in which women had been underrepresented.
Women were significantly underrepresented in the county's labor force as a
whole and in five of seven job categories, including skilled crafts where all 238
employees were men. The plan's long range goal was proportional
representation. However, because of the small number of positions and low
turnover, actual implementation was based on short term goals which were
adjusted annually and took account of qualified minority and female availability.
No specific numerical goals or quotas were used.
The petitioner in Johnson was a male employee who had applied for
promotion to the position of road dispatcher, only to be rejected in favor of a
female competitor. Both the petitioner and the women who won the promotion
were deemed well qualified for the position, although the petitioner had scored
slightly higher in the first round interview. The appointing official for the
agency indicated that in reaching the decision to promote the female candidate,
he had considered the candidates' qualifications, backgrounds, test scores, and
expertise as well as gender considerations.
The Supreme Court upheld the county's action, 6 to 3. Justice Brennan
decided for the majority that Title VII was not coextensive with the Constitution
and that, therefore, Weber not Wygant controlled. The noted disparities in
female workforce participation satisfied the Weber requirement for a "manifest
imbalance" since to require any additional showing could expose the employer
to discrimination lawsuits and operate as a disincentive to voluntary compliance
with the statute. The Court likened the county plan to the treatment of race
as a "plus" factor in the "Harvard Plan" referenced approvingly by Justice Powell
in Bakke. Because sex was but one factor in the decisionmaking process, no
applicant was excluded from consideration on account of sex. In a caveat,
however, the Court warned that "[i]f a plan failed to take distinctions in
qualifications into account in providing for actual employment decisions, it
would dictate mere blind hiring by the numbers," and would be invalid because
"it would hold supervisors to 'achievement of a particular percentage of minority
76
443 U.S. at 208-09.
77
480 U.S. 792 (1973).
CRS-25
employment or membership. .regardless of circumstances such as economic
conditions or the number of available qualified minority applicants. 78
Justice Stevens concurred that the plan was consistent with Weber and
Justice O'Connor, in a separate concurrence, provided a sixth vote for the
judgment. In her opinion, however, to support a voluntary affirmative action
plan, there should be "a statistical disparity sufficient to support a prima facie
claim under Title VII by the employee beneficiaries of the affirmative action
" Equal Protection standards, not Title VII, should govern public employee
cases, and she was critical of the majority for providing inadequate guidance as
to the statistical imbalance standard. But because there were no women in
skilled craft positions, and gender was only a "plus" factor, either standard was
satisfied here.
Justice White, dissenting, would have overruled Weber as a "perversion" of
Title VII, as would Justices Scalia and the Chief Justice joining in a separate
dissent. The dissenters criticized the majority for using Title VII "to overcome
the effect not of the employer's own discrimination, but of societal attitudes that
have limited entry of certain races, or of a particular sex, into certain jobs."
Noting the district court finding of no past discrimination by the county agency,
they argued in light of Sheetmetal Workers that "there is no sensible basis for
construing Title VII to permit employers to engage in race- or sex-conscious
employment practices that courts would be forbidden from ordering them to
engage in following a judicial finding of discrimination."
Recent Developments and Prospects
State and local programs mandating affirmative action in employment
appeared to meet with greater judicial approval, at least initially, than public
contracting preferences for minorities in the wake of the Croson decision. In
part, this may be due to the fact that employment preferences are frequently,
though not invariably, linked to settlements of individual or class discrimination
lawsuits. While a formal record of past discrimination may not in all such cases
have been developed, depending on the stage of the proceedings where
agreement is reached, there is usually some allegation of misconduct by the
public employer. In addition, there may be underlying judicial findings of
discrimination, or federal district court involvement in fashioning or approving
a consent decree, factors which have prompted deference by appellate courts in
reviewing these affirmative action efforts. 79 The influence of Croson is evident,
78
Id. at 636 (citing Sheet Metal Workers v. EEOC, 478 U.S. 421, 495 (O'Connor, J.,
concurring in part and dissenting in part).
79
See e.g. Freeman v. City of Philadelphia, 751 F. Supp. 509, 518 (E.D. Pa. 1990), aff'd
mem., 947 F.2d 935 (3d Cir. 1991)(holding that in the context of approval of a consent decree
implementing a preferential hiring policy, the court did not require as strong a showing of
statistical imbalance as would be needed to establish a prima facie case of discrimination); Macklin
v. City of Boston, 969 F. 2d 1273 (1st Cir. 1992)(in reviewing a challenge to continued adherence
to a 1974 consent decree requiring an eligibility preference for minority firefighters, the appeals
CRS-26
however, in several more recent decisions by lower federal courts which have
strictly scrutinized affirmative action plans of public and private employers for
adequate evidence of past discrimination and the requisite "narrow tailoring" of
the remedy.
In Branch U. Seibels,⁸⁰ for example, the Eleventh Circuit rejected both long
term and annual goals imposed by consent decree for the hiring of firefighters
and police officers by the City of Birmingham, Alabama. The main faults in the
city's affirmative action plan were that it had become a permanent alternative
to the development of nondiscriminatory tests and other valid selection
procedures, and rather than an end to discrimination, its long-term goals were
"designed to create parity between the racial composition of the labor pool and
the race of the employees in each job position." Annual hiring goals had
arbitrarily been set at twenty-five to fifty percent for minorities and had been
"mechanically" applied as "rigid quotas," said the court, without regard to
"relative qualifications" of the candidates.⁸¹ Similarly, an affirmative action
promotional plan for the Maryland State Police entered with the consent of a
federal district court was subjected to strict scrutiny equal protection review by
the Fourth Circuit in Maryland Troopers Ass'n U. Evans⁸² and found wanting.
Specifically, goals linked to minority representation in the general population
rather than the qualified labor pool were deemed deficient under Croson analysis
as was the failure to first exhaust all race-neutral alternative means of
court deferred to the district court's determination that, although a race-neutral exam was
adopted in 1987 and 1989 and hiring of minorities was in greater proportion than their 1974
representation in the general population, continued affirmative action was necessary and decree
was sufficiently tailored in that it provided only a limited advantage to only qualified minorities
for a limited period of time, with little disturbance to the expectations of nonminorities). But cf.,
Crumpton v. Bridgeport Education Ass'n, 993 F.2d 1023 (2d Cir. )(refusing to equate parties
stipulations as to existence of discrimination with judicial determination that such discrimination
existed).
80
31 F.3d 1548 (11th Cir. 1994).
81
On remand, the district court was ordered to "re-write the decrees to relate the annual
goals to the proportion of blacks in the relevant, objectively qualified labor pool" and "to make
clear that the annual goals cannot last indefinitely." Further, the appeals court noted:
Once a valid selection procedure is in place for a particular position, neither the City
nor the Board may continue to certify, hire, or promote according to a race-conscious
'goal' absent proof of ongoing racial discrimination, or of lingering effects of past racial
discrimination, with respect to that position. Under no circumstances may the City
hire or promote, or the Board certify, candidates who are demonstrably less qualified
than other candidates, based on the results of valid, job-related selection procedures,
unless the district court finds that such appointments are necessary to cure
employment discrimination by the City or Board.
82
993 F.2d 1072 (4th Cir. 1993).
CRS-27
increasing minority opportunity.83 The Sixth Circuit also applied Croson to
defeat a 50 percent minority goal for the rank of sergeant in the Detroit Police
Department which had been in effect for nearly two decades since "[l]imiting the
duration of a race-conscious remedy which clearly impacts adversely on
[nonminorities] is a keystone of a narrowly tailored plan. The failure to
satisfy the court as to the cause of apparent statistical disparities with respect
to minority employment, 85 the absence of a provision for waiver where
qualified minority candidates were unavailable,⁸⁶ and the placing of undue
burdens on nonminorities⁸⁷ are other factors that have prompted judicial
invalidation of state and local affirmative action plans.
The Croson focus on past discrimination as justification for race-conscious
affirmative action has left unanswered the issue of whether a state or locality
is, under any circumstances, constitutionally permitted to pursue diversity as a
social or educational value in the absence of remedial purpose. That issue is now
on appeal to the U.S. Court of Appeals for the Third Circuit. U.S. U. Board of
Education of Piscataway Township⁸⁸ questions whether an affirmative action
policy adopted not as a remedy for past discrimination or to redress a "manifest"
workforce imbalance, as in Weber and Johnson, but to promote a local school
board's interest in faculty "diversity" is legal as applied to a white teacher who
was laid off to save the position of an equally qualified minority colleague. Two
teachers, one white and the other black, had been hired as business education
teachers on the same day in 1980 and were tied as least tenured when a
reduction of one teacher in the department was recommended some eight years
later. Rather than a coin toss, which was the method previously used to resolve
such dilemmas, the district affirmative action policy favoring retention of
83
See also Stuart U. Roach, 951 F.2d 446, 454 (1st Cir. 1991)(finding minority promotion
goals appropriately linked to pool of qualified minorities) But see Peightal v. Metropolitan Dade
County, 815 F. Supp. 1454, 1457-58 (S.D.Fla. 1993)(finding program justified by significant
statistical disparities between representation of various groups in unskilled entry-level firefighter
positions and representation of those groups in general population).
84
Detroit Police Officers Ass'n v. Young, 989 F.2d 225, 228 (6th Cir. 1993). See also Davis
U. City & County of San Francisco, 890 F.2d 1438, 1447 (9th Cir. 1989)(finding program was
tailored to its authorized remedial purpose, but required addition of a sunset provision).
85
In re Chicago, 1994 U.S. Dist. LEXIS 11249 (N.D. III. 1994) ("Where, as here, the bare
statistical imbalance could have been caused by a number of factors other than race, the City was
not justified in its rush to link the disparities to discrimination.").
86
North State Law Enforcement Officers Ass' v. Charlotte-Mecklenburg Police Dept., 862
F. Supp. 1445 (W.D.N.C. 1994).
87
Crumpton v. Bridgeport Education Ass'n, 993 F.2d 1023, 1031 (2d Cir. 1993)(finding
preferential lay-off policy too burdensome on nonminorities).
88
832 F. Supp. 836 (D.N.J. 1993).
CRS-28
minority candidates was invoked to break the tie.⁸⁹ At the time, 9.5 percent
of the district's teachers were black as compared to 5.8 percent in the relevant
county labor pool. Consequently, there was no underutilization of blacks in
Piscataway's teaching staff, and the affirmative action policy was not intended
as a remedy for prior minority exclusion. Nonetheless, because there was only
one black teacher in the ten-member department, her retention was
recommended in the interest of racial diversity.
Thereafter, the dismissed white teacher filed a complaint with the federal
EEOC, alleging racial discrimination. The EEOC review led to a Justice
Department suit, filed in 1992, alleging a violation of Title VII and the New
Jersey Law Against Discrimination, an action which the aggrieved employee
joined as intervenor. Ruling on summary judgment motions in September 1993,
a federal district judge held that as "laudable" as the school board's aim in
promoting racial diversity among faculty may be, laying off a white teacher in
pursuit of that goal exceeded the bounds of the Supreme Court's affirmative
action decisions in Weber, Johnson, and Wygant. Specifically, the school board's
decision was found to contravene the two basic standards by which employer's
affirmative action plans are judged. First, it was not implemented to remedy
past discrimination against protected minority groups, or in response to a
"manifest racial imbalance" in the workforce. Restraint was thus called for since
"[i]t is sheer speculation as to whether the Court may one day extend its reading
of Title VII to encompass a race conscious affirmative action plan in the absence
of a manifest imbalance in the work force because of a desire to achieve faculty
diversity. #90 Secondly, it "unnecessarily trammeled" the rights of nonminorities.
As in Wygant, loss of a "legitimate and firmly rooted expectation in continued
employment" distinguished the burden imposed on the laid off incumbent worker
in this case from that imposed on nonminorities by the hiring or promotion
preferences approved in Weber and Johnson. Finally, the plan was flawed by its
indeterminate duration, and the board's failure to consider "alternative and less
burdensome means to achieve diversity of its faculty."9
An interesting development occurred in the wake of the school board's
appeal of the case to the Third Circuit. The U.S. Justice Department had first
initiated civil action on behalf of the United States in 1992, during the Bush
89
Pursuant to N.J.A.C. 6:4-1.3(a)-(b), in 1975 the Piscataway Township Board adopted
an affirmative action program called "Affirmative Action Program to Eliminate Discrimination
on the Basis of Sex, Race, Religion or National Origin." The program included the following in its
statement of purpose: ...when candidates appear to be of equal qualification, candidates meeting
the criteria of the affirmative action program will be recommended."
90
Id. at 848.
91
After a trial before the judge and a jury on damages held in January of 1994, the
plaintiff was awarded $98,000 in back pay, $10,000 in medical reimbursements, and nearly $25,000
in interest. The trial judge dismissed all punitive damages claims. A jury also awarded $10,000
in pain and humiliation damages under the New Jersey Law Against Discrimination. The judge
handled part of the award because the plaintiff was not entitled to a jury trial on the federal
claims at the time the suit was filed.
CRS-29
Administration, and successfully moved for summary judgment against the
school board and in favor of the laid off white teacher in June 1993 after the
Clinton Administration took office. Subsequently, however, the Department in
August 1993 altered its position, seeking the court's permission to withdraw
from the case and file an amicus brief on behalf of the school board. In filing
its motion, the Department argued that racial preference to promote "faculty
diversity" was amply justified "where two people are equal in seniority and
qualifications," and that the district court had "announced an unduly narrow
interpretation of the permissible bases for affirmative action under Title VII. "92
Answering the government's motion, counsel for the plaintiff below asserted
that the Justice Department has no standing to seek reversal of its own prior
victory, and that it has no authority to intervene on behalf of a defendant or
appellant against an aggrieved civil rights claimant. On August 25, 1994 the
federal appeals court issued an order allowing the Justice Department's Civil
Rights Division to file its brief, but only "for the information of the Court," so
that a three-judge panel can decide whether the government will be allowed to
proceed.
93
On its merits, the Piscataway case raises a variety of issues which, although
not altogether unprecedented, have yet to be fully explored by the courts.
Wygant, for example, disapproved of a race-based layoff procedure which
disregarded relative seniority and rejected a societal discrimination or "role
model" theory to justify voluntary affirmative action aimed at achieving faculty
diversity. The affirmative action program in the Piscataway case appears
equally without remedial objective since the minority composition of the school
faculty overall exceeded that of the district population and may thus be subject
to the same constitutional infirmity as Wygant. Distinguishing that earlier case,
however, is the fact that the preference here was applied to select between two
candidates who were judicially determined to be of equal qualification and
seniority. Thus, while the burden of affirmative action falls on an identifiable
"innocent" third party, as in Wygant, the displaced white worker in these
circumstances may have less basis for arguing the loss of a "vested" or firmly
established employment expectation. Moreover, the Piscataway policy, unlike
Wygant, set no quotas and race, it could be argued, was not a trump card but
only a factor to be considered after it is determined that the candidates are in
all other respects equal. Five justices in Wygant even suggested that faculty
diversity may be a permissible rationale for affirmative action, a view possibly
inspired by Justice Powell's opinion regarding student diversity in Regents of the
University of California U. Bakke. 94 Essentially, therefore, Piscataway asks
whether employers may adopt affirmative action plans for any reason other than
remedying their own past discrimination, an issue that may be critical to the
future of such programs in academic and other employment settings. The Third
92
O'Brien, T., Former Ally Charges Ethical Breach; Behind Justice's Flip-Flop in the N.J.
Bias Suit, Legal Times, p. 2 (September 19, 1994).
93
Id.
94
438 U.S. 265 (1978),
CRS-30
Circuit has yet to rule in the Piscataway case but when it does, that appellate
decision may become the next vehicle for Supreme Court review of affirmative
action in employment.
AFFIRMATIVE ACTION IN EDUCATION
Missouri V. Jenkins: Achieving "Unitary Status" and the End Of Judicial
Oversight of Local School District Desegregation Efforts
In addition to Adarand, the Court will be presented, in Missouri U. Jenkins,
with yet another opportunity to clarify the question of when a local school
district has sufficiently met its constitutional obligation to desegregate, so as to
relieve itself from Federal judicial oversight. At issue before the Court will be
the decision of the Court of Appeals for the Eighth Circuit, holding that the
Kansas City, Missouri public school system had failed to achieve "unitary
status", despite the system's successful implementation of various court ordered
desegregation remedies.
Background: Chronology of the Litigation and Summary of the
Arguments
The lower court's ruling in Jenkins is the most recent in ongoing litigation,
between the Kansas City Metropolitan School District (KCMSD), the State of
Missouri and African American children attending the district's schools, that
dates back nearly 20 years. The case was initiated in 1977 when African
American schoolchildren brought the action, alleging that the state operated a
racially segregated school system, in violation of the Supreme Court's decision
in Brown and had failed to take affirmative steps to eliminate the vestiges of
discrimination caused by the operation of that system.⁹⁵ In addition, plaintiffs
claimed that the state had actually helped to perpetuate the continued existence
of segregated schools through discriminatory housing practices, discriminatory
relocation of blacks displaced by urban development and support of racially
identifiable interdistrict vocation and special education programs.⁹⁶ Plaintiffs
alleged similar conduct on the part of KCMSD, contending that the school
system had failed to adopt policies to effectively "change the segregative patterns
that were developed or developing."⁹ The district court held in favor of the
plaintiffs, finding that the school district's decision, after Brown, to operate
some completely segregated schools and some integrated ones was "ineffective
in integrating its school system", and ordered the state and the KCMSD to
95
See Jenkins v. Missouri, 593 F.Supp. 1485 (W.D. Mo. 1984).
96
Id. at 1488.
97
Id.
CRS-31
develop a plan "which would establish a unitary school system within the [school
district].
"98
The remedial plan subsequently ordered by the court required the state and
KCMSD to implement programs that would improve student achievement and
attract nonminority students back into its schools. Specifically, the plan
included measures designed to upgrade the quality of educational curricula and
library resources; reduce teaching load and class size and implement full day
kindergarten, tutoring, early childhood development and summer school
programs.⁹⁹ In addition, the state was to establish a voluntary interdistrict
transfer program; a capital improvement program to refurbish the system's
deteriorating facilities; and a magnet schools program. The court allocated the
costs of the plan between the state and KCMSD, placing most of the financial
burden on the state, and ordered an increase in the property tax levy within the
school district to fund the local school district's portion of the costs. 100 Since
its approval of the original plan, the district court has handed down subsequent
orders modifying the plan's requirements and reallocating the costs of
implementation between the state and the local school district.
Giving rise to the Supreme Court's pending examination of the litigation
is a 1992 order by the district court, effectively denying the state's request that
the school system be found "unitary", thereby releasing the system and the state
from the court's oversight. In making this request, the state argued that
through years of expenditures in compliance with the court's funding orders, it
had fully implemented those aspects of the desegregation plan designed to
increase student achievement, and as such the district should be found to be
"unitary" with respect to these areas. The district court implicitly rejected the
state's request, failing to make specific findings on the issue and ordering
continued funding for the "quality education" programs. In addition, the court
approved, over the state's objection¹⁰ salary increases for school personnel,
finding that the increases were a necessary component of the desegregation plan
and served to improve the desegregative attractiveness of the school district.
The Court of Appeals for the Eighth Circuit affirmed the district court's
order and rejected the state's argument that "unitary" status had been achieved
solely by the implementation of the quality education programs. 102 The court
98
Id. at 1506.
99
See generally Jenkins v. Missouri, 639 F.Supp. 19 (W.D. Mo. 1985).
100
The power of the court to effectively order such funding measures was ultimately
upheld by the Supreme Court. See Missouri U. Jenkins, 495 U.S. 33 (1990).
101
Specifically, the state argued that low teacher salaries were unrelated to the prior
constitutional violations committed by the state; and thus any increases in salaries were outside
the scope of the court's authority to mandate.
102
See Jenkins v. Missouri, 11 F.3d 756, 765 (8th Cir. 1994)(" implementation of
programs in and of itself is not sufficient.").
CRS-32
indicated that the success of the programs in attaining unitary status must be
measured by the improvement in student achievement within the district as a
result of the programs' implementation. 103 In addition, the court upheld the
district court's order approving salary increases for teachers and staff, and its
authority to make the order, concluding that the increases were a necessary part
of the plan's implementation. 104
On brief before the Supreme Court, the state essentially challenges the
goals underlying the remedial plan and the authority of the district court to
order a plan designed to achieve such goals. Specifically, the state argues that
the authority of the Federal courts to remedy past segregation is limited to
addressing those conditions that were actually caused by the state's past
discriminatory conduct. The state maintains that as low student achievement
and "white flight" were not caused by the segregated school system, the district
court erred in characterizing these conditions as "vestiges" of the state's past
discrimination, and exceeded its authority in ordering a remedial plan designed
to remedy such conditions. In addition, the state asserts that, in concentrating
on student achievement levels, the lower courts have "lost sight of the goal of
eliminating one-race schools" and have failed to examine areas, previously
identified by the Supreme Court as relevant criteria for determining whether a
school district has become unitary. When examined under these factors--
student assignment; racial makeup of faculty; racial makeup of noninstructional
staff; equality in facilities; transportation; and extracurricular activities, the
state maintains, the school district has achieved "unitary status" and should be
released from Federal judicial oversight.
Conversely, representatives of the Jenkins class contend that, given recent
evidence of the success of the quality education programs in attracting
nonminorities back to the district, termination of this remedy would be
premature at this time. In addition, the class asserts that the state has not
satisfied the test set out in Freeman U. Pitts to determine whether portions of
the desegregation plan may be terminated. 105 In seeking termination of the
plan, the state failed to present any evidence that the quality education program
had eliminated the vestiges of segregation to the extent practicable, maintaining
only that the programs had been implemented. In addition, the class maintains
103
Id. at 766.
104
Id. at 766-769. See also Jenkins v. Missouri, 13 F.3d 1170 (8th Cir. 1993)(Affirming
lower court approval of salary increases for three additional school years.).
105
In Freeman v. Pitts, the Supreme Court ruled that a district court may relinquish
supervision of a school district in incremental stages, before full compliance has been achieved in
every area of school operations and decline to order further remedial measures in those areas in
which the district has achieved "unitary" status. In making this determination, district courts are
required under Freeman to assess the extent to which there has been "full and satisfactory
compliance" with the desegregation order in those areas where supervision is to be withdrawn";
whether retention of control over such areas is necessary or practicable to achieve compliance in
other areas; and whether the school district has demonstrated a "good faith" commitment to the
whole of the decree and to those statutory and constitutional provisions that were the predicate
for judicial intervention. See generally 112 S. Ct. 1430 (1992).
CRS-33
that relinquishment of control over the quality education programs would
undermine the overall effectiveness of the entire remedial program and its goal
of achieving a desegregated school system. Moreover the class contends that the
state has failed to demonstrate the "good faith commitment" required by
Freeman, citing instances in which the state refused to implement portions of
the plan. Finally, the class contends that the remedial measures ordered by the
district court were permissible under previous Supreme Court precedent.
Brief Overview of the Supreme Court's School Desegregation
Jurisprudence
The Supreme Court's upcoming opinion in the Jenkins case will be the
latest in a long line of rulings regarding school desegregation that dates back to
its 1954 decision in Brown v. Board of Education. In Brown, the Court held
that segregated school systems inherently violated the equal protection
guarantees of the Fourteenth Amendment and ordered that states act to
dismantle their dual educational systems "with all deliberate speed. #106 The
Court also delegated the responsibility of supervising local school districts in
their compliance with Brown to the Federal district courts and authorized the
lower courts to fashion measures designed to remedy the constitutional
violations.
107
After a decade of relative inaction by local school boards in desegregating
their schools and attempts by local officials to avoid the mandate established in
Brown, the Court saw fit to revisit the issue in Green v. County School
Board¹⁰⁸ and provide stronger, more specific guidance to local officials
regarding their constitutional duty to desegregate the schools. At issue in
Green, was the Kent County, Virginia School Board's adoption of a "freedom of
choice" plan, under which children within the district could choose the school
that they wished to attend. The Court invalidated the plan, finding it an
"[in]sufficient step to effectuate a transition to unitary system. "109 In striking
down the plan, the Court directed that local officials come forward with a plan
that "promises realistically to work...now" and imposed an "affirmative duty to
take whatever steps might be necessary to convert to a unitary system in which
racial discrimination would be eliminated root and branch. #110 Moreover, the
Court outlined six factors to be considered in determining the existence of a dual
106
See 347 U.S. 483 (1954); see also Brown v. Board of Education (Brown II), 349 U.S.
294 (1955).
107
Id.
108
391 U.S. 430 (1968).
109
Id. 441-442.
110
Id. at 437-438.
CRS-34
school system--student assignment; faculty; staff; transportation; extracurricular
activities; and facilities. 111
After two major decisions, subsequent to Green, outlining the permissible
scope of desegregation remedies the Court began to focus its attention on
narrowing the scope of desegregation remedies and limiting the authority of the
district courts to fashion remedial measures. Most notably, in Milliken U.
Bradley, the Court overturned a court ordered desegregation plan which
encompassed adjacent suburban school districts as well as the inner city district
found to be segregated. 113 There the district court, after concluding that an
intradistrict desegregation plan would be ineffective, ordered a plan requiring
busing children between the majority white suburban school districts and the
inner city district--comprised mostly of African American children. In
overturning the order, the Supreme Court reiterated the principle announced
in an earlier decision, that the scope of the remedy is limited to the nature and
extent of the constitutional violation. On this note, the Court established a test
to determine when an interdistrict desegregation remedy may be permissible,
which involved examination of whether the constitutional violation of one
district has a "significant segregative effect" in another district, and whether the
discriminatory acts of state and local officials were a "substantial cause of
interdistrict segregation." Applying this standard, the Court concluded that
the interdistrict remedy was not appropriate in this case because the "disparate
treatment of white and [African American] students had occurred within the
[inner city] school system, and not elsewhere...' "115
Most recently, the Court has shifted its focus from limiting the scope of a
desegregation order to determining when such orders should be lifted entirely.
In Board of Education of Oklahoma City v. Dowell, the Court, for the first time
announced standards to guide district courts in their assessment of whether
supervision and control of a school system should be returned to local
officials. 116 In overturning a ruling by the court of appeals that a
desegregation decree remains in effect until the school district can show
"grievous wrong evoked by new and unforeseen conditions", the Court held that
the district court should address itself to whether the school board had
"complied in good faith" with desegregation decree since its inception, and
whether the "vestiges of past de jure segregation had been eliminated to the
111
Id. at 435.
112
See Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1 (1971); Keyes v.
School District No. 1, 413 U.S. 189 (1973).
113
418 U.S. 717 (1974).
114
Id. at 744-745.
115
Id. at 746.
116
See 498 U.S. 237.
CRS-35
extent practicable.
The Court further narrowed its focus on the
termination of judicial supervision in Freeman U. Pitts, where it held that
district courts have the authority to relinquish supervision and control of a
school district in incremental stages before full compliance with the
desegregation order has been achieved. 118
Implications
Against the backdrop of the Court's most recent pronouncements regarding
school desegregation, the upcoming decision in Missouri U. Jenkins provides the
Court with another opportunity to clarify issues regarding the scope of judicial
authority to fashion remedial measures and the relinquishment of such
authority, that have been left unresolved by the Court's previous opinions.
Specifically, the Court could, for the first time, delineate precise standards for
determining what constitutes a "vestige" of past discrimination. In its previous
opinions, the Court has alluded to this term as the target at which a school
district's remedial efforts should be directed. While its previous decisions
generally indicate that the term is meant to denote a present condition which
was, in some way, caused by the prior discriminatory conduct the Court has
failed to give any definitive guidance as to the degree of causation that must be
present in order for a "vestige" to be identified. In arguing that present day
student achievement levels and "white flight" are not causally linked to the
school system's prior discriminatory actions, the state places this issue squarely
before the Court. Also related to this issue will be the Court's treatment of
whether salary increases for school personnel are a remedy that's sufficiently
tied to the state's past discriminatory conduct.
In addition, Missouri U. Jenkins could provide further clarification to the
lower courts as to when the "vestiges" of discrimination have been sufficiently
eliminated. Specifically important will be the Court's handling of the state's
argument that it has fulfilled its constitutional obligation by fully implementing
the programs required under the remedial order and that any racial imbalance
currently within the school district is attributable to factors (i.e., demographic
shifts) beyond the state's control. In Dowell, the Court instructed the lower
courts to examine whether the vestiges of discrimination had been eliminated
"to the extent practicable" in determining whether judicial control over the
district should be relinquished. Moreover, in a concurrence with the majority
in Freeman, Justice Scalia specifically addressed the relationship between
present racial imbalance in schools and demographic shifts within the school
district, calling for the Court's recognition that due to "a multitude of private
factors the percentage of the current makeup of school systems attributable
117
Id. at 249-250.
118
112 S. Ct. 1430 (1992); see also n. 13, supra.
119
See e.g. Milliken U. Bradley (Milliken II), 433 U.S. 267 (1977); Pasadena Board of
Education v. Spangler, 427 U.S. 424 (1976).
CRS-36
to the prior, government-enforced discrimination has diminished with each
passing year, to the point where it cannot realistically be assumed to be a
factor.
"120
Adoption of this view by a majority of the Court and a
determination that the state's implementation of the programs is sufficient,
could result in the release from judicial control of a number of school districts
which continue to suffer racially imbalanced student populations despite the
implementation of court ordered remedial measures.
Minority Scholarships and the Constitution: An Issue of Emerging
Significance
Although not before the Supreme Court this term, a recent court of appeals
ruling could mark the reemergence of the constitutional validity of minority
based scholarships as a significant issue in future public policy and judicial
discourse. 121 In Podbersky U. Kirwan, the court of appeals for the Fourth
Circuit invalidated a university sponsored minority scholarship program,
concluding that the program violated the equal protection clause of the
Fourteenth Amendment. 122
At issue in the case was the University of Maryland's Benjamin Banneker
Scholarship, a merit based award limited exclusively to African American
students. The validity of the program was challenged by a Hispanic student at
the university who applied for and was denied an award under the program,
despite meeting all of the academic and other necessary requirements. The
district court upheld the program, finding the use of a race exclusive scholarship
justified as a remedy for past discrimination by the university. 123
In striking down the program, the court of appeals applied the most
exacting level of analytical scrutiny under which the university was required to
show a "strong basis in evidence for its conclusion that remedial action [is]
necessary" and that the measure was "narrowly tailored to meet the remedial
goal." Moreover, in justifying the program as "necessary", the university had to
demonstrate the existence of "presents effects" of its past discriminatory conduct
which warranted the use of the race-conscious remedy. The university
attempted to meet this standard, arguing that the use of minority based
120
Freeman, supra at 1453.
121
The statutory and constitutional validity of these programs came into question initially
in December of 1990 in a letter issued by the Department of Education's Office of Civil Rights
(OCR), which interpreted Title VI and its regulations to generally prohibit the funding or
administration of race-exclusive scholarships by Department of Education assistance recipients
unless mandated by a court or administrative order, corrective action plan, or settlement
agreement. In 1994, OCR rescinded its earlier policy statement, announcing that such
scholarships would be deemed permissible by DOE.
122
See 38 F.3d 147 (4th Cir. 1994).
123
764 F.Supp. 364 (D. Md. 1991).
CRS-37
scholarships was necessary to remedy a number of such present effects,
including the university's poor reputation within the African-American
community; underrepresentation of African-Americans in the student
population; low retention and graduation rates among African-American
students at the university; and perceived hostility toward African-American
students on campus.
With regard to the university's poor reputation among African-Americans
and the racially hostile campus environment, the court found these asserted
"effects" "[in]sufficient, standing alone, to justify the single-race Banneker
program. "124 In addition, the court found that the lower court erred in failing
to determine the relevant pool of potential applicants, which was necessary to
assess the extent to which African-American students were underrepresented at
the university. Moreover, the court noted that there was a genuine factual
dispute as to whether low African-American retention and graduation rates were
attributable to the university's past discrimination, which should have been
resolved prior to the district court's ruling.
In addition to rejecting the university's justifications for the program, the
court concluded that, even assuming African-American underrepresentation and
low retention and graduation rates, the program was not sufficiently "tailored"
to remedying these conditions. The court noted that the program was
improperly targeted to attracting high achieving African-American students,
where "high achievers" were not the group against which the university had
discriminated in the past. 125 In addition, the court noted that the scholarships
were available to non-residents of Maryland, although the purported goal of the
program was to increase the number of qualified African-American Maryland
residents attending the university. 126 Moreover, the court concluded that the
lack of evidence necessary to adequately determine the extent of disparities in
African-American representation at the university and whether such disparities
are tied to the university's past discrimination could allow the program to
"remain in force indefinitely based on arbitrary statistics unrelated to
constitutionally permissible purposes. "127
124
38 F.3d at 154. The court noted that the university's poor reputation in the African-
American community was attributed, primarily to knowledge of the university's past
discrimination. Mere knowledge of this fact, according to the court, is not the type of "present
effect of past discrimination" needed to justify the use of race conscious remedial measure by the
university. Id. In addition, the court found that the hostility toward African-American students
on the university campus was more directly attributable to present societal discrimination, which
is an "{in}sufficient ground for employing a race-conscious remedy at the University of Maryland."
Id. at 154-55.
125
Id. at 158.
126
Id. at 158-159.
127
Id. at 160.
CRS-38
Although the minority scholarship issue has received significant attention
in the political and public policy arenas, Podberesky represents the sole judicial
pronouncement specifically addressing the constitutional validity of these
programs. While the line of reasoning employed in the decision is fairly
reflective of the analysis generally utilized in examining the validity of race-
based remedial measures, the court's opinion appears to vary in one significant
respect from the traditional equal protection analysis. As outlined in the
discussion of Wygant and Croson above, the Supreme Court has generally
required a showing of "specific" or "identified" instances of past discriminatory
conduct on the part of the governmental entity involved in order to justify the
use of a race-based remedial measure. In requiring that such entities
additionally demonstrate the existence of present effects of past discrimination",
Podberesky represents the potential introduction of yet another analytical hurdle
to be overcome by state and local governmental entities in defending the validity
of their remedial programs. As such, the decision could have implications which
extend beyond the minority scholarship debate and could very well be the
subject of Supreme Court review in an upcoming term.
RACIAL GERRYMANDERING THE VOTING RIGHTS ACT,
AND THE CONSTITUTION
The Supreme Court's 1993 ruling in Shaw U. Reno 128 sparked a new wave
of constitutional challenges to race-conscious governmental decisionmaking in
regard to creation of majority-minority voting districts to comply with the
Voting Rights Act. Under § 5 of Act, states and political subdivisions with low
voter registration or participation rates, and with voting "tests or devices" in
effect as of certain dates, are required to "preclear" any proposed new voting
"practices or procedures," including redistricting plans, with the Attorney
General or obtain judicial approval for the change from the District Court of the
District of Columbia. 129 In 1982, Congress altered the statutory standard for
determining compliance with the Act, as set forth in § 2, from a test based on
discriminatory "intent" to an inquiry into the "effect" of any challenged practice
or procedure. 130 The Supreme Court in Thornburg v. Gingles found vote
dilution, or the impairment of the "ability of a protected class to elect its
candidate of choice on an equal basis with other voters," to be a prohibited effect
128
113 S. Ct. 2816 (1993).
129
42 U.S.C. § 1973b-c.
130
The Voting rights Act provides that a violation of § 2 occurs if, "based on the totality
of circumstances, it is shown that the political processes leading to nomination or election in the
State or political subdivision are not equally open to participation by members of a class of citizens
protected by [the Act] in that its members have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of their choice." 42
U.S.C. $ 1973(b).
CRS-39
under § 2. 131 Thus, states covered by $ 5 of the Voting Rights Act, including
North Carolina, Louisiana, Georgia, and Texas, among others, are required to
preclear any change in voting procedures by meeting both a standard of "non-
retrogression"¹³² and satisfying the Thornburg vote dilution test. However,
compliance with the Voting Rights Act does not insulate voting procedures from
constitutional challenge under the Fourteenth Amendment, as arose in Shaw v.
Reno.
Following the 1990 census, numerous majority-minority districts were
created by state legislatures to satisfy §2 requirements by enhancing minority
group representation in federal, state, and local legislative bodies. 133 Shaw
was a suit by five white voters challenging one of these newly created districts,
the North Carolina twelfth Congressional District, as an unconstitutional
gerrymander due to its irregular shape and the concentration of a majority of
minority voters within its boundaries. Despite the fact that the redistricting
plan had been preapproved under the Voting Rights Act, the Supreme Court in
Shaw applied strict judicial scrutiny and required the State to demonstrate that
the plan was narrowly tailored and necessary to achieve a compelling state
interest under traditional Equal Protection doctrine.
Justice O'Connor carefully limited the Court's holding to redistricting plans
which "although race neutral, are, on their face, unexplanable on grounds other
than race. 134 The claim put forth by petitioners in Shaw was, according to
the majority, analytically distinct from prior "vote dilution" decisions approving
the use of "sound districting principles" e.g. compactness, contiguity, respect for
political subdivisions--to "afford fair representation" to racial minorities. The
131
478 U.S. 30, 50-51 (1986). Thornburg, which concerned multimember districts,
identified three "threshold conditions" for establishing a vote dilution claim: 1) that "[the minority
group] is sufficiently large and geographically compact to constitute a majority in a single member
district"; 2) "that [the minority group] is politically cohesive"; and 3) "that the white majority votes
sufficiently as a bloc to enable it. usually to defeat the minority's preferred candidate." If the
plaintiffs in a vote dilution suit establish these conditions, the court then considers other factors
relevant to determining whether, "under the totality of circumstances," minorities have been
denied an "equal opportunity" to "participate in the political process and to elect representatives
of their choice." 42 U.S.C. § 1973b. These secondary factors can include a history of
discriminatory voting practices, racially polarized voting, the relative presence of minorities in
elected posts, and evidence of discrimination against minorities in other aspects of society that
might hinder their ability to participate in the electoral process. 478 U.S. at 36-37. The Gingles
holding has since been extended to single-member districts. Growe v. Emison, 113 S. Ct. 1075,
1091 (1993); Voinovich v. Quilter, 113 S. Ct. 1149 (1993).
132
Beer v. United States, 425 U.S. 130, 141 (1976)(a state may not gain preclearance under
§ 5 if the change in voting procedure will result in "a retrogression in the position of racial
minorities with respect to their effective exercise" of the right to vote).
133
For a complete judicial history of the legal controversy surrounding majority-minority
congressional districts, both before and after the Supreme Court ruling in Shaw V. Reno, see
"Majority-minority Congressional Districts: Court Challenges," ALD General Distribution
Memorandum by Thomas M. Durbin (September 23, 1994).
134
Id. at 2825.
CRS-40
North Carolina redistricting scheme was "so irrational on its face that it can be
understood only as an effort to segregate voters into separate voting districts
because of their race, and that separation lacked sufficient justification. 135
Therefore, according to Justice O'Connor, a racial classification such as the
State's plan, which is ostensibly neutral but is an obvious pretext for racial
discrimination, demands strict scrutiny. On this basis, the Court concluded that
the case should be remanded to the district court to allow the State to answer
the allegation of racial gerrymandering by proving that the plan is narrowly
tailored to further a compelling state interest.
The Shaw ruling is significant for both its impact on voting rights litigation
and Equal Protection jurisprudence. Nonetheless, it leaves several unanswered
questions in its wake that the Court may address this term when it reviews
other congressional redistricting cases from Louisiana and Georgia. First,
Justice O'Connor conceded in Shaw that the Court has never held race-
conscious decisionmaking impermissible in all circumstances. But the decision
failed to define criteria for determining when a state redistricting plan is so
"bizarre" or extremely irregular on its face as to be constitutionally suspect.
Second, Shaw raises without resolving the issue of whether compliance with the
Voting Rights Act vote dilution prohibition may be a compelling state interest.
When the case was remanded to the three-judge district court in North Carolina,
the federal panel concluded that the threshold for strict judicial scrutiny of race
as a factor was reached but that the redistricting plan was justified by the
state's compelling interest in complying Voting Rights Act. 136 By contrast, the
three-judge court in Johnson v. Miller, now pending Supreme Court review,
could find no adequate nonracial rationale for the creation of the Georgia
Eleventh Congressional District, since there was no sufficiently large and
compact minority population in southern-central Georgia to warrant creation
of a majority-minority district in that area, and held the redistricting plan
unnecessary for Voting Rights Act compliance. Since the district court in Hays
U. Louisiana found that State's Z-shaped 4th Congressional District lacked the
"narrow tailoring" necessary to withstand constitutional scrutiny, it simply
assumed, without deciding, that the State's interest in complying with the
Voting Rights Act was "compelling." Accordingly, the Court's review of the
Georgia and Louisiana cases¹³⁷ this term may clarify important constitutional
issues concerning congressional redistricting and the federal Voting Rights Act.
135
Id. at 2832.
136
Shaw v. Hunt, No. 92-202-CIV-5-BR (E.D.N.C. 8-1-94).
137
See n. 3, 4 supra.
RELEASED WITH CLIENT PERMISSION
CRS
Congressional Research Service
The Library of Congress
Washington, D.C. 20540-7000
February 17, 1995
TO
:
Honorable Robert Dole
FROM
:
American Law Division
SUBJECT
:
Compilation and Overview of Federal Laws and Regulations
Establishing Affirmative Action Goals or Other Preference
Based on Race, Gender, or Ethnicity
This is in response to your request, by letter dated December 22, 1994, for
"a comprehensive list of every federal statute, regulation, program, and executive
order that grants a preference to individuals on the basis of race, sex, national
origin, or ethnic background. Preferences include, but are not limited to,
timetables, goals, set-asides, and quotas."
To compile the list of federal legal authorities contained in this
memorandum, several searches on LEXIS/NEXIS and WESTLAW legal databases
were undertaken utilizing a variety of search strategies which incorporated legal
terminology most frequently associated with federal affirmative action and
minority set-aside programs. This yielded citations to several hundred statutory
and regulatory programs which we then examined individually to determine
whether they appeared to be of the nature described in your inquiry. The
compilation of laws included in this memorandum reflects our efforts to be as
"comprehensive" as possible, in accordance with your instructions.
Consequently, we have included any statute, regulation, or executive order
uncovered by our research which appears, in any manner, to prefer or consider
race, gender, or ethnicity as factors in federal employment or the allocation of
federal contracts or grants to individuals or institutions.¹ Several laws and
regulations directed to "socially and economically disadvantaged" individuals and
-
As per discussions with your staff, however, we have not included federal civil rights
statutes, such as Title VI of the 1964 Civil Rights Act and related laws, that place
nondiscrimination requirements upon recipients of federal financial assistance without mandating
racial, ethnic, or gender preferences per se. Nor are regulations of the various federal
departments or agencies under Title VI included for the similar reason that, although they almost
uniformly authorize "affirmative action" by recipients to "overcome the effects of prior
discrimination" or otherwise, they do not explicitly define the obligation in terms of "goals" or "eet-
asides," or other forms of preference for minorities or women. See e.g. 15 C.F.R.
15.3(b)(6)(1994)(Department of Agriculture Title VI regulations). Also beyond the scope of this
study are the remedy provisions in federal laws like Title VII of the 1964 Civil Rights Act (42
U.S.C. § 2000e-5(g)), or the Fair Housing Act, 42 U.S.C. § 3613, which authorize "affirmative"
relief by the courts in discrimination actions, and have been the basis for judicial preference
orders in certain circumstances, but do not explicitly direct the imposition of "timetables, goals,
set-asides, and quotas" on their face.
CRS-2
regulations directed to "socially and economically disadvantaged" individuals and
institutions are included because, as explained infra, that term has been defined
administratively and by statute to presumptively apply to specific racial and
ethnic minorities. As a background for understanding operation of the
numerous listed federal laws and regulations, more extensive discussion is
devoted at various points to the development of major "affirmative action"
programs in federal grant, contract, and employment law.
FEDERAL GRANT AND PROCUREMENT LAW
Federal efforts to increase minority and female participation in contracting,
federally assisted programs, and employment have been a major aspect of civil
rights enforcement for more than three decades. Congress and the Executive
Branch have crafted a wide range of federal laws and regulations authorizing,
either directly or by judicial or administrative interpretation, race or gender
"conscious" strategies in relation to jobs, housing, education, voting rights, and
governmental contracting. The historical model for federal laws and regulations
establishing minority participation "goals" may be found in Executive Orders
which since the early 1960's have imposed affirmative minority hiring and
employment requirements on federally financed construction projects and in
connection with other large federal contracts. Presently, Executive Order 11246
as administered by the Office of Federal Contract Compliance Programs
(OFCCP) requires that all employers with federal contracts in excess of
$50,000.00 must file written affirmative action plans with the government.
These are to include minority and female hiring goals and timetables to which
the contractor must commit its "good faith" efforts. Similar affirmative action
measures relating to federal government employment were enacted as part of
the Equal Employment Opportunity Act Amendment of 1972² and the 1978
Civil Service Reform Act. 3
Affirmative action for minority entrepreneurs soon became a focus of efforts
by the Small Business Administration (SBA) and other federal agencies to assist
"socially and economically disadvantaged" small businesses under a variety of
federal programs. Increasingly, an "affirmative action" model, in the form of
participation "goals" or "set-asides" for members of racial or ethnic minorities,
and businesses owned or controlled by these or other "disadvantaged" persons,
found legislative expression in a wide range of federal programs.
The Small Business Act, as amended, provides the statutory prototype for
a host of federal programs to increase minority and female participation as
contractors or subcontractors on federally funded projects. First, the "Minority
Small Business and Capital Ownership Development," or § 8(a) program
set-asides, and quotas" on their face.
2
42 U.S.C. § 2000e-16(b).
8
5 U.S.C. $ 7201.
CRS-3
authorizes the Small Business Administration (SBA) to enter into all kinds of
construction, supply, and service contracts with other federal departments and
agencies. The SBA acts as a prime contractor and then "subcontracts" the
performance of these contracts to small business concerns owned and controlled
by "socially and economically disadvantaged" individuals, Indian Tribes or
Hawaiian Native Organizations.⁴
Applicants for § 8(a) certification must demonstrate "socially disadvantaged"
status or that they "have been subjected to racial or ethnic prejudice or cultural
bias because of their identities as members of groups without regard to their
individual qualities."6 The Small Business Administration "presumes," absent
contrary evidence, that small businesses owned and operated by members of
certain groups-including Blacks, Hispanics, Native Americans, and Asian Pacific
Americans-are socially disadvantaged.6 Any individual not a member of one of
these groups must "establish his/her individual social disadvantage on the basis
of clear and convincing evidence" in order to qualify for § 8(a) certification. The
§ 8(a) applicant must, in addition, show that "economic disadvantage" has
diminished its capital and credit opportunities, thereby limiting its ability to
compete with other firms in the open market.⁷
The "Minority Small Business Subcontracting Program" authorized by
§ 8(d) of the Small Business Act codified the presumption of disadvantaged
status for minority group members that applied by SBA regulation under the
§ 8(a) program.8 Prime contractors on major federal contracts are obliged by
§ 8(d) to maximize minority participation and to negotiate a "subcontracting
plan" with the procuring agency which includes "percentage goals" for utilization
of small socially and economically disadvantaged firms. To implement this
policy, a clause required for inclusion in each such prime contract states that
"[t]he contractors shall presume that socially and economically disadvantaged
individuals include Black Americans, Hispanic Americans, Native Americans,
Asian Pacific Americans, and other minorities, or any other individual found to
be disadvantaged by the Administration pursuant to § 8(a). Accordingly,
SBA has discretion in designating a firm or individual as socially and
4
15 U.S.C. $ 637(a).
5
15 U.S.C. § 637(a)(5).
6
13 CFR & 124.105(b).
7
The statute, 15 U.S.C. $ 637(a)(6)(A), defines economic disadvantage in terms of:
socially disadvantaged individuals whose ability to compete in the free
enterprise system has been impaired due to diminished capital and credit
opportunities as compared to others who are not socially disadvantaged,
and such diminished opportunities have precluded or are likely to preclude
such individuals from successfully competing in the open market.
8
15 U.S.C. s 637(d). See also 13 CFR $ 124.106.
CRS-4
economically disadvantaged for purposes of both the § 8(a) and § 8(d) programs
in conformity with specified criteria.
These obligations, first codified in 1978 as an amendment to the SBA, were
augmented a decade later by the Business Opportunity Development Reform Act
of 1988. 10 Congress there directed the President to set annual, government-
wide procurement goals of at least 20% for small businesses and 5% for
disadvantaged businesses, as defined by the SBA. Simultaneously, federal
agencies were required to continue to adopt their own goals, compatible with the
government-wide goals, in an effort to create "maximum practicable opportunity"
for small disadvantaged businesses to sell their goods and services to the
government. The goals may be waived where not practicable due to
unavailability of disadvantaged business enterprises (DBEs) in the relevant area
and other factors. 11 While the statutory definition of DBE includes a racial
component, in terms of presumptive eligibility, it is not restricted to racial
minorities but also includes persons subjected to "ethnic prejudice or cultural
bias."12 It also excludes businesses owned or controlled by persons who,
regardless of race, are "not truly socially and/or economically disadvantaged."¹
Federal Acquisition Act amendments adopted in 1994 amended the 5% minority
procurement goal, and the minority subcontracting requirements in $ 8(d), to
specifically include "small business concerns owned and controlled by women" in
addition to "socially and economically disadvantaged individuals."¹
In addition, Congress has frequently adopted "set-asides" or other forms of
statutory preference for "socially and economically disadvantaged" firms and
individuals, following the definitions of the Small Business Act, or by
designating minority groups and women as part of specific grant or contract
authorization programs. Thus, targeted funding, in various forms, and minority
or disadvantaged business set-asides or preferences have been included in major
authorization or appropriation measures for agriculture, communications,
defense, education, public works, transportation, foreign relations, energy and
water development, banking, scientific research and space exploration, and other
9
15 U.S.C. $ 637(d). Criteria set forth in the regulations permit an administrative
determination of socially disadvantaged status to be predicated on "clear and convincing
evidence" that an applicant has "personally suffered" disadvantage of a "chronic and
substantial" nature as the result of any of a variety of causes, including "long term residence
in an environment isolated from the mainstream of American society," with a negative
impact "on his or her entry into the business world. C.F.R. s 124.105(c).
10
P.L. 100-656, $ 502, 102 Stat. 3887, codified at 15 U.S.C. $ 644(g)(1).
11
See e.g. 49 C.F.R. §§ 23.64(e), 23.65 (setting forth waiver criteria for the Department
of Transportation.
12
15 U.S.C. § 637(a)(5).
13
See 49 C.F.R. Pt. 23, Subpt. D, App. C.
14
P.L. 103-355, 108 Stat. 3243, 3374, 8 7106 (1994).
CRS-5
purposes. Other federal laws appear to authorize some consideration of race or
gender to enhance the participation of minorities and women in federal
programs or employment but without directly mandating preferential goals or
set-asides.
The following statutes, regulations, and executive orders governing federal
contracts and grant programs are, to the extent possible, grouped according to
agency and subject matter.
Federal Acquisitions Regulations-General
48 C.F.R. $ 19.001(b) (1994): "Individuals who certify that they are
members of named groups (Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Subcontinent-Asian Americans) are to be
considered socially and economically disadvantaged" for purposes of
"Socioeconomic Programs" under the Federal Acquisitions Regulation (FAR).
48 C.F.R. § 19.704 (1994): FAR requirement that "[s]eparate percentage
goals for using small business concerns and small disadvantaged business
concerns as subcontractors" be included in small disadvantaged business
subcontracting plans.
48 C.F.R. § 19.706(c)(2) (1994): FAR subcontracting assistance program
states that "[v]arious approaches may be used in the development of small and
small disadvantaged business concerns subcontracting incentives. They can take
many forms, from a fully qualified schedule of payments based on actual
subcontract achievement to an award fee approach employing subjective
evaluation criteria. .The incentive should not reward the contractor for results
other than those that are attributable to the contractor's efforts under the
incentive subcontracting program." See also § 19.705-1 (monetary incentives for
exceeding goals).
48 C.F.R. §§ 52.219-8, 52.219-9 (1994): Prescribe clauses for inclusion in
federal prime and subcontract which require, inter alia, "[g]oal, expressed in
terms of percentages of total planned subcontracting dollars, for the use of small
business concerns and small disadvantaged business concerns as subcontractors."
Agriculture
7 U.S.C.S. § 3154(c): The Secretary of Agriculture is authorized "to set
aside a portion of funds" appropriated for certain research on the production and
marketing of alcohols and industrial hydrocarbons for grants to colleges and
universities to achieve "the objective of full participation of minority groups."
7 C.F.R. § 225.6(g)(xi) (1994): Food service management companies
participating in the Summer Food Service Program must submit with
appropriate state agency a registration which is to include "a statement as to
CRS-6
whether the organization is a minority business enterprise" managed and
controlled by "Blacks, Hispanics, American Indians, Alaskan Natives, Oriental
and Aleuts
7 C.F.R. $ 246.13(g) (1994): Financial management system maintained by
state agencies participating in Special Supplemental Food Program for Women,
Infants and Children are "encouraged" to use minority- and women-owned
banks.
7 C.F.R. § 272.4(b)(1994): Bilingual program information and certification,
and interpreters must be provided in certain low income areas with specified
percentages of non-English speaking minority households under Food Stamp
and Food Distribution Program.
7 C.F.R. § 1940.968(k)(3)(1994): States participating in certain rural
economic development programs are "encouraged to use minority banks (a bank
which is owned by at least 50 percent minority group members) for the deposit
and disbursement of funds."
7 C.F.R. § 1942.17(p)(3)(iii) 1994): Applicants for certain FmHA community
facilities loans are "encouraged to use minority banks (a bank which is owned
by at least 50 percent minority group members) for the deposit and
disbursement of funds."
7 C.F.R. § 1942.472(c) (1994): Grantees of certain rural housing and
community development technical assistance and training grants are
"encouraged to use minority banks (a bank which is owned by at least 50
percent minority group members) for the deposit and disbursement of funds."
7 C.F.R. § 1944.526(a)(2)(i)(D) (1994): Preapplication process for Technical
and Supervisory Assistance Grant program considers in determining applicant's
eligibility "the estimated number of low income and low income minority families
the applicant will assist in obtaining affordable adequate housing."
7 C.F.R. § 1944.671(b) (1994): Equal Opportunity and outreach
requirements applicable to FmHA Housing Preservation Grants program state
that "[a]s a measure of compliance, the percentage of the individuals served by
the HPG grantee should be in proportion to the percentages of the population
of the service area by race/national origin."
7 C.F.R. §§ 3015.13, 3016.21(h) (1994): "Consistent with the national goal
of expanding opportunities for minority business enterprises, recipients and
subrecipients" of federal financial assistance administered by the Department of
Agriculture "are encouraged to use minority and women-owned banks. Upon
request, awarding agencies will furnish a listing of minority and women-owned
banks to recipients."
7 C.F.R. 3051 APPENDIX A (1994): OMB Circular A-133, Audits of
Institutions of Higher Education and Other Nonprofit Institutions. "11. Small
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and Minority Audit Firms. Small audit firms and audit firms owned and
controlled by socially and economically disadvantaged individuals shall have the
maximum practicable opportunity to participate in contracts awarded to fulfill
the requirements of this circular." See also OMB Circular A-128 (.19)(Uniform
Audit Requirements for State and Local Governments), 29 C.F.R. Part 96
APPENDIX A (1994).
7 C.F.R. §§ 3403.1, 3403.2 (1994): USDA regulations implementing small
business innovation grants program which as one of its goals is to "foster and
encourage minority and disadvantaged in technological innovation." For
purposes of this program "minority and disadvantaged individual is defined as
a member of any of the following groups: Black Americans, Hispanic Americans,
Native Americans, Asian Pacific Americans, or Subcontinent Asian Americans."
48 C.F.R. §§ 419.201-72(a), 419.202-71(a) (1994): The Department of
Agriculture small disadvantaged business regulations state that "[t]he
Department is required. .to establish fiscal year goals for the procurement
preference programs" and mandate "[establishing aggressive minority and
women-owned business goals based on the annual review of advance acquisition
plans."
48 C.F.R. § 422.804-2 (1994): Affirmative action program provision relating
to the Department of Agriculture which states that "each contracting office
awarding nonexempt construction contracts maintains a current listing of
covered geographical areas subject to affirmative action requirements specifying
goals for minorities and women in covered construction."
48 C.F.R. $ 452.215-71 (1994): Department of Agriculture instructions for
the preparation of technical and cost or pricing proposals state that the contract
offeror "[i]ndicate what positive efforts your company will take to implement the
concepts of equal employment under the proposed contract" and state the extent
of minority enterprise participation "goals the contractor has set in the past five
(5) years and his actual performance against these goals."
Banking
12 U.S.C.S. $ 1441a(r-w): Provides for various incentives, including
"preference points" on proposals and minority capital assistance programs, to
preserve and expand bank ownership by minorities and women; authorizes
establishment of Resolution Trust Corporation guidelines to achieve parity in
distribution of RTC contracts, and "reasonable goals" for subcontracting, to
minority and women-owned businesses and firms; and provides a "[m]inority
preference in acquisition of institutions in predominantly minority
neighborhoods."¹
15
As amended by §3(a) of the Resolution Trust Completion Act, P.L. 103-204, 107 Stat.
2369, 2375 (1993).
CRS-8
12 U.S.C.S. § 1823(f)(12): Authorizes Federal Deposit Insurance
Corporation (FDIC) approval of minority-controlled bank acquisitions by
minority-controlled holding companies without regard to asset size.
12 U.S.C.S. § 2219c: Requires that "all institutions of the Farm Credit
System with more than 20 employees shall establish and maintain an affirmative
action program plan that applies the affirmative action standards otherwise
applied to contractors of the Federal Government."
12 U.S.C.S. § 2907: Any donation or sale on favorable terms of bank
branch in minority neighborhood to minority or women-owned depository
institution shall be a factor in determining the seller or donor institution's
compliance with the Community Reinvestment Act.
12 C.F.R. § 4.63 (1994): Establishes Contracting Outreach Program for the
Office of Comptroller of the Currency to "ensure that minority and women-
owned businesses have the opportunity to participate, to the maximum extent
possible, in contracts awarded by the OCC." "Minority means any African
American, Native American.
Hispanic American, Asian-Pacific American, or
Subcontinent-Asian American."
12 C.F.R. Part 361, §§ 361.2, 361.10 (1994): Federal Deposit Insurance
Corporation "Minority and Women Outreach Program" states "policy of the FDIC
that minorities and women and entities owned by minorities and women shall
have maximum practicable opportunity to participate in [FDIC] contracts" and
requires prime contractors "to carry out the FDIC minority and women-owned
business contracting policy in the awarding of subcontracts to the fullest extent,
consistent with the efficient performance of the awarded contract."
For this purpose "minority" means "any Black American, Native American
Indian, Hispanic American, or Asian American."
12 C.F.R. §§ 517.5, 517.7 (1994): The Minority, Women, and Individuals
with Disabilities Outreach Program of the Office of Thrift Supervision (OTS)
defines "[o]utreach activities" to include "identification and registration of
minority-, women-owned (small and large) businesses" and "[m]onitoring
proposed purchases to assure that OTS contracting staff understand and
actively promote the outreach program." Contract award guidelines state that
"[t]he OTS Outreach Program Advocate shall work to facilitate the maximum
participation of minority and women-owned.
.businesses.
.in
the
OTS
procurement of goods and services."
12 C.F.R. Part 1507 (1994): Minority and Women Contracting Outreach
Program of the Thrift Depositor Protection Oversight Board requires the
Board's staff to formulate guidelines providing opportunities, "to the maximum
extent possible, for the inclusion of minorities and women," and entities owned
by them, in the performance of Board contracts; to undertake specified outreach
activities; and to report periodically on minority and women-owned business
participation in the contracting process, and as subcontractors on Board
CRS-9
contracts. "Minority" means "Black American, Native American, Hispanic
American, or Asian American."
12 C.F.R. Part 1617 (1994): Minority and Women Outreach and
Contracting Program of the Resolution Trust Corporation (RTC) describes a
variety of outreach activities ($ 1617.11); provides procedures for certification
of minority and women-owned businesses (§ 1617.13); provides "incentives" and
"bonus considerations" to RTC prime contractors "who demonstrate[ a
commitment to subcontract at least 25 percent or more of the work" to minority
or women-owned firms (§ 1617.30); and "reserves the right to award a contract
directly to a MWOB either by technical competition or by con-competitive
award." "Technical and cost bonus points" may be awarded to contractors with
an "eligible subcontracting plan" for women and minorities (§ 1617.60). A
special outreach program is provided to promote participation of minority and
women-owned law firms in RTC legal services contracting (§ 1617.90).
13 C.F.R. §§ 317.19(b), 317.35 (1994): "No grant shall be made. .for any
project" under the Local Public Works Capital Development and Investment
Program "unless at least 10 percent of the amount of such grant will be
expended for contracts with and/or supplies from minority business enterprises."
All applications for assistance must contain certification to that effect.
"Minority group member means a citizen of the United States who is Negro,
Spanish-speaking, Oriental, Indian, Eskimo, or Aleut." (13 C.F.R. 317.2).
Commerce
Executive Order 11625 (1971): Directs the Secretary of Commerce "[w]ith
the participation of other Federal departments and agencies. .[t]o develop
comprehensive plans and specific program goals for the minority enterprise
program; establish regular performance monitoring and reporting systems to
assure that goals are being achieved; and evaluate the impact of Federal support
in achieving the objectives established by the order." See also Executive Order
12138 (Women-owned Business Enterprise Program).
15 C.F.R. § 24.21(h) (1994): Grantees and subgrantees of certain grants
and cooperative agreements to state and local government "are encouraged to
use minority banks (a bank which is owned at least 50 percent by minority
group members)."
15 C.F.R. $ 917.11(d) (1994): A "factor considered" in the approval of
proposals under the Sea Grant Matched Funding Program "will be the potential
of the proposed program to stimulate interest in marine related careers among
those individuals, for example, minorities, women, and the handicapped whose
previous background or training might not have generated such an interest."
15 C.F.R. § 2301.3 (1994): The National Telecommunications and
Information Administration of the Department of Commerce, in administering
the Public Telecommunications Facilities Program, "will give special
CRS-10
consideration to applications that foster ownership and control of, operation of,
and participation in public telecommunication entities by minorities and
women."
48 C.F.R. $ 1319.7003(a) (1994): Directs contracting officers of the
Commerce Department to "provide assistance to prime contractors to identify
potential women-owned small businesses. Such assistance is intended to aid
prime contractors in placing a fair proportion of subcontracts with women-
owned businesses."
Communications
47 U.S.C.S. $ 309(j)(4)(D): In radio licensing proceedings, the Federal
Communications Commission is directed to prescribe regulations to "ensure that
small businesses, rural telephone companies, and businesses owned by members
of minority groups and women are given the opportunity to participate in the
provision of spectrum-based services, and, for such purposes, consider the use
of tax certificates, bidding preferences, and other procedures."
47 C.F.R. § 73.3555(d)(2)(i)(1994): Federal Communication Commission
(FCC) multiple ownership rules provide exemption for "minority-controlled"
broadcast facilities from certain restrictions on the granting or transfer of
commercial TV broadcast stations which result in an aggregate national
audience exceeding twenty-five percent. "Minority means Black, Hispanic,
American Indian, Alaska Native, Asian and Pacific Islander." (italics in original).
47 C.F.R. $ 76.977(a),(b),(e) (1994): Minority and educational programming
used in lieu of deregulated commercial leased access capacity. "A cable operator
required by this section to designate channel capacity for commercial use
pursuant to 47 U.S.C. 532 may use any such channel capacity for the provision
of programming from a qualified minority programming source. whether or
not such source is affiliated with cable operator." "Qualified minority
programming source" means a source "that devotes substantially all of its
programming to coverage of minority viewpoints, or to programming directed at
members of minority groups, and which is over 50 percent minority-owned."
"Minority" includes "Blacks, Hispanics, American Indians, Alaskan Natives,
Asians, and Pacific Islanders."
68 F.C.C. 2d 381, 411-412 (1978). FCC policy awards a quality
enhancement credit for minority ownership and participation in station
management in the comparative licensing process. When faced with mutually
exclusive applications for the same broadcast channel, the FCC initiates a
proceeding to compare the merits of the competing applicants based on specific
factors including: diversification of control of mass media communications, full
time participation in station management by owners, proposed program service,
past broadcast record, efficient use of frequency, and character of the applicant.
Under the FCC's preference policy, ownership and active participation in station
CRS-11
management by members of a minority group are considered a plus to be
weighed in with the other comparative factors.
68 F.C.C. 2d 983 (1978): FCC "Distress Sale" Policy. Under this policy,
existing licensees in jeopardy of having their licenses revoked or whose licenses
have been designated for a renewal hearing are given the option of selling the
license to a minority-owned or controlled firm for up to seventy-five percent of
fair market value. The minority-assignee must meet the basic qualifications
necessary to hold a license under FCC regulations and must be approved by the
FCC before the transfer is consummated.
Defense
10 U.S.C.S. § 2196(j)(8): Selection criteria for manufacturing engineering
grant program established by the Secretary of Defense require proposal by
applicant "to achieve a significant level of participation by women, members of
minority groups, and individuals with disabilities through active recruitment of
students from among such persons."
10 U.S.C.S. § 2323: Establishes a goal of awarding five percent of the total
value of Department of Defense procurement, research and development,
military construction, and operation and maintenance contracts to "socially and
economically disadvantaged individuals," historically black colleges and
universities, and minority institutions in each of the fiscal years from 1987 to
2000. This requirement was extended to contracting activities of the Coast
Guard and the National Aeronautics and Space Administration by § 7105 of the
Federal Acquisition Act of 1994, P.L. 103-355, 108 Stat. 3243, 3369 (1994) which
also added a requirement that "[t]o the extent practicable," the head of each of
these agencies is to "maximize the number of minority small business concerns,
historically Black colleges and universities, and minority institutions
participating in the program."
P.L. 103-335, 108 Stat. 2259, 2652, $ 8127(a)(1994): "In entering into
contracts with private entities to carry out environmental restoration and
remediation of Kaho olawe Island, Hawaii, and the waters surrounding that
island, the Secretary of Navy shall, to the maximum extent practicable, give a
preference to small business concerns and small disadvantaged business concerns
located in the State of Hawaii. In giving the preference, the Secretary shall give
especial preference to businesses owned by Native Hawaiians."
32 C.F.R. $ 33.21(h) (1994): Department of Defense (DOD) Uniform
Administrative Requirements for Grants and Cooperative Agreements to State
and Local Governments "encourage" DOD grantees and subgrantees to use
minority banks at least 50% owned by minority group members.
48 C.F.R. § 205.207(d)(iv) (1994): States that "[f]or acquisition being
considered for historically black college and university and minority institution
CRS-12
set-aside," the proposed contract "is being considered as a 100 percent set-aside
for historically black colleges and universities (HBCUs) and minority
institutions (MIs), as defined by the clause at $252.226-7000 of the Defense
Acquisition Regulation Supplement."
48 C.F.R. Part 219, $ 219.000 (1994): DOD regulation which implements
"goal" in 10 U.S.C. 2323 to "[a]ward five percent of contract and subcontract
dollars to small disadvantaged business (SDB) concerns, historically black
colleges and universities (HBCUs), and minority institutions (MIs)." DOD adopts
the Small Business Act definition of "disadvantaged" individuals which
presumptively includes designated racial and ethnic minorities. See 48 C.F.R.
$ 252.219-7000; 13 C.F.R. Part 124, § 124.106(b). Specific requirements include
data collection and reporting (§ 219.202-5); eligibility criteria for program
participation (§ 219.703); subcontracting plan goals for SDB concerns and
institutions (§ 219.704); reviewing the subcontracting plan (§ 219.705-4);
solicitation provisions and contract clauses (§ 219.708); and evaluation
preference for small disadvantaged business concerns ("by adding a factor of ten
percent to the price of all offers")($ 219.7002). See also 48 C.F.R. § 226.7000
(implements the historically black college and university and minority
institution provisions of 10 U.S.C. § 2323; § 252.219-7005) (small business and
small disadvantaged business subcontracting plan on DOD contracts); §
252.219.7005 (incentive for subcontracting with small businesses, small
disadvantaged businesses, historically black colleges and universities, and
minority institutions); § 252.219-7006 (notice of evaluation preference for small
disadvantaged business concerns); and $252.226-7000 (notice of historically black
college or university and minority institution set-aside).
48 C.F.R. Chapter 2 APPENDIX I (1994): Pilot Mentor-Protege Program
is to "provide incentives to major DOD contractors, performing under at least
one active approved subcontracting plan negotiated with DOD or other Federal
agencies, to assist small disadvantaged businesses (SDBs) in enhancing their
capabilities to satisfy DoD and other contract and subcontract requirements."
Education
20 U.S.C.S. $ 1047: Authorizes grants and contracts by the Department of
Education (ED) with "historically black colleges and universit[ies]" and other
institutions of higher education serving a "high percentage of minority students"
for the purpose of strengthening their library and information science programs,
and establishing fellowships and traineeships for that purpose. 16
16
Opinions may reasonably differ as to whether federal programs that exclusively aid
"historically black colleges and universities" or other minority institutions are a form of racial
"preference." Without expressing any view on that policy issue, however, such programs are
included here only because they employ racial and ethnic criteria or classification as the basis for
distribution of federal benefits and, accordingly, at least arguably fall within the ambit of your
inquiry.
CRS-13
20 U.S.C.S. § 1063b: Authorizes ED grants to specified postgraduate
institutions "determined by the Secretary [of Education] to be making
substantial contributions to the legal, medical, dental, veterinary, or other
graduate education opportunities for Black Americans."
20 U.S.C.S. § 1069f(c): Reservation of 25% of the excess of certain
educational appropriations for allocation "among eligible institutions at which
at least 60 percent of the students are African Americans, Hispanic Americans,
Native Americans, Asian Americans, Native Americans, Native Hawaiians, or
Pacific Islanders, or any combination thereof."
20 U.S.C.S. § 1070a-41: "Priority" in selection for Model Program
Community Partnership and Counseling Grants given to program proposals
"directed at areas which have a high proportion of minority, limited English
proficiency, economically disadvantaged, disabled, nontraditional, or at-risk
students.
20 U.S.C.S. $ 1112d(d): "Special consideration" to be given "historically
Black colleges and universities" and to institutions having at least 50% minority
enrollment in making grants for teacher training and placement.
20 U.S.C.S. $ 1132b-2: In awarding facilities improvement grants, the ED
Secretary or each State higher education agency "shall give priority to
institutions of higher education that serve large numbers or percentages of
minority or disadvantaged students."
20 U.S.C.S. § 1134e: In making grants for post-graduate study, the ED
Secretary shall "consider the need to prepare a larger number of women and
individuals from minority groups, especially from among such groups which
have been traditionally underrepresented in professional and academic careers,"
and shall accord a "priority" for awards to "individuals from minority groups and
women" pursuing study in specified professional and career fields.
20 U.S.C.S. § 1134s: The ED Secretary "shall carry out a program to assist
minority, low-income, or educationally disadvantaged college students" to pursue
a degree and career in law through an annual grant or contract.
20 U.S.C.S. §§ 1135c, 1135d: The ED Secretary shall "carry out a program
of making grants to institutions of higher education that are designed to provide
and improve support programs for minority students enrolled in science and
engineering programs as institutions with a significant minority enrollment (at
least 10 percent)." Eligibility for such grants is limited to "minority institutions"
(minority enrollment in excess of 50%) or other public or private nonprofit
institutions with at least 10 percent minority enrollment.
20 U.S.C.S. § 1409(j)(2): The ED Secretary "shall develop a plan for
providing outreach services" to historically Black colleges and universities, other
higher educational institutions with at least 25% minority student enrollment,
and "underrepresented populations" in order to "increase the participation of
CRS-14
such entities" in competitions for certain grants, contracts, and cooperative
agreements.
20 U.S.C.S. § 1431(a)(3): "Priority consideration" for fellowships and
traineeships in special education and related services shall be given to
"individuals from disadvantaged backgrounds, including minority and individuals
with disabilities who are underrepresented in the teaching profession or in the
specialization in which they are being trained."
20 U.S.C.S. § 2986(b): A portion of state allotment of critical skills
improvement funds to be distributed for various purposes, including
"recruitment or retraining of minority teachers to become mathematics and
science teachers."
20 U.S.C.S. § 3156(a): Program to assist local educational agencies "which
have significant percentages of minority students" to conduct "alternative
curriculum" schools which "reflect a minority composition of at least 50 percent"
and contribute to school desegregation efforts.
20 U.S.C.S. § 3916: Fifteen percent of National Science Foundation funds
available for science and engineering education is to be allocated to faculty
exchange and other programs involving higher educational institutions with "an
enrollment which includes a substantial percentage of students who are
members of a minority group."
20 U.S.C.S. § 5205(d): No less than 10 percent of Eisenhower Exchange
Fellowship Program funds "shall be available only for participation by
individuals who are representative of United States minority populations."
20 U.S.C.S. § 6031(c)(5): ED "shall establish and maintain initiatives and
programs to increase the participation" of "researchers who are women, African-
American, Hispanic, American Indian and Alaskan Native, or other ethnic
minorities" in the activities of various authorized educational institutes.
42 U.S.C.S. § 292g(d)(3): For a three-year period beginning on October 13,
1992, historically black colleges and universities are exempted from provision
rendering certain institutions ineligible for student loan program based on high
loan default rate.
42 U.S.C.S. § 293a: "Special consideration" in scholarship grant program
to be given "health profession schools that have enrollments of underrepresented
minorities above the national average for health profession schools."
42 U.S.C.S. § 293b(3): Institutional eligibility for faculty fellowship
program based on "ability to. .identify, recruit and select individuals from
underrepresented minorities in the health profession" with potential for teaching
and educational administration.
CRS-15
42 U.S.C.S. § 1862d: At least 12 percent of amounts appropriated for the
Academic Research Facilities Modernization Program shall be reserved for
historically Black colleges and universities and other institutions which enroll
a substantial percentage of Black American, Hispanic American, or Native
American students.
34 C.F.R. § 74.12 (1994): Department of Education (ED) Uniform
Administrative Requirements for Grants to Institutions of Higher Education,
Hospitals, and Nonprofit Organizations "encourage" ED grantees and
subgrantees to use minority-owned banks. See also 34 C.F.R. § 80.21(h) (1994).
34 C.F.R. § 318.11(a)(15), (16) (1994): Includes "[t]raining minorities and
individuals with disabilities" and "minority institutions" among several optional
funding priorities under special education training program.
34 C.F.R. § 461.33(a)(2)(ii) (1994): "[P]articular emphasis" placed on
training "minority" adult educators under one aspect of adult education
demonstration grant program.
34 C.F.R. Part 607, § 607.2(b) (1994): An institution of higher education
is eligible to receive a grant under the Strengthening Institutions Program even
if it does not satisfy certain other generally applicable state authorization or
accreditation requirements if its student enrollment consists of specified
percentages of designated minority groups.
34 C.F.R. Parts 608, 609 (1994): "The Strengthening Historically Black
Colleges and Universities Program [HBCU] provides grants to Historically Black
Colleges and Universities to assist these institutions in establishing and
strengthening their physical plants, academic resources and student services so
that they may continue to participate in fulfilling the gcal of equality of
educational opportunity."($ 608.1).
34 C.F.R. § 637.1 (1994): "The Minority Science Improvement Program is
designed to effect long-range improvement in science education at predominantly
minority institutions and to increase the flow of underrepresented ethnic
minorities, particularly minority women, into scientific careers."
34 C.F.R. § 641.1 (1994): "The Faculty Development Fellowship Program
provides grants to institutions of higher education, consortia of institutions, and
consortia of institutions and nonprofit organizations to fund fellowships for
individuals from underrepresented minority groups to enter or continue in the
higher education professorate."
Energy
42 U.S.C.S. § 7141: The Secretary of Energy "may provide financial
assistance in the form of loans to any minority business enterprise under such
rules as he shall prescribe to assist such enterprises in participating fully in
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research, development, demonstration, and contract activities of the Department
to the extent he considers appropriate."
42 U.S.C.S. $ 13556: Provides that "[t]o the extent practicable, the head of
each agency shall provide that the obligation of not less than 10 percent of the
total combined amounts obligated for contracts and subcontracts by each agency"
under the Energy Policy Act of 1992 "shall be expended with" socially and
economically disadvantaged small businesses, historically Black colleges or
universities, or college and universities with more than 20 percent Hispanic or
Native American enrollment.
P.L. 103-160, 107 Stat. 1547, 1956, § 3159 (1993): Provides, as a "goal,"
that 5 percent of the combined total of funds obligated by the Department of
Energy for purposes of carrying out national security programs for fiscal years
1994 through 2000 be allocated to contracts and subcontracts with socially and
economically disadvantaged small businesses, historically black colleges and
universities, and minority institutions.
10 C.F.R. § 600.3 (1994): "Socially and economically disadvantaged" firm
or individual, for purposes of Department of Energy (DOE) financial assistance
rules, is defined to include "Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, and other specified minorities, or any other
individual found to be disadvantaged by the Small Business Administration
under § 8(a) of the Small Business Act."
10 C.F.R. 799.2, 799.7 (1994): A requirement of DOE loan guarantee
program for waste projects that "the borrower agree to take positive efforts to
maximize the utilization of small and disadvantaged business concerns in
connection with the project. For this purpose, "[d]isadvantaged business
concern means a concern which is at least 51 percent owned by one or more
socially and economically disadvantaged individuals" as defined by the Small
Business Act.
10 C.F.R. Part 800, § 800.003 (1994): Under DOE regulations setting forth
policies and procedures for the award and administration of loans to minority
small business enterprises, "[a]n individual who is a citizen of the United States
and who is a Negro, Puerto Rican, American Indian, Eskimo, Oriental, or Aleut,
or is a Spanish speaking individual of Spanish descent, is a member of a
'minority'
10 C.F.R. § 1040.101(b)(1),(2) (1994): Under DOE regulations prohibiting
discrimination in federally assisted programs, the agency is to select recipients
for compliance reviews based, among other factors, on "[t]he relative disparity
between the percentage of minorities, women, or handicapped persons, in the
relevant labor market, and the percentage of minorities, women, or handicapped
persons, employed by the recipient" or "in the population receiving program
benefits."
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Environment
P.L. 101-549, 104 Stat. 2399, 2708, § 1001 (1990): "In providing for any
research relating to the requirements of the amendments made by the Clean Air
Act Amendments of 1990 which uses funds of the Environmental Protection
Agency, the Administrator of the Environmental Protection Agency shall, to the
extent practicable, require that not less than 10 percent of total Federal funding
for such research will be made available to disadvantaged business concerns,"
defined to mean any concern with 51% of the stock owned by Black Americans,
Hispanic Americans, Native Americans, Asian Americans, Women or Disabled
Americans.
40 C.F.R. $ 33.240 (1994): Environmental Protection Agency (EPA)
procurement requirements provide that "[i]t is EPA policy to award a fair share
of subagreements to small, minority, and women's businesses. The recipient
must take affirmative steps to assure that small, minority, and women's
businesses are used when possible as sources of supplies, construction, and
services."
40 C.F.R. § 35.936-7 (1994): Grantees of EPA state and local assistance
grants "shall make positive efforts to use small business and minority owned
business sources of supplies and services. Such efforts should allow these
sources the maximum feasible opportunity to compete for subagreements to be
performed using Federal grant funds." See also 40 C.F.R. Part 35 APPENDIX
C-1 (14.) (consulting engineering agreement).
40 C.F.R. § 35.3145(d) (1994): State Water Pollution Control Revolving
Fund requirement "for the participation of minority and women owned
businesses (MBE/WBEs) will apply to assistance in an amount equaling the
grant. To attain compliance with MBE/WBE requirements, the [regional
administrator] will negotiate an overall 'fair share' objective with the State for
MBE\WBE participation on these SRF funded activities. A fair share objective
should be based on the amount of the capitalization grant award or other State
established goals." See also 40 C.F.R. § 35.4066(g) (1994) (grants for technical
assistance).
40 C.F.R. § 35.6580 (1994): Recipients under Cooperative Agreements and
Superfund State Contracts for Superfund Response Actions "must comply with
six steps. .to insure that MBEs, WBEs, and small businesses are used whenever
possible as sources of supplies, construction, and services," including
establishment of "an annual 'fair share' objective for MBE and WBE use."
General Services Administration
41 C.F.R. §§ 105-71.121(j), 105-72.302(j) (1994): General Services
Administration (GSA) Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments "encourage" recipients
to use minority-owned and women-owned banks.
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41 C.F.R. § 105-72.504(b) (1994): 17 All recipients of GSA grants and
agreements awarded to institutions of higher education, hospitals, and other
non-profit organizations are to establish written procurement procedures to
provide for "positive efforts. .to utilize small businesses, minority-owned
businesses, and women's business enterprises, whenever possible" and to ensure
that such businesses "are utilized to the fullest extent practicable."
48 C.F.R. § 552.219-9 (1994): Small business subcontracting plan prescribed
for General Service Administration contracts requires "[g]oals, expressed in
terms of percentages of total planned subcontracting dollars, for the use of small
business concerns, small disadvantaged business concerns and, if an individual
contract is involved, women-owned small business concerns as subcontractors."
Health and Human Services
42 U.S.C.S. § 3027: State plans for grant program on aging "shall provide
assurances that special efforts will be made to provide technical assistance to
minority providers of services."
42 U.S.C.S. § 3035d: Provides that the Assistant HHS Secretary "shall
carry out, directly or through grants or contracts, special training programs and
technical assistance designed to improve services to minorities" under the Older
Americans Act.
42 C.F.R. § 52c.2 (1994): Minority Biomedical Research Support Program
makes grants to higher educational institutions with 50 percent or other
"significant proportion" of ethnic minority enrollment.
42 C.F.R. § 62.57(h) (1994): Among factors considered in making certain
State loan repayment grants to State applicants is "[t]he extent to which special
consideration will be extended to medically underserved areas with large
minority populations."
42 C.F.R. $ 64a.105(d)(2) (1994): "Preferred service" for purposes of
obligated service requirement for mental health traineeships includes service in
any public or private nonprofit entity serving 50 percent or more specified racial
or ethnic minorities.
45 C.F.R §§ 74.12(h), 92.21(h), 602.21(h) (1994): Department of Health and
Human Services (HHS) general administration requirements "encourage"
grantees and subgrantees to use minority banks at least 50% owned by minority
group members. Similar provisions may be found at 45 C.F.R. §§ 1050.13,
1157.21, 1174.21, 1183.21, and 1234.21.
45 C.F.R. § 1010.30-2(c)(1),(2) (1994): Civil rights program requirements
of Community Service Act grantees provide that the Office of Human Rights
17
59 Fed. Reg. 47279 (September 15, 1994).
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will consider when selecting for compliance reviews "[t]he relative disparities
between the percentage of eligible minority or female populations, if appropriate,
receiving program benefits and the percentage of eligible minorities or females,
if appropriate, in the eligible population."
48 C.F.R. § 319.705-4(d)(i)(ii) (1994): HHS small disadvantaged business
subcontracting regulation require contracting officer to insure that
"[s]ubcontracting goals for small and small disadvantaged business concerns are
specifically set forth in each contract or modification over the statutory
thresholds. See also §§ 319.705-6, 319.706.
Housing and Urban Development
24 C.F.R. § 84.22(j): 18 All recipients of Department of Housing and Urban
Development (HUD) grants and agreements awarded to institutions of higher
education, hospitals, and other non-profit organizations "shall be encouraged to
use women-owned and minority-owned banks (a bank which is owned at least
50 percent by women or minority group members)." Same provisions apply to
use of lump-sum grants under this program, 24 C.F.R. § 84.82(c)(2), a related
HUD state and local grant and cooperative agreement program, 24 C.F.R. §
85.21(h) (1994), and comprehensive planning assistance grants at 24 C.F.R. §
600.410(k)(2) (1994).
24 C.F.R. § 84.44(b): All recipients of HUD grants and agreements awarded
to institutions of higher education, hospitals, and other non-profit organizations
are to establish written procurement procedures to provide for "positive efforts
to utilize small businesses, minority-owned businesses, and women's business
enterprises, whenever possible" and to ensure that such businesses "are utilized
to the fullest extent practicable." Same provisions apply to procurement
standards used by recipients for the procurement of supplies, equipment, real
property and other services with federal funds. 24 C.F.R. § 84.84(e)(2)(i).
24 CFR APPENDIX A and B to SUBTITLE A § 425(a)(8) (1994): Rating
factors for award of certain HUD Public and Indian Housing Home Ownership
funds to accord maximum 10 points for "[t]he extent to which the applicant
demonstrates a firm commitment to promoting the use of minority business
enterprises and women-owned businesses, especially resident-owned businesses".
."but may not include awarding contracts solely or in part on the basis of race
or gender."
24 C.F.R. § 572.320(e) (1994): HUD will assign points in rating
applications for certain single-family home ownership grants based on "[t]he
extent to which the applicant demonstrates a firm commitment to promoting the
use of minority business enterprises and women-owned businesses". "but may
not include awarding contracts solely or in part on the basis of race or gender."
18 The provisions listed in 24 C.F.R. Part 84 are not yet codified by may be found at 59 Fed.
Reg. 47010 et seq. (September 13, 1994).
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24 C.F.R. §§ 850.33(o), .35(b), .399b)(9) (1994): Applications for Section 8
Housing Assistance Programs and Section 202 Direct Loan Program must
include a "description of minority and women representation in the ownership
of the project" and "a minority and women-owned business development plan
which shall contain specific and measurable goals and an affirmative strategy
to promote awareness and participation of such businesses in the contracting
and procurement activities generated by the project." In addition "[m]ore
favorable consideration will be given to projects with the higher percentage of
minority or women representation in the ownership of the project."
24 C.F.R. § 968.110(b) (1994): Public housing modernization program
requirements include: "the [public housing authority] shall take every action to
meet Departmental goals for awarding modernization contracts to minority
business enterprises. The PHA shall take appropriate affirmative action to
assist women's business enterprises."
24 C.F.R. § 968.320(d)(7)(vii): Public Housing Modernization program
includes requirement of comprehensive plan certifying that "[t]he PHA has
adopted the goal of awarding a specified percentage of the dollar value of the
total of the modernization contracts, to be awarded during subsequent FFYs, to
minority business enterprises and will take appropriate affirmative action to
assist resident-controlled and women's business enterprises.
48 C.F.R. § 2419.901 (1994): Department of Housing and Urban
Development (HUD) Office of Socially Disadvantaged Business Utilization is
responsible for "Department-wide goals" for contract awards "to women-owned
businesses" and monitoring and reporting with respect thereto.
48 C.F.R. $ 2426.101 (1994): States the policy of the Department of
Housing and Urban Development "to foster and promote Minority Business
Enterprise (MBE) participation in its procurement program, to the extent
permitted by law and consistent with its primary mission." For this purpose,
"minority" is defined as "Black Americans, Hispanic Americans, Hispanic
Americans, Native Americans, Asian Pacific Islanders and Asian Indian
American, and Hasidic Jewish Americans." See also 48 C.F.R. § 2452.219-70
(Small Business and Small Disadvantaged Business Subcontracting Plan to
include percentage goals).
Interior
25 C.F.R. § 276.3(c) 1994): Uniform administrative requirements for grants
by the Bureau of Indian Affairs "encourage" grantees to use minority banks.
43 C.F.R §§ 12.61(h), 12.922(j) (1994): Department of Interior Uniform
Administrative Requirements for Grants and Cooperative Agreements to State
and Local Governments "encourage" grantees and subgrantees to use minority
banks at least 50% owned by minority group members.
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43 C.F.R. § 12.944(b) (1994): Department of Interior procurement
requirements provide that "[i]t is EPA policy to award a fair share of
subagreements to small, minority, and women's businesses. The recipient must
take affirmative steps to assure that small, minority, and women's businesses
are used when possible as sources of supplies, construction, and services."
43 C.F.R. $ 27.6 (1944): Affirmative action plan requirements for recipient
of financial assistance from the Department of Interior include "specific goals
and specific timetables to which its efforts will be directed, to correct all
deficiencies and thus to increase materially the participation of minorities and
women in all aspects of its operation."
48 C.F.R. § 1419.901 (1994): Department of Interior socioeconomic program
regulations state that "[a]nnual goals for contract awards to women-owned
businesses shall be established as prescribed in 1419.202-70."
Justice
P.L. 103-322, 108 Stat. 1796, 1860, § 31001 (1994): Not less than 10
percent of the amount paid from the Local Government Fiscal Assistance Fund
created by the Violent Crime Control Act shall be expended on contracts or
subcontracts with socially and economically disadvantaged and women-owned
small businesses, historically Black colleges and universities, and higher
educational institutions with more than 40 percent Hispanic student enrollment.
28 C.F.R. $ 0.18a (1994): Provides that Director of the Office of Small and
Disadvantaged Business Utilization within the Department of Justice shall
"[e]stablish Department goals for the participation by small businesses,
including small businesses owned and controlled by socially and economically
disadvantaged individuals, in Department procurement contracts."
28 C.F.R. § 42.206 (c)(1) (1994): Recipients of Criminal Justice
Improvement Act funds shall be selected for post-award compliance reviews in
part on the basis of "[t]he relative disparity between the percentage of
minorities, or women, in the relevant labor market, and the percentage of
minorities, or women, employed by the recipient."
28 C.F.R. § 66.21(h) (1994): Uniform requirements by the Justice
Department for administration of state and local grants and cooperative
agreements "encourage" grantees and subgrantees to use minority banks at least
50 percent owned by minority groups.
Labor
29 U.S.C.S. § 718b(b): Directs the Commissioner of the Rehabilitation
Services Administration to develop an "outreach" policy for "recruitment of
minorities into the field of vocational rehabilitation, counseling and related
CRS-22
disciplines" and for "financially assisting Historically Black Colleges and
Universities, Hispanic-serving institutions of higher education, and other
institutions of higher education whose minority enrollment is at least 50
percent."
29 U.S.C.S. $ 771a: Authorizes grants for personnel projects relating to
training, traineeships and related activities to historically Black colleges and
universities and other higher educational institutions with at least 50% minority
student enrollment.
20 C.F.R. § 627.430(g) (1994): Recipients and subrecipients of Job Training
Partnership Act funds are "encouraged to use minority-owned banks (a bank
which is owned at least 50 percent by minority group members)."
20 C.F.R. § 653.111 (a), (b)(3) (1994): State agencies participating in the
administration of Services for Migrant and Seasonal Farmworkers, under the
United States Employment Service, are to develop affirmative action plans
which contain "a comparison between the characteristics of the staff and the
workforce and determine if the composition of the local office staff(s) is
representative of the racial and ethnic characteristics of the workforce in the
local office service area(s)." "On a statewide basis, staff representative of the
racial and ethnic characteristics in the workforce shall be distributed in
substantially the same proportion among (1) all 'job groups' .and (2) all offices
in the plan(s)."
29 C.F.R. §§ 89.52(d), 89.72(d), 95.22(j), 97.21(h), 1470.21(h) (1994):
Administrative requirements for Department of Labor (DOL) Project Grants to
State and Local Governments, higher educational institutions, and other
programs, "encourage" grantees to use minority banks.
29 C.F.R. § 95.44(b) (1994): 19 All recipients of DOL grants and
agreements awarded to institutions of higher education, hospitals, and other
non-profit organizations are to establish written procurement procedures to
provide for "positive efforts. .to utilize small businesses, minority-owned
businesses, and women's business enterprises, whenever possible" and to ensure
that such businesses "are utilized to the fullest extent practicable."
48 C.F.R. Part 2919, $ 1919.202-70 (1994): Small disadvantaged business
program regulations of the Department of Labor require "Heads of Contracting
Activities [to] develop annual goals for each category of small business and small
disadvantaged business utilization programs, which shall include projected
acquisition awards to small businesses, minority businesses, 8(a) concerns,
women-owned businesses, and HBCU."
19
59 Fed. Reg. 38281 (July 27, 1994).
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National Aeronautics and Space Administration
42 U.S.C.S. § 2473b: NASA Administrator is required to annually establish
a goal of at least eight percent of the total value of prime and subcontracts
awarded in support of authorized programs to be made to small disadvantaged
businesses, as defined by $ 8(a) of the Small Business Act, "including Historically
Black Colleges and Universities and minority educational institutions.
48 C.F.R. § 1819.705-4 (1994): Small disadvantaged business subcontracting
regulation of the National Aeronautics and Space Administration (NASA) states
that "NASA contracting officers may accept as an element of a subcontracting
plan the prime contractor's intention to use total small business, small
disadvantaged business, women-owned business, historically black college and
university, or minority educational institution set-asides in awarding
subcontracts so long as such set-asides are competitive and awards are made at
reasonable prices." See also § 1819.7003 (agency goal of awarding 8 percent of
total value of prime and subcontracts to "small disadvantaged business concerns,
Historically Black Colleges and Universities, and minority educational
institutions. "); and § 1815.219-76 (prescribed clause for NASA contracts
incorporating 8 percent goal for "small business concerns or other organizations
owned or controlled by socially and economically disadvantaged individuals
(including women), Historically Black Colleges and Universities, and minority
educational institutions").
Small Business
41 U.S.C.S. § 417a: "Each Federal agency shall report to the Office of
Federal Procurement Policy the number of small businesses owned and
controlled by women and the number of small business concerns owned and
controlled by socially and economically disadvantaged businesses, by gender, that
are first time recipients of contracts from such agency."
13 C.F.R. $ 115.30(c) (1994): The Small Business Administration (SBA)
Surety Bond Guarantee program indemnifies sureties for 90 percent of losses
incurred on certain bonds "issued on behalf of a small concern owned and
controlled by socially and economically disadvantaged individuals," including
"Black Americans, Hispanic Americans, Native Americans, Asian Pacific
Americans, Subcontinent Asian Americans, and other minorities or any other
individual found to be disadvantaged by SBA.
13 C.F.R. 125.4 (1994): Small Business Administration requirement "[t]hat
separate goals for the participation by small business concerns and small
disadvantaged business in Government procurement contracts and subcontracts
thereunder shall be established annually by the head of each Federal agency
following consultation with the SBA, and that the Administrator of the Office
of Federal Procurement Policy shall establish the goal whenever there is
disagreement between a Federal agency head and the SBA.
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13 C.F.R. § 143.21(h) (1994): Grantees and subgrantees under SBA
program of grants and cooperative agreements with state and local governments
are "encouraged to use minority banks (a bank which is owned at least 50
percent by minority group members)."
State Department and Foreign Affairs
22 U.S.C.S. $ 4852(d): Not less than 10 percent of the amount appropriated
for diplomatic construction or designed projects each fiscal year shall be
allocated to the extent practicable for contracts with American minority
contractors.
22 U.S.C.S. § 4864(e): Not less than 10 percent of the amount of funds
obligated for local guard contracts for Foreign Service buildings shall be
allocated to the extent practicable for contracts with minority small business
contractors.
P.L. 103-306, 108 Stat. 1608, § 555 (1994): Provides for a 10 percent set-
aside of the aggregate amount of certain appropriations to the Agency for
International Development--the Development Assistance Fund, Population,
Development Assistance, and the Development Fund for Africa--for socially and
economically disadvantaged U.S. businesses and private voluntary organizations,
historically black colleges and universities, and higher educational institutions
with more than 40 percent Hispanic student enrollment.
Government procurement agreements. The United States has entered
into procurement obligations under the North American Free Trade Agreement
(NAFTA) (Chapter Ten) and the Uruguay Round Agreement on Government
Procurement under which the United States agrees, among other things, to
accord national treatment to products, services, and suppliers of other parties
with respect to government contracts entered into by named agencies above
certain threshold amounts. In both the NAFTA and the Uruguay Round
Agreement (as well as in earlier trade agreements), the United States has taken
a reservation stating that agreement obligations will not apply to set asides on
behalf of small and minority businesses (NAFTA, Chapter 10, Annex 1001.2b,
General Notes, Schedule of the United States, Note 1; Uruguay Round
Agreement on Government Procurement, Annex of the United States, General
Note 1).
22 C.F.R. § 145.44(b) (1994): All recipients of Department of State grants
and cooperative agreements awarded to institutions of higher education and
other non-profit organizations are to establish written procurement procedures
to provide for "positive efforts. .to utilize small businesses, minority-owned
businesses, and women's business enterprises, whenever possible" and to ensure
that such businesses "are utilized to the fullest extent practicable." Same
provisions apply pursuant to uniform administrative requirements prescribed by
22 C.F.R. 518.44(b) (1994).
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48 C.F.R. § 652.219-70 (1994): Clause in Department of State contracts
requiring disadvantaged and minority subcontracting goals. See also 48 C.F.R.
§§ 619.201(b), 619.708-70.
48 C.F.R. § 706.302-71 (1994): Agency for International Development (AID)
requirement that "[e]xcept to the extent otherwise determined by the
Administrator, not less than ten percent of amounts made available for
development assistance and for assistance for famine recovery and development
in Africa shall be used only for activities of disadvantaged enterprises."
"Disadvantaged enterprise" means concerns owned and controlled by "socially
and economically disadvantaged individuals," as defined by FAR (48 C.F.R. §
19001(b)20 to be members of designated racial and ethnic minority groups,
"Historically Black Colleges and Universities," and "colleges and universities
having a student body in which more than 40 percent of the students are
Hispanic American." 48 C.F.R. $ 726.101(b).
48 C.F.R. Part 419 (1994): Socioeconomic Program policies of AID state
that "[w]here practicable and desirable, small business and minority goals will
be established for procuring activities (§ 719.270(e)); and mandates that the
AID Office of Small Disadvantaged Business develop "a plan of operation
designed to increase the share of contracts awarded to small business concerns,
including small minority business enterprises" (§ 719.271-2(6)). Disadvantaged
enterprises include socially and economically disadvantaged concern, historically
black colleges and universities, and higher educational institutions with more
than 40 percent Hispanic student enrollments (§§ 726.201, 752.226-1,2).
Transportation
49 U.S.C.S. § 47107(e)(1): Requires federally aided airport operators to
insure "to the maximum extent practicable" that at least 10% of contracts for
consumer services to the public be placed with "small business concerns owned
and controlled by a socially and economically disadvantaged individual.
The statute incorporates the Small Business Act definition of that term "except
that women are presumed to be socially and economically disadvantaged." (49
U.S.C.A. $ 47113(a)(2)).
P.L. 102-240, 105 Stat. 1914, 1919, § 1003(b) (1991): "Except to the extent
that the Secretary [of Transportation] determines otherwise, not less than 10
percent of the amounts authorized to be appropriated" under various Titles of
the Intermodal Surface Transportation Act of 1991 "shall be expended with
small business concerns owned and controlled by socially and economically
disadvantaged individuals;" the statute incorporates the SBA presumption in
favor of racial minorities (15 C.F.R. $ 637(d) and further provides that "women
shall be presumed to be socially and economically disadvantaged individuals for
purposes of this subsection."
20
Supra p. 5.
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49 C.F.R. Part 23, subpart C (1994): Minority-business enterprise program
requirements for recipients and applicants under Department of Transportation
financial assistance programs. DOT approved MBE affirmative action programs
are to include recipient's "overall goals and a description of the methodology to
be used in establishing them" (§ 23.43) and separate "contract goals for firms
owned and controlled by minorities and firms owned and controlled by women,
respectively" (§ 23.45). Rules for counting MBE participation toward meeting
applicable goals (§ 23.47). The regulations further provide that a prime
contractor unable to satisfy a particular contract's minority goal may
nevertheless be awarded the contract if its "best efforts" were made to achieve
the goal (§§ 23.45(g)(2)(ii), 23.45(h)). Several elements are considered in
determining whether a prime contractor failing to meet its goal in fact made a
good faith effort to comply (§ 23.45, app. A).
49 C.F.R. Part 23, subpart D (1994). Implementation of $105(f) of the
Surface Transportation Assistance Act of 1982. DOT regulations establish a
rebuttable presumption that women, Black-Americans, Hispanics, Native
Americans, Asian-Pacific Americans, Asian-Americans and those individually
certified under § 8(a) of the Small Business Act are socially and economically
disadvantaged (§ 23.62). Recipients of surface transportation funds must
establish overall goal for disadvantaged business participation on funded projects
(§ 23.64) and, absent a waiver by the DOT Secretary, must insure that at least
ten percent of monies expended on federally assisted projects go to such
enterprises (§§ 23.61(a), 23.63). "If a recipient fails to meet an approved goal,
it shall have the opportunity to explain to the Administrator of the concerned
Department element why the goal could not be achieved and why meeting the
goal was beyond the recipient's control," failing which the recipient is subject to
"appropriate remedial sanction" (§ 23.68).
49 C.F.R. $ 23.95 et seq. (1994): Minority business enterprise participation
standards under § 511(A)(17) of the Airport and Airway Improvement Act of
1982 provide that sponsors of airport improvement projects "shall establish an
overrall goal for the participation of DBE's" as concessionaires and "[t]o the
extent practicable, shall seek to obtain DBE participation in all types of
concession activities." "Where not prohibited by state or local law and
determined. .to be necessary to meet DBE goals, procedures to implement DBE
set-asides shall be established. The DBE plan shall specify the concessions to
be set-aside." The term "disadvantaged business" means a small business concern
owned and controlled by "socially and economically disadvantaged individuals,"
defined as "women, Black Americans, Hispanic Americans, Native Americans,
Asian-Pacific Americans, or Asian-Indian Americans and any other minorities
or individuals found to be disadvantaged" by the SBA, and the regulation
incorporates a "rebuttable presumption" that certain designated racial and ethnic
groups are socially and economically disadvantaged. See 49 C.F.R. §§ 23.89,
23.62.
49 C.F.R. § 265.13 (1994): Federal Railroad Administration regulations
barring discrimination in federally assisted programs require "where there are
deficiencies based on past practices, and with respect to future plans for hiring
CRS-27
and promoting employees or awarding contracts, the development of specific
goals and timetables for the prompt achievement and maintenance of full
opportunities for minority persons and MBEs with respect to programs, projects
and activities subject to this subpart.
Veterans Affairs
38 C.F.R. § 43.21(h) (1994): Department of Veterans Affairs Uniform
Administrative Requirements for Grants and Cooperative Agreements to State
and Local Governments "encourage" grantees and subgrantees to use minority
banks at least 50% owned by minority group members.
48 C.F.R. § 819.202-5(c) (1994): Department of Veterans Affairs regulations
require "all acquisition activities [to] submit information and procurement
preference goals" for "minority direct business awards," "women-owned business
awards," and "[s]ubcontracts to be awarded to small disadvantaged business
concerns."
Other
36 C.F.R. Part 906 (1994): Affirmative action policy and procedures,
including goals and timetables for women and minorities, "to assure full
minority participation in activities and benefits that result from implementation
of the Pennsylvania Avenue Plan--1974."
36 C.F.R. § 1207.21(h) (1994): National Archives and Records
Administration Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments "encourage" grantees
and subgrantees to use minority banks at least 50% owned by minority group
members.
44 C.F.R §§ 13.21(h) (1994): Federal Emergency Management Agency
Uniform Administrative Requirements for Grants and Cooperative Agreements
to State and Local Governments "encourage" grantees and subgrantees to use
minority banks at least 50% owned by minority group members.
EQUAL EMPLOYMENT OPPORTUNITY LAWS
The evolution of federal law and policy regarding affirmative action in
employment may be traced to a series of executive orders dating to the 1960's
which prohibit discrimination and require affirmative action by contractors with
the federal government. The Office of Federal Contract Compliance Programs,
an arm of the U.S. Department of Labor, currently enforces the E.O. 11246, as
amended, by means of a regulatory program requiring larger federal contractors,
those with procurement or construction contracts in excess of $50,000, to make
a "good faith effort" to attain "goals and timetables" to remedy underutilization
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of minorities and women. Another early Executive Order, No. 11478, was a
precursor to the 1964 Civil Rights Act and mandates affirmative action hiring
and employment policies by all federal executive department and agencies.
Public and private employers with 15 or more employees are also subject
to a comprehensive code of equal employment opportunity regulation under
Title VII of the 1964 Civil Rights Act.21 Except as may be imposed by court
order to remedy "egregious" violations of the law, or by consent decree to settle
pending claims, however, there is no general statutory obligation on employers
to adopt affirmative action measures. But the EEOC has issued guidelines to
protect employers and unions from charges of "reverse discrimination" when
they voluntarily take action to correct the effects of past discrimination.22
Federal departments and agencies, by contrast, are required to periodically
formulate affirmative action plans for their employees and a "minority
recruitment program" to eliminate minority "underrepresentation" in specific
federal job categories.
Section 717 of 1972 Amendments to Title VII of the 1964 Civil Rights Act
empowers the Equal Employment Opportunity Commission to enforce
nondiscrimination policy in federal employment by "necessary and appropriate"
rules, regulations, and orders and through "appropriate remedies, including
reinstatement or hiring of employees, with or without backpay."2 Each
federal department and agency, in turn, is required to prepare annually a
"national and regional equal employment opportunity plan" for submission to
the EEOC as part of "an affirmative program of equal employment opportunity
for
all.
.employees and applicants for employment."
Section 717 was reinforced in 1978 when Congress enacted major federal
civil service reforms including a mandate for immediate development of a
"minority recruitment program" designed to eliminate "underrepresentation" of
minority groups in specific federal job categories.²⁵ The EEOC and Office of
Personnel Management have issued rules to guide implementation and
monitoring of minority recruitment programs by individual federal agencies.
Among various other specified requirements, each agency plan "must include
annual specific determinations of underrepresentation for each group and must
21
42 U.S.C. §§ 2000e et seq.
22
29 C.F.R. Part 1608 (the guidelines state the EEOC's position that when employers
voluntarily undertake in good faith to remedy past discrimination by race- or gender-conscious
affirmative action means, the agency will not find them liable for reverse discrimination).
23
42 U.S.C. § 2000e-16(b).
24
42 U.S.C. $ 2000e-16(b)(1).
25
5 U.S.C. § 7201.
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be accompanied by quantifiable indices by which progress toward eliminating
underrepresentation can be measured."26
In addition, the following statutes and regulations relate to employment
policies of the federal government or under federal grant and assistance
programs:
5 U.S.C.S. $ 4313(5): Performance appraisal in the Senior Executive
Services to take account of individuals' "meeting affirmative action goals,
achievement of equal employment opportunity requirements, and compliance
with merit principles. #27
5 U.S.C.S. $ 7201: Establishes a "Minority Recruitment Program" for the
Executive Branch and directs each Executive agency, "to the maximum extent
possible," to "conduct a continuing program for the recruitment of members of
minorities for positions in the agency. .in a manner designed to eliminate
underrepresentation of minorities in the various categories of civil service
employment within the Federal service, with special efforts directed at recruiting
in minority communities, in educational institutions, and from other sources
from which minorities can be recruited."
22 U.S.C.S. § 4141(b): Establishes the Foreign Service Internship Program
"to promote the Foreign Service as a viable and rewarding career opportunity
for qualified individuals who reflect the cultural and ethnic diversity of the
United States.
29 U.S.C.S. § 1781(a): "A contractor subject to the affirmative action
obligations of Executive Order 11246. .may establish or participate in training
programs pursuant to this section. .which are designed to assist such
contractors in meeting the affirmative action obligations of such Executive
Order."
42 U.S.C.S. § 282(h): The Secretary of HHS, and the National Institutes
of Health, "shall, in conducting and supporting programs for research, research
training, recruitment, and other activities, provide for an increase in the number
of women and individuals from disadvantaged backgrounds (including racial and
ethnic minorities) in the fields of biomedical and behavioral research."
45 U.S.C.S. §§ 797b, 907, 1004: First right to hire of certain previously
separated or furloughed railroad employees subject to exceptions for vacancies
covered by "(1) an affirmative action plan, or a hiring plan designed to eliminate
discrimination, that is required by Federal or State statute, regulation, or
Executive order, or by the order of a Federal court or agency, or (2) a
permissible voluntary affirmative action plan."
26
5 C.F.R. § 720.205(b)(1991).
27
As amended by P.L. 103-424, 108 Stat. 4361, $ 6 (1994).
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Executive Order 11246: Prohibits employment discrimination because of
race, color, religion, sex, or national origin by nonexempt federal government
contractors and requires inclusion of an affirmative action clause in all covered
federal contracts for procurement of goods and services. Pursuant to Labor
Department regulations, larger federal contractors are required to adopt goals
and timetables to correct "underutilization" of minorities and women. See
41 C.F.R. Part 60 (discussed infra).
Executive Order 11478: States the policy of the United States government
"to provide equal opportunity in Federal employment for all persons, to prohibit
discrimination because of race, color, religion, sex, national origin, handicap, or
age, and to promote the full realization of equal employment opportunity
through a continuing affirmative program in each executive agency and
department."
Federal Regulations
5 C.F.R. Parts 729, 720 APP. (1994): Affirmative Employment Programs
of the Office of Personnel Management and Guidelines for Development of A
"Minority Recruitment Program" to Implement 5 U.S.C. § 7201.
14 C.F.R. $ 152.407, .409, .411 (1994): All grantees, sponsors, or planning
agencies, with 50 or more aviation employees who participate in projects which
receive federal airport aid funds are required to maintain "affirmative action"
plans containing "goal and timetables" derived from "[a] comparison. .of the
percent of minorities and women in the employer's present aviation workforce.
.with the percent of minorities and women. .in the total workforce" in the
SMSA or surrounding area.
23 C.F.R. $ 230.111 (1994): On-the-job training program rules for federally
assisted highway construction projects provide that "[t]he Washington
Headquarters shall establish and publish annually suggested minimum training
goals. .based on the Federal-aid apportioned amounts and the minority
population. A State will have achieved its goal if the total number of training
slot. .equals or exceeds the State's suggested minimum annual goal."
23 C.F.R. Part 230 APP. A (1994): State Highway Agency Equal
Employment Opportunity Programs. Affirmative action plans are to set
"specific, measurable, attainable hiring and promotion goals, with target dates,
in each area of underutilization" of women and minorities.
29 C.F.R. §§ 30.3-30.8 (1994): Affirmative action requirements of the
Department of Labor (DOL) for registered state apprenticeship programs
include "goals and timetable for women and minorities." "Compliance with these
requirements shall be determined by whether the sponsor has met its goals
within its timetables, or failing that, whether it had made good faith efforts to
meet its goals and timetables."
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32 C.F.R. Part 191, § 191.5(a)(8) (1994): DOD Civilian Equal Employment
Opportunity Program establishes affirmative action guidelines and procedures
for all DOD components and directs the Assistant Secretary of Defense to
"[e]nsure that realistic goals that provide for significant continuing increases in
the percentages of minorities, women, and people with disabilities in entry,
middle, and higher grade positions in all organizations and occupations are set
and accomplished until the overall DOD objective is met and sustained."
34 C.F.R. Part 100 APPENDIX VII.C. (1994): Department of Education
guidelines for eliminating discrimination in vocational education programs
provide that "[w]henever the Office for Civil Rights finds that in light of the
representation of protected groups in the relevant labor market there is a
significant underrepresentation or overrepresentation of protected group persons
on the staff of a vocational education school or program, it will presume that the
disproportion results from unlawful discrimination. This presumption can be
overcome by proof that qualified persons of the particular race, color, national
origin or sex, or that qualified handicapped persons are not in fact available in
the relevant labor market."
40 C.F.R Part 8 (1994): Environmental Protection Agency (EPA) equal
employment opportunity and affirmative action compliance requirements issued
pursuant to E.O. 11246 as applied to EPA contracts and EPA assisted
construction contracts.
41 C.F.R. Part 60 (1994): Sets forth the body of administrative rules issued
by the Office of Federal Contract Compliance Programs within the Department
of Labor to enforce the affirmative action requirements of E.O. 11246 on federal
procurement and construction contractors. All contractors and subcontractors
with federal contracts in excess of $10,000 are prohibited by the Executive Order
from discriminating and required to take affirmative action in the employer of
minority groups and women. Federal contractors and subcontractors with 50
or more employees and government contracts of $50,000 or more must develop
written affirmative action compliance programs for each of their facilities.
OFCCP rules direct these larger contractors to conduct a "utilization analysis"
of all major job classifications and explain any underutilization of minorities and
women by job category when compared with the availability of qualified
members of these groups in the relevant labor area. Based on this analysis, the
contractor's affirmative action plan must set forth appropriate goals and
timetables to which the contractor must direct its "good faith efforts" to correct
deficiencies. In addition, OFCCP has established nationwide hiring goals of 6.9
percent for women in construction, and regional and local goals for minorities
in construction, which are set out in an appendix to the agency's affirmative
action in construction regulations. 41 C.F.R. 60-4.
48 C.F.R. 22.804 (1994): Affirmative action program under Federal
Acquisition Regulations requires written affirmative action plans of federal
nonconstruction prime and subcontractors with 50 or more employees that
comply with DOL regulations to assure equal opportunity in employment to
minorities and women.
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48 C.F.R. 52.222-23, 52.222-27 (1994): Prescribes clause for inclusion of
federal contracts that requires "[g]oals for minority and female participation,
expressed in percentage terms for the Contractor's aggregate workforce in each
trade on all construction work in the covered area" and "to make a good faith
effort to achieve each goal under the plan in each trade in which it has
employees."
48 C.F.R. 922.804-2 (1984): Department of Energy regulations
implementing the affirmative action plan requirements of E.O. 11246.
It is hoped that this is of assistance to you.
Charles V. Dale
Legislative Attorney