1
500
7
-
https://clinton.presidentiallibraries.us/files/original/daf47799c28cf7d1d6ff422b882c20c3.pdf
62b109fe09dded53fb8fc73ff7ca6100
PDF Text
Text
Clinton Presidential Library
1200 President Clinton Avenue
Little Rock, AR 72201
Inventory for FOIA Request 2008-0308-F
Records relating to Affirmative Action in 1995
Extent
Approximately 533 folders, 49520 pages
Access
Collection is open to all researchers. Access to Clinton Presidential Records is governed by the
Presidential Records Act (PRA) (44 USC 22) and the Freedom of Information Act (FOIA) (5 USC 552
as amended) and therefore records may be restricted in whole or in part in accordance with legal
exemptions.
Copyright
Documents in this collection that were prepared by officials of the United States government as part of
their official duties are in the public domain. Researchers are advised to consult the copyright law of the
United States (Title 17, USC) which governs the making of photocopies or other reproductions of
copyrighted material.
Provenance
Official records of William Jefferson Clinton’s presidency are housed at the Clinton Presidential Library
and administered by the National Archives and Records Administration (NARA) under the provisions of
the Presidential Records Act (PRA).
Processed by
Staff Archivist, 2011. Previously restricted materials are added as they are released.
Scope and Content
The materials in FOIA 2008-0308-F are a selective body of documents responsive to the topic of the
FOIA. Researchers should consult the archivist about related materials.
On July 19, 1995 President Clinton gave an address in the National Archives Rotunda concerning
Affirmative Action. In his remarks President Clinton announced that affirmative action was still needed
to right past wrongs. Specifically in his speech he said that the slogan for affirmative action was “mend
it, don’t end it.” He admited that there had been abuses of affirmative action, but that when done
correctly it could be an effective tool to give all Americans an equal opportunity. He also gave specific
instructions in a memo to the Heads of Executive Federal Departments and Agencies instructing them
that the policy principles of any affirmative action program must be eliminated or reformed if it:
(a) creates a quota;
(b) creates preferences for unqualified individuals;
(c) creates reverse discrimination; or
(d) continues even after its equal opportunity purposes have been achieved.
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
1
�President Clinton’s speech and memo were the result of a review of affirmative action programs in
federal agencies that he had called for in March of 1995. Affirmative action had become a politically
devisive issue in large part because of the University of California vote to eliminate all race-based
programs in hiring and college admissions, California’s Governor Pete Wilson desire to abolish race and
gender-based preferences in government employment and education, and the Supreme Court hearing the
case Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).
President Clinton advised his staff to study all affirmative action programs in federal agencies. He
named Christopher Edley as the director of the White House Affirmative Action Review team. Edley
worked closely with George Stephanopoulos in the Chief of Staff’s office and Deval Patrick of the Civil
Rights Divison within the Department of Justice, and the White House Counsel’s Office in reviewing
the affirmative action programs in the federal government. The review team requested that each federal
agency compile comprehensive information detailing all the affirmative action programs administered
by the agency with detailed analysis of the program strengths and weaknesses. As a result of the review
the team created the “Affirmative Action Review Report to the President,” dated July 19, 1995.
On June 12, 1995 during the White House’s review of affirmative action programs the Supreme Court
decided on the Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) case that set new standards in
federal affirmative action programs. The Supreme Court declared that affirmative action programs
needed to be “narrowly tailored,” and that they must have a "compelling" need to serve the
government’s interest. The day following the Supreme Court’s decision President Clinton released a
statement reaffirming that the Supreme Court had not abolished affirmative action rather that they had
set a higher standard for affirmative action. Due to the Supreme Court’s decision the White House’s
affirmative action review team was forced to incorporate the Adarand decision into their review. Also,
the Department of Justice issued a memorandum on June 28, 1995 to the General Counsels of federal
agencies detailing preliminary legal guidance on the implications of the Adarand decision.
FOIA request 2008-0308-F contains materials from several offices and individuals including WHORM
Subject File and White House Staff and Office Files.
The White House Office of Records Management (WHORM) Subject Categories contains primarily
correspondence to and from citizens in reference to their stance on affirmative action.
The White House Staff and Office Files contain draft and final reports, memoranda, correspondence,
draft and final speeches, contact sheets, event planning info, newspaper articles and background info.
The records come from many offices, including: Cabinet Affairs, Chief of Staff, Communications,
Counsel’s Office, Domestic Policy Council, First Lady’s Office, Legislative Affairs, National Economic
Council, President’s Initiative for One America, Press Secretary, Public Liaison, Publication’s Office,
Speechwriting, and Women’s Initiative and Outreach. The majority of responsive records are from
Christopher Edley’s Counsel files. His records were processed in their entirety.
System of Arrangement
Records that are responsive to this FOIA request were found in two collections areas - Clinton
Presidential Records: White House Office of Records Management (WHORM) and White House Staff
and Office Files.
The White House Office of Records Management (WHORM) contains a variety of series created to
organize and track documents and correpondence. The WHORM Alpha file was compiled by the White
House Office of Records Management from 1993 – 1996 and is a series of documents arranged by name
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
2
�of persons, organizations, or events. The WHORM Subject file was compiled by the White House
Office of Records Management and is a series of categories designated by a letter/number combination.
Staff and Office files were maintained at the folder level by staff members within their individual offices
and document all levels of administration activity.
WHORM files are processed at the document level; whereas, Staff and Office files are processed at the
folder level, that is, individual documents are not selected and removed from a folder for processing.
While this method maintains folder integrity, it frequently results in the incidental processing of
documents that are not wholly responsive to the subject area.
The following is a list of documents and folders processed in response to FOIA 2008-0308-F:
Box 1
Clinton Presidential Records: WHORM: Subject File
Category
Case Number
BE003
126247SS [OA/ID 21800]
FG001-07
288846SS [OA/ID 21793]
FG001-07
288883SS [OA/ID 21793]
FG001-07
288920SS [OA/ID 21793]
FG001-07
288924SS [OA/ID 21793]
FG001-07
288958SS [OA/ID 21793]
FG001-07
289038SS [OA/ID 21793]
FG001-07
289053SS [OA/ID 21793]
FG001-07
289220SS [OA/ID 21793]
FG001-07
290064SS [OA/ID 21793]
FG001-07
290662SS [OA/ID 21793]
FG001-07
290770SS [OA/ID 21793]
FG001-07
290777SS [OA/ID 21793]
FG024
117896 [OA/ID 21886]
HU012
102279SS [OA/ID 23338]
HU012
104529SS [OA/ID 23338]
Box 2
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
2008-0308-F
106814SS [OA/ID 23338]
107231SS [OA/ID 23338]
109246 [OA/ID 23338]
116014SS [OA/ID 23362]
118797 [OA/ID 23338]
118056SS [OA/ID 23338]
120182 [OA/ID 23362]
120342SS [1] [OA/ID 23338]
120342SS [2] [OA/ID 23338]
120742 [OA/ID 23362]
120753 [OA/ID 23362]
120758 [OA/ID 23362]
120772 [OA/ID 23362]
120778 [OA/ID 23362]
121051 [OA/ID 23362]
121094SS [1] [OA/ID 23362]
Clinton Library’s web site http://www.clintonlibrary.gov
3
�Clinton Presidential Records: WHORM: Subject File (continued)
Category
Case Number
HU012
121094SS [2] [OA/ID 23362]
HU012
121094SS [3] [OA/ID 23362]
HU012
121246 [OA/ID 23362]
Box 3
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
HU012
SO003
121363 [OA/ID 23362]
121411 [OA/ID 23362]
121475 [OA/ID 23362]
121595 [OA/ID 23362]
121738 [OA/ID 23362]
121789 [OA/ID 23362]
121805SS [OA/ID 23362]
121807 [OA/ID 23362]
122086 [OA/ID 23362]
122089 [OA/ID 23362]
122105 [OA/ID 23362]
122121 [OA/ID 23362]
122125 [OA/ID 23362]
122146SS [OA/ID 23362]
122213 [OA/ID 23362]
122284 [OA/ID 23362]
122644 [OA/ID 23362]
122651 [OA/ID 23362]
123529 [OA/ID 23362]
101975SS [OA/ID 14026]
Clinton Presidential Records: White House Staff and Office Files
Cabinet Affairs
Balderstrom, Kris
Affirm. [Affirmative] Action [1] [OA/ID13190]
Affirm. [Affirmative] Action Plans [1] [OA/ID 13190]
Affirm. [Affirmative] Action Plans [2] [OA/ID 13190]
Higgins, Kitty
Box 1, Folder 1: [Affirmative Action – March 20, 1995 to May 22, 1996] [1] [OA/ID
8996]
Box 1, Folder 1: [Affirmative Action – March 20, 1995 to May 22, 1996] [2] [OA/ID
8996]
Box 4
Box 1, Folder 1: [Affirmative Action – March 20, 1995 to May 22, 1996] [3] [OA/ID
8996]
Box 1, Folder 1: [Affirmative Action – March 20, 1995 to May 22, 1996] [4] [OA/ID
8996]
Box 1, Folder 1: [Affirmative Action – April 1995 to March 1995] [OA/ID 9875]
Hyde, David; Bibb Hubbard, Katherine; Sanford, Stephanie; Goldberg, Jason
Affirmative Action [OA/ID 11678]
McGuire, Anne
Affirmative Action Review Report to the President [OA/ID 11542]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
4
�Clinton Presidential Records: White House Staff and Office Files (continued)
Cabinet Affairs
O’Connor, Jennifer
Affirmative Action [1] [OA/ID 6500]
Affirmative Action [2] [OA/ID 6500]
Affirmative Action [3] [OA/ID 6500]
Affirmative Action Speech and Adarand Decision 7/19/1995 [OA/ID 6500]
Box 5
Subject File
Affirmative Action – 7/18/95 [July 18, 1995] [OA/ID 9534]
Chief of Staff
Ickes, Harold
Affirmative Action – 1995 – General [Folder 1] [1] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 1] [2] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 1] [3] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 2] [1] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 2] [2] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 3] [1] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 3] [2] [OA/ID 9162]
Box 6
Affirmative Action – 1995 – General [Folder 3] [3] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 3] [4] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 3] [5] [OA/ID 9162]
Affirmative Action – 1995 – General [Folder 3] [6] [OA/ID 9162]
Affirmative Action – White House [OA/ID 9163]
O’Connor, Jennifer
DOJ [Department of Justice] – Affirmative Action [OA/ID 8162]
Panetta, Leon
[Booklets] – [July 19, 1995 – Affirmative Action Review Report to the President]
[OA/ID 7758]
Shin, Clara
Affirmative Action Review 1995 (Edley) [1] [OA/ID 23701]
Affirmative Action Review 1995 (Edley) [2] [OA/ID 23701]
Box 7
Stephanopoulos, George
AA [Affirmative Action] “Carefully Tailored” [OA/ID 5930]
AA [Affirmative Action] POTUS Memo(s) [OA/ID 5930]
AA [Affirmative Action] POTUS Memos (Chron) [Chronological] [1] [OA/ID 5930]
AA [Affirmative Action] POTUS Memos (Chron) [Chronological] [2] [OA/ID 5930]
AA [Affirmative Action] POTUS Memos (Chron) [Chronological] [3] [OA/ID 5930]
AA [Affirmative Action] POTUS Memos (Chron) [Chronological] [4] [OA/ID 5930]
AA [Affirmative Action] – Press Releases/Interviews [1] [OA/ID 5930]
AA [Affirmative Action] – Press Releases/Interviews [2] [OA/ID 5930]
AA [Affirmative Action] – Review Inventory [OA/ID 5930]
AA [Affirmative Action] Review Team – Communications [OA/ID 5930]
AA [Affirmative Action] Work Plan Speech [OA/ID 5930]
AA [Affirmative Action] Work Plans [OA/ID 5930]
Affirmative Action [OA/ID 5846]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
5
�Box 8
Clinton Presidential Records: White House Staff and Office Files (continued)
Chief of Staff
Stephanopoulos, George
Affirmative Action [1] [OA/ID 5186]
Affirmative Action [2] [OA/ID 5186]
Affirmative Action [3] [OA/ID 5186]
Affirmative Action [4] [OA/ID 5186]
Affirmative Action [1] [OA/ID 5682]
Affirmative Action [2] [OA/ID 5682]
Affirmative Action [1] [OA/ID 5761]
Box 9
Affirmative Action [2] [OA/ID 5761]
Affirmative Action [3] [OA/ID 5761]
Affirmative Action – Adarand Constructors Inc. vs. Pena [1] [OA/ID 5627]
Affirmative Action – Adarand Constructors Inc. vs. Pena [2] [OA/ID 5627]
Affirmative Action – Adarand Constructors Inc. vs. Pena [3] [OA/ID 5627]
Affirmative Action – Adarand Constructors Inc. vs. Pena [4] [OA/ID 5627]
Affirmative Action: Affirmative Action [OA/ID 5682]
Affirmative Action/CCRI [California Civil Rights Initiative] [OA/ID 8036]
Box 10
Affirmative Action Core 6 [1] [OA/ID 5930]
Affirmative Action Core 6 [2] [OA/ID 5930]
Affirmative Action Core 6 [3] [OA/ID 5930]
Affirmative Action – General [OA/ID 5930]
Affirmative Action Review Appendices (vol 2) [Binder] [1] [OA/ID 5930]
Affirmative Action Review Appendices (vol 2) [Binder] [2] [OA/ID 5930]
Affirmative Action Review Report to the President [book, loose] [OA/ID 5930]
Affirmative Action Review Team [1] [OA/ID 5930]
Affirmative Action Review Team [2] [OA/ID 5930]
Box 11
Affirmative Action Work Plans – “Framework” [1] [OA/ID 5930]
Affirmative Action Work Plans – “Framework” [2] [OA/ID 5930]
Affirmative Action Work Plans – “Speech/Rollout” [1] [OA/ID 5930]
Affirmative Action Work Plans – “Speech/Rollout” [2] [OA/ID 5930]
DOJ – Deval Patrick – Affirmative Action Package [OA/ID 5627]
Minority Discharge – Affirmative Action [OA/ID 5848]
Pete Wilson & Affirmative Action [OA/ID 5846]
POTUS Directive 6/27 [1] [OA/ID 5930]
POTUS Directive 6/27 [2] [OA/ID 5930]
[The Status of Affirmative Action in California] [1] [loose] [OA/ID 5188]
[The Status of Affirmative Action in California] [2] [loose] [OA/ID 5188]
Subject File
Affirmative Action [OA/ID 6421]
Box 12
Communications
Government Documents & Briefing Papers re: Affirmative Action [1] [OA/ID 23978]
Government Documents & Briefing Papers re: Affirmative Action [2] [OA/ID 23978]
Government Documents & Briefing Papers re: Affirmative Action [3] [OA/ID 23978]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
6
�Clinton Presidential Records: White House Staff and Office Files (continued)
Communications
Affirmative Action – Facts & Statistics [1] [OA/ID 23978]
Affirmative Action – Facts & Statistics [2] [OA/ID 23978]
Affirmative Action “Mend don’t End” [OA/ID 23978]
Affirmative Action – Newspaper, Journal & Magazine Articles [1] [OA/ID 23978]
Affirmative Action – Newspaper, Journal & Magazine Articles [2] [OA/ID 23978]
Box 13
Affirmative Action – Newspaper, Journal & Magazine Articles [3] [OA/ID 23978]
Affirmative Action – Newspaper, Journal & Magazine Articles [4] [OA/ID 23978]
Affirmative Action – Newspaper, Journal & Magazine Articles [5] [OA/ID 23978]
Baer, Don
Affirmative Action [1] [OA/ID 10131]
Affirmative Action [2] [OA/ID 10131]
Affirmative Action [1] [OA/ID 10134]
Affirmative Action [2] [OA/ID 10134]
[Affirmative Action Speech Packet (Binder)] [1] [OA/ID 13424]
[Affirmative Action Speech Packet (Binder)] [2] [OA/ID 13424]
[Affirmative Action Speech Packet (Binder)] [3] [OA/ID 13424]
Counsel’s Office
Counsel 1995 Affirmative Action I [1] [OA/ID 18431]
Counsel 1995 Affirmative Action I [2] [OA/ID 18431]
Counsel 1995 Affirmative Action I [3] [OA/ID 18431]
Counsel 1995 Affirmative Action I [4] [OA/ID 18431]
Box 14
Counsel 1995 Affirmative Action II [1] [OA/ID 18431]
Counsel 1995 Affirmative Action II [2] [OA/ID 18431]
Counsel 1995 Affirmative Action II [3] [OA/ID 18431]
Counsel 1995 Affirmative Action II [4] [OA/ID 18431]
Counsel 1995 Affirmative Action II [5] [OA/ID 18431]
[Disk] Affirmative Action Procurement/Performance Evaluations WH Counsel 1995
[OA/ID 24671]
[Disk] Background.doc: info on Affirmative Action/PGM at Univ. of Chicago Law
[OA/ID 24671]
Castello, James
Adarand [1] [OA/ID 6724]
Adarand [2] [OA/ID 6724]
Box 15
Adarand [3] [OA/ID 6724]
Affirmative Action Vol 2 [1] [OA/ID 6724]
Affirmative Action Vol 2 [2] [OA/ID 6724]
Affirmative Action Vol 2 [3] [OA/ID 6724]
Affirmative Action Vol 2 [4] [OA/ID 6724]
Cerf, Chris
Affirmative Action [1] [OA/ID 6732]
Box 16
Affirmative Action [2] [OA/ID 6732]
Affirmative Action [3] [OA/ID 6732]
Affirmative Action Cases Overview [OA/ID 6732]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
7
�Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Connaughton, Jeff
Affirmative Action [1] [OA/ID 7442]
Affirmative Action [2] [OA/ID 7442]
Affirmative Action [3] [OA/ID 7442]
Edley, Christopher
Affirmative Action – Adarand/Post-Adarand Implications [1] [OA/ID5747]
Affirmative Action – Adarand/Post-Adarand Implications [2] [OA/ID5747]
Box 17
Affirmative Action – American Federation of Government Employees/AFL-CIO
Programs [OA/ID 5747]
Affirmative Action & Women’s Programs [1] [OA/ID 5758]
Affirmative Action & Women’s Programs [2] [OA/ID 5758]
Affirmative Action & Women’s Programs [3] [OA/ID 5758]
Affirmative Action & Women’s Programs [4] [OA/ID 5758]
Affirmative Action & Women’s Programs [5] [OA/ID 5758]
Affirmative Action California [1] [OA/ID 5747]
Affirmative Action California [2] [OA/ID 5747]
Box 18
Affirmative Action California [3] [OA/ID 5747]
Affirmative Action California [4] [OA/ID 5747]
Affirmative Action Case Studies [1] [OA/ID 5747]
Affirmative Action Case Studies [2] [OA/ID 5747]
Affirmative Action Civil Rights [OA/ID 5747]
Affirmative Action - Civil Rights Working Group [1] [OA/ID 5747]
Affirmative Action - Civil Rights Working Group [2] [OA/ID 5747]
Affirmative Action Decisions – POTUS [OA/ID 5759]
Box 19
Affirmative Action – EEOC [1] [OA/ID 5749]
Affirmative Action – EEOC [2] [OA/ID 5749]
Affirmative Action – EEOC [3] [OA/ID 5749]
Affirmative Action EEOC Research Resource Documents [1] [OA/ID 5749]
Affirmative Action EEOC Research Resource Documents [2] [OA/ID 5749]
Affirmative Action EEOC Research Resource Documents [3] [OA/ID 5749]
Affirmative Action EEOC Research Resource Documents [4] [OA/ID 5749]
Affirmative Action EEOC Research Resource Documents [5] [OA/ID 5749]
Box 20
Affirmative Action Executive Summary [1] [OA/ID 5759]
Affirmative Action Executive Summary [2] [OA/ID 5759]
Affirmative Action Executive Summary [3] [OA/ID 5759]
Affirmative Action Executive Summary [4] [OA/ID 5759]
[Affirmative Action Materials] [1] [OA/ID 5759]
[Affirmative Action Materials] [2] [OA/ID 5759]
Affirmative Action Military [1] [OA/ID 5759]
Box 21
Affirmative Action Military [2] [OA/ID 5759]
Affirmative Action Minority Business Development [1] [OA/ID 5751]
Affirmative Action Minority Business Development [2] [OA/ID 5751]
Affirmative Action Minority Business Development [3] [OA/ID 5751]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
8
�Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Edley, Christopher
Affirmative Action OFCCP Executive Order 11246 [1] [OA/ID 5752]
Affirmative Action OFCCP Executive Order 11246 [2] [OA/ID 5752]
Affirmative Action OFCCP Executive Order 11246 [3] [OA/ID 5752]
Affirmative Action POTUS Memo(s) – Final [1] [OA/ID 5759]
Affirmative Action POTUS Memo(s) – Final [2] [OA/ID 5759]
Box 22
Affirmative Action – Presidential Commission [OA/ID 5747]
Affirmative Action Programs – Commission on Minority Business Development [1]
[OA/ID 5758]
Affirmative Action Programs – Commission on Minority Business Development [2]
[OA/ID 5758]
Affirmative Action Programs – Commission on Minority Business Development [3]
[OA/ID 5758]
Affirmative Action Programs – Commission on Minority Business Development [4]
[OA/ID 5758]
Affirmative Action Procurement [Empty] [OA/ID5752]
Affirmative Action Procurement [1] [OA/ID 5758]
Affirmative Action Procurement [2] [OA/ID 5758]
Box 23
Affirmative Action Procurement Croson [OA/ID 5752]
Affirmative Action – Procurement Options [OA/ID5759]
Affirmative Action Regulations [1] [OA/ID 5752]
Affirmative Action Regulations [2] [OA/ID 5752]
Affirmative Action Regulations [3] [OA/ID 5752]
Affirmative Action Review – Appendices (Volume 1) [1] [OA/ID 5760]
Affirmative Action Review – Appendices (Volume 1) [2] [OA/ID 5760]
Box 24
Affirmative Action Review – Appendices (Volume 1) [3] [OA/ID 5760]
Affirmative Action Review – Appendices (Volume 1) [4] [OA/ID 5760]
[Affirmative Action Review Drafts] [1] [OA/ID 5759]
[Affirmative Action Review Drafts] [2] [OA/ID 5759]
[Affirmative Action Review Drafts] [3] [OA/ID 5759]
Affirmative Action Small Business Administration Business Development [OA/ID 5752]
Box 25
Affirmative Action Treasury Bureaus OCC, RTC [1] [OA/ID 5758]
Affirmative Action Treasury Bureaus OCC, RTC [2] [OA/ID 5758]
Affirmative Action Treasury Bureaus OCC, RTC [3] [OA/ID 5758]
Affirmative Action “Voting Rights” [OA/ID 5747]
American Federation of Government Employees/AFL-CIO [Empty] [OA/ID 5747]
CC for CFE, GS 4/7/95 [OA/ID 5759]
Carefully Tailored [OA/ID 5759]
Communications Tasks [OA/ID 5759]
Congress & Affirmative Action [OA/ID 5747]
Council of Economic Advisors (EOP) Affirmative Action [1] [OA/ID 5747]
Council of Economic Advisors (EOP) Affirmative Action [2] [OA/ID 5747]
Central Intelligence Agency Affirmative Action [OA/ID 5747]
Dept. of Commerce Affirmative Action [OA/ID 5747]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
9
�Box 26
Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Edley, Christopher
Dept. of Defense (Military) Affirmative Action [1] [OA/ID 5749]
Dept. of Defense (Military) Affirmative Action [2] [OA/ID 5749]
Dept. of Defense (Military) Affirmative Action [3] [OA/ID 5749]
Dept. of Defense (Military) Affirmative Action [4] [OA/ID 5749]
Dept. of Education Affirmative Action [1] [OA/ID 5749]
Dept. of Education Affirmative Action [Folder 2] [1] [OA/ID 5749]
Box 27
Dept. of Education Affirmative Action [Folder 2] [2] [OA/ID 5749]
Dept. of Education Affirmative Action [Folder 2] [3] [OA/ID 5749]
Dept. of Education Affirmative Action [Folder 2] [4] [OA/ID 5749]
Dept. of Energy Affirmative Action [OA/ID 5749]
Department of Housing and Urban Development 1995 [1] [OA/ID 5750]
Department of Housing and Urban Development 1995 [2] [OA/ID 5750]
Dept. of Interior Affirmative Action [OA/ID 5750]
DOJ Affirmative Action [OA/ID 5750]
Dept. of Labor Affirmative Action [1] [OA/ID 5751]
Dept. of Labor Affirmative Action [2] [OA/ID 5751]
Dept. of Labor Affirmative Action [3] [OA/ID 5751]
Box 28
Dept. of Labor/Affirmative Action Review [1] [OA/ID 5760]
Dept. of Labor/Affirmative Action Review [2] [OA/ID 5760]
Dept. of Labor/Affirmative Action Review/OFCCP/EO 11246/Section 503 [1] [OA/ID
5760]
Dept. of Labor/Affirmative Action Review/OFCCP/EO 11246/Section 503 [2] [OA/ID
5760]
Dept. of Labor/OFCCP – EO 11246 – Section 503 [1] [OA/ID 5760]
Dept. of Labor/OFCCP – EO 11246 – Section 503 [2] [OA/ID 5760]
Dept. of Labor/Office of Small Business & Minority Affairs [Folder 1] [1] [OA/ID 5760]
Dept. of Labor/Office of Small Business & Minority Affairs [Folder 1] [2] [OA/ID 5760]
Box 29
Dept. of Labor/Office of Small Business & Minority Affairs [Folder 2] [1] [OA/ID 5760]
Dept. of Labor/Office of Small Business & Minority Affairs [Folder 2] [2] [OA/ID 5760]
Dept. of Labor/Office of Small Business & Minority Affairs [Folder 2] [3] [OA/ID 5760]
Dept. of Labor 1995 [Folder 1] [1] [OA/ID 5751]
Dept. of Labor 1995 [Folder 1] [2] [OA/ID 5751]
Dept. of Labor 1995 [Folder 1] [3] [OA/ID 5751]
Dept. of Labor 1995 [Folder 1] [4] [OA/ID 5751]
Box 30
Dept. of Labor 1995 [Folder 2] [1] [OA/ID 5751]
Dept. of Labor 1995 [Folder 2] [2] [OA/ID 5751]
Dept. of Labor 1995 [Folder 3] [OA/ID 5751]
Dept. of Labor 1995 [Folder 4] [1] [OA/ID 5751]
Dept. of Labor 1995 [Folder 4] [2] [OA/ID 5751]
Dept. of Labor 1995 [Folder 4] [3] [OA/ID 5751]
Dept. of State Affirmative Action [OA/ID 5758]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
10
�Box 31
Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Edley, Christopher
Dept. of Transportation Affirmative Action [OA/ID 5758]
Digest of Education Statistics [Bound Material] [OA/ID 5749]
[Draft Options Memo for POTUS] [OA/ID 5759]
Education HHS [1] [OA/ID 5750]
Education HHS [2] [OA/ID 5750]
Education HHS [3] [OA/ID 5750]
Education HHS [4] [OA/ID 5750]
Box 32
EEOC Research Resources Documents [1] [OA/ID 5748]
EEOC Research Resources Documents [2] [OA/ID 5748]
EEOC Research Resources Documents [3] [OA/ID 5748]
EEOC Research Resources Documents [4] [OA/ID 5748]
EEOC Research Resources Documents [5] [OA/ID 5748]
Employment [Binder] [1] [OA/ID 5748]
Employment [Binder] [2] [OA/ID 5748]
Box 33
Employment [Binder] [3] [OA/ID 5748]
Empowerment Contracting [OA/ID 5752]
FCC Affirmative Action [1] [OA/ID 5750]
FCC Affirmative Action [2] [OA/ID 5750]
FCC Affirmative Action [3] [OA/ID 5750]
Federal Civilian Employment A.A. [Affirmative Action] (EEO) [OA/ID 5750]
FY 96 Legislation: Affirmative Action [OA/ID 5751]
GSA Affirmative Action [OA/ID 5750]
Box 34
HHS Affirmative Action [Folder 1] [1] [OA/ID 5750]
HHS Affirmative Action [Folder 1] [2] [OA/ID 5750]
HHS Affirmative Action [Folder 2] [1] [OA/ID 5750]
HHS Affirmative Action [Folder 2] [2] [OA/ID 5750]
HHS Affirmative Action [Folder 2] [3] [OA/ID 5750]
HHS Affirmative Action [Folder 3] [1] [OA/ID 5750]
HHS Affirmative Action [Folder 3] [2] [OA/ID 5750]
Box 35
HHS Affirmative Action [Folder 3] [3] [OA/ID 5750]
HHS Affirmative Action [Folder 3] [4] [OA/ID 5750]
HHS Affirmative Action Review [Folder 1] [1] [OA/ID 5748]
HHS Affirmative Action Review [Folder 1] [2] [OA/ID 5748]
HHS Affirmative Action Review [Folder 1] [3] [OA/ID 5748]
HHS Affirmative Action Review [Folder 2] [1] [OA/ID 5748]
HHS Affirmative Action Review [Folder 2] [2] [OA/ID 5748]
Box 36
HUD Affirmative Action [1] [OA/ID 5750]
HUD Affirmative Action [2] [OA/ID 5750]
HUD Affirmative Action [3] [OA/ID 5750]
Legislation/Affirmative Action [1] [OA/ID 5751]
Legislation/Affirmative Action [2] [OA/ID 5751]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
11
�Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Edley, Christopher
Legislative Clearance – Affirmative Action [1] [OA/ID 5751]
Legislative Clearance – Affirmative Action [2] [OA/ID 5751]
Legislative Clearance – Affirmative Action [3] [OA/ID 5751]
Major POTUS Options [OA/ID 5759]
Military (Dept. of Defense) Affirmative Action [1] [OA/ID 5747]
Box 37
Military (Dept. of Defense) Affirmative Action [2] [OA/ID 5747]
Military (Dept. of Defense) Affirmative Action [3] [OA/ID 5747]
Military (Dept. of Defense) Affirmative Action [4] [OA/ID 5747]
Military (Dept. of Defense) Affirmative Action [5] [OA/ID 5747]
National Performance Review [OA/ID 5751]
Options for “Reform Pkg” [Empty] [OA/ID 5759]
Other [EEOC] [Binder] [1] [OA/ID 5748]
Other [EEOC] [Binder] [2] [OA/ID 5748]
Other [EEOC] [Binder] [3] [OA/ID 5748]
Box 38
Procurement [Folder 1] [1] [OA/ID 5760]
Procurement [Folder 1] [2] [OA/ID 5760]
Procurement [Folder 1] [3] [OA/ID 5760]
Procurement [Folder 1] [4] [OA/ID 5760]
Procurement [Folder 2] [1] [OA/ID 5760]
Procurement [Folder 2] [2] [OA/ID 5760]
Procurement [Folder 2] [3] [OA/ID 5760]
Box 39
Procurement Contracting (General) [Folder 1] [1] [OA/ID 5752]
Procurement Contracting (General) [Folder 1] [2] [OA/ID 5752]
Procurement Contracting (General) [Folder 2] [1] [OA/ID 5752]
Procurement Contracting (General) [Folder 2] [2] [OA/ID 5752]
Procurement Contracting (General) [Folder 2] [3] [OA/ID 5752]
Procurement – Empowerment Contracting [Empty] [OA/ID 5759]
Box 40
SBA Affirmative Action Minority Business Development [1] [OA/ID 5752]
SBA Affirmative Action Minority Business Development [2] [OA/ID 5752]
SBA Affirmative Action Minority Business Development [3] [OA/ID 5752]
SBA Affirmative Action Minority Business Development [4] [OA/ID 5752]
SBA Affirmative Action Minority Business Development [5] [OA/ID 5752]
Small Disadvantaged Business (SBDs) 6/23 Policy Option(s) [OA/ID 5759]
Tier Two Options [OA/ID 5759]
Box 41
[Untitled Folder] [Education Related Affirmative Action Programs] [1] [OA/ID 5749]
[Untitled Folder] [Education Related Affirmative Action Programs] [2] [OA/ID 5749]
[Untitled Binder] [Higher Education – Information on Minority Targeted Scholarships]
[OA/ID 5749]
U.S.D.A Affirmative Action [OA/ID 5747]
Kagan, Elena
FCC Affirmative Action [1] [OA/ID 8286]
FCC Affirmative Action [2] [OA/ID 8286]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
12
�Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Kagan, Elena
FCC Affirmative Action [3] [OA/ID 8286]
FCC Affirmative Action [4] [OA/ID 8286]
FCC Affirmative Action [5] [OA/ID 8286]
Klein, Joel
Affirmative Action [1] [OA/ID 6039]
Affirmative Action [2] [OA/ID 6039]
Affirmative Action [3] [OA/ID 6039]
Box 42
Affirmative Action Dept. of Education Minority Fellowships [OA/ID 7036]
Affirmative Action DOJ Piscataway [1] [OA/ID 6039]
Affirmative Action DOJ Piscataway [2] [OA/ID 6039]
Affirmative Action DOJ Piscataway [3] [OA/ID 6039]
Affirmative Action Fair Lending [OA/ID 6039]
Klein, Joel; Letter, Doug
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [1] [OA/ID
6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [2] [OA/ID
6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [3] [OA/ID
6462]
Box 43
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [4] [OA/ID
6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [5] [OA/ID
6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [6] [OA/ID
6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [Binder 1]
[OA/ID 6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [Binder 2] [1]
[OA/ID 6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [Binder 2] [2]
[OA/ID 6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [Binder 2] [3]
[OA/ID 6462]
Joel Klein’s & Doug Letter’s Affirmative Action Background Documents [Binder 2] [4]
[OA/ID 6462]
Box 44
Briefing Materials on Affirmative Action [Binder] [1] [OA/ID 6804]
Briefing Materials on Affirmative Action [Binder] [2] [OA/ID 6804]
Letter, Doug
[Affirmative Action Review Materials] [1] [OA/ID 8288]
[Affirmative Action Review Materials] [2] [OA/ID 8288]
[Affirmative Action Review Materials] [3] [OA/ID 8288]
[Affirmative Action Review Materials] [4] [OA/ID 8288]
[Affirmative Action Review Materials] [5] [OA/ID 8288]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
13
�Box 45
Clinton Presidential Records: White House Staff and Office Files (continued)
Counsel’s Office
Letter, Doug
[Affirmative Action Review Materials] [6] [OA/ID 8288]
[Affirmative Action Review Materials] [7] [OA/ID 8288]
[Affirmative Action Review Materials] [8] [OA/ID 8288]
[Affirmative Action Review Materials] [9] [OA/ID 8288]
[Affirmative Action Review Materials] [10] [OA/ID 8288]
[Affirmative Action Review Materials] [11] [OA/ID 8288]
[Affirmative Employment Program for Minorities & Women] [1] [OA/ID 8288]
Box 46
[Affirmative Employment Program for Minorities & Women] [2] [OA/ID 8288]
Briefing Book for Secretary Henry Cisneros on the History of Affirmative Action
[Binder] [OA/ID 8292]
[Congressional Record of the 103rd Congress on 9/14/1993 [OA/ID 8288]
[Resolution Trust Corporation Completion Act – Conference Report] [OA/ID 8288]
[US Commission on Minority Business Development] [1] [OA/ID 8288]
[US Commission on Minority Business Development] [2] [OA/ID 8288]
Box 47
Schroeder, Robert (Trey)
Adarand [OA/ID CF865]
Affirmative Action [OA/ID CF865]
Affirmative Action Review [OA/ID CF865]
Domestic Policy Council
Ben-Ami, Jeremy
Affirmative Action [OA/ID 8360]
Brooks, Kendra
Subject File
[Education – Affirmative Action] [OA/ID 102285]
[Education – Lake Research Affirmative Action] [OA/ID 102295]
[Making the Case for Affirmative Action in Higher Education] [OA/ID 102315]
Bueno, Irene
Affirmative Action – April 4th Speaking Event [OA/ID 17176]
Kagan, Elena
Race – Affirmative Action [OA/ID 14365]
Race – Affirmative Action Legislation [OA/ID 14365]
Race – Affirmative Action Piscataway [OA/ID 14365]
Race – Affirmative Action: Procurement [1] [OA/ID 14365]
Race – Affirmative Action: Procurement [2] [OA/ID 14365]
Reed, Bruce
Subject File
Affirmative Action [OA/ID 101934]
Waldman, Michael
Affirmative Action Background [OA/ID 6632]
Warnath, Stephen
Civil Rights
[Affirmative Action] [OA/ID 102151]
[Affirmative Action] [OA/ID 102151]
[Affirmative Action] [OA/ID 102151]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
14
�Clinton Presidential Records: White House Staff and Office Files (continued)
Domestic Policy Council
Warnath, Stephen
[Affirmative Action] [1] [OA/ID 102151]
[Affirmative Action] [2] [OA/ID 102151]
[Affirmative Action] [3] [OA/ID 102151]
Affirmative Action & Immigration [Clippings] [OA/ID 102151]
[Affirmative Action – Clippings] [OA/ID 102151]
[Affirmative Action – Clippings] [OA/ID 102151]
[Affirmative Action – Hopwood] [OA/ID 102151]
[Affirmative Action] Hopwood [OA/ID 102151]
[Affirmative Action – Proposition 209] [OA/ID 102151]
[Affirmative Action] Proposition 209 [OA/ID 102151]
[Affirmative Action – Proposition 209 – Clippings] [1] [OA/ID 102151]
[Affirmative Action – Proposition 209 – Clippings] [2] [OA/ID 102151]
Box 48
First Lady’s Office
Domestic Policy Council
Karen Guss Files, 1994-1995
AFFIRMATIVE ACTION [OA/ID 5931]
Verveer, Melanne
Subject Files: Abortion – Affirmative Action
AFFIRMATIVE ACTION [1] [OA/ID 20017]
AFFIRMATIVE ACTION [2] [OA/ID 20017]
Williams, Maggie
Subject File
Affirmative Action [1] [OA/ID 9475]
Affirmative Action [2] [OA/ID 9475]
Affirmative Action [3] [OA/ID 9475]
Affirmative Action [4] [OA/ID 9475]
Legislative Affairs
Erikson, Janelle
Affirmative Action [OA/ID 11566]
Malden, Al
Affirmative Action 95 96 [OA/ID CF1015]
Box 49
Miller, Lorraine
Affirmative Action [1] [OA/ID 5926]
Affirmative Action [2] [OA/ID 5926]
Affirmative Action [3] [OA/ID 5926]
Affirmative Action [4] [OA/ID 5926]
Affirmative Action [5] [OA/ID 5926]
Affirmative Action [6] [OA/ID 5926]
Box 50
[Affirmative Action Review – Report to the President] [Loose] [OA/ID 5926]
Millsap, Elisa
Events in WH [White House] March 1995: Affirmative Action Meeting Cabinet Room
3/17/1995 [OA/ID 6522]
Murguia, Janet
Affirmative Action: Affirmative Action Review [OA/ID 11029]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
15
�Clinton Presidential Records: White House Staff and Office Files (continued)
Legislative Affairs
Murguia, Janet
Affirmative Action [California Affirmative Action Sourcebooks] [OA/ID 11029]
Affirmative Action: [Defeating H.R. 1909] [OA/ID 11029]
Subject Files
Affirmative Action [OA/ID 9998]
Affirmative Action [1] [OA/ID 18359]
Affirmative Action [2] [OA/ID 18359]
Box 51
Affirmative Action [3] [OA/ID 18359]
National Economic Council
Sperling, Gene
Affirmative Action Review – Report to the President [OA/ID 19175]
President’s Initiative For One America
Miller, Adrian
Affirmative Action Review Report to the President [OA/ID 21653]
Press Secretary
Affirmative Action Review – Report to the President [OA/ID 14234]
Public Liaison
Affirmative Action (Prop 209) [OA/ID 14155]
Herman, Alexis; Moy, Ruby
[Affirmative Action] [1] [OA/ID 5916]
[Affirmative Action] [2] [OA/ID 5916]
[Affirmative Action] [3] [OA/ID 5916]
Box 52
[Affirmative Action] [4] [OA/ID 5916]
[Affirmative Action] [Folder 1]: [Affirmative Action] Af Ac CEO Meeting [OA/ID
7661]
[Affirmative Action] [Folder 1]: [Affirmative Action] Af Ac Rollout [OA/ID 7661]
[Affirmative Action] [Folder 1]: [Affirmative Action] Af Ac Speech [OA/ID 7661]
[Affirmative Action] [Folder 1]: Affirmative Action Education Event [OA/ID 7661]
[Affirmative Action] [Folder 1]: [Affirmative Action Reception] Af Ac Rec Memos
[OA/ID 7661]
[Affirmative Action] [Folder 1]: [Women’s Affirmative Action] Af Ac [OA/ID 7661]
[Affirmative Action] [Folder 2]: Affirmative Action [1] [OA/ID 7661]
[Affirmative Action] [Folder 2]: Affirmative Action [2] [OA/ID 7661]
[Affirmative Action] [Folder 2]: [Affirmative Action] Af Ac Phase III [OA/ID 7661]
[Affirmative Action] [Folder 2]: Dinner 3/13 on Affirmative Action [OA/ID 7661]
Box 53
[Affirmative Action] [Folder 3]: Affirmative Action [Folder 1] [OA/ID 7661]
[Affirmative Action] [Folder 3]: Affirmative Action [Folder 2] [OA/ID 7661]
[Affirmative Action] [Folder 3]: [Affirmative Action] Af Ac Civil Rights Mtg [OA/ID
7661]
[Affirmative Action] [Folder 3]: Business [OA/ID 7661]
[Affirmative Action] [Folder 3]: Business CEO Mtg 2/22 [OA/ID 7661]
[Affirmative Action] [Folder 3]: Conference Calls [OA/ID 7661]
Affirmative Action Conference Calls [OA/ID 5903]
Affirmative Action Directive – 7-19-95 [OA/ID 5903]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
16
�Clinton Presidential Records: White House Staff and Office Files (continued)
Public Liaison
Herman, Alexis; Moy, Ruby
Affirmative Action Outlines – Internal/Reviews & Reports on Affirmative Action [1]
[OA/ID 5915]
Affirmative Action Outlines – Internal/Reviews & Reports on Affirmative Action [2]
[OA/ID 5915]
Box 54
Affirmative Action Outlines – Internal/Reviews & Reports on Affirmative Action [3]
[OA/ID 5915]
Affirmative Action Report Outlines (Cont) [1] [OA/ID 5915]
Affirmative Action Report Outlines (Cont) [2] [OA/ID 5915]
Affirmative Action Report to the President/Reviews & Reports on Affirmative Action [1]
[OA/ID 5915]
Affirmative Action Report to the President/Reviews & Reports on Affirmative Action [2]
[OA/ID 5915]
Affirmative Action Report to the President/Reviews & Reports on Affirmative Action [3]
[OA/ID 5915]
Box 55
[Affirmative Action – Speeches, Outreach, & Adarand] [1] [OA/ID 5915]
[Affirmative Action – Speeches, Outreach, & Adarand] [2] [OA/ID 5915]
Background (including Adarand) [OA/ID 5915]
Contacts (Phone Lists/Meetings) [OA/ID 5915]
Deval Patrick – Affirmative Action Draft [OA/ID 5916]
Internal Letters [OA/ID 5915]
Memorandum to the President – Meetings with Jesse Jackson [OA/ID 5903]
Outside Letters/Affirmative Action Programs in Companies [1] [OA/ID 5915]
Outside Letters/Affirmative Action Programs in Companies [2] [OA/ID 5915]
Position & Statements of and by the President [OA/ID 5915]
Press [OA/ID 5915]
Box 56
Speech/Speech Writing/Response to Speech Media & News Summaries [OA/ID 5915]
Support [OA/ID 5915]
Woolley, Barbara
Affirmative Action Documents 1 [1] [OA/ID 23688]
Affirmative Action Documents 1 [2] [OA/ID 23688]
Affirmative Action Documents 2 [1] [OA/ID 23688]
Affirmative Action Documents 2 [2] [OA/ID 23688]
Publication’s Office
Affirmative Action Review (7/19/95) [OA/ID 8694]
Speechwriting
Curiel, Carolyn
Affirmative Action [Folder 1] [OA/ID 10991]
Affirmative Action [Folder 2] [OA/ID 10991]
[Minority Business & Affirmative Action] [OA/ID 10995]
Edmonds, Terry
Affirmative Action [OA/ID 10980]
UCSD [University of California at San Diego] Affirmative Action (General Info/Issues)
[OA/ID 10989]
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
17
�Clinton Presidential Records: White House Staff and Office Files (continued)
Speechwriting
Waldman, Michael
Affirmative Action Articles [Binders] [OA/ID 13648]
Affirmative Action Binder [OA/ID 13647]
Affirmative Action Master2.MW 6/20/95 [Binder] [OA/ID 13649]
Affirmative Action Outline [OA/ID 14454]
Briefing Book for Secretary Henry G. Cisneros on the History of Affirmative Action
[Binder] [OA/ID 13650]
Women’s Initiative and Outreach
Responses – Requests/Aff Act [Affirmative Action] [OA/ID 24077]
Last Modified: 10/1/2012
2008-0308-F
Clinton Library’s web site http://www.clintonlibrary.gov
18
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Finding Aids - Collection Descriptions & Inventories
Description
An account of the resource
Finding aids at the Clinton Presidential Library contain a detailed description of the collection including the total number of pages or photos and length of video and audio recordings. Finding aids also include background information of the collection’s topic and details on the record type (ex: email, memorandum, briefing book, Betacam video, audio cassette etc). <br /><br />Finding aids describe collections at the box and folder level, and include a folder title list and information about the arrangement of the collection. <br /><br /><strong>Please note the majority of collections have not yet been scanned nor made available online.</strong>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Affirmative Action - Collection Finding Aid
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Description
An account of the resource
This collection consists of records concerning the White House’s review of federal affirmative action programs and policy. The review was led by George Stephanopoulos and Christopher Edley. The review was mandated by President Clinton in March of 1995. It concluded on July 19, 1995 with a speech wherein President Clinton used the phrase “mend it, don’t end it” to describe his new policy toward affirmative action. This collection contains the entirety of Christopher Edley’s staff files.
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Finding Aid
-
https://clinton.presidentiallibraries.us/files/original/bb5a8552c4ecf6bc6831e9b262e4dd24.pdf
cf9375f59351448f385f23ebb3d97ce7
PDF Text
Text
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
Edley to Stephanopoulos and Waldmen, re: Conclusions and
Recommendations (I page)
6/12/1995
P5
002. memo
To George, re: Executive Summary (3 pages)
04/28/1995
P5, P6/b(6)
003. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action Policy Issues (10 pages)
4/1911995
P5
C? /a_-:::{-1$
g lf1
~
COLLECTION:
Clinton Presidential Records
Counsel's Office
Christopher Edley
ONBox Number: 5759
FOLDER TITLE:
CC - For CFE, GS 4/7/95
2008-0308-F
wr465
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internai personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information j(a)(4) of the PRAI
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(5) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
0
�.-------------
-
June 12, 1995
To:
Padre Stephanopoulos
Miguel de Waldman
From:
Edley~
Re: ·
Inserts for the Report: Conclusions and Recommendations
I revised the "conclusions" I did ·last week to fold in some "recommendation" bullets.
I've asked Ed Dom to give me a couple of points from DOD, and I need to assemble my
group to interrogate USDA and HUD a bit on their "careful tailoring" analyses.
At the risk of sounding like a broken record:
I continue to feel that this document should be a boring sub~ssion
rather than a report by the President.
to the President,
And I continue to think that we are misallocating our energy: The report should not be
turned into an effective communications piece -- that goal is fundamentally inconsistent with
(a) the need to have a formal, balanced document, and (b) the fact that we don't have clear
guidance about his policy choices and thematic emphases.
So, I still think that, at the end of the day, we need to pull out, into a stand-alone Memo
from POTUS to Cabinet, or some such, the Framework- History-Themes-Directives. kind of
stuff in a solid 5-6 pages.
Finally, we still have not solved the problem of how, if at all, to rollout POTUS policy
issues that are not strictly within the scope of the Review. These include: Piscataway; the
idea of a commission (might depend on Adarand or on a tabling strategy to combat GOP)
In the attached, you will note that I anticipate certain policy conclusions in general terms, not
in programmatic details. Particulary with respect to set asides.
cc: Julia Moffet, Carolyn Curiel
WJC LIBRARY PHOTOCOPY
�April 28,_ 1995
George:
[oo\J
Re:
Progress Report
1. Ex Summary: I will give you selected new chapters of the Executive Summary on
Saturday -- my effort to wrench more info out of the agencies to make the other chapters more
like the OFCCP chapter. I really need confirmation from you that these are getting close to
what you believe we need.
Meanwhile:
•
Peter is working with SBA and OFPP to identify some private industry types in
addition to AGC to whom he can talk quietly to confirm that we have spotted
all the key issues on the set-aside matter. He will also talk to a few :MBE reps
for cover. I've told him to give his list of proposed industry and MBE contacts
to Alexis for her clearance before executing.
•
The EEOC/Federal Civilian piece remains the most dangerously incomplete,
primarily because of the coverup syndrome and the general problem of not being
able to get much out of the quasi-independent EEOC staff. (And even our
friends can be difficult -- member your friend Claire.) Still, I'm working this
one personally. My strategy is to get methodological help from my buddy Jim
King, and then to chat with a few savvy career personnel officers, as identified
by some OMB old-hands in whom I have a lot of confidence.
2. DOD/Moskos: I had a 45 minute chat with Cliff Alexander (Carter Secretary of the Army;
Johnson chairman of EEOC). ·He reviewed the DOD section of my draft, and had a number
of useful comments. He is really pissed that we have given so much attention to Moskos, and
had (until me} no substantive exchanges with him. Given his history and contributions, he has
a point. I told him to chalk it up to tlie "Greek connection." There's particular bad book
between Cliff and Moskos because Moskos once attacked the All Volunteer Force (Alexander's
baby) because, Moskos predicted, it would be "too black." Alexander wrote a scathing book
review on Moskos in the early '80s. It really irks him that Moskos was invited to the POTUS
dinner.
3. Tier Two: On the Sub-POTUS tier-- I'm continuing to push refinement ofthe elements,
with a view to having those !-pagers that Peter drafted for yesterday's meeting in good shape
my mid-week. Then I suggest we have a tight meeting, perhaps with Leon, to make the
WJC LIBRARY PHOTOCOPY
�decisions and identify any that you want the President to resolve because of agency
disagreements.
4. Memo & Speech: On the major POTUS issues, where is the decision memo we did? Will
we have a small group discussion with POTUS about it?· And I haven't heard anything clear
about the speech. Yesterday I heard rumors that: (i) it may be at Michigan State after all; (ii)
he may never give speech --just a series. of dribs and drabs, plus the report; (iii) Curry is
writing the speech; (iv) he will give the speech in early June. I'm still holding out for a speech
to an Orthodox church group in Kiev. But it would be nice to feel a little less in the dark.
a
5. Communications Rollout: . I asked Peter Yu not to start on the short PR version of the
Review until we have the wonky version complete to my satisfaction. George, I think you
make a mistake in asking Peter (or me) to draft the PR version. That is not our comparative
advantage, and this government is big enough that we ought to be able to fmd a great writer
to take the wonky version and take a crack at it. The whole reason I kept pressing you. to get
person to do some
a communications person ·
work, not just give advice.
what I really want is
someone who can
(a)
(b)
(c)
write (not just edit);
manage a coordinated public affairs effort at the several agencies -- including
production of appropriate rollout materials by those agencies; and
make sure that surrogates ~d Hill friends, like Ron Klain, are appropriately
anned at all times.
So how about it? Can we either make Julia do some work or fmd someone at an agency who
can? We are running out of time. I'm happy to figure this out if you delegate it to me.
6. Contacts: I have too many relationships on the Hill and in the broader con:imunity to
· sneak this thing out without some consultations. What do I do? Starting next week I'd like
to have some serious conversations with, for example: Rangel, Mfume, Payne, Kennedy,
Matsui, Norton, Schumer, Barney, .Dellums, Roger Wilkins, Elaine Jones, Wade Henderson,
Eddie Williams, Bill Coleman, etc. The problem is that I have long-standing relationships with
these folks, and will have them long after I leave this job. You have to fmd a way for me to
get my work done for you without damaging relationships that have long term importance to
me. There's a similar situation with the media. I have a few relationships that I f~ellike I'm
screwing just so that others can do all the leaking. Is it going to stay like this? I'm feeling
boxed out.
7. ·Rollout: Have you had meetings with Alexis and Pat to nail down their plans for
consultations and briefmgs on this mess? The only conversations I have been in have been
rather tentative and unfocused. Assuming we have until after Russia, I just want to register
and
a concern that we g~t ~t leas~ to closure on what ~e p.l~ I think n:xt wee~ is wh~n that
mu,st happen. Agam, 1f you want to delegate ~ \.Wll'VbJi'Ve conversations wtth AleXIs and
Pat to facilitate making all of this more concfe?e: I just ~a'rried about getting everything in
~
place before
5
~.\
,.
0
Gft;7B :0
?2
0
\
WJC LIBRARY PHOTOCOPY
�7. My departure: Since nothing has materialized -- not a single person has spoken to me
role
for
.;._I'm ~~1g
about Bo's job, about
exit on May 15th.
In any case, Peter is definitely out of here in two weeks. A great loss for the
Administration. Another brilliant personnel move; I'm sure his replacement will be about 40
percent as good.
In summary:
ACTIONS/DECISIONS:
o
Communications person who will help with the writing, and who will make sure that
friends on the Hill and surrogates are appropriately armed.
o
Talk with Nancy McFadden about the great opportunities in store for her.
o
Schedule session with Alexis and Pat on pre-speech consultations/briefmgs.
o
Explain to Edley what is going on. (At least with regard to POTUS decisions and
speech.)
o
Figure out a strategy to get Edley out of the
on the Hill and in the Media.
o
Decide if you will need Edley after May 15th, and if so, who will pay for it..
~loset
with his friends and acquaintances
WJC LIBRARY. PHOTOCOPY
�*
April 19, 1995
.MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
From:
George Stephanopoulos, Christopher Ed1ey, Jr. & Peter Yu
Re:
Mfrrmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
options in four areas: education, employment, procurement, and broadcast licenses. Part II
offers three alternative, broader perspectives that may be useful in your deliberations. A
subsequent memorandum will discuss the message, communications, and political dimensions
of these policy choices.
I.
AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
· Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race
or gender is a condition of eligibility. This issue has two dimensions: (i) scholarships
administered by universities receiving federal assistance and (ii) federal scholarship programs.
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, permits the use· of race as a condition of eligibility for
fmancial aid in order (a) to remedy past discrimination or (b) to promote diversity, provided
the measure is narrowly tailored and does not unduly restrict access to fmancial aid for
nonminoritY students. A measure is "narrowly tailored" if (1) race-neutral means would have
been ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3)
the measure is of limited extent and duration, and is applied in a flexible manner; (4) the
institution periodically reviews the continuing need for the measure; and (5) the effect on
nonbeneficiaries is sufficiently small and diffuse so as not to unduly burden their opportunity
to receive financial aid. These restrictions apply to university-administered aid, whether
publicly or privately funded. Approximately 3.3% of all undergraduate financial aid, 4.3% of
all graduate financial aid, and 12% of all professional-school fmancial aid is administered
through such scholarships.
WJC LIBRARY PHOTOCOPY
�Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer privately-funded gender-specific
scholarships if the overall effect of such scholarships does not discriminate on the basis of
gender. The majority of gender-specific scholarships are limited to men, rather than women.
The federal government also directly administers a number of race- or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or
specialties in which racial or gender groups have been significantly underrepresented, either
because such inclusiveness is deemed critical to the continued strength of that profession, or
because inclusion will lead to greater attention for neglected communities and problems.
· Supporters of these programs emphasize that these scholarships are necessary to attract women
and minorities to these areas. Examples include: NSF's Minority Graduate F ellow,ship
Program designed to increase the number of minority scientist and engineers and NIH's
Minority Clinical· Associate Physician Program designed to increase the number of minority
physicians.
Options. The policy options include:
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity-based use of race;. or gender-specific scholarships.
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar use of such scholarships except as necessary to remedy past
discrimination; othenvise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and scholarships are central to public
concerns ·about affirmative action. Some view race- or gender-specific scholarships as a form
of "set-aside" and thus reminiscent of quota-driven admissions policies (such as the dual. admissions system struck down in Bakke). On the other hand, education and training are on
the "opportunity" end of the opportunity-to-results spectrUm, and the current policy requires
that any race- or gender-specific programs be narrowly tailored.
·
Option 3, which focuses on race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should
be excluded from a scholarship program on the basis of race or gender. Arguably, this would
be a curious rule, as it would leave intact numerous scholarships limited by religion, surname,
geography, and other, mo~e arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships (outside of a remedial context) first analyze race- or gender-neutral
approaches and conclude they would not be effective substitutes for more exclusive
scholarships. The policy guidance would be amended to require the institution to be prepared,
if challenged, to present the evidence and analysis upon which its conclusion was based. (This
is the formulation used elsewhere in the guide~e~d-by the courts, in explaining that when
an institution may invoke its history .of d"serlHfmat~~~a remedial justification for race.
.
~
0
~ ~~8
(.)
~
.
.
\'"
~
2
~
'\"
WJC LIBRARY PHriTOCOPY
�specific scholarships.) On the one hand, this option amounts to a declaration that race or gender
should only be used as a condition of eligibility when truly necessary. On the other hand, its
minimal practical effect might not justify the anxiety it would .likely generate among minority
and women's groups.
Option 1 would maintain current policy. As noted in our discussions, race- or genderspecific scholarships are small slices of a much larger pie -- much of which is administered on
the basis of need. As there are so many different avenues ·for fmancial aid, it is possible to
argue that race- or gender-specific scholarships do. not meaningfully limit the opportunity of
any student, or at least no more so than does a scholarship limited to offspring of the Knights
of Columbus or the Daughters of the American Revolution.
Indeed, current antidiscrimination enforcement guidance from the Department of Education,
promulgated during the Reagan Administration pursuant to Title IX, makes the test for gender- ·
specific scholarships whether the fmancial aid practices of the institution, taken as a whole,
provide equal opportunity. As a matter of constitutional doctrine, race-based distinctions are
subject to stricter scrutiny than gender-based distinctions .. But this distinction seems untenable
as· a general matter of policy or politics. Hence, any toughening of prohibitions on race-based
aid should probably be similarly applied to gender-based aid.
Finally, we should note the relationship betw~en these options and the familiar hypothetical:
a college admissions or scholarship policy that favors the African American son of a successful
neurosurgeon, but not the son of a steelworker. Some argue that affirmative· action should be
only for economically disadvantaged minorities, because affluent minorities are evidently not
suffering from a lack of opportunity, relative to many less economically advantaged whites.
The rebuttal has three central points. First, there should be affirmative efforts to provide
opportunity for economically disadvantaged individuals, both white and non-white; such efforts
need not come at the expense of affirmative action when it is legitimately directed at minorities
on the basis of concerns apart from economic disadvantage. Second, apart from economic
disadvantage, but still within the realm of "private fairness," it is often observed that
comparatively advantaged minorities nevertheless continue to face social and other obstacles
solely because of prejudice and discrimination, and that these disadvantages, .while different
from badges of poverty, are a fair basis for attention. Third, in the realm of institutional and
societal benefit, a college ·might properly conclude that the institution will benefit from
inclusion of the neurosurgeon's son-- even though affluent-- just as they might conclude that
the diversity benefit of including a bassoonist is weighty not withstanding the musician's
affluence. In America today, it remains likely that the neurosurgeon's experiences, perspective,
and aspirations will reflect some aspect of the distinctive reality facing blacks. And the
college may choose to value that.
B.
Employment: Race or Gender in Layoff Decisions
Background.
The central issue
as a consideration in
3
LIBRARY PHOTOCOPY
�layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a
means to implement an ·affrrmative action policy by "making room" for new, diverse
employees. Second," race or gender cannot trump a· bona fide seniority system.
The reach of this second principle is limited. While. seniority systems are common in the
public sector, the decline of unionism has reduced the private sector's reliance on such systems.
Thus, reportedly, many large firms expressly consider diversity in their layoff policies, and
with significant results: Illinois Bell cut 930 management jobs, but the proportion ofminority
managers rose from 25 to 27%; Baxter cut 20% ·of its 2000 employees, but the proportion of
minority managers increased from 10 to 12%.
The narrow question of "tie-breakers" is ~us most likely to arise in the context of a seniority
system where layoff decisions are more structured. In the Piscataway case, the Justice
Department has argued that Title VII does not prohibit the School Board from using race as
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of
the federal civil service, the OPM regulations are silent: the Department of Justice (Office of
Legal Counsel) believes the statutes and caselaw would, as in Piscataway, permit narrowly
tailored consideration of race or gender.
·
Options. The policy options include:
Option 1: As a policy matter, when not inconsistent with a bona fide seniority system,
diversity· may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
Analysis. Concerns about employment are two-fold. In certain sectors, there is a sense that
some job opportunities are limited to "diversity candidates" and thus that white. males are
excluded. Second, there are concerns that in a continuing era of corporate reengineering,
women and minorities are, due to affrrmative action, at less risk of being laid off. (As you
have noted, affirmative action is sometimes used cynically to justify decisions made for other
reasons, legitimate and otherwise.)
Option 2 would · issue a sharp and clear statement and would provide some comfort to
whites, males, and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minority and women concerns about their marginality.) In the public
employment context, this is likely to have little policy impact because of seniority rules, and
thus will affect only tie-breaker-type situations. However, this option would send a loud signal
· to the private sector and could have an effect on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancin of the institution's general diversity
interest and the burden on identifiable majori ~IJ(pl~~· Consideration of race or gender
would be permissible only: when necessary, JBr the insti~o 's operation; when a manifest
0
~ ~log
-6
~
-~
4
::tJ
'\
LIBRARY PHOTOCOPY
�racial or gender imbalance exists; and when less race-intrusive considerations are not effective.
If you select this option, announcing a clarification of federal layoff policy could underscore
the very high hurdle you would impose, but might also serve to focus resentments around the
entire issue. In any case, however, we are likely to face continuing questions regarding the law
and policy surrounding the Piscataway situation.
C.
Procurement: Preferences & Set-asides
·Background. Federal law establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (SDBs -virtually all of which are minority-owned 1); and 5% for women-owned businesses. There is
a web of programs designed to reach these goals; some are government-wide, other are agencyspecific. These efforts use several tools:
• Sole source procurements: Under SBA's 8(a) program, small disadvantaged businesses
(SDBs) can secure smaller sole-source contracts (usually less than $3 million).
• Sheltered competition: Under DOD's "rule of two," a contract is set aside for SDBs if the
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses.
Failing this, there is open competition.)
• Bid preferences: In open competitions, DOD awards a 10% bid preference to SDBs; last
year's procurement reforms authorized government-wide use of this preference.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(voluntarily) subcontract with SDBs, including women-owned .firms. (The Adarand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. Between 1982 and 1991, while the dollar volume of all contracts
increased by 24%, contracts awarded to women-owned firms tripled and contracts awarded to
minority-owned firms doubled. Of late, these increases have been accompanied by actual
decreases for non-disadvantaged small firms. For example, while DOD's contracting with
SDB's more than doubled, its contractirig with other small businesses fell by nearly 20%.
Several aspects of these efforts have not been successful. Graduation rates from the 8(a)
program remain low and the possibility of abusive practices remain, although recent statutory
and administrative efforts promise some improvements. Outside of the limited 8(a) program,
however, there are no graduation requirements apart from what happens naturally if a business
is no longer "small" or an entrepreneur accumulates substantial wealth. In addition, these
1
In the Department of Transportation's pro
5
�programs have had a disparate impact on particular regions and industries -- such as smaller
construction projects and certain transportation sub-industries. Finally, while the 8(a) program
permits nonminority firms to participate upon a showing that a firm's owners are "socially and
economically disadvantaged," in practice only about 1.6% of all 8(a) firms are white-owned
(and those mostly disabled), because the 1978 statute links "social disadvantage" to
membership in a group subject to discrimination.
Options. The policy options include:
.
.
Option 1: Reform the programs to emphasize their transitional character; eliminate
misuses. This would involve tighter asset-related . eligibility rules, phased
graduation .for all SDBs, limits on the concentration of set.:.asides in a single
region or industry, and standards to determine when preferences are no longer
necessary by business sector and by region.
Option 2: Expand eligibility to include more nonminority firms. This would involve
revising the current conjunctive statutory criterion ("socially and economically
disadvantaged") to a disjunctive ("socially or economically disadvantaged"). In
addition, the goal for total SDB procurement could be increased from 5 to 10%.
Option 3: Sharply focus on "entryway" to entrepreneurship for both minorities and
disadvantaged. In addition to the anti-misuse reforms in option 1, and the
broader class- or need-based eligibility· of option 2, inipose very tight limits on
the number of contracts an individual SDB or entrepreneur could win through
sole-source, set-aside or bid preferences.
Option 4: Convert to race-neutral programs. ·Phase out race-. and gender-based
eligibility, relying i~~ead on race- and gender-neutral criteria of economic
disadvantage. Limit race or gender-specific assistance to less.exclusive and less
intrusive assistance tools -- i.e., technical assistance, surety bonding and
outreach.
Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either education or employment policies. The practical effect of a set-aside
.such· as the rule-of-two is to take a specific contracting opportunity and hang out a shingle
saying "whites need not apply." Some view this as more problematic than minority-only
scholarships, suggesting an intuition that providing profitable business opportunities seems
more directed toward rewards or equal results than towards equal opportunity; education is
different. Moreover, some view the procurement set-aside as problematic, even though 97
percent of contracting opportunities continue to go to non-SDBs.
At the same time, preferences may be more necessary in procurement for several reasons.
First, anti-discrimination laws are more difficult to enforce in this area, especially in the
subcontracting realm. Second, "old-boy" networks are arguably stronger in this area, so that
informal exclusionary practices beyond the reach of law enforcement ·can be. potent and
persistent. ·And fmally, procurement decisions often turn o~le factor --price -- and thus
the multi-factor mechanisms used in education and e~yme'ritt~.are less available in this area.
~~~V...Y
'/_"
.
o:-
~
!z C61og
(\
~~
})
.
6
~C LIBRARY PHOTOCOPY
�Option 4 would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Under this view, set-asides are much like quotas. Current preference
programs would be converted to focus on economic disadvantage. This option represents a
judgment that whatever the group-based discrimination or disadvantages faced by minority
entrepreneurs, no special policy measures are appropriate beyond pool-development strategies
and race-neutral preferences. If one were to support race-specific .scholarships but embrace this
option, one could distinguish procurement as "more related to results than to opportunity."
This approach is far more restrictive that Supreme Court precedents, which permit set-asides
based on legislative fmdings of discrimination or lingering effects. 2
Option 3 would retain a reduced preference program, but focus it sharply on mechanisms
more unambiguously related to creating opportunity for entrepreneursltip, rather than a
guarantee of entrepreneurial success. Thus, in addition to .technical assistance and other poolenhancing activities described above, this approach would use preferences and sheltered
competition on a limited basis to help "break the ice, 1' but then quickly push entrepreneurs to
compete on terms comparable to small businesses generally. (Recall that all small businesses
have a rule-of-two set-aside available to them as well, but only if an SDB set-aside is not
triggered.) The racial exclusivity of the preferences would be alleviated by opening eligibility
to non-minority firms based on economic disadvantage.
Option 2 would similarly render these programs less exclusive and recharacterize them_ as
for "disadvantaged" businesses, with race merely one-- but not the only-- way to demonstrate
disadvantage. It would not narrow the overall ambition of the program to the extent of option
3. Operationally, this is likely to have only a modest effect on minority contracting. Prior to
the codification of its minority entrepreneurship focus in 1978, the 8(a) program used this
approach; at that time, about 4% of all 8(a) firms were white-owned. In sum, race becomes
irrelevant in option· 4; in this option its exclusionary effect is diluted.
Option 1 would ameliorate several of the most problematic practices in the program.
Limiting participation, encouraging graduation, and tightening the asset tests emphasizes that
8(a) is an entryway, not an entitlement. Limiting concentrated use of preferences reduces the
unfairness to white bidders in a particular region or sector. While these changes would be
significant, some would view this as "mere tinkering" that does not address the fundamental
objection -- namely, the exclusivity of these programs.
Distressed Areas: In addition to these policy options, we have also begun to· develop a
complementary option: procurement preferences that focus less directly on minority capitalism
and more on job-creation for disadvantaged persons· and distressed communities. Some of
these alternatives would be place-based and others employee-based; we are currently examining
issues of administrability. Example of such initiatives include:
2
The Court has required a somewhat more rigorous demonstration by state and local governments than
by the Congress. The Adarand ruling, expected before July, presents an oppoi·~cou£1 to ·announce
<(
tV J;-"'1
'\
more restrictive principles.
.
. i CJ~~
'~
7
WJC~RARY~~TOCOPY
�•
•
•
•
Provide set-asides or other preferences for firms whose workforce (on the contract)
would be drawn more than X% from chronically distressed areas, using measures based
on Census and BLS data. (There are two especially well-regarded alternative indices
of distress in the social science literature. ) Or
Provide ·preferences to firms whose workforce would be drawn more than X% from
targeted population groups; such as recent AFDC or food stamp recipients. Or
Provide preferences as above, but based also on the employment of underrepresented
.
groups. Or
Employ any of these approaches, but scale the magnitude or duration of the preference
according to the fum's workforce "score."
Bearing in mind that such an initiative speaks somewhat separable policy and political
objectives, you may decide that such an empowerment contracting scheme should be a (i)
substitute for, (ii) complement to, or (iii) condition of the reformed entrepreneurship
preferences.
FCC Auctions:
Your decision on procurement set-asides will also govern the
Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the. PCS auction have been stayed pending resolution of a
constitutional challenge to bid preferences afforded minority- and women-owned fums by
Commission regulations.
Because PCS licenses are for cellular and other wireless
communication rather than for broadcasting, a programming-diversity rationale will not justify
group-based preferences. Instead, the motivation is to create inclusive entrepreneurial
opportunity, where there otherwise would be none, in a critical emerging industry. Preferences.
in the PCS auction should be handled like procurement preferences.
·
D.
FCC Preferences in Broadcast Licenses
Background. Programs administered by the FCC concerning broadcast licenses are sui generis
because of the linkage between diversity of ownership and diversity of programming. Of the
FCC's three "affirmative action" efforts, one is not significant (a preference for minority
purchasers in distress sales which is rarely used), a second is not controversial (consideration
of race as one of many factors in comparative licensing dec;.,isions), and the third -- the "§
1071" tax certificate at issue in the Viacom transaction -- has just been repealed. The primary .
issue here is whether we should attempt to revive the tax certificate program in a more limited
form.
Options. The policy options include:
Option 1: Maintain the status quo.
Option 2: Establish a limited tax certificate rogram. Potential misuse of the program
would be limited by (i) cappin ~htS \ial~~~of the tax benefit at an amount below
$100 million; (ii) lengtheni ·~the period ~~nority owner must retain a license
0
~
~
-'
u
a~
0
. ,~ \ '
~}~
~
s
o/
WJC LIBRARY PHOTOCOPY
�from one to several (possibly five) years; and (iii) ensuring that minorities
actually control the licensed company.
Analysis. The tax certificate program has been highly successful. In 1978, minorities owned
0.5% of all broadcast licenses; today, 17 years later, that proportion has increased five-fold to
2.9%. FCC officials, including the Chairman, believe that, but for § 1071, most of these
transactions would not have occurred. Option 2 would propose to reinstitute this program, but
in a manner that would prevent Viacom-like transactions by capping the amount of the tax
benefit in any one transaction, increasing the holding period for the minority purchaser to
prevent. quick resales, and ensuring that no individual entrepreneur or firm benefitted repeatedly
. from the preference. (We have not identified a PAYGO offset for this option.) Option 1
would avoid reopening the battle over these issues.
II. PUTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your. policy choices in this area may be most easily defended if they reflect a coherent
theory or approach. This Part outlines three such approaches, and describes the policy choices
that seem most easily justified within that approach. (See Exhibit 1.) Each is consistent with
some basic inclinations you expressed in our various "vision" discussions, including:
•
•
•
A.
Emphasize antidiscrimination and opportunity, rather than guaranteeing results.
Stress the remedial justification, but also embrace the goal of inclusion.
Respect the interests of bystanders, by crafting policies carefully and narrowly.
The "Calibrated" Approach
This approach emphasizes the difference between equal opportunity and equal results in two
dimensions. 11:1 terms of the policy tools one uses, outreach and training are less result-driven
and. thus less problematic than set-asides or quotas. Similarly, in terms of the context, ant
specific affmnative action tool is less problematic in education (which expands opportunity)
than similar efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard. to the policy choiCes outlined above, this
approach would support: .
Education:
Employment:
9
LIBRARY PHOTOCOPY
�Procurement:
B.
Option 4 or 3 -- Phase out or sharply narrow procurement preferences and
set-asides.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that
affirmative action must be narrowly tailored to minimize exclusivity and the use of race- or
gender-based decisionmaking. Thus, result-driven quotas are always mappropriate (except in
rare court-ordered remedies), and set-asides may only be used (i) when they are either broadly
remedial or (ii) when less intrusive alternatives are not effective. In essence, this approach
would apply the Title VI scholarship policy to all three sectors.
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of
the benefits of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the
opportunity-results distinction. So, one might weigh those costs and benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
discrimination, in which case the narrowness need not be too scientific; and it matters if the ·
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
This approach leads to support for limited use of race-specific programs. In particular (as
illustrated in Attachment 2):
Education:
Employment:
Procurement:
C.
Option 1 or 2 -- Maintain or tighten current policy.
Indeterminate --Either option on consideration of race/gender in layoffs.
Option 1 or 3 -- Reform or sharply narrow preferences and set-asides.
The "Anti-Exclusion" Approach
A third approach emphasizes the moral cost of maintaining programs that exclude persons
on the basis of race or gender -- even in the name of diversity. This approach entails
opposition to the rule-of-two SDB set-aside and to race- or gender-specific scholarships; these
are effectively indistinguishable from quotas. Instead, such programs would have to be
revamped to rely on multifactor considerations in which race is but one factor, or on race- and
gender-neutral approaches.
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Expand eligibili~t&.include nonminority firms.
~IC.'~IDEtV'):
.
<(
~
~ CfJlb~.
~
~
'(
10
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
002.memo
SUBJECTrriTLE
DATE
Under Secretary of Defense to Edley, re: Affirmative Action Review
(3 pages)
RESTRICTION
4/7/1995
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA!Box Number: 5749
FOLDER TITLE:
Dept of Defense (Military) Affirmative Action [2]
Whitney Ross
2008-0308-F
wr898
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S. C. 552(b))
Pl National Security Classified Information [(a)(l) of the }'RAJ
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between tbe President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) ofthe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
·
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would·disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
WJC LIBRARY PHOTOCOPY
�UNDER SECRETARY OF DEFENSE
4000 DEFENSE PENTAGON
WASHINGTON, D.C. 20301-4000
APR
1 1995
PERSONNEL AND
READINESS
MEMORANDUM FOR CHRIS EDLEY
SUBJECT:
Affirmative Action Review
I am pleased that the President has ordered a review of affirmative action. The effort is
long overdue. It should have been done in the 1980s, but the Reagan and Bush administrations
lacked the interest and moral authority to treat the topic credibly. The Clinton administration has
an advantage here, and should use it creatively. Beyond assessing laws and programs, President
Clinton should use this occasion to renew our national conversation on race. Let me offer two
observations about the review, then suggest how the President can take us to a higher plane.
THE REVIEW
First, you and George should continue to press us to define, categorize and assess our
policies and programs. Public attitudes have been skewed by the critics' success in defining
affirmative action as preference. When pollsters define it that way, they find-- surprise! --that
the public opposes it (because the public opposes preferences). Rich Morin's report on a recent
WP/ABC survey is a classic exainple. We also need a typology that, at minimum, distinguishes
between remedial programs (the kind courts impose to remedy past discrimination) and inclusive
programs (those that companies or colleges voluntarily undertake to achieve greater diversity or
some other social good).
Our assessment of a specific program's .effectiveness and legal soundness depends on
how its purpose is defmed. As we make those assessments, we must avoid conflating class and
race. Some of the continuing argument about the Great Society stems from confusion over
whether a particular program was supposed to solve a class problem or a race problem. Lyndon
Johnson may have blended the two for good tactical reasons. We could do the same thing, as
long as we understand the ramifications. We also must avoid a logical fallacy that many people
commit when they try to distinguish between equal opportunity and equal results. That
distinction holds for individuals, but not for large groups. (I wrote a book on this.)
Second, we need to put the current review into perspective. Although the public debate
centers on affirmative action, the issue is driven by deep; unresolved questions about race and
color in America. We could develop intellectually compelling responses to_ current complaints
about affirmative action and still not address the visceral concerns that drive. the politics of this
1ssue. This is a case in which cogent policy analysis will be helpful only at the margin.
WJC LIBRARY PHOTOCOPY
�<'l~S\DEtvr.
~'
<
0(
2 807
z
Therefore, we should see the review as part of a long campaign. Affirmative ac ~ has
been under concerted attack for a number of years, with its critics often dictating the te~ of the
debate. A few speeches and policy pronouncements are not likely to have much effect ag,__ ..._ __
that relentless onslaught. So, in addition to good analysis, we need a multifaceted, long-term
campaign to win hearts and minds. Someone needs to develop a media strategy~ and someone
needs to energize leaders, scholars and advocates.
PRESIDENTIAL LEADERSHIP
What should be President Clinton's public role? On this as on other controversial issues,
it is more important that a President show moral conviction than that he demonstrate mastery of
the subject matter. The public wants to know where the President stands and where he wants to
lead the nation. He should provide the moral impetus for a national conversation on this subject.
Our nation has gone through more than two centuries of interrupted conversations about
race. Virtually every generation has one; often it ends raggedly and unconstructively. But the
President and many others in this Administration were members of a generation that saw struggle
and sacrifice produce positive results. Many of us participated in the civil rights movement.
Few of us emerged from the 1960s without having engaged in a serious conversation about race.
Since the 1960s, however, the focus has shifted from moral fundamentals to questions of
enforcement and program administration; so the issue has come to be dominated by lawyers and
policy experts. The public voice has surfaced only in sporadic outbursts.
The transition from movement to bureaucracy has had two unfortunate ramifications.
One is that a generation has come of age without having to confront its hopes and fears about
matters of race and color. When I, as a teenager, experienced discrimination, I was aware that
many others were struggling with the same thing. When my teenage daughter confronts race, she
does it alone, or in brief, furtive exchanges with a few friends. And, she is not dealing just with
black and white; her world is a spectrum of colors. Another ramification is that the moral
fundamentals have become separated from the bureaucratic details. This often happens when
moral principles are digested into statistical standards; it causes political dyspepsia.
We need to remind ourselves how we got to this point and consider where we go from
here. President Clinton is the perfect person to start us on that path. Few national leaders have
greater moral credibility t¥an he on this issue, or greater facililty for engaging the public in
dialogue. One of the keys to his campaign was the empathy he projected during town hall
meetings. I do not propose the President actually conduct such a conversation. Others can do
that, guided perhaps by materials fromNEH, the Southern Poverty Law Center or the Kettering
Foundation. The President should provide the broad moral contours.
What should the President say? Think in terms of a speech (with several iterations) that
allows him to reflect on generational change -- on heritage and hope. President Clinton could
begin with reflections about growing up in a country where racial inequity was legally mandated
and opportunities for women were greatly circumscribed. Next; he could assess our current
WJC LIBRARY PHOTOCOPY
�--------------------~-----------------------------,
. I
condition: the progress we've made; the evidence of continuing discrimination; the inequities
that the current generation has inherited from the past; the complexities of race, color and gender
today. Finally, he could describe the world that he would like his daughter to inherit.
CONCLUSION
In short, we need (1) a moral vision, provided by the President; (2)the review, to help
clarify and refine affirmative action policies and programs; and (3) a strategy that links, in the
public mind, the moral fundamentals with the program mechanics.
Thanks for including the Defense Department in this effort. I hope the materials we've
provided on the military experience have been useful and that the suggestions offered above
don't lead you astray. Please call me ifl can help further.
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
DATE
SUBJECT!fiTLE
From Deval Patrick, re: AA in the Clinton Administration (3 pages)
2/6/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
ONBox Number: 5750
FOLDER TITLE:
DOJ Affirmative Action
Whitney Ross
2008-0308-F
wr899
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
PI National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
. PJ Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) ofthe PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request.
Freedom of Information Act- [S U.S.C. SS2(b))
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(J) ofthe FOIA)
b(4) Release. would disclose trade secrets or confidential or financiaf
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
WJC LIBRARY PHOTOCOPY
�+,-·, ~ ,_.,r,-)
·C
-1 (Y,}··,(..
,...,
.
0 ~d k ~ Q ~_:· ~.t, "'( ~ :-~ ~
tJ t1 e ~ a ~ u i!,.J OJ r if-1 L
( 1
MEMoRANDUM
RE:
AFFIRMATIVE ACTION IN THE CLINTON
,
j../..:.,_,v :::.(l___
1---.r l'l {.•
) ' - ( )_ _.,
I
," ;..·>C.. ..
!96
~s\OEN!;
1 q_«:-'
~( ('
/.
ADMINISTRATION~~
\~
2?/7()
.
.
.
.
.
. -1
In l1gh t o f t he 1ncreased attent1on pa1 d to a ff 1rmat 1v ~.>.
action in the current political climate, and our recent meet' g
on the subject, I recommend that the Administration promptly
undertake the following initiatives:
~
1. We should affirm our support for proper, lawful
affirmative action. We should define what it is we have been
talking about and explain in non-defensive terms what our law
enforcement program has (and has not) been about. We have
consistently acted within Supreme Court limits (see the
accompanying paper) , which is exactly what the Justice Department
is supposed to do.
Apart from the law, we should make the case for affirmative
action today. Affirmative action arose in the first place as a
device for expanding the middle class to include historically
excluded minorities. It was created when we realized that we
would not actually change behavior and embrace communities
previously left behind wholesale simply by passing strong
legislation and bringing individual lawsuits. Although
affirmative action has been responsible for the level of racial,
ethnic and gender diversity we have in this country, the
statistical evidence indicates that inclusion of minorities and
women in mainstream American life remains a continuing challenge
for this Nation. Affirmative action is one means to address that
challenge. As a result, it is widely accepted and even embraced
by many American businesses, colleges and universities.
At the same time, we should publicly renounce the abuses of
affirmative action. Our collective rejectionof "quotas" is a
shorthand way of doing this. It seems to me that we should be
more explicit. We must reject affirmative action plans in which
"race overtakes reason," that is, plans which overlook valid,
justifiable qualifications, which are numerical straitjackets,
which are limitless in time and unreviewable, which do not take
account of a demonstrable available pool of qualified candidates,
or which unduly burden the vested interests of the majority. We
need to define what we mean and, most importantly, what we don't
mean. And we need to make the opposition show us that the
anecdotes they cite are in fact illustrative. I don't think they
can make their case.
2. We should renounce the use of race for political ends.
At a recent briefing on Capitol Hill by the conservative
Institute for Justice, Republican strategist William Kristol
publicly opined about the ways Republicans could and should use
race in the 1996 Presidential campaign. He. pointed explicitly to
the California ballot initiative and the debate it provokes on
affirmative action. We have seen from examples as recent as.the
DETERMINED TO BE AN ADMINISTR-\ TIVE
Per E.O. 12958 as amended, Sec. 3.3 (c)
MARKI~G
Initials:
~It ~k~-W;f lJh!tbrrocoPY
~
'\
�8?o
2
Willie Horton campaign in 1988 how devisive and hurtful this ·----~
We should publicly attack that strategy now, refocussing the
debate on the President's oft-repeated assertion that this
presidency is committed to bringing communities together across
our many differences. The Republicans should not be permitted to
use affirmative action in particular or civil rights enforcement
in general to divide ahd belittle the American people. This is a
matter of conscience, with deep roots in a stained but important
history: We should seize the moral high ground on it.
3. We should explore the possibility of promoting and·
supporting an alternative to initiatives like the California
ballot initiative that may be introduced in Congress. The
Californi_a "Civil Rights Initiative"· addresses affirmative action
in the limited sphere of government use. Even this makes
exceptions for public safety. Meanwhile, voluntary affirmative
action by private businesses and schools is where most of the
action is. Thus, the initiative gives expression to the backlash
against affirmative action without actually addressing much of
substance or reach.
Because I believe the abuses of affirmative action, however
isolated, have taken on a life of their own, we should help
develop an alternative to wholesale rejection of affirmative
action which explicitly rejects the abuses. These abuses occur:
(1) where an unqualified person receives a benefit over a
qualified one; (2) where numeric goals, if any, are so strict
that the plan lacks reasonable flexibility; (3) where the numeric
goals bear no relationship to the available pool of qualified
candidates; (4) where the plan is of indeterminate length, such
that it outlasts the achievement of its original goals; or
(5) where majority persons unfairly or unreasonably lose vested
rights. We should explore a way to let people vote against the
abuses of an otherwise honorable idea without rejecting the idea
completely.
4. We should create and support a second "Kerner
Commission."
If the purpose of affirmative action is to expand
the middle class to include historically excluded citizens, we
ought to take a serious look at the conditions to which
affirmative action is one response. There is no question but
that minorities are suffering disproportionately to their
population in this country. It may be that the reasons for this
current state of affairs have changed; it may be that they have
not. It also may be that the explanation for these conditions is
different as between African Americans, Hispanic Americans and
Asian Americans. The experience of women begs other questions as
well. A scholarly, nonpartisan examination of these issues may
WJC LIBRARY PHOTOCOPY
�.'
'
3
help promote a constructive debate about the problem we are
trying to address rather than the irresponsible, over-politicized
rhetoric with which affirmative action is too often addressed.
Let me know what you think.
Attachment
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
Larry Matlack to Alan Rhinesmith [partial] (1 page)
()4/1'7/19~:3
~-6)
002. memo
Edley to Beckel, re: Race and Layoffs (1 page)
411811995
P5
~~~
COLLECTION:
Clinton Presidential Records
Counsel's Office
Christopher Edley
OA/Box Number: 5752
FOLDER TITLE:
Empowerment Contracting
Whitney Ross
2008-0308-F
wr459
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a))
Freedom oflnformation Act- (5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) ofthe PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice betWeen the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA)
b(6) Rel~ase would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request.
WJC LIBRARY PHOTOCOPY
�E X E C 'u T I V E
0 F .F I C E
0 F
T H. E
P R E S
18-Apr-1995 01:19pm
TO:
Heather Beckel
FROM:
Christopher F. Edley, Jr
Office of Mgmt and Budget, EG
CC:
Peter M. Yu
SUBJECT:
Race and Layoffs
George:
FYI -- At my request, DOJ's Office of Legal Counsel had quiet
staff-level conversations with OPM. OPM seems to have backed off
of their initial guidance.
So, we are moving forward in the materials on the assumption that,
pending a decision to the contrary in Piscataway, Title VII and
therefore the Federal civil service rules, do not bar a policy of
considering diversity as a tie-breaker.
Note that I say "tie-br~aker" because, unlike the non-unionized
private sector where informal pracices prevail, federal layoffs
are governed by a formal hierarchy of seniority and other tests
that would make diversity considerations almost always irrelevant.
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECT!TITLE
RESTRICTION.
001a note
Mike Small to Christpher Edley, re: Race-Based Layoffs in Federal
Employment (1 page)
4115/1995
P5
'21~
001b. memo
From Mike Small, re: Race-Based Layoffs in Federal Employment (2
pages)
4/7/1995
P5
~rz3
002. note
Mike Small to Christpher Edley, re: Race-Based Layoffs in Federal
Employment (2 pages)
4/6/1995
P5
~'ILf
003.memo
Joseph Stiglitz to Christopher Edley, re: Next Steps on Affirmative
Action (3 pages)
3/27/1995
P5
~1
s
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5750
FOLDER TITLE:
Federal Civilian Employment A.A. [Affirmative Action] (EEO)
Whitney Ross
2008-0308-F
wr900
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or .
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRA)
b(l) National security classified information [(b)(l) oftbe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute ((b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA)
b(8) Release would disclose information.concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request.
I
!
,
WJC LIBRARY PHOTOCOPY
. . :·,'t·
�04/17/95.·
.n:;a.
·u-
April lS,
NOTE TO CHRIS EDLBY
From:
Re:
Mike
~995
V·
f'
Small~
. Race-Based Layoffs in Federal Employment
I am attaching a file memorandum that summarizes the
conversation that I had two weeks ago with Rhoda L~wL~11ce of OPM
on race-based layoffs in :ederal employment. The memorandum is
essentially the sa.'"ne as the memo on that swject addr~:s~~tl co yo1.:..
that I delivered to your office, along with our.HHS update, two
weeks ago. The one change is in the .Last paragraph, which 11uLes
other cases besides Sheet Metal worker.s. that establish that
affirrnative ac:tion may benefit persons who themselves wen:: uuL
''victims 11 of discrimination.
Per the request that you made to Dawn Johnsen earlier today,
.I had a follow-up conversation with Ms. Lawrence this afternoon.
I tr.1n hP-r that I had advised you that I did not read 5 C.F.R. §
351.60l(b) and 5 TJ.S.C. § :2302, in and of themselves, as
establishi~g a prohibition on race-based layoff decisions in
connection with affirmative action measures in federal
employmarlt . T t.old her c.hat. ln my view, the reference in 5
U.S.C. § 2302 to actions prohibited under Title VII means that
one would hav~? t.n look at Title VII and court decisions
interpreting it to dete=.mine whether it was lawful for an agency
to use race to brP.~k a tie between two employees. Ms. Lawrence
did not contest my analysis, ·and indicated that she understood
it.
She thanked me fnr ~he heads-up.
WJC LIBRARY PHOTOCOPY
�04/17/95
·a
11: l.o:
Memorandum
873
,.,.bject
Date
Race-Based Layoffs in Federal Employment
April 7,
To
.19:~:,
from
File
Michael Small
of Leqal Counsel
Offic~
On April 5, 1995,-I had a conversation with Rhoda Lawrence
the General Counsel's Office at the Office of Personnel ·
Management regarding the use of race to determine priority in
1nyoffs in federal employment. Ms. La"Wrence stated that it was
impermissible under relevant laws and regulations for federal
a~Pn~ies to use race as a ~tie-breakern with respect to layoff
decisions. Ms. Lawrence said that this prohibition 1s contain~a
ir. 5 CAF.R. § 35l.50l(b), when read in conjunction with 5 u.s.c.
§ 2302.
Ms. Lawrence stated that 5 u.s.c. § 2302 precludes
federaJ P.mployers from using race in any employment decision, not
just with respect to layoffs. In short, under her reading of the
statute, affirmative action in federal e,mployment (beyond
outreach and recruitment) is barred by e~press provisions of
e~isting law.
Tn my conversation with Ms. Lawrence, I expressed
my disagreement 'N'ith her assertion. This memorandum summarizes
the bases for my cnnr.lusion.
of
s C.F.R.
§
3Sl.60l(h) states:
When employees in t.hP. same retention subgroup
have identical service dates and are tied for
release from a compP.t".itive levelt the aqency
may select any tied employee for release.
By its terms, the regulation does not prohibit the use of race to
break the tic. Furthermore, nothing in 5 U.S.C. § 2302 suggests
that any such prohibition should be read into the regulation. In
pertinent part,- S u. 5. c. § 23 02 ban;: Agencies from discriminating
against employees "on the basis of race, color, religion, sex, or
Il~Llonal origin, as prohibited under s~ction 717 of the Civil
Rights Act of 1964." (emphasis added). Section 717 extends the
antial~crirnination principle~ of Title VII of the 1964 Civil
Rights Act to employment in the federal government. In
SL~~lworkers v. Weber, 443 u.s. 193 (1979), the Supreme Court
held that those principles does not erect a per se bar on the use
of J:'(;I.Cial criteria in employment deci5:ion~ ns part of affirmative
action m~asures. The Court said that such measures are
WJC LIBRARY PHOTOCOPY
�V't/~I/04J
.a.• • • •
consistent with Title VII if they are intended to correct a
manifest racial -imbalance in a traditionally segregated job
category, and do not ur..d•Jly ':.ramm.el the interests of disfavored
persons. The Court reaffirmed Weber in Johnson v. Transportation
Agency, 480
u.s.
616 {1987).
'I'llu~, Lll.:tL pa.L·L of 5 u . s.c. § 2302 that make~ i.t unlawful
for federal agencies td take actions on the basis of race Has
prohibil~d ur1uer-
Tlll~:
VII HIUl:liL lJe read against the backdl.-op of
Weber and Johnson. In short, one would have to de~ermine
Wl1ether, under the standards for asst:!:!:;Sill!J afil.nuaLlv~: e.u.:Liou
measures established in those cases, the use-of race to·break a
tie in an employment decision violates ~1tle VII. ~- Weber, 443
u.s. at 208 (hiring preference in question did not Hunnecessarily
trammel the interests of white employees- b~cause, among other
things, it "[did) not require the discharge of white workers and
their replacement with new blacK hires"). In addition, because
federal agencies are also subject to constitutional constrain-:.·s,
the Supreme Court's _ru~ing in Wygant v •. Jackson ~oard of
Edacation, 476 u.s. 267 (1986}, holding uncons~itutional a racebased layoff measure in a publlc schOOL would be relevant to the
question whether federal employers may use race to break a tie in
a layoff decision.
.
I
Finally, 5 u.s.c. § 2302(d) provides that the prohibitions
in the section "shall pot be construed to extinguish or lessen
any effort to achieve equal opportunity through affirmative
action . . • • " This provision explicitly exempts from 5 u.s.c.
§ 2302 those race-basea employment decisions that are made
·
pursuant to otherwise lawful affirmative action measures. Ms.
Lawrence suggeste.d that the provision merely allows a federal
agency to qive a racial preference to a particular minority
employee or applicant who has brought a· successful race
discrimination challenge to a soecific aqency employment decision
affecting that person. That is not what "affirmative action'' is
generally understood to mean, however. Rather, it encompasses
racial preferences that benefit rninoritie~ who the~selves may not
have been specific victims of identified instances of racial
discrimination. In fact, Ms. Lawrence's view was rejected by the
Supreme Court in Sheet Metal Wockers v. EEO....C., 478 u.s. 421
( 1986), and none of 'the Justices in the majority in ~ber and
.Tohnson suggested that only actual victims of discrimination may
benefit from affirmative action in employment. Nor is any such
rP.~llirP.mP.nt ~nndated by the Constitution.
~e Wygant, 476 U~S
7
at 2i7-78 (plurality opinion); id. at 286 (O'Connor, J., ~<C.s\Dt:V/;-1<
concurring).
·Q
<'
~ 37_] ·~
;u
-6
\
-;
- 2 -
WJC LIBRARY PHOTOCOPY
�.---------------
--
April 6, 1995
NOTE TO CHRIS EDLE~J
Small~
From:
Mike
Re:
Race-Based Layoffs in Federal Employment
Rhoda Lawrence of OPM advised you that it was impermissible under relevant laws
and regulations for federal agencies to use race as a "tie-breaker" with respect to layoff
decisions. Ms. Lawrence said that this prohibition is contained in 5 C.P.R. § 351.60l(b),
when read in conjunction with 5 U.S. C. § 2302. In a conversation that I had with her, Ms.
Lawrence stated that 5 U.S. C. § 2302 precludes federal employers from using race in any
employment decision, not just with respect to layoffs. In short, under her reading of the
statute, affrnnative action in federal employment (beyond outreach and recruitment) is barred
by express provisions of existing law. I disagree with Ms. Lawrence's assertion.
5 C.P.R. § 351.601(b) states:
When employees in the same retention subgroup have identical
service dates and are tied for release from a competitive level,
the agency may select any tied employee for release.
By its terms, the regulation does not prohibit the use of race to break the tie. Furthermore,
nothing in 5 U.S. C. § 2302 suggests that any such prohibition should be read into the
regulation. In pertinent part, 5 U.S.C. § 2302 bars agencies from discriminating against
employees "on the basis of race, color, religion, sex, or national origin, as prohibited under
section 717 of the Civil Rights Act of 196(" (emphasis added). Section 717 extends the
antidiscrimination principles of Title vn of the 1964 Civil Rights Act to employment in the
federal government. As you know, in the Weber case, the Supreme Court held that those
principles does not erect a per se bar on the use of racial criteria in employment decisions as part of affrnnative action measures. The Court said that such measures are consistent with
·Title vn if they are intended to correct a manifest racial imbalance in a traditionally
segregated job category, and do not unduly trammel the interests of disfavored persons.
Steelworkers v. Weber, 443 U.S. 193 (1979). The Court reaffrnned Weber in Johnson v.
Transportation Agency, 480 U.S. 616 (1987).
Thus, that part of 5 U.S. C. § 2302 that makes it unlawful for federalagencies to take
actions on the basis of race "as prohibited under" Title vn must be read against the backdrop
of Weber and Johnson. In short, one would have to determine whether, under the standards
for assessing affrnnative action measures established in those cases, the use of race to break
WJC LIBRARY PHOTOCOPY
�a tie in an employment decision violates Title VII. Cf. Weber, 443 U.S. at 208 (hiring
preference in question did not "unnecessarily trammel the interests of white employees"
because, among other things, it "[did] not require the discharge of white workers and their
replacement with new black hires"); In adciltion, because federal employers are also subject
to constitutional constraints, the Supreme Court's ruling in Wygant v. Jackson Board of
Education, 476 U.S. 267 (1986) holding unconstitutional a race-based layoff measure in a
public school would be relevant to the question whether federal employers may use race to
break a tie in a layoff decision .
. Finally, I note that 5 U.S.C. § 2302(d) provides that the prohibitions in the section.
"shall not be construed to extinguish or lessen any effort to achieve equal opportunity
through affmnative action .... " This provision explicitly exempts from 5 U.S.C. § 2302
those race-based employment decisions that are made pursuant to otherwise lawful
affmnative action measures. Ms. Lawrence suggested that the provision merely allows a
federal agency to give a racial preference to a particular minority employee or applicant who
has brought a successful race discrimination challenge to a specific agency employment
decision affecting that person. That is not what "affrrmative action" is generally understood
to mean, however. Rather, it encompasses racial preferences that benefit minorities who
themselves may not have been specific victims of identified instances of racial discrimination.
In fact, Ms. Lawrence's reading was rejected by the Supreme Court in Sheet Metal Workers
v. EEOC, 478 U.S. 421 (1986).
.
- 2 -
WJC LIBRARY PHOTOCOPY
�------------------------.
EXECUTIVE OFFICE OF THE PRESIDENT:
COUNCIL OF ECONOMIC ADVISI;RS
WASHINGTON, D.C. 20500
MEMBER
March. 27, 1995
MEMORANDUM FOR CHRIS EDLEY (OM~)
_
· .
: ·. .
.~ . ' . ' ..
'
FROM:
SUBJECT:
JOSEPH STIGLITZ
Next steps ·on/
.-:···•M"
ffir~ative
"~
•,,"
..··
..
.
acf_i":n·
. .. .
.. '
There are several principles that could be.usefulinguiding
reforms to extant affirmative action programs:, .
1.
Affirmative action should focus on expandirlq· C?PPOrtUiiities,
not on equalizing outcomes.
· ·=. -
2.
Affirmative action should be broad-based:
We should focus on increasing opportunities for. _all those fo.r
whom opportunities are foreclosed;. these include not only women and.
minorities, but ·low-iricome Americans in generaL
In·. some are'as,
equality' of opportunity for some groups may~ already have been
achieved, . even though those same groups re_main disadvantaged in
other areas.
Thus, at the same time t,hat it i? broad,.-based,
affirmative action shou+:d be targeted a~ rectifying. specific
barriers to equality of opportunity.
Affirmative action shoul-d attempt to ident1fy _all barriers toequality
of
opportunity,
many
of
whicl'!
go:: ·well
b~yond
discrimination. These include:
(a) A lack of access to information;
(b) . A lack of a·ccess to the economic . re!:iources. reql.ll.red to
. invest in human capital;
.
(c) A lack of · mentoring and of guidance concerning job
promotion (e~g., about career ladder~); and
..
(d) A lack of perceived incentives: · past foreclosure of
opportunities ·in some areas may discourage · disadvantaged
groups from making the investments necessary .·for . cur:r;erit .
advancement.
'
In addressing these barriers, affirmative action -should employ
the full parioply of available institutions and instruments, but it
should. explicitly eschew the use of. quotas (which, in any case,_·
were never allowed except as part of remedial action. associated
with-discriminatory behavior)~
'I
since so many of the barriers occur outside the. workplace,
effectively addressing them requires a broader set of initiatives
than have traditionally occurred within affirmative action.
WJC LIBRARY.·PHOTOCOPY
o
�.''·
3 . .Affirmative action should be reformed in a manner consistent
with the general principles of regulatory reform being formulated
within the Reinventing Government Initiative. These include:
(a) An emphasis· on performance, with a clear focus on the
ultimate objectives of initiatives;
(b) A recognition that most firms ar~ "good actors. II
They
are, and want to be treated, as "good citizens,"·who believe in
Amer icari ideals concerning. equality of opportunity i· and
(c) A recognition that some firms are superlative, and that
such exemplary behavior·should be publicized~
such precepts suggest that, for most firms·, the annual OFCCP
compliance reporting diverts resources that might be more valuably
used elsewhere.
·
Possible reforms
Equality of opportunity is a central tenet of the~Aroerican
value system. Any reforms to affirmative action programs should be,
consistent with this central principle, as well with th~ other
principles described . 'above.
Some ideas· for po~ssible r;efor:tns
include:
1. The Federal Government could award bonus points in contract
bidding (say 5 to 10 percent) to firms with good or exemplary
programs expanding
awarded for:
eguality
of
opportunity.
Points
could be
(a) Aggressive programs for.outreach in hiring
(b) Model programs for mentoring employees '
(c) Demonstrated success, through training, guidance, and
mentoring, in promotion programs
(d) Summer intern programs
(e) High school.and after-school-programs
(f) Active participation in the Business/Community Equaiity
of Opportunity Programs
.
.
.
2. We could work with businesses and communities throughout
·the country to establish Business-Community Equality of Opportunity
Programs.. These would work to ensure that (at a minimum) every
student in the top. ten percent_of every high- school class had the
opportunity to go to college. The councils would strive to ehsure
guidance· for access to publicly available scholarships and loan
programs; would guarantee summer jobs; would provide internships,
summer and after school jobs.
3. The White House,·working with private foundations, could
establish a named (Martin Luther King) ·prize for- corporations,
'business .councils, communities, and =individuals demonstrating
innovativeness · and· exempiary conduc:'tSIIDnt~~expanding eguality of
opportunity.
· &~~p
'~(
~
("
4. The White House could est &.lish a summe,
. z ·.
-~ tJ7)
.
;o
internshi
ram
$
'\
WJC LIBRARY PHOTOCOPY
�·, ..
,
.
· for disadvantaged· high school and· colleqe students. · · The White
House . would thus "take the lead" in promoting equality of
opportunity by establishing a program similar to the Federal
Reserve Board's minority internship program. . Given the broad
variety of possible tasks within the White House, the program could
be targetted at both high $Chool and college students .
.5. The Government could encourage more "adoption" programs
between universities and high schools in disadvantaged areas. Many
corporations have "adopted" high schools-,-the firms provide
computer systems, senior executives give talks, etc.. Universities,
especially public universities; could be more aggressive in
undertaking similar projects-. Each university could adopt several
high SChOOlS, prOViding mentoring I information, and enCOUrag_ement
to disadvantaged students.
·
6. Regulatory reforms could ease the burden of affirmative
action reporting requirements, especially for firms, wi,th good
records. ·For example, annual OFCCP compliance reportin~ diverts
resources that might be more valuably used elsewhere.
Firms with .
good records could be ieviewed once every few years, rather than
once a year, thereby reducing the administrative burden on both the·
private sector· and the Federal Government.
7. There are
relatively quickly:
several
concrete
steps
we
executive order,
banning ·quotas
regulations an~ compliance.
•.
An
could
and
implement .
··)
reinventing
e An executive order, establishing a. framework for the
.creation and encouragement of business-community equality of
opportunity programs and a directive for relevant agencies
within the Feder_al Government to take an active role.
As part of this, a directive could be·issued to the National
Guard to encourage participation_ in these activities in
appropriate ways·(parts of·the National Guard have expressed
an interest ~n a variety of such programs.)
• Collaboration with private foundations- in establishing a
Prize for exemplary behavior.
• Establishment of
internship program.
a
White
House
Disadvantaged
students
• An executive order reforming the reporting requirements for
OFCCP compliance reviews.
27~
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
DATE
SUBJECTfflTLE
Christopher Edley to Margie Sullivan, re: Appropriation Amendments
6/2/1995
RESTRICTION
P5, P6/b(6)
on Affirmative Action (1 page)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Christopher Edley
OA!Box Number: 5751
FOLDER TITLE:
Legislation/Affirmative Action [1]
Whitney Ross
2008-0308-F
wr455
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would. violate a Federal statute [(a)(3) ofthe PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of tbe PRA)
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
b(3) Release would violate a Federal statute [(b)(3)ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release ·would disclose information compiled for law enforce~ent
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions ((b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
WJC LIBRARY
PHOIOCOP~
�June 2, 1995
[oo\J
To:
Margie Sullivan
EdDom
Department of Defense
From:
Christopher Edley, Jr
Special Counsel to the President
Subject:
Appropriation Amendments on Aff1rmative Action
A l k ·.~
C/\
V
VIA FAX
Our understanding is that the Republicans plan to submit anti-affmnative action amendments to·
appropriations bills, ·beginning with the MilCon Subcommittee markup next week. The focus,
presumably, will be on contracting set asides.
We need two things rather urgently.
Can you help?
1. Any intelligence DOD can gather on precisely what the Republicans have in mind. Is there
draft language?
2. Draft background materials and talking points that could be used to explain the workings of
and rationale for the current programs. These materials should include some general points about
the background conditions of low levels of business ownership among minorities and. women.
They should also rebut some common myths about the current programs, including: the goals
are quotas; unqualified firms get the work; these programs cost the taxpayer tons of money; there
is widespread fraud.
·
The tone of the materials should not be that the programs are perfectly flawless, but they
should offer effective and ample ammunition for those attempting to argue that sweeping
destruction of the programs is wrong.
·
Given the timing, we need drafts that George and I can review on Monday. My guess,
however, is that most of what we need can be pieced together from material on the shelf.
Would someone give me a call to confirm? Thanks.
cc:
George Stephanopoulos
Alexis Herman
Cassandra Pulley
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
DATE
SUBJECTffiTLE
Under Secretary of Defense to Christopher Edley, re: Affirmative
Action Review (3 pages)
4/7/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel Office.
Christopher Edley
OA/Box Number: 5747
FOLDER TITLE:
Military (Dept ofDefense) Affirmative Action [3]
Whitney Ross
2008-0308-F
wr901
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S. C. 552(b))
Pl National Security Classified Information ((a)(l) of the PRA]
P2 Relating to the appointment to Federal office ((a)(2) ofthe PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOJA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOlA)
b(J) Release would violate a Federal statute [(b)(J) of the FOlA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOlA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA)
b(8) Release would disclose information concerning the regulation of
financial institUtions [(b)(8) of the FOlA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b )(9) of the FOlA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
WJC LIBRARY PHOTOCOPY
�04-07-199::; 10:10
093 0171
PCR::JONNCL
!!.
RCADINC::J::J
P.02
·:I
UNCER SECRETARY OF DEFENSE
4000 DEFENSE PENTAGON
WASHINGTON, D.C. 20!01-4000
APR
7 lggj
PI!IIIIIIONIIIEL AND
MACIINES!!I
877
MEMORANDUM FOR CHRIS EDLEY
SUBJECT1
Affirmative Action Review
I am pleased that the President has ordered 11. review of affirmative action. The effort is
lu11g overdue. It should hav~ been done in the 1980s, but the Reagan and Bush administrations
lacked the interest and moral authority to treat the topic credibly, The: Clinlon admlnistlatioa hu
an advantage here, and should use it creatively. Beyond assessing laws and programs, President
Clinton should use this occasion to renew our national conversatio!l on race. Let me offer two
obsciVations about the review, then suggest how the President can. take us to a higher plane.
THE REVIEW
First, you and George should continue to press us to define, categorize and assess our
policies and programs. Public uU.ituU.es have been skewed by the 'ritics' success in defining
affirmative action as preference. When pollsters define it that way, they find·· swprtse! -- tlut
the public nppn!iles it (because the I'Ublic opposes preferences). Rich Morin's report on a recent
WPIABC survey is a classic example. We also need a typology that, at minimum, distinguishes
between remedial proyr~Uru~ (the klnd courts impose to remedy past discrimination) and inclusive
programs (those that companies or colleges voluntarily undertake to achieve greater diversity or
~orne other social good).
Our usci!I~Illellt of a specific program's effeQtivcncss and legal soundness depends on
how its purpose is defmed. As we make those assessments, we must avoid cunflating class and
ra.ce. Some of the continuing argument about the Great Society stems from confusion over
whether a partic:ular program was supposed to lliolve a. class problem or a race problem. Lyndon
JulltlSOll may have blended the two for goo~ tu.ctical reasons. We could do the same thing, as
long as we understand the ramifications. We altJU m~.U~t avoid a loghjal fallacy thot many people
commit when they try to distinguish between equal opportunity and equal results. That
distinction holds for individuals, but not for larae groups. (I wrote a book· on this.)
Second, we need lu put the current review into perspcc~vc=. Although tho pu.blic debate
centers on affirmative action, the issue is driven by deep, unresolved qaesliun::J &bout rPCc and
color in America.. We could develop intellectually compelling responses to cment complaints
about affinnative action and still not Rddre~~~ the visceral concerns that drive the politics of this
iss~.;. Tim is a c;ue in whiQb cogent policy analysis will be helpful only at the margin.
0
WJC'LIBRARY PHOTOCOPY
�04-07-199~
10l11.
PCRGONNCL:
093 0171
!lc
RCAD.INCGG
P.03
Therefore, we should see the review as part of a long campaign Affirmative action has
bccll w1der concerted attack for a number of years, with its critics often dictating the tcnns of the
debate. A few speeches and policy pronouncements are not likely to have much effect against
that relentless onslaught. So, in addition to good analysis, we need a m.ultifaceted, long-term
campaign to win hearts and mind!l. Someone needs. to develop a med;a. ~trategy; and somenn~~~SIDEtv7';:
needs to energm, leaders~ scholars and advocates. .
;',~ ':.y(
l~
PRESIDENTIAL LEADERSHIP
.
\:)
\0
.
877
What should be President Clinton's public role? On this as on other controversial i~ues,
it is more important that a President show moral conviction than that he demonstrate mastery"at: ----the ~bj ect matter. The public wants to kno~ where the President stands and where he wants to
leftd the nation. He should. provide the moral impetus for a national conversation on this subject.
Our nation has gunc: through more than two centuries of interrupted 'onversations about
race. Virtually every generation has one; often it ends raggedly LUld unconstructively. But the
President and many others in this Administration were members of a generation that saw struggle
and sacrifice produce positive results. Many of us participated in the civil rights movement. ..
Few of us emerged from the 1960s without having engaged in a serious conversation about race.·
Since the 1960s. however~ the focus has shifted from moral fundamentals to questions of
enforcement and program administratio~ so the issue has come to be dominated by lawyers and
policy expc.N. The public voi'c hAs surfaced only in sporAdic outbursts.
The transition from movement to bureaucracy has had two unfortunate ramitications.
One is that a generation bas come of age without having to confront its hopes and fears about
matters ofrace and color. When I, as a teenager, experienced discrimination, I was aware that
many others were struggling with the same thing, Whc:n my Lc:~::~msge daughter collfrouts race, she
does it alone, or in brief, furtive exchanges with a few friends. And, she is not dealing just with
black and white; her world is a spectrum of colors. Another ramification is that the moral
fundamentals have become seplll'a.ted from the bureaucratic details. This often happens when
moral principles are digested into statistical standards; it causes political dyspepsia.
We need to remind ourselves how we got to this point and consider where we go from
- here. President Clinton ·is the perfect person to start us on that path. Few national leaders have
grcat.c=r mural credibility than he on this issue, or greater fncililty for engaging the public in
dialogue. One of the keys to his campaign was the empathy he projected during town hall
meetings. I do not propose the President actually conduct such a conversation. Others can do
that, guided perhaps by materials from NRH. the Southern Poverty Law Center or the Kettering
Foundation. The .President should provide the broad moral contours.
What should the President' say? Think in tenns of a speech (with several iterations) that
allows him to reflect on generational change _ on heritage and hope. President Clinton could
..
begin with reflections about growing up in a country where racial inequity was legally mandated
and opportunities for women were greatly circumscribed.
Next~
he could assess our current .
WJC LIBRARY PHOTOCOPY
�04-07-199~
10:12
093 0171
.PCRSONNCL
a
P.04
RCADINCSS
condition: the progress we've made; the evidence of continuing discrimination; the inequities
that the 'urrcnt generation has inherited :&om the pasti the compleKities of race, color and gender
tod~y. Finally, he could describe the world that he would like his daughter to inherit.
CONCLUSION
In short, we need (1) a moral vision, provided by the President; {2) the review, to help
clarify and refine aff1I'111ative action policies and programs; and (3) a strategy that links, .in the
public mind, the moral fundamentals with the program mechanics.
Thanks for including the Defense Department in this effort. l hope the materials we've
provided on the military experience have been useful and that the suggestions offered above
don't lead you astray. Ple.ase call me ifi can help further ..
WJC
LI~RARY
PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
RESTRICTION
001. memo
W.
Bowman Cutter and Dorothy Robyn to NEC Principals, re:
Procurement Reform (I 0 pages)
9/28/1993
P5
~'7-·;
002. memo
Re: Procurement Reform- Draft (8 pages)
9/2211993
P5
'1-::rc;
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5752
FOLDER TITLE:
Procurement Contracting (General) [Folder 2] [2]
2008-0308-F
wr902
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�r.
CLOSE HOL9
THE WHITE HOUSE
WASHINGTON
September 28, 1993.
MEMORANDUM FOR:
NEC Principals
FROM:
W. Bowman Cutter and Dorothy Robyn
National Economic Council
SUBJECT:
Procurement Reform
The following is a briefing memorandum for the WedneSday
meeting of NEC principals (3:30 in Old Executive Office Building,
Room 276). The purpose of the meeting is to consider procurement
reform proposals to relax socioeconomic requirements on
government contractors.
SUMMARY
In early October, the President and the Vice President,
together with key congressional Members, will announce a major
effort to reform the federal government's procurement system. ·
Procurement reform is central both to "reinventing government"
and to the Administration's Defense Reinvestment and Conversion
Initiative.
Two proposed changes constitute the heart of statutory
procurement reform. The first would lift the threshold for
conducting simplified purchases from $25,000 to $100,000. The
second would make it easier for the government to buy commercial
products.
··
Both proposals involve relaxation of statutory socioeconomic
requirements on federal contractors. The "Simplified Acquisition
Threshold" would raise the coverage level for certain
requirements.
Proposals regarding "Commercial Items" would waive
the requirements for commercial purchases.
The proposed relaxation of two types of socioeconomic
requirements is problematic for some agencies. The first are the
labor standards laws, such as Davis-Bacon. The second are the
affirmative action requirements, particularly EO 11246. The
labor standards laws are affected primarily by proposals to raise
the threshold.
The affirmative action requirements are affected
by both the threshold increase and commercial item waivers.
Conclusion and Options. There is a strong case for raising
the threshold for simplified purchases from $25,000 to $100,000
for both the labor standards and affirmative action requirements.
That change would streamline a large fraction of procurement
actions but affect only a small percent of contract dollars.
WJC LIBRARY PHOTOCOPY
�-2The case for commercial item waivers is more controvers~aJ,
particularly with respect to EO 11246. At a minimum, eliminatrbn
of "flowd6wn requirements'' on s,ubcontractors, which can be
accomplished administratively in most cases, seems warranted.
As for government contractors themselves, there are three
possible approaches to commercial item acquisition: One option
is the status quo. A second option is to exempt them from
affirmative action requirements for commercial contracts. A
third, compromise option is to continue to require contractors to
pursue a policy of affirmative action but eliminate the
monitoring and recordkeeping requirements in favor of a system
like that of the Internal Revenue Service, which relies on selfpolicing and the threat of audit.
DISCUSSION
Section 800 Panel
Current procurement reform proposals draw on the work of the
DoD Advisory Panel on Streamlining and Codifying Acquisition Law.
Known as the Section 800 Panel after its enabling law, this group
examined more than 600 statutes affecting the defense procurement
process.
The Panel's recommendations, in the form of an 1,800
page report, were submitted to Congress in January 1993.
First, to reduce administrative overhead, the Panel
recommended raising the threshold for many socioeconomic
requirements to $100,000. This change would streamline more than
50 percent of all DoD contract actions over $25,-000 (the existing
threshold for simplified purchase procedures) while affecting
less than five percent of the contract dollars.
In keeping with
existing policy, the Panel recommended reserving all purchases
under the threshold for small businesses, including small
disadvantaged businesses.
Second, the Section 800 .Panel recommended that many
government-unique socioeconomic requirements be waived for
acquisition of commercial items.
Such waivers were necessary to
enhance DoD's access to cutting-edge commercial technology, the
Panel argued.
They would also permit some firms that must now
maintain separate facilities and accounting systems to integrate
their commercial and military production. These changes,
moreover, would allow DoD to fulfill its requirements at far
lower costs.
WJC LIBRARY PHOTOCOPY
�-3National Performance Review
The National Performance Review, in its September report,
embraces these two key recommendations of the Section 800 Panel
and extends them government-wide. NPR recommends that all
agencies, not just DoD, be allowed to make purchases under
$100,000 using simplified purchase procedures. The NPR report
explicitly recommends raising the threshold for Davis:-Bacon to
$100,000.
The NPR report also calls for more reliance throughout the
federal government on the commercial marketplace. Although the
NPR's published report is less explicit than the Section 800
report, the "backup" documents recommend the same waivers as the
Section 800 report.
Department of Labor Objections
The Department of Labor, although in agreement with the goal
of integrating the commercial and defense sectors of the U.S.
industrial base, strongly objects to relaxation of several
socioeconomic requirements.
Commercial Items. Of greatest concern to DOL are the
proposed waivers .of three affirmative action requirements from
contracts to purchase commercial items:
·
1.
Executive Order 11246, which requires federal contractors and
subcontractors to take affirmative st~ps to assure equal
employment opportunity without regard to race, color, religion,
sex or national origin.
[Although EO 11246 includes a waiver for commercial item
acquisition, DOL has never implemented the regulations.]
2.
Section 503 of the Rehabilitation Act of 1973, which requires
federal contractors and subcontractors to apply a policy of
affirmative action to the employment of qualified individuals
with disabilities.
3.
The Vietnam Era Veterans' Readjustment Assistance Act of
1974, which mandates a similar policy of affirmative action
toward the employment of disabled and Vietnam era veterans.
(DOL also has concerns about commercial-item waivers of the Buy
American Act, Copeland Anti-Kickback Act, and Drug-Free
Workplace.)
'Although all employers are barred by law from
discrimination, federal contractors have an affirmative
obligation under these requirements.
(EO 11246 has the most
r
WJC LIBRARY PHOTOCOPY
�.-------------------------
878
-4extensive requirements: Firms must do a workforce analysis us
census data to determine the appropriate representation of
minorities and women by job category ~n their geographic area.
They must have a written plan, updated annually, with goals and
timetables for increasing the participation of those groups.)
DOL believes it is a fundamental principle that in expending
taxpayers' funds, the federal government may seek to promote
important social goals by holding federal contractors to higher
standards than the private sector generally.
Simplified Acquisition Threshold. The Labor Department is
also concerned about raising the simplified acquisition threshold
to $100,000, which would affect two longstanding labor standards
as well as the affirmative action requirements discussed above:
1. Labor standards laws: Davis-Bacon Act (current threshold,
$2,000) and the McNamara-O'Hara Service Contract Act (current
threshold, $2,500), which require the payment of prevailing wages
and fringe benefits on federal construction and service
contracts, respectively;
2.
Affirmative action requirements:
a. EO 11246 (current threshold, $10,000)
b. Sec. 503 of the Rehabilitation Act of 1973 (current
threshold, $10,000)
c. Vietnam Era Veterans' Readjustment Assistance Act of
1974 (current threshold, $10,000)
The Labor Department is not opposed in principle to raising
the coverage threshold under some of these laws, and in fact, DOL
- gave "qualified support" to the NPR recommendation to raise the
threshold on the Davis-Bacon and Service Contract Acts to
$100,000. However, DOL believes such a change should be
accomplished through amendments to the laws themselves rather
than through procurement reforms.
Con~erns
of Other Agencies
Although the Department of Labor has been the most vocal
critic of proposals to limit or waive socioeconomic requirements,
DOL is not alone. The Department of Veterans Affairs vehemently
opposes any dilution of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974; V.A. views the preference under federal
contracts as a veterans' benefit and therefore not an appropriate
concern of procurement reform legislation. The u.s~ Commission
on Civil Rights opposes, in particular, proposed chariges to EO
11246, which it believes would signal a retreat from wellestablished.and vital Federal civil rights policies. Several
other agencies also oppose limits/waivers on certain
socioeconomic requirements.
WJC LIBRARY PHOTOCOPY
�-5Congressional Action on Procurement Reform
Although the socioeconomic requirements have strong
supporters on the Hill .as well, key Senate sponsors are
considering ~ government-wide procurement reform bill that would
codify virtually all of the Section 800 Panel's recommendations.
Committee staff have worked for eight months to draft this 300
page bill, which will be championed by Democrats John Glenn
(chair, Go.vernment Affairs), Sam Nunn (chair, Armed Services ) ,
Dale Bumpers (chair, Small Business), Jeff Bingaman and Carl
Levin, as well as Republicans William Roth and William Cohen.
In its present form, the Senate draft adopts the Section 800
recommendations on all of the controversial socioeconomic
requirements save one -- Buy America.
It is silent on EO 11246.
Inotherwords, the bill would raise the threshold to $100,000 for
the Davis-Bacon and Service-Contract Acts. On the affirmative
action statutes covering the disabled and Vietnam veterans, the
draft would both raise the simplified acquisition threshold to
$100,000 and provide for an exemption for commercial item
acquisition.
Although the Members have not signed off on these
provisions, the draft represents a significant change from the
Senate position on these issues several years ago, particularly
for the Government Affairs Committee.
(Glenn, Levin, Nunn and
Cohen are members of both Armed Services and Government Affairs.)
The House procurement reform bill, H.R. 2238, is championed
by Rep. John Conyers, chairman of the Government Operations
Committee. As approved by the committee in July, H.R. 2238
raises the simplified acquisition threshold to $100,000 for many
statutes but not for the controversial'socioeconomic
requirements.
Arguments in Favor of Socioeconomic Waivers/Limits
1. Access to Cutting-Edge Technology. The socioeconomic waivers
are among the reforms needed to allow DoD to get access to
cutting-edge technology, products and processes, which are
increasingly located in the commercial sector.
Electronics,
software, computer systems and telecommunications are areas where
commercial technology is now more advanced than military
technology.
The current procurement system impedes DoD access to
commercial technology in three ways. First, some high tech firms
shun business with the government altogether, because of the
burden of government-unique requirements.
Second, most ·
government contractors segregate their defense business to some
degree t6 avoid "contaminating" their commercial business; this
WJC LIBRARY PHOTOCOPY
�-6limits economies of scale and blocks technology transfer with
the firm -- a problem for DoD because the innovations
increasingly come out of the contractors' commercial division.
Although the socioeconomic requirements are not the major culprit
(cost-accounting standards and milspecs are more significant),
they are a factor.
Third, socioeconomic and other requirements, which are
generally r~quired to "flow down" to all subcontractors, prevent
contractors from using their commercial suppliers for government
work.
For example, the Air Force wants to buy commercial
derivative aircraft from Boeing and McDonnell Douglas, both of
whom segregate their commercial and government production.·
Although Boeing and McDonnell Douglas could l~ve with the
socioeconomic requirements (large government contractors must
have affirmative action programs in place even in their
commercial divisions), many of their commercial subcontractors
cannot comply.
Although access to commercial technology is a problem
primarily for DoD now, civilian agencies increasingly need the
same, flexible access to leading-edge commercial technology for
such things as advanced air traffic control systems and
intelligent vehicle highway systems (DOT), next generatipn
software (Education) and solar powered cars (DOE).
2. Cost savings.
Significant savings are possible if DoD and
other federal agencies can act more like commercial buyers. ·A
July 1993 study by the Defense Science Board estimates that DoD
can save $2.1 billion a year (after five years) from better use
of commercial items and practices. Additional savings of $11.8
billion a year are possible from DoD reliance on "commerciallike" or dual-use items, such as the commercial derivative
aircraft.
·
The socioeconomic requirements are by no means the .only
obstacle -- or even the major obstacle -- to realizing such
savings.
But as the Boeing example illustrates, the
socioeconomic requirements would limit commercial purchases' even
if other obstacles were removed. Stated differently, removal of
the socioeconomic requirements -- at least for subcontractors
is necessary, if not sufficient, to allowing the federal
government to buy commercial.
3. Reduce Overhead. The Carnegie Commission on Science,
Technology and Government estimated that up to 40 percent of
DoD's FY91 acquisition budget, $50 billion, went for personnel in
DoD and the defense industry dedicated to management and control.
As DoD's budget falls, that figure will rise even higher if the
current overhead structure is left in place.
WJC LIBRARY PHOTOCOPY
�{.
-7Here again, it is difficult to isolate the burden of the
socioeconomic requirements. As one measure, the Labor Department
estimates that the three affirmative action programs it oversees
(EO 11246 ·and preference for Vietnam veterans and the·disabled)
impose a paperwork burden on industry of 20 million hours.
4. Defense Conversion. Although many defense firms have tried
to convert to the production of commercial products in response
to reduced military spending, few have succeeded because of the
overhead burden and inefficient processes associated with the
existing defense acquisition system. As DoD's budget continues
to drop, the Administration must unshackle these firms.
Defense
procurement reform will mean.the most to firms and workers in
California, where the unemployment rate is above 9 percent.
5. Broader Domestic Production Base. As military downsizing
continues, our defense industrial base will be too small to meet
the potential need for a reconstitution of defense production
capability. DoD must be able to draw on the commercial
industrial base, just as it did at the beginning of World War II.
The current acquisition system -- with its morass of governmentunique requirements -- makes that impossible.
6. Don't Undermine the Senate. For many years, socioeconomic
requirements such as Davis-Bacon have been politically
untouchable.
This year, Senate Democrats appear willing to
challenge that traditional view with a courageous bill.
Given
the Senate's apparent willingness to take a courageous stance on
reforming socioeconomic requirements, the Administration cannot
do less.
If the Administration were to take a less aggressive stance
on reforming the socioeconomic requirements, it would not only
undermine the Senate position, it would sacrifice the
Administration's ciaim to leadership on procurement reform,
jeopardize Republican support for a Senate/Administration bill,
and encourage others td break rank to protect their favorite
procurement regulation. The Section 800 report is the benchmark
(it is the procurement equivalent of the Base Closure
Commission), and any significant departure from its
recommendations will be perceived as a retreat.
7.
Issue is Ripe. Courage aside, the Senate draft bill position
on the socioeconomic .requirements reflects the fact that
procurement reform is a politically ripe issue. The intellectual
case for reform has been made, and several factors -- including a
shrinking defense budget and a sense of crisis over the health of
U.S. indu~try -- create the potential for sweeping legislative
changes in the next two years.
8.
Social Goals are Still Met.
The proposals to limit the
WJC LIBRARY PHOTOCOPY
�-8socioeconomic requirements ought not be seen as a retreat fro ..~----~
civil rights and other social goals. First, EO 11246 provides
for a waiver for commercial item acquisition, even though the
Labor Department has never implemented it. Second, some of the
socioeconomic requirements have been preempted by subsequent
legislation (e.g., the Americans with Disabilities Act provides
many of the protections covered by the Rehabilitation Act of
1973). Third, procurement reform will benefit the small
minority- and women-owned firms that cannot now do business with
the government because it is too expensive to comply with scores
of government-unique requirements.
Arguments Against Socioeconomic Waivers/Limits
1. Federal Contractors Should be Held to Hioher Standards.
While considering the Civil Rights Act of 1964, Congress
expressly recognized that the equal opportunity obligations of
those who do business with the federal government should be
greater than those of other private employers. More generally,
use of the procurement system to achieve diversity and other
social goals is key to ensuring that all American citizens have a
fair chance of sharing the economic benefits produced by
federally-funded projects.
2.
EO 11246 is More Important Now than Ever. Drawing back from
EO 11246 at this time would be particularly undesirable.
As
reported two weeks ago in the Wall Street Journal, essentially
all of the job loss in the last recession was among African
Americans.
The data are sobering, and they point to the need to
keep government at the forefront of equal opportunity.
3. Socioeconomic Requirements are Not the Major Overhead Burden.
Socioeconomic requirements are not the major source of overhead
costs, and proponents of change lack firm estimates of what costs
socioeconomic requirements. do impose. Moreover, proposals to
limit/waive socioeconomic requirements do not consider the longterm social and economic benefits that these requirements
produce.
·
·
4. Socioeconomic Requirements are Not the Major Impediment to
Technology Access. Similarly, socioeconomic requirements are not
the major cause of problems DoD may have in getting access to
cutting-edge commercial technology. When contractors segregate
their government and commercial business, or refuse to do
business with government altogether, they do so principally for
reasons other than the socioeconomic requirements (typically,
cost-accounting standards and.milspecs). Moreover, because large
government contractors must abide by affirmative action
requirements even in their commercial division, such requirements
are not an obstacle to commercial-military integration.
WJC LIBRARY PHOTOCOPY
�r •.
-95. DOL is Revisina its Reauirements. The Labor Department is
examining its labor standards laws (Davis Bacon and Service
Contract Acts) and affirmative action requirements. As part of
that review, DOL is likely to consider higher and uniform
coverage thresholds for these requirements. As for the
recommended waivers for commercial item acquisition, some
compromise might also be ~ossible --e.g., eliminating the "flowdown" requirements, which extend (by regulatory action) the
socioeconomic requirements to all subcontractors.
6. Changing Socioeconomic Requirements is not Good Politics.
The groups that will be affected by proposed changes to the
socioeconomic requirements -- minorities, veterans, the disabled,
unions -- are traditional Democratic constituencies. Why
alienate them, particularly when it is not clear that the
socioeconomic requirements are the major obstacle to procurement
reform? The disparate impact of the recession on minorities
makes this a particularly inopportune time to draw back from EO
11246. The President's procurement reform announcement might be
overshadowed by news stories on Democrats' retreat from
longstanding civil rights policies.
As for the argument that reforming the socioeconomic
requirements will mean more and better jobs for all, whatever its
merits, that argument has been tainted by its past association
with conservative and anti-labor Republicans.
Conclusion and Options
There is a strong case for ra~s~ng the threshold for
simplified purchases from $25,000 to $100,000 for both the labor
standards and affirmative action requirements, with continued
reservation of all purchases below the threshold for small and
small disadvantaged businesses. That change would streamline a
large fraction of procurement actions but affect only a small
percent of contract dollars. It does not challenge the principle
that the procurement system should be used to achieve social
goals, but merely raises the level at which that principle kicks
in.
The case for commercial item waivers is more controversial,
particularly with respect to EO 11246. Socioeconomic
requirements are not the major obstacle to commercial-military
integration among the primes, although they are a factor.
However, such requirements are a definite obstacle both to
contractors' use of their commercial suppliers and to government
purchases.above the simplified threshold level from purely
commercial firms.
At a minimum, elimination of the "£lowdown
requirements" on subcontractors~ which can be accomplished
administratively in most cases, seems warranted. This would not
exempt subcontractors that are otherwise covered, but it would
WJC LIBRARY PHOTOCOPY
�-10-
allow companies such as Boeing to use their commercial
base for government contracts.
As for government contractors themselves, there are three
possible options under commercial item acquisition:
Option 1 (Status quo): Contractors remain subject to the three
controversial affirmative action requirements, including existing
monitoring and reporting requirements.
Option 2 (Section 800): Contractors are exempt from affirmative
action requirements for commercial contracts.
Option 3 (Compromise): Contractors are still obligated to pursue
a policy of affirmative action toward protected groups, but
monitoring and recordkeeping requirements are eliminated in favor
of a system like that of the Internal Revenue Service, which
relies on self-policing and the threat of audit.
CLOSE HOLD
WJC LIBRARY PHOTOCOPY
�.
!
DRAFT
September 22, 1993
MEMORANDUM FOR:
FROM:
SUBJECT:
Procurement Reform
During the week of October 4, the President and the Vice
President, together with key congressional Members, will announce
a major effort to reform the federal government's procurement
.system. Procurement reform is central both to "reinventing
government" and to the Administration's Defense Reinvestment and
Conversion Initiative.
I
One aspect of proposed changes to procurement law -- namely,
relaxation of certain socioeconomic requir~ments on federal
contractors -- remains problematic for some agencies.
This memo
traces the recent roots of proposals .to relax socioeconomic ·
requirements and summarizes the arguments for and against such
proposals.
·
The Heart ·of Reform: Simplified Acquisition Threshold, and
Commercial Item Acquisition
Two proposed changes constitute· the heart of statutory
procurement reform. The first would lift the threshold for
conducting simplified purchases from $25,000 to $100,000.· The
second would make it easier for the government to buy commercial
products.
Both features involve relaxation of certain statutory
socioeconomic requirements.
Section 800 Panel. These and other proposals draw on the
work of the DoD Advisory Panel on Streamlining and Codifying
Acquisition Law. Known as the Section 800 Panel after its
enabling law, this group examined more than 600 statutes
. affecting the defense procurement process. The Panel's
recommendations, ·in the form of an 1, 800 page report, were
submitted to Congress in January 1993.
First, to reduce administrative overhead, the Panel
recommended raising the threshold for many socioeconomic
requirements to $100,000. This change would streamline more than
50 p~rcent of all DoD contract actions over $25,000 (the existing
threshold .for simplified purchase procedures) while affecting
less than five percent of the contract dollars.
In keeping with
existing policy, the Panel recommended reserving all purchases
WJC LIBRARY PHOTOCOPY
�under the threshold for small businesses, including small
disadvantaged businesses.
Second, the Section 800 Panel recommended that many
government-unique socioeconomic requirements be waived for
acquisition of commercial items. Such waivers were necessary to
enhance DoD's access to cutting-edge commercial technology, the
Panel argued.
They would also permit some firms that must now
maintain separate facilities and accounting systems to integrate
their commercial and military production. These changes,
moreover, would allow DoD to fulfill its requirements at far
lower costs.
National Performance Review
· The National Performance Review, in its September report,
embraces these two key recommendations of the Section 800 Panel
and extends them government-wide. NPR recommends that all
agencies, not just DoD, be allowed to make purchases under
$100,000 using simplified purchase procedures. The NPR report
explicitly recommends raising the threshold for Davis-Bacon to
$100,000.
The NPR report also calls for more reliance throughout the
federal government on the commercial marketplace. Although the
NPR's published report is less explicit than the Section 800
report, the "backup" document recommends the same waivers as the
Section 800 report.
·
Department of Labor Objections
The Department of Labor, although in agreement with the goal
of integrating the commercial and defense sectors of the U.S.
industrial base, strongly objects to relaxation of several
socioeconomic requirements.
Commercial Items. Of greatest concern to DOL are the
proposed w.aivers, for commercial item acquisition, of three
affirmative action requirements:
1. Executive Order 11246, which requires federal contractors and
subcontractors to. take affirmative steps to assure equal
employment opportunity without regard to race, color, religion,
sex or national origin.
[Although E.O. 11246 includes a waiver for commercial item
acquisition, DOL has never implemented the regulations.]
2. Section 503 of the Rehabilitation Act of 1973, which requires
federal contractors and subcontractors to apply a policy of
affirmative action to the employment of qualified individuals
with disabilities.
3.
The Vietnam Era Veterans' Readjustment Assistance Act of
WJC LIBRARY PHOTOCOPY
�-31974, which mandates a similar policy of affirmative
toward the employment of disabled and Vietnam era veterans.
DOL also has concerns about commercial-item waivers of the Buy
American Act, Copeland Anti-Kickback Act, and Drug-Free
Workplace.
Although all employers are barred by law from
discrimination, federal contractors have an· affirmative
obligation under these requirements. DOL believes it is a
fundamental principle that in expending taxpayers' funds, the
federal government may seek to promote important social goals by
holding federal contractors to higher standards than the private
sector generally.
·
Simplified Acquisition Threshold. The Labor Department is
also concerned about raising the simplified acquisition threshold
to $100,000, which would affect two longstanding labor standards
as well as the affirmative action requirements discussed above:
1.
Labor .standards laws: Davis-Bacon Act (current threshold,
$2,000) and the McNamara-O'Hara Service Contract Act (current
threshold, $2,500), which require the payment of prevailing wages
and fringe benefits on federal construction and service
contracts, respectively;
2.
Affirmative action requirements:
a.
Executive Order 11246 (current threshold, $10,000)
b. Sec. 503 of the Rehabilitation Act of 1973 (current
threshold, $10,000)
c .. Vietnam Era Veterans' Readjustment Assistance Act of
1974 (current threshold, $10,000)
The Labor Department is not opposed in principle to raising
the coverage threshold under some of these laws, and in fact, DOL
gave "qualified support" to the NPR recommendation to raise the
threshoid on the Davis-Bacon and Service Contract Acts to
$100,000. However, DOL believes such a change should be
accomplished through amendments to the laws themselves rather
than through procurement reforms.
Concerns of Other Agencies
Altho'ugh the Department of Labor has been the most vocal
critic of proposals to limit or waive socioeconomic requirements,
DOL is not alone.
The Department of Veterans Affairs vehemently
opposes any dilution of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974; V.A. views the preference for veterans
under federal contracts as a veterans' benefit and therefore not
an appropriate concern of procurement reform legislation.
The.
U.S. Commission on Civil Rights opposes, in particular, proposed
WJC LIBRARY PHOTOCOPY
�-4-
changes to E.O. 11246., which would signal a retreat from wellestablished and vital Federal civil rights policies. Several
other agencies also oppose limits/wai~ers on the soc~oeconomic
requirements.
·
Congressional Action on Procurement Reform
Although the socioeconomic requirements have strong
suppporters on the Hill as well, key Senate sponsors are
considering a government-wide procurement reform bill that
codifies virtually all of the Section 800 Panel's
recommendations. Key committee staff have worked for eight
months to draft this 300 page bill, which will be championed by
Democrats John Glenn (chair, Government Affairs), Sam Nunn
(chair, Armed Services), Dale Bumpers (chair, Small Business),
Jeff Bingaman and Carl Levin, as well as Republicans William Roth
and WilliamrCohen.
In its present form; the Senate bill adopts the Section 800
recommendations on all of the controversial socioeconomic
requirements save one -- Buy America. It is silent on E.O.
11246.
Inotherwords, this bill raises the threshold to $100,000
for the Davis-Bacon and Service-Contract Acts.
On the
affirmative action statutes covering the disabled and Vietnam
veterans, the Senate bill both raises the simplified acquisition
threshold to $100,000 and provides for an exemption for
commercial item acquisition.
This represents a significant change from the Senate
position o"n these issues several years ago, particularly for
members of the Government Affairs Committee.
(Glenn, Levin, Nunn
and Cohen are members of both Armed Services and Government
Affairs.)
The House procurement reform bill, H.R. 2238, is championed
by·Rep. John Conyers, chairman of the Government Operations
Committee. As approved by the committee in July (?), H.R. 2238
raises the simplified acquisition threshold to $100,000 for many
statutes but not for the controversial socioeconomic
requirements.
Arguments in Favor of Socioeconomic Waivers/Limits
..._.-········
-..\
1. Access to Cutting-Edge Technology. The socioeconomic waivers
are part of what's needed to allow DoD to get access to cuttingedge technology, which is increasingly located in the commercial
sector. The linkages are three: First, some high tech firms
shun business with the government altogether; although the
socioeconomic requirements are not.the major reason (costaccounting standards and milspecs are more significant
deterrents), they are a factor.
rJ 1--V) 4 ~'
WJC LIBRARY PHOTOCOPY
�-5Second, most government contractors segregate their defense-and commercial business to some degree to avoid imposing the
costs of government requirements on commercial customers; as a
result, technology transfer within the firm is blocked -- a
problem for. DoD because the innovations increasingly ·come out of
the contractors' commercial division.
are~all~
Third, procurement requirements, which
required to "flow down" to all subcontractors, ~=~
contractors from using their commercial suppliers for government
work. For example, the Air Force wants to buy commercial
derivative aircraft from Boeing and McDonnell Douglas, both of
whom segregate their commercial and government production.
Although Boeing and McDonnell Douglas could live with the
socioeconomic requirements (large government contractors must
have affirmative action programs in place even in their
commercial divisions), many of their commercial subcontractors
cannot comply.
Although this is a problem primarily for DoD now, civilian
agencies increasingly need the same, flexible access to
commercial technology for such things as advanced air traffic
control systems and intelligent vehicle highway systems (DOT),
next generation software (Education) and solar powered cars
(DOE).
.
2. Broader Domestic Production Base. DoD cannot now count
Boeing or McDonnell Douglas' commercial subcontractors as part of
its production base. But as the number of defense subcontractors
declines, DoD must expand its base to include commercial
subcontractors, if it is to meet potential surge requirements.'
3. Cost savinos. Significant savings are possible if DoD and
other federal agencies can act more like commercial buyers. A
July 1993 study by the Defense Science Board estimates that DoD
can save $2.1 billion a year (after five years) from better use
of commercial items and practices. Additional savings of $11.8 ·
billion a year are possible from DoD reliance on "commerciallike" or dual-use i terns, such as the commercial de.ri vati ve
aircraft.
The socioeconomic requirements are by no means the only
obstacle -~ or even the major obstacle -- to realizing such
savings. But as the Boeing example illustrates, the
socioeconomic requirements would limit commercial item
acquisition even if other obstacles were removed.
4. Reduce Industry Overhead. Contractor overhead is a major
reason procurement costs are high. The Center for Strategic and
International Studies surveyed firms with both commercial and
defense business. Although the results vary widely, the pattern
WJC LIBRARY PHOTOCOPY
�-6suggests that commercial divisions spend 5 to 10 percent of
on adminis-trative costs, whereas defense divisions spend 20
percent.
Here again, it is difficult to isolate the burden of the
socioeconomic requirements. However, the Labor Department
estimates that the three affirmative action programs it oversees
(E.O. 11246 ·and preference for Vietnam veterans and the disabled)
impos~~erwork burden on industry of 20 ~lion hours.
j
5. Defense Conversion. Defense firms large and small are laying
off workers by the thousand. These firms are pleading with the
Administration to remove onerous procurement regulations so that
they can compete commercially. As the defense budget continues
to drop, the Administration must unshackle these firms.
Defense
procurement reform will mean the most to firms and workers in
California, where the unemployment rate is 9.8 percent.
6. Don't Undermine the Senate. For many years, socioeconomic
requirements such as Davis-Bacon have been politically
untouchable. This year, liberal Senate Democrats such as Carl
Levin are challenging that traditional view with a courageous
bill. Given the Senate's courageous stance on reforming
socioeconomic requirements, the Administration cannot do less.
If the Administration were to take a less aggressive stance
on reforming .the socioeconomic requirements, it would not only
undermine the Senate position, it would sacrifice the
Administration's claim to leadership on this issue. The Section
800 and NPR reports are the benchmark, and any significant
departure from their recommendations will be perceived as a
retreat.
7.
Issue is Ripe.· Courage aside, the Senate's stance on the
socioeconomic requirements reflects the fact that procurement
reform is a politically ripe issue. The intellectual case for
reform has been made, and several factors -- including a
shrinking defense budget and a sense of crisis over the health of
U.S. industry -- create the potential for sweeping legislative
changes in the next two years.
8. Social Goals are Still Met. The proposals to limit the
socioeconomic requirements ought not be seen as a retreat from
civil rights and other social goals. First, E.O. 11246 provides
for a waiver for commercial item acquisition; although the Labor
Department has never implemented that waiver, it is consistent
with the o-riginal authors' intent. Second, some of the
socioeconomic requirements have been at least partially preempted
by subsequent legislation; for example, the Americans with
Disabilities Act provides many of the protections covered by the
Rehabilitation Act of 1973. Third, many government contractors -
WJC LIBRARY PHOTOCOPY
�87J
-7- particularly the large ones -- would cdntinue to carry out
affirmative action employment policies. It is not the poli~c·
they fund burdensome, but rather the~onitoring andre~
requirements.
~··
.
In sum, rather than a retreat from social goals, changes in
the socioeconomic requirements should be seen as an adaptation to
a dynamic system that has, in fact, made significant progress
toward those goals. Rather than a zero-sum game, this should be
seen as a positive-sum activity that will means more' jobs and
better jobs for American workers.
Arguments Against Socioeconomic Waivers/Limits
1. Federal Contractors Should be Held to Higher Standards.
While considering the Civil Rights Act of 1964, Congress
expressly recognized that the equal opportunity obligations of
those who do business with ~he federal government should be
greater than those of other.private employers. Vigorous
enforcement of such obligations is essential to ensuring that all
American citizens have a fair chance of sharing the economic
benefits produced by federally-funded projects.
2.
Reauirements are Not a Major Burden. There is no concrete
that socioeconomic requirements impose significant costs
on government contractors or lead to wasteful business practices
such as segregated production facilities.
Nor do proposals to
limit/waive such requirements consider the long-term social and
economic benefits that these requirements produce.
evidenc~
3. Requirements do Not Impede Access to Technology. When
contractors segregate their government and commercial business,
or refuse to do business with government altogether, they do so
principally for reasons other than the socioeconomic requirements
(typically, cost-accounting standards and mi.1specs).
Therefore,
.these requirements are not a major cause of problems DoD may have
in getting access to cutting-edge technology.
4. DOL is Revising its Requirements. ·The Labor Department is
examining its labor standards laws (Davis Bacon and Service
Contract Acts) and nondiscrimination and affirmative action
requirements. As part of that review, DOL is likely to be
considering. higher and uniform coverage thresholds for these
requirements. As for the recommended waivers for commercial item
acquisition, some compromise might also be possible-- e.g.,
eliminating the "flow-down" requirements, which extend (by
regulatory action) the socioeconomic requirements to all
subcontractors.
5.
Changing Socioeconomic Requirements is not Good Politics.
WJC LIBRARY PHOTOCOPY
�'
·,
-8The groups that will be affected by proposed changes to the
socioeconomic requirements -- minorities, veterans, the disable
union~ -- are traditional Democratic constituencies.
Why
alien~te them, particularly when it is not clear that the
socioeconomic requirements are the major obstacle to procurement
reform? Davis Bacon, E.O. 11246, and other socioeconomic
requirements are important symbolically; thus we would have to
spend a great deal of political capital on those issues
capital that would be better spent on core problems.
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
001. memo
Douglas Letter to Abner Mikva, re: Appointment of a Presidential
Diarist (2 pages)
002a. fax
Charles Moskos to George Stephanopoulos [partial] (1 p,age)
002b. paper
Affirmative Action: The Army Way [partial] (1 page)
317/1995
., 207'1995
2/1995
RESTRICTION
PS
<;?g'O
P6/b~6~
P6/b(6)
COLLECTION:
Clinton Presidential Records
Counsel's Office
Klein, Joel
OA/Box Number: 6039
FOLDER TITLE:
Affirmative Action [ l]
Whitney Ross
2008-0308-F
wr441
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S. C. 552(b))
PI National Security Classified Information [(a)(l) of tbe PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) ofthe PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) ·of the PRA]
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA]
b(3) Release would violate a Federal statute [(b)(3) of the FOlA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOlA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOlA]
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOlA]
C. Closed in accordance with restrictions contained in donor's deed
, ofgift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request.
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
March 7, 1995
MEMORANDUM FOR ABNER MIKVA
Counsel to the President
JOEL KLEIN
Deputy Counsel ·to the President
FROM:
SUBJECT:
DOUGLAS LETTER
Associate Counsel to
~he
President
Confidentiality Issues Concerning Possible
Appointment of a Presidential Diarist
You had asked me to consider possible con~identiality issues
if the ·president decided to hire a diarist. As discussed below,
I do not believe that confidentiality could be assured by any
type of contract or agreement. Thus, protection of Presidential
confidences would best be achieved by selection of a reliable
person.
My understanding is that a diarist might be assigned for
historical purposes to keep a record of non-public meetings and
events involving the President as he carries out his duties.
I
assume that such a diarist would be part of the President's
personal staff.
The specific question raised was whether this·employee
should be required to sign a confidentiality agreement ·to protect
against premature disclosure of Presidential confidences.
(The
diarist's work would presumably be Presidential records that,
through the Archives, would be available to the public eventually
with other confidential Presidential records.)
I have found no case law directly on point for this issue.
The most relevant cases involve secrecy agreements signed by CIA
employees. Decisions by the D.C. Circuit and the Fourth Circuit
have upheld secrecy agreements under which CIA employees and
former employees agree to submit works for pre-publication
review. Under these agreements, the CIA is entitled to prescreen the proposed publications in order to look exclusively for
classified information. In dicta, both courts cast serious doubt
on the validity of any agreement that would allow censorship of
non-classified material. United States v. Marchetti, 466 F. 2d
1309, 1317 (4th Cir. 1972) ("We would decline enforcement of the
secrecy oath signed when [the employee] left the employment of
WJC LIBRARY PHOTOCOPY
�the CIA to the extent that it purports to prevent disclosure
unclassified information, for, to that extent, the oath would be
in contravention of his First Amendment rights"), cert. denied,
409 U.S. 1063 (1972); McGehee v .. Casey, '718 F.2d 1137, 1141 (D.C.
Cir. 1983) ("The government may not censor [non-classified]
material, contractually or otherwise. The government has no
legitimate interest in censoring unclassified materials").
In Snepp v. United States, 444 U.S. 507 (1980), the Supreme
Court also upheld an award of damages for violation pf a CIA pre.publication agreement. The Court's enforcement of the agreement
did not depend upon whether Snepp's book actually contained
classified information. The opinion makes clear though that the
CIA was entitled to undertake its review so that it could look
for classified information.
An argument could be made that a diarist working closely
with the President is in a unique position,· and that a secrecy
agreement covering non-classified Presidential confidences should
be enforceable because of the important historical interests and
the President's need for confidentiality. Given the statements
above from Marchetti and McGehee, there is doubt that we could
enforce such a broad confidentiality agreement even if we sought
only damages after the fact. If such an agreement were found to
be enforceable, it would be very uncertain that a court would
issue an order enjoining a publication that the President
·
contended revealed his confidences. Thus, meaningful ~nforbement
would be very 'questionable. It seems to make no difference if
the confidentiality agreement were made an explicit condition for
getting the diarist position. See McGehee, 718 F.2d at 1141
n.10; Marchetti, 466 F.2d at 1317 n.6.
General federal regulations (5 C.F.R. § 2635.703) do
.
restrict use of non-public information by federal employees, and
are likely valid. See United States v. NTEU, 63 U.S.L.W. 4133,
4137 (Feb. 22, 1995). However, they apply only to current
employees, and it is not clear anyway that an injunction against
publication could be obtained using them.
In sum, I am not aware of any precedents that a broad
confidentiality agreement would be enforced by the courts, much
less in a practically meaningful way. If a diarist for
Presidential activities is to be utilized and confidentiality is
a concern, the best protection would seem to be the same as that
for the President's closest aides and advisers; i.e., selection
of a trustworthy individual.
·
Please let me.know if you want anything further on this
question.
- 2 -
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE .
001. fax
Jay Gourley to Joel Klein [partial] (1 page)
002. memo
Jobri Podesta and Tod Stem for the POTUS, re: Information Items (1
page)
003. note
Jay Gourley to Joel Klein [partial] (1 page)
004. memo
Je:ffto Joel, re: Race-Conscious Remedies (2 pages)
RESTRICTION
1127/1995
_-Ol;QS/1995
119/1995
P5
P61h~
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Klein, Joel
OA!Box Number: 6039
FOLDER TITLE:
Affirmative Action [3]
Whitney Ross
2008-0308-F
wr438
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial-or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOlA)
b(J) Release would violate a Federal statute [(b)(J) of the FOlA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) ofthe FOlA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOlA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) ofthe FOlA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOlA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request. ·
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
January 27, 1995
.~8(
MEMORANDUM
I DENT
FROM:
JOHN PODESTA
TODD ST~
SUBJECT:
Information Items
The following are information items we have received in the past
few days:
(A)
~~S
(Qc,)
i~~
~
1
~ ~,
McCurry memo on Clayton Willis. This is in response to your
request for a report on Willis, of the Evening Broadcasting
Company. Bottom line: Mike recommends that, although the
Secret Service has approved Willis for access to the White
House, we continue our policy of reserving space for more
legitimate news organizations.
Note from Deval Patrick. He congratulates you on your MLK
Day speech and requests a meeting to discuss the
Administration's civil rights agenda. We have sent a copy
of the note to Billy Webster for his information.
tter from Bud stack, forwarded by Mack. The letter is a
lea from stack to be favorably considered for appointment
~~1{,;----~· o the Eleventh Circuit Court of Appeals and an argument as
~a~
to why his former-membership in the Riviera Country Club
shouldn't bar his nomination. Mack notes that he thinks
~~ ~
this is a judgment call and that it's down to your decision.
~~~
ck copied Leon and Bruce. We have copied Vicki as well.
)
~
~(D)
weekly Political Report by IckeaJPolitical Affairs. · (This
report is dated January 14, but was received by our office
this week.)
WJC LIBRARY PHOTOCOPY
�If)~~
I
To:
From:
Date:
Re:
Joel
Jeff
January 9, 1995
Race-conscious Remedies
c~..l.-'U•
~
~
I have been attempting to summarize the Justice Department's
positions in the race~conscious policy cases (unfortunately, I'm
not finished). Though they involve various context-specific
issues, some of the common themes that emerge from these cases
involve the following questions:
*
Does the constitution limit the use of race-conscious
remedies to contexts with a proven remedial purpose?
*
or does the goal of promoting racial diversity, even in a
nonremedial context, represent a sufficiently compelling
governmental justification that satisfies constitutional
scrutiny?
*
If Congress has authorized a race-conscious program in a
nonremedial context, does congress's status as a co-equal
branch of government warrant a court upholding the program's
constitutionality under Fullilove-Met;ro BroacJ.cast;ing
intermediate level scrutiny?
*
Or should Croson-style strict scrutiny apply to federal as
well as state race-based programs, thus effectively limiting
even congre~sionally authorized programs to proven remedial
contexts?
*
Relatedly, do federal agencies face constitutional
limitations when employing rac~-conscious policies mandated
by congress (i.e., do Congress's implicit factual findings
justifying the policy limit the scope of the agency's
implementation of the program)?
*
What evidence of the vestiges of racial discrimination
justify the continued use of remedial programs?
*
Do the evidentiary standards supported by the Justice
Department amount virtually to the imposition of racial
quotas?
Arguably, while the rest of the country has debated the
merits of affirmative action, the Justice Department has taken
positions in these cases which not only favor the use of raceconscious remedies, but would expand the circumstances in which
their use is. constitutionally required (or, for voluntary
.~~E-~--.
0 1 11.-q(
programs, would expand the circumst.ances in which their us
constitutionally defensible).
Q
~
rfP'
.
~
~
~ t68~
-z..
.:0
-).
()
~
\
WJC LIBRARY PHOTOCOPY
�Therefore, some additional questions include the following:
*
Where do DOJ positions .arguably go beyond even a
commitment to affirmative action?
Taxman
Aderand
Jenkins
Podberesky
disparate impact
voting rights cases
evidence of vestiges of racial discrimination
in instances of remedial purpose
where there is congressional/agency authority
in absence of remedial purpose
*
Were the Administration to change its commitment to
affirmative action, where does wiggle room exist (e.g.,
executive agency policies versus federal statutory
mandates)?
*
Where does it not exist (other than in DOJ positions before
court), (e~g., a President cannot alter the federal
government's commitment to school desegregation, for
example, because that issue is constitutionally driven by
the federal courts)?
·
*
What are the competing political visions/theories of
democracy in this area?
*
What are the questions .whose answers lead to an overriding
principle in this area?
*
Any breakout thinking possible?
(1)
(2)
(3)
(4)
(5)
(6)
school desegregation;
minority set-asides;
voting rights;
employment policies;
scholarship preferences;
disparate impact theories.
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
Bill Galston to President Clinton, re: Forthcoming Dept of Education
Guidance Concerning Race-Targeted Financial Aid (3 pages)
1/27/1994
P5
002a. memo
H. Jefferson Powell to Webster Hubbell, re: Final Policy Guidance on
AA (4 pages)
12/30/1993
P5
283
~C??tf
12/23/1993
P5
g' gs
1/4/1994
P5
zgLr<.
002b.memo
002c. memo
For the Associate Attorney Genera, re: Dept of Education's Race, Targeted Financial Aid {4 pages)
H. Jefferson Powell to Judith Winston, re: Policy Guidance on AA (2
pages)
COLLECTION:
Clinton Presidential Records
Counsel Office
Joel Klein
OA/Box Number: 7036
FOLDER TITLE:
Affirmative Action Dep't of Education--Minority Fellowships
Whitney Ross
2008-0308-F
. wr903
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S. C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) ofthe PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such: advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disc!ose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request
WJC LIBRARY PHOTOCOPY
�--
JIK.
THE WHITE HOUSE
WASHINGTON
8c33
January 27, 1994
MEMORANDUM FOR THE PRESIDENT
wA9
FROM:
BILL GALSTON
SUBJECT:
FORTHCOMING DEPARTMENT OF EDUCATION GUIDANCE
CONCERNING RACE-TARGETED FINANCIAL AID
Introduction
The Department of Education will soon issue a final policy
guidance on the use of race-targeted financial aid by colleges
and universities under Title VI of-the 1964 Civil Rights Act.
This move raises a number of constitutional, policy, and
political issues. The purpose of this memorandum is to review
these issues and to alert you to the controversy that will be
sparked by issuance of the final guidelines.
Background
During the 1970s and 1980s, many colleges and universities
offered financial aid targeted to racial minorities, usually
African-Americans. They did so for two principal reasons: first,
to remedy the effects and eliminate the vestiges of past
discrimination; and second, to increase and enhance diversity,
even when there was no finding of past discrimination. Under
both these types of programs, race was a condition of eligibility
for financial aid, not just one of many factors to be taken into
account.
At the close of 1990, the Office of Civil Rights (OCR) at the
Department of Education attempted to change these longstanding
practices by a~serting that racially-targeted financial aid was
permissible only to address past discrimination.
To enhance
diversity, race could be a "plus factor"--one of many
considerations--but could not serve as an absolute condition of
eligibility.
If this change had .taken effect, many institutions
would have been forced to curtail their pro-diversity programs.
This OCR move created a firestorm of protest from educational
institutions and the civil rights community. The Bush
administration quickly distanced itself from the proposal, and
the administration's subsequent appointee as Secretary of
Education, Lamar Alexander, managed to delay issuance of final
guidelines pending completion of a GAO report on minority
scholarship programs. Although that report was expected in 1992,
it was not finished and made public until last week.
The
Department of Education now intends to proceed without further
delay to issue revised final guidelines governing raciallytargeted college scholarships.
WJC LIBRARY PHOTOCOPY
�.
\
88_3
The current Department of Education proposal
Secretary Riley and his leadership team at OCR believe
proposal made by the Bush Department of Education was mistaken on
grounds of both law and policy. They argue that as a matter of
constitutional law, race may legitimately serve as a condition of
eligibility to promote diversity as well as to remedy past
discrimination.
And citing the recently released GAO report,
they argue that as a matter of policy, such race-targeting is
needed to promote diversity, because programs utilizing race as
just one plus factor among many have proven ineffective in
expanding minority enrollment.
Constitutional issues
There is no court decision that definitively resolves the
constitutional question whether race may be a strict condition of
eligibility for financial aid intended to promote diversity.
The
most relevant opinion remains that of Justice Powell in Bakke,
which recognized that the promotion of diversity in higher
education.is a compelling interest--a position that has not been
invalidated in subsequent Supreme Court decisions.
Powell's
opinion also stated, however, that it was not permissible to
promote such a diversity interest through programs that make race
a condition of eligibility for slots in the admissions process.
The Department of Education distinguishes its financial aid
guidelines from the admissions program invalidated in Bakke on
the ground that narrowly tailored race-targeted financial aid
"does n6t, in and of itself, dictate that a student would be
foreclosed from attending a college solely on the basis of race."
The Justice Department's Office of Legal Counsel has formally
reviewed OCR/Education's legal analysis and deems it "basically
sound" and "defensible." The White House Counsel's Office
concurs but also recognizes that this is a litigable
constitutional issue the ultimate outcome of which cannot be
guaranteed. My personal view is that while the Department of
Education has made a plausible case, we will have at best an even
chance of sustaining it in the face of constitutional challenge.
Political issues
Publication of the Department's firial guidelines is sure to
elicit a strongly negative reaction from conservatives in
Congress, think-tanks, and the legal academy.
In all
probability, the administration will be accused of skating on
thin legal ice and even of advocating "quotas." Media coverage
maw well be intense. On the other hand, were we to take the
other tack and determine that race could not be a condition of
eligibility for financial, aid to promote diversity--a position
that the Bush White House declined to support--we would arouse
the ire of hundreds of academic institutions around the country
and of the entire civil rights community.
WJC LIBRARY PHOTOCOPY
�,.
~,.
As far as we can see, there is no middle ground between the
Department's current proposal and the politicaily unsustainable
Bush proposal. For that reason, George Stephanopoulos believes
that we must support the Department's position and accept the
ensuing furor.
I concur, although I believe that the short-term
political fallout will be considerable and that a_ long-term
constitutional challenge--the outcome of which cannot be
predicted with confidence--is virtually inevitable.
283
WJC LIBRARY PHOTOCOPY
�:
)
U.S. Department of Justice
Office of Legal Counsel
W~.D.C.
20$10
December 30, 1993
M:EJ\.10RANDUM TO WEBSTER HUBBELL
ASSOCIATE ATTORNEY GENERAL
From:
H. Jefferson Powe~
Michael C. Small
We have reviewed the draft Final Policy Guidance (the "FPG") regarding affl.Illlative
action in college fmancial aid programs that has been prepared by the Office of Civil Rights
in the Department of Education ("OCR"). The FPG sets forth five "principles" that reflect
the circumstances under which OCR believes that colleges may award fmancial aid to
students on the basis of race or national origin, consistent with Title VI of the 1964 Civil
Rights Act and court decisions setting the legal ground rules for affumative action. 1 In our
view, the legal analysis underpinning each of the five principles is basically sound. We do,
however, have the following comments.
Principle 2: Race-Based Financial Aid Authorized by F¢eral Statute
Principle 2 of the FPG states that a college may award financial aid on the basis of
race or national origin when authorized to do so by an act of Congress. The premise of
· principle 2·is that federally-authorized affumative action cannot be considered to violate Title
VI in light of a canon of statutory construction under which "the specific provisions of a
statute prevail over the general provisions of the same or a different statute." (FPG at 10)
Reliance on that rule of statutory construction is somewhat misleading here, because there is
a split in the caselaw as to whether Title VI even applies to the award of federal fmancial
assistance by an executive branch agency. Thus, race-based gmnts made by the Secretary of
Education to higher education institutions under the Patricia Roberts Hanis Fellowship
program (the one example of federally-authorized affliiDative action in college· financial aid
that is mentioned in the FPG) may not be subject to Title VI in the first place..
'Iitle VI prohibita colleae md univmitiet that receive federal funds from discriminatina on the buis of
nee or ethnicity. Aa indicated in the FPG, 'Iitle VI imposes the aame constrains on affirmative action u doca
the Con~titution. Thua, iD ueertainiD& whether affirmative action iii a colle&e financial aid pro&ram i1
permissible under Title VI, it i1 appropriate to look to constitutional preccdenta.
WJC LIBRARY PHOTOCOPY
--
�.
,:
·'
.
Bven though Title VI may not be applicable, an affirmative action program is not
automatically legal simply because it is pennittcd by an act of Congress; the program must
still meet the applicable constitutional standards for race-based action authorized by federal
statutes that were established in Metro Broadcastin&. Inc. y. FCC, 497 U.s~ S47 (1990). and
·FulliJove y. Klutzniclc, 448 U.S. 448 (1980). Those two cases are cited in the FPG (at 10)
for the proposition that federally-authorized affumative action in college fmancial aid
"prevails over the general prohibition of discrimination in Title VI." That is not what those
cases say, however. We. suggest that the FPG be revised to make clear that although Title .
VI itself may not be a bar to federally-authorized aff1I1Dative action in college fmancial aid
programs, such programs are still subject to the constitutional standards of MmQ
Broadcastin& and Fullilove.
.1·
•'
Principle 3: Race-Based Financial Aid to Remedy Discrimination
Principle 3 provides that the use of racial classifications is subject to strict scrutiny.
the most exacting standard of judicial review. In order to satisfy strict scrutiny. a racial
classification must sexve a "compelling interest" and be "na.trowly tailored" to achieve that
interest. The FPG obsefVeS that the Supreme Court bas held that remedying the effects of
past discrimination is a compelling interest that justifies the 1:1se of racial classifications.
Principle 3 therefore states that a college may award financial aid on the basis of race or
national origin to eliminate the vestiges of its past discrimination. All of this is correct.
j~
Principle 3 also provides (again, correctly in our View} that a college does not have to
wait for a court or OCR to make fuidings of discrimination before undertaking afflilllative
action measures - the college may make such fmdings for itself. As the FPG obsexves, the
Supreme Court's decisions in City of Rkhrnond v. J.A. Croson Co., 488 U.S. 469 (1989},
and Wy~ant v. Jackson Board of Education, 476 U.S. 267 (1986), require remedial
affmnative action measures to be based on "strong evidence of discrimination." (FPG at 12)
In explaining that requirement, the FPG points out that •evidence of a statistically significant
disparity between the percentage of minority students in a college's student body and the
percentage of qualified minorities in the relevant pool of college-bound high school
graduates" may constitute a fmding of discrimination on which :race-based action may be
predicated. ffiL.) That is the only indicia of discrimination mentioned in the FPG, however.
Since the pu.rpose of the FPG is to assist colleges in "fashioning legally defensible"
affumative action in their fmancial aid programs WL at 2), it might be useful if other
examples were provided. In particular, the FPG could list the type of evidence to which
OCR itself looks in ascertaining whether the vestiges of past discrimination are still present
at an institution.
Principle 4: Race-Based Financial Aid to Create Diversity
Relying on Justice Powell's controlling opinion in Re~ents of the University of
California y, Bakke, 438 U.S. 265 (1978), principle 4 states that the promotion of ra_c.@. and
ethnic diversity on campus is a compelling interest that pe.mllts a college to t e1.fe"iracC.t)r
.
- 2 -
«."(- _
~
~
?
<..)
l..t.
(
gscJ
I
WJC LIBRARY PHOTOCOPY
�..
;
.
national origin of students into ~nt in awarding financial aid, even where there is DO
evidence of past discrimination by the college against mfuorities. This is consistent with the
position of OCR during the Bush Administration. During the Bu·sh Administration, however,
OCR took the view that where diversity is the objective, race or national origin could only be
ne factor in the financial aid decision. That view was at odds with the longstanding OCR
sition. Principle 4 reverses the Bush Administration stance and adopts the prior OCR
position. It states that race or national origin can be the scile factor in the fmancial aid
decision, provided that this form of afflrmativc action is "narrowly tailored" to achieve the
goal of academic diversity. Principle 4 goes on to list certain factors that should be
considered in determining whether race-targeted fmancial aid satisf~.es ·the narrowly tailored
inquiry.
~
-- { [
.
1
J
Principle 4 is the most controversial aspect of the FPG: simply put, it would allow a
university to seek academic diversity through the use of scholarships for which only
minorities are eligible. This is politically charged, because it opens up the Clinton
Administration to charges that is advocating •quotas. • As a legal matter, however, principle
4 is defensible. In his ~ opinion, Justice Powell said that a university bas a compelling
interest in promoting diversity among the student body, but that it was impermissible to
attempt to achieve that interest by making race the exclusive factor in the admissions process
an~ allocating a fiXed number of places to minorities. During the Bush Administration, OCR
construed Justice Powell's opinion to preclude minority-limited fmancial aid, even though
OCR had never read the opinion in that manner. In the explanation of principle 4, the FPG
states that Justice Powell's opinion in~ does not necessarily prohibit mmority-limited
fmancial aid. It distinguishes set-asides in college admissions from financial aid programs in
which race is a condition of eligibility and concludes that, in certain circumstances, it is
pennissible to make race the sole factor in a fmancial aid decision in. order to promote
diversity on campus. We agree with that analysis. We suggest, however, that the FPG state
more explicitly that (a) the afflllilative action program in admissions that was struck down in
Bakke bad the effect of excluding nonminorities from the university altogether on the basis of
their race; and {b) by contrast, minority-limited scholarships operate only after a student has
been admitted to the university and thus do not, in and of themselves, dictate that a
nonrninority will be foreclosed from attending the university. This statement would provide
fu~er support for the argument (FPG at 18) that race-targeted fmancial aid satisfies the
factor of the narrowly tailored inquiry that focuses on the degree of burden that an
affumative action measure imposes on non.m.inorities.
Finally, we note that in Croson, the Supreme ·Court said that affmnative action must
be "strictly reserved for the remedial setting. • 488 U.S. at 469. In his Croson concurrence,
Justice Stevens interpreted that statement to mean that the Court had rejected the notion that
efforts to promote· diversity in higher education institutions or other sectors of society can
constitute a compelling intereSt. ~ at S11 & n.l. If that is a correct reading of Croson,
- 3 -
WJC LIBRARY PHOTOCOPY
�.
.
'
. ..
then the Court was also necessarily rejecting Justice Powell's opinion in~. and the
. foundation of principle 4 of the FPG has been undermined.2
Most lower courts and academic commentators have speculated that the Court in
Croson did not intend to discard Justice Powell's ~ opinion. ~t is our view a.s well.
To begin with, Croson did not involve a nonremedial affmnative action program. Thus, the
Court had no .occasion to consider the issues posed in ~- Moreover, the author of the
principal opinion in Croson was Justice O'Connor; in a concurring opinion in Wygant, which
was decided three years prior to Croson, Justice O'Connor bad accepted Justice Powell's
view that racial diversity in higher education is a compelling interest. Wygant, 476 U.S. at
286 (O'Connor, J., concurring). Because of the uncertainty created by Croson, however, we
believe that the FPG should acknowledge the question of the current status of Justice
Powell's opinion in~- We believe that this can be done in a short footnote along the
following ·lines:
Bakke was the Supreme.Court's fJISt decision in an affnmative
action case; the Court has decided a number of afflilllative ·
action cases since then. Nevertheless, the subsequent cases have
not invalidated Justice Powell's opinion in~ that the
promotion of diversity in the higher education setting is a
compelling interest.
In Melro Broadcasting, which wu decided the Term after ~. the Court upheld by a 5-4 vote a
con&resrionally-DWlchted affirmative action proifllll in the PCC't· allocation of radio and television license~ that
wu intended to promote a nonremedial objective, diversity in broadcasting. In so doing, the Court relied on
and reaffirmed Justice Powell'• rulina in Bakke. Metro Broadcasting, 497 U.S. 1.1 S68. On the other hand, the
Court did not apply strict acrutiny. Instead, it decided the case under the more lenient standard of intermediate
acrotiny, which requires racial classifications to be based only on an •important• interest, rather than a
•compellina• interest. In a dissentina opinion joined by three other Justicct, Justice O'Connor expressed the
view that atrlct acrutiny should apply to congressionally-mandated affirmative action. More fundamentally, abe
Aid that under ttrict acrotiny, only ono interest bas bcoo •recopjzed• u compelling enoup to justify racial
clusifieatioDJ: •remedying the effecta of racial discrimination. • I5l 1.1612 (O'Connor dissentinJ). This mi&ht
'be ICeD u furtller repudiation of Ju.stice Powell'• pontion in B!kb.
2
- 4 -
WJC LIBRARY PHOTOCOPY
�.
'
-.
U.S. Department of Justice
j_
Civil Rights Division
0/11« of tilt A.Uwat Attomty CiCIIfNI
ll'.llahfltCHI, D.C. lDSJO
December 23, l993
M~ORANOUM
Re:
FOR THE ASSOCIATE ATTORNEV G.ENERAL
Department of Education's Race-Targeted Financial Aid
Notice of Final Policy Guidance and Fordice Notice
INFORMATION MEMORANDUM
We have reviewed the draft notices prepared by the
Department of Education. We generally agree with the discussion
in the drafts, and offer the. following comments.
A.
Guidance On Race-Targeted Financial Aid
The Department of Education's draft of its Final.Policy
Guidance (FPG) on the application of Title VI of the Civil Rights
Act of 1964 is a modified version of the.Proposed Policy Guidance
issued in December 1991. The FPG, which consists of five
•principles• and a legal analysis, is consistent with existing
law.
1. Principle 1 states that a college may award non~race
based financial aid that is limited to disadvantaged students,
even if such aid goes disproportionately to minority students. .
We agree. Since aid of this type does not discriminate •on the
ground of race, color, or national origin,• 42 u.s.c. 2000d, it
does not violate Title VI.
2. Principle 2 states that a college may award aid based on
race or national origin when such aid is authorized by a federal
statute (for example, under the federally funded Patricia Roberts
Harris Fellowship program for minority graduate students). In
other words, Congres.s itself may (within constitutional limits)
specifically authorize aid programs that, if instituted by an
individual college, might violate Title VI. See Metro
Broadcasting. Inc.· v. ~. 497 u.s. 547, 563-565 (1990) (even if
not designed to compensate victims of past discrimination, ·
•benign race-conscious measures mandated by Congress * * * are
constitutionally permissible to the extent that they serve
important governmental objectives•). We agree with this
conclusion~
WJ C LIBRARY PHOTOCOPY.
�. - ..
.
.
'
3. Principle 3 deal• with an issue more closely related to
our enforcement responsibilities -- tha propriety of using ra~e
targeted aid to remedy past discrimination. The FPG states that
a college or state may award race-based financial aid when
necesse."ry to overcome the effects of past discrimination. This
statement is clearly correct. Indeed,·the implementing
regulations for Title VI require a recipient of federal financial
assistance that has previously discriminated to take affirmative
action to overcome the effects of that discrimination. See 34
C.P.R. 100.3(b) (6) (i)r see also United States~. Fordice, 112 s.
ct. 2727, 2743 (1992) (requiring state to take affirmat~ve steps
to achieve full dismantlement of prior dual system). The
statement that a race-based financial aid program is permissible
if necessary to remedy continuing effects of past discrimination
also is consistent with Supreme Court precedent interpreting the
Fourteenth Amendment. See, ~. Wygant v. Jackson Bd. of Educ.,
476 u.s. 267, 277-278 (1986) (opinion of Powell, J.).
The FPG reflects one change from the earlier proposed policy
guidance: it no longer requires that a formal findin.g of
discrimination have been made by a court, administrative agency,
or legislative body, but rather permits a college to take
remedial action on its own initiative where it has "a strong
basis in evidence" for concluding that such action is necessary
to remedy the ·effects of its past discrimination. We regard this
change as an improvement, since·the obligation to remedy past
discrimination does not depend on a finding by a court. It also
is consistent with existing law. See Wygant, 476 u.s. at 289-290
(O'Connor, J., concurring) (contemporaneous finding by court of
past discrimination is not constitutional prerequisite to public
employer's voluntary agreement to affirmative action plan);
Podberesky v·. Kirwan, 956 F. 2d 52~ 56-57 (4th Cir. 1992)
(constitutionality of minority scholarship program depends on
whether state could show that program was necessary at given time
to remedy present effects of past discrimination, in absence of
prior court or agency finding to that effect).
Principle 4 permits a college, in the absence of prior
discrimination, to ~se race-targeted financial aid to achieve the
goal ot a diverse student body. The college's use of such aid
. must be narrowly tailored to achieve this goal. This principle
appears to us consistent with Title VI regulations and supreme
.Court precedent. See 34 C.F.R. 100.3(b) (6) (ii) (recipients of
federal assistance may take voluntary affirmative action in the
absence of prior discrimination "to overcome the effects ot
conditions which resulted in limiting participation by persons of
a particular race, color, or national origin• in the recipient's
programs)J Regents of the Univ. of California v. Bakke, 438 u.s.
292, 311-314 (1978) .(Powell, J., concurring) (diversity is
constitutionally permissible goal for institution of higher
education); Metro Broadcasting, 497 u.s. at 568 (same).
4~
<(<(-.t;_SI DEtv
~
r;
"1(
·~ 1J~)
·~
WJC
:0
LIBRAR~PHOTOC~
�·.
·,
I
- 3 -
While it seems well-established that diversity provides a
sufficient constitutional justification for some forms ot
affirmative action by colleges, it is still unclear how this
rationale applies in the context of financial aid. Unlike the
proposed policy quidance, which permitted a college to use race
only as one •plus• factor among others in awarding aid, the FPG
allows a college to award aid limited to members of particular
racial groups in order to achieve diversity. The Department has
determined that, in some instances, specifically designated
minority scholarships may be necessary to recruit and retain a
sufficient number of minor! ty students, and we agree that there
is some .basis for this determination. The Department has further
concluded that aid of this type, if narrowly tailored, does not
necessarily violate the constitutional standard set forth in
Bakke because financial aid policies and admissions policies have
differing impacts on the rights of third parties. we believe
that the Department's interpretation of the law on·this point is
probably correct. we note, however, that no court has yet
applied the Bakke rationale to minority-restricted financial aid,
and that some courts may take a more restrictive view of
permissible uses of such aid. See Podberesky, 956 F.2d at 56 n.4
(not reaching issue, but noting that race is only one element of
the diversity that could constitute a compelling state interest).
5.
Principle 5 clarifies that a college. may award
funds that are limited to students of
particular race_or national origin if the college's use
funds complies with Principles 3 or 4. We agree that a
receiving· federal financial assistance must comply with
even in awarding funds received from private donor.s.
j/
a
of such
college
Title VI
privately~donated
The FPG modifies the proposed policy quidance by permitting
historically. black colleges and universities (HBCUs) to
participate in race-targeted student aid programs administered by
third parties, even though the use of such aid does not sati~fy
any of the FPG principles. The Department notes that if HBCUs
are prohibited from participating in such programs they will be
unable to attract tne most talented black students, and that such
a result would frustrate Congress's efforts to strengthen and
enhance HBCUs.
·
~
This exception raises issues not yet directly addressed by
the courts. As the Department of Education notes, congress has
found that HBCUs suffered from past discrimination by state and
federal governments. 'These findings may support differential
treatment to remedy the present effects of that discrimination on
students at those institutions. · See Fullilove v. Klutznick, 448
u.s. 448, 482""'484 (1980) (opinion of.Burger, C.J.) (Congressional
findings of past discrimination justify legislation giving
·
preference to minority business enterprises). It might be useful
for. the Department to develop in more detail how these prog,x;ams_
operate in order to determine whether a distinction sho -l~~ilEtvr-.
.
<(~
~
. ~ ~g$"
-6
r
/..r.'\
<
i
:tJ
WJC LIBRAR 'PHOTOCOPY~
�' .
~-
.... .
--
'
.,
;
- 4-
drawn between allowing students to receive such scholarships and
institutional contributions to race-based scholarships. In
addition, the Department should qive further thought to whether
the use of race-targeted scholarships is a sufficiently narrowly
tailored means of achieving its qoal. (Indeed, the FPG states
that participation of HBCOs in these programs •will be subject .to
periodic reassessment.•)
B.
United States y, Fordice
The Notice concerning United States v. Fordice, 112 s. ct.
2727 (1992), describes the way in which the Department of
Education intends to apply that decision in enforcing Title VI,
42 u.s.c. 2000d, in the higher education desegregation context.
Addressing the duties of a State in dismantling a racially dual
system of highe~ education, Fordice held that (112 s. ct. 2737):
If the State perpetuates policies and practices
traceable to its prior system that continue to
have segregative effects -- whether by influencing
student enrollment decisions or by fostering
segregation in other facets of the university
system -- and such policies are without sound
educational justification and can be practicably
eliminated, the State has not satisfied its burden
of proving that it has dismantled its prior
system.
As the Notice states, Fordice is consistent with the Department's
•Revised Criteria• for higher education desegregation plans (see
43 Fed. Reg. 6658 (1978)), in that it requires States to do more
than adopt racially neutral admission policies, necessitates the
examination of a broad range of factors affecting desegregation,
and places the burden on States to establish that they have met
their affirmative duty.
We believe the Notice's treatment of Fordice is correct, and
have no objection to its placement i the Federal Register.
James • Turner
Acting Assistant Attorney General
civil Riqhts Division
cc:
Drew s. Days, III
Walter E. Dellinger
WJC LIBRARY PHOTOCOPY
�0
jo
0
0.
.
U.S. Department of Justice
:- ... ..; ....
Office of Legal Counsel
W~1011.D.C.
lOSJO
January 4, 1994
MEMORANDUM TO JUDITil WINSTON
GENERAL COUNSEL, DEPARTMENT OF EDUCATION
From
H. Jefferson Powell~
Michael C. Small
By way of follow-up to your telephone call to our office this morning, we are writing
clarify one of the points that was made in our December 30, 1993 memorandum to
Associate Attorney General Hubbell concerning the Department of Education's draft Final
Policy Guidance (the "PPG") setting forth the circumstances under which higher education
institul.ions that receive federal funds may award student financial aid onothe basis of race,
consistent with Title VI of the 1964 Civil Rights Act.
to
Priociple 2 of the FPG states that a college may award financial aid on the basis of
race or national origin when authorized to do so by an act of Congress. The premise of
prionciple 2 is that federally-authorized affirmative action measures cannot be considered to
violate Title VI in light of a canon of stan.ltory construction under which "the specific
provisions of a statute prevail over the generat·provisions of the same or a different statute."
(FPG at 10) In our December 30, 1993 memorandum, we stated that reliance on the rule of
statt1tory construction was somewhat misleading. Our point was that even where Title VI is
overridden by a more specific statute, tbe award of race-based financial aid pursuant to that
statute would still be subject to the constitutional standards, established in Fullilove v.
Kiutznick, 448 U.S. 448 (1980), and Metro Broadcasting; Ine. v. FCC, 497 U.S. 547
. (1990), governing congressionally-authorized affu:mative action programs.
Challenges to the affumative action mandates in the Surface Transportation and
Uniform Relocation Assistance Act (the "STIJRAA") are illustrative of our point. STURAA
i.mposes affumative action obligations on states that receive funds awarded by the
Department of Transportation under the statute. In a series of cases in which states were
sued for carrying out the requirements of STURAA, courts did not address whether the
specific affumative action provisions in STURAA prevail over the general antidiscrimination
provisions of Title VI. Indeed, there was no mention of Title VI in the court decisions. It is
unclear whether the plaintiffs brought any Title VI claims against the states .. What is clear,
however, is that the plaintiffs asserted constitutional claims. In defending against those
claims, the states relied on the affirmative action mandates of STURAA, and argued that tbe
WJC LIBRARY PHOTOCOPY
�,
/
I;;
• ... ...
r ...'
·~
~
....
statute (and hence the conduct of the states in implementing the statute) satisfied the
constitutional standards established in Fullilove and Metro Broadcasting. The courts accepted
that argument, at least insofar as the states were simply implementing STURAA and not
exceeding the statutory requirements. ~ Harri,;on & Burrowes Bridge Constructors Co. v.
Cuomo, 981 P.2d SO (2d Cir. 1992); Bllis v. Skinner, 961 F.2d 912 (lOth Cir. 1992);
Tennessee Asohalt Co. v. Farris, 942 F.2d 969 (6th Cir. 1991); Milwaukee County Road
Pavers Ass'n v. Fiedler, 922 F.2d 419 (7th Cir. 1991).
Of course, since the FPG is intended to address the Title VI implic.ations of racebased fmanclal aid, it is entirely appropriate for the Department of Education to express its
view that race-based fmancial aid decisions taken pursuant to another federal statute do not
violate Title VI. We agree with that view. 1 However, so as not to give institutions the
impression that federal statutory authorization shields race-based fmanci.al aid decisions from
legal challen:e, our memorandum recommended that the FPG make clear that such decisions .
may still be subject to constitutional attack under the Fullilove and Metro Broadcasting
standards. On balance, this is a relatively minor point, and it can be addressed in a brief
footnote. To reiterate what was stated in our December 30 memorandum, we believe that
the legal analysis in the FPO - including principle 2 •• is essentially sound.
cc:
Webster Hubbell
In our memotandum, we did not mW~ to suggest that Title VI docs not apply to the
award by bigber education imtitutiom of race-based fulan.eial aid pursuant to a federal statute autllorizing
such aid. Title VI does apply. but its requirements are ovemdden by the more specific federal sla.luteas the FPG concludes. The rcferen~ in the memorandum to a "split in the caselaw"' on the question of
lhe applicability of Title VI was directed to the question of whether the Department of Education itself
could be sued under Title VI for makinJ race-based finan.dal aid available to higher education instimtions.
~Latinos Unidos de Chelsea v. Secretary ofHUP, 799 F.2d 774,783 n.17 (1st Cir. 1986) (declining to
decide "the difficult question" of whether federal a:eneic.s may be sued under Section 601 of Title VI).
-2-
WJC LIBRARY PHOTOCOPY.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUliJECTffiTLE
DATE
RESTRICTION
re: Preferences - draft (2 pages)
n.d.
P5
COLLECTION:
Clinton Presidential Records
Counsel Office
Joel Klein and Doug Letter
OA/Box Number: 6462
FOLDER TITLE:
Joel Klein and Doug Letter's Af:firniative Action Documents [ 1]
.
.
Whitney Ross
2008-0308-F
wr904
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA)
·P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such' advisors [a)(S) ofthe PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) ofthe FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
·
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon requesf.
WJC LIBRARY PHOTOCOPY
�Preferences
-----
This memo addresses the concept of affirmative action "preferences" as it applie o
the selection of individuals for education, jobs, contracts, licenses, etc. In that context a
preference means. that an applicant either gets additional points because of his/her status
.
.
.
(race, gender, disability) or a portion of the available slots are "set-aside" for persons of the
·designated status.
Such preferences have one clear, immediate, tangible cost: they disadvantage other
applicants who, at least as individuals, cannot be said to be at fault. Consequently, to be
morally legitimate, much less politically acceptable, the use of such preferences must be
convincingly justified.
As I see it, the only potential justifications for preferences are: (a) a finding of
current discrimination; (b) a prophylactic against current discrimination that would otherwise
go undetected or unproven; and (c) "compensation" for past societal discrimination against ·
the affected group that has continuing effects in terms of its members' ability to compete
without the benefit of preferences. (I do not think this kind of preference can be justified on
"diversity" or "inclusion" grounds absent some element of past or present discrimination. If
there are no discriminatory "barriers to entry," then it is difficult to see why some diversity
would not occur unless certain groups simply had no interest in the job. In fact, today some
amount of diversity has been achieved in virtually every field of endeavor.)
In addition to the question of justification, preferences also raise the issue of effects.
Here, the landscape is much more difficult to tease out with confidence. On the positive
side, preferences give ce:J;!;fi~j"that have been disproportionately excluded the
opportunity~eaningful...nclusion.· This has secondary benefits as well:
groJri<ls that are
WJC LIBRARY PHOTOCOPY
�alienated or disaffected are likely to have more hope if they see more of their members in
prominent, or at least visible, positions. In this way, we help restore the American dream
for those who have too long been denied it. In addition, as members of particular groups
. advance, they are more likely to
~ their time, money, and effort into th~ir own
~~ oJ
.
communities, and also to develop the kind of networks that traditionallyjhell[. gr?ups
.
.
(/
~~
~ce. .
The other variable in the equation is the effect on inter-group relations --black-white,
male-female, etc. Here, the signals are mixed: to the extent people work together, it is
hoped, they are more likely to become acquaintances if not friends and thus less likely to see
each other as stereotypes. On the other hand, if the majority groups thinks members of a
minority group got an unfair advantage (at their expense) this may increase hostility. Also,
if the preference means that certain members of the preferred group ultimately perform -less~
.
. <(~E.SI0~!\1 '
well, this can reinforce negative stereotypes and prejudice.
~
!).~
E gg?
:J
z
<..)
* * *
WJC LIBRARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!IITLE · ·
DATE
RESTRICTION
001. memo
Peter Yu to Deval Patrick, re: Thoughts on Draft Testimony (2 pages)
3/21/1995
P5
002. memo
William Julius Wilson to George Stephanopoulos, re: In response to
your request for a memo on how President Clinton should respond to
the Affirmative Action challenge (8 pages)
3/20/1995
P5
003. fax
Doug Letter to Joel Klein [partial] (3 pages)
..lt~4,11995
8Rf
&Z I
P6A3Ee~
COLLECTION:
Clinton Presidential Records
Counsel's Office
Klein, Joel; Letter, Doug
OA!Box Number: 6462
FOLDER TITLE:
Joel Klein's and Doug Letter's Affirmative Action Background Documents [4]
Whitney Ross
2008-0308-F
wr440
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- (5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) ofthe PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute ((a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a chiarly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
March 21, 1995
MEMORANDUM FOR DEVAL PATRICK,
CC:
GEORGE STEPHANOPOULOS, CHRIS EDLEY
FROM:
PETER~
SUBJECf:
THOUGHTS ON DRAFT TESTIMONY·
.
Chris shared with me your draft testimony; this memorandum offers some comments.
The draft is a strong and eloquent statement of current policy and its legal ai1d policy
foundations. In light of the context, I would ask a strategic question:
•
What would we like the next day's headline to be?
"Clinton's Top Civil Rights Aide Defends Affirmative Action" seems the most likely headline
after the testimony. Does this fit with the pending review? with an imminent Presidential
announcement?
.My initial intuition is that the President may be better· served, at this time, by an
admittedly less positive headiine (Such as ''DOJ Official Parries with House Panel"). If you
agree, I would suggest that the penultimate paragraph of your draft be replaced with a paragraph
such as:
My statement offers some of the legal basis for affirmative action as well as my
office's 9urrent policy regarding affirmative action. But I want to emphasize what my
statement does not include or purport to offer. As has been widely reported, the President
is currently undertaking a comprehensive review of affirmative action programs in many
sectors of federal policy. He has stated his objective as determining what works and what
doesn't. My staff and I have been working closely and diligently on that review, as have .
many others. At this point, however, as I am sure you understand, it would be
.inappropriate for me to anticipate the President's views. Accordingly, until the President
issues a complete statement of his views on these critical policy areas, I will limit my
comments on affirmative action to the legal dimensions and basis of that important policy
and my office's current practices.
WJC LIBRARY PHOTOCOPY
�Potential Questions vfor Assistant Attornev General . Patrick
v
•
In .your written statement, you say that affirmative action is misused if it "is of
indeterminate length, such that it outlasts achievement of its goals." Last year, Hispanics,
Asians, and African Americans made up a majority of the students at UC-Berkeley.
White students were a minority. Do you think that affirmative action is being "misused"
at UC-Berkeley?
'
•
Sticking with the case of Berkeley: in 1990, 14% of the black students came from
families with incomes of more than $75,000 per year. In that same year, Berkeley
rejected 3,000 students with perfect 4.0 averages--most of them non-minorities. I
suspect that many of those students came from less affluent backgrounds. So my question
is: Is it fair that a white student with a 4.0 average from a blue-collar background be
rejected in favor of a minority student with a 3.5 average from an upper-middle-class
family?
•
You talked about race and gender. What do you think about affirmative action based on
sexual orientation? Is that legal? Is it desirable?
•
your statement talks about the persistence of discrimination. What can you tell us about
either the costs or benefits of affirmative action? Have these programs made a
difference? And, if so, at what cost? Do you believe there are legitimate concerns that
affirmative action harms either individuals or our broader social understanding of fairness
and individual opportunity?
•
Do you think that the promotion of supervisors should be based on their hiring of
minorities and women?
•
Do you think that race and gender should be treated differently than physical disability?
•
President .Bush used to like to say to the unemployed person the unemployment rate is
100%. I think the same sort of thing is true in affirmative action. When you fire
someone based on their race--as happened in the Piscataway case--I don't care whether
you call it affirmative action or equal opportunity, it feels ~ike a quota to her. Do you
agree? How can. y~u defend that practice?
WJC LIBRARY PHOTOCOPY
�FROM
PHONE NO.
Panasonic TRD/FRX
Mar.
1
UNIVERSITY OF CHICAGO
CENTBR PO R THE STUDY OF URBAN J N EQUAL.ITY
1313
J!,AS1"
60TH S"l"Rf.f.T
C~IC:ACO. ILLINOIS 6U6P
InvrNG D. HAnRzs GMD ~o-Se
L.
OT' PullLIC Pouc~ STun IDS
WILLIAM]ur.rus Wu.soN
Tnt.: (31Z) 702-0894
(ltz) 702.-8822
DirtCI!Ir and l.~cy Flower Urd~~trsiry P,Cijessor
4 Sodolr~gy 1mtl Public Polley
PAX:
Sv-L
MEMORANDUM
w,:
·~
P.....tr-~c.t
.tliitiiiGiwaaP.
George Stephanopolous (The White Ho~se) ·
TO:
<;:~tl'"'1
C4..1s tv-G.,..,..;t..(
FROM:·
.William Julius Wilson
SUBJECT:
In response to your request for a memorandum on h~w President
Clhrtv•• oh~uNI reapolft.d l~ tho AfElrm•nvo Artinn...t'ha11PngP..
DATB:
March 20, 1995
I am sorry that I was unable to fax you this memorandum over the weekend.
I arrived in New Mexico (my second'home) on Sunday, and I forgot to bring my fax
machine with me {rom Chicago. SO I had to wait until today to fax this to you.
How should the President respond to the current attacks on affirmative
action?
The core dilemma is this: if the President is to defend policies to lift the
burden$ of segregation and discrimination that limit the life chances of black
Americans, he risks further alienating the very white voters he needs to win in
1996. But.if he offers a response that signals a weakening of resolve to support dvil
rights policies, he risks alienating constituencies he cannot afford to lose in 1996:
party activists, women and minority voters.
·
The only way out of this dilemma ls to confront, head on, two d~siinct but
politically intertwined issues:
1) ~e President should address the economic insecurities of w~rking class
Americans by making the case that his policies to create jobs and raise illu:omes are
the only real solutions .to their problems being offered. Republican p~Udes to cut
welfare, cut support for education, deny social benefits to immigrants &nd end
affirmative .action will do nothing to alle~iate the economic squeeze faced by so
· many in the working class. They· are victims of global economic cha!ige, not
affirmative action.
WJC liBRARY PHOTOCOPY
�FROM : Panasonic TAD/FAX
PHONE NO.
Mar. 20 1995 03:34PM
2
But since the late 1970's, real wages have falle~. Wage disparities between
those with college degrees and those without have wjdened considerably. Working
class Americans today feel economically pinched, barely able to maintain current
standards of living even on two ~comes. Many are insecure about keeping their
jobs and feaJ' they will never be able to afford to send their kids to college. Many
believe that for all their hard work, their children's lives will be worse than theirs.
· This is not a receptive dlmate for a national seminar on the moral
underpinnings of affirmative action. The President wilJ first have to persuade
workin·g class white Americans that he knows what is pressing in o:n them. He
needs to convince them that he is working hard to reli~e the pressure and to build
.a better future for their children. He needs to acknowledge the legitimacy of their
fears, but to challenge forcefully Republican claims that their economic insecurity is
.the result of blacks, women and immigrants taking away their jobs. He needs to
expase the falseness of arguments that white working class Americans' lives will be
improved by eliminating school lunches, reducing educational opportunities,
cutting off welfare benefits to teenage mothers, and cutting taxes for the affluent.
The President should reassert his support of policies to·expand educational
opportunities, to expand job training programs to raise skills and thereby raise
incomes. He should point out that his economic and trade policies have created an
unprecedented numbers of jobs and brought unemployment to its lowest levels in
years, both while keeping inflation down. In short, he should make the case t·hat his
policies, not the Contract with America, promise.to restore confidence· in the present
and hope for the future for American workers. There is an opportunity for the
President to begin to change the debate over affirmative action with a forceful.
populist rebuttal to Republican policies that reward the wealthy and punish the
WJC LIBRARY PHOTOCOPY
P02
�FROM : Panasonic TAD/FAX
PHONE NO. ·
Mar. 20 1995 03:34PM
3
parents and children of working class Americans. ·
Reassuring the white working class about their economic .futures is a
prerequisite for making the case for affirmative opportunity.
The Case for Affirmative Opportunity
By contrasting "opportunity'' with "action", the concept "affirmative
opportunity" distinguishes this approach from a guarantee of equality of results, ·.
which is how "affirmative action.. has come to be understood. It echoes the phrase
"equal opportunity," which connotes a principle most .Americans still support, and ·
it avoids the connotations of quotas, standard-lowering and reverse discrimination, .
which most Americans now detest (regardless of wb.ether they fairly characterize
affirmative action).
.
.
.
However, by retaining the term ..affirmative," the concept retains the
connotation that something more than offering formal, legal equality is required to
overcome the legacy of slavery and Jim Crow discrimination. We also have the
continuing moral obligation of society to compensate for the enduring burdens -the social and psychological damage-- of segregation, discrimination and bigotry.
"Affirmative opportunity" means to renew the nation's commitment to enable all
.Americans, regardless of income, race, or other attribute, to achieve to the highest
level their abilities will permit. In this sense, the phrase echoes President Johnson •s
1965 Howu:d University speech.
What, precisely, does affirmative opportunity mean? How
would such a policy be put into practice?
)
1) Affirmative opportunity represents a movement from an
affirmative action based on solely on race to one based on the prinCiple
of equality of life chances. The major distinguishing factor of
i affirmative opportunity is· the recognition that the problems of
~ disadvantaged individuals---class background, low income, a. broken
~ home, inadequate housing, poor education, or cultural and linguistic
... differences--may not be clearly related to the issue of previous
i discrimination. Nevertheless, children who grow up in homes
plagued by these disadvantages are more likely to be denied an equal
chance in life because the development of their aspirations and talents
is· effectively hindered by their environments. Minorities would
benefit disproportionately from this position because so many of them·
suffer from these handicaps, b.!!t the problems of disadvantaged whites
would be addressed as well.
.,
-
However, affirmative opportunity extends the principle of equality of life
chances to include race--so that in addition to dass background, low income,
·wJC LIBRARY PHOTOCOPY
P03
�FROM : Panasonic TAD/FAX
~s\DEtv:r-1
Q.~
~
Mar. 20 1995'03:35PM
P04
4
-1(
<"
~ Ci 9J
l:;
PHONE NO.
0
j
~
.
~ broken home, poor education, or cultural and linguistic differences, one
? ould also add radal background. The reason for adding race is to insure that
"i dividual minorities do not "slip through the cracks... The cumulative
effects of race are not captured when one uses the standard measures of class
background such as parental oCcupation, education, and income. By the
cumulative experiences of race, I indude the long~term effects of living in
. certain neighborhoods, the cultural milieu, the q1.1ality of schooling, the
nurturing oi parents, the resources that parents are able to spend·or pass on to
their children and so on. For example, if we were to rely solely on the
standard measures for college admission-such asSAT scores--even many
children from black middle income families would be denied admission in
favor ol more privileged whites who are not weighed down by this
accumulation of disadvantages and who tend to score higher on these
standard measures as a result. Moreover, blacks and many other minorities
f. continue. to experience radal discrimination. Bxplicltly including race under
~ the principle of equality of life chances would continue to help offset or
x minimize these practices.
.
I
. The principle of equality of life chances is a promise· that all Americans will
compete on an even playing field on the basis of merit. It represents simple fairness.
It would be hard for Republicans to· challenge this proposition. Polling data suggest
that Americans support the idea of affirmative programs to enable people to
overcome disadvantages that are not of their own making. The aim of affirmative
·
opportunity is to expand the pool of disadvantaged Americans of all racial
backgrounds who are qualified or have the potential to qualify for positions in
education and the labor market. Since race is one of the components of
"disadvantaged" affirmative opportunity ensures that race does not exclude
..e' qualified minorities. This would be done, however, through the use of flexible
.J< criteria of evaluation, not through nu.meric12l guidelines or quotas, The obvious
rejoinder is that 11USe of flexible criteria" is another way of saying that you want to
lower standards. On the contrary, the use of flexible criteria of evaluation is to make
sure that your are measuring merit or potential to succeed rather that privilege. In
other words we want to use criteria that would not exclude people who have as
much potential to succeed as those admitted from more privileged backgrounds.
This brings me to programmatic stTategies for each of the components of affirmative
opportunity.
'.
To implement the principle of affirmative opportunity, we must rerognize
that most promising strategy for increasing competitiveness for scarce places in
higher education and the labor market is investment in human capital·developing the capacities of the economically and culturally disadvantaged by ·
encouraging their acquisition of skills. Five basic strategies are recommended, the
first four of which are not necessarily tied to radal aiteria:
· (A) Redouble the nation's commitment to nurturing the minds of the yery
youn;. We should commit ourselves to stimulating children early, before despair
WJC LIBRARY PHOTOCOPY
�FROM
Panasonic TAD/FAX
PHONE NO.
Mar. 20 1995 03:36PM
P05
s
and hopelessness rob them of their futures. There is a growing consensus ln the
social and behavioral selena! community that the key to stimulating a desire for
lifelong learning is to motivate the very young to learn. Lack of .sufficient
stimulation early on defeats interest in learning. Returns to dollars spent on
Headstart-type programs, enriched day care and kindergartens, parenting training,
health care, nutritional support and other interventions designed for the very
young will be much higher than returns to dollars spent on job training for i~'{;:,s\DEtvrl..r.
and young adults.
.
.
~ ·
(
~
~
.
0
~
(B) Press for pubUc school reforms. Gains made by early childhood
~
~
.interventions are all too often undermined by poor schooling later on. Publl~~
::o
schools must not only prepare graduates for the world of work, community a.ij
'}
citizenship, they must ~so nourish children's appetites for learning. The fed~~
government should be monitoring and funding local school reform innovations,
funding valid assessments, and encouraging the replication of successful models.
.
s 8;
(C) Expand financial opportunities for the economically disadvantaged to go
to collgge. Labor market returns to higher. education continue to rise faster than
returns to high school degrees, but the r~pid rise of eollege costs will squeeze more
working and middle class Americans out of higher education.
.
(D) Expand access to job qainins. There are two important points to make
about job training. First, the administration should stimulate the provision of
training by the private sector, perhaps through tax incentives. There is evidence
that the returns to private sector training are higher than returns to government
training programs. Second, special attention should be paid to dislocated workers.
They are most likely· to benefit from retraining and doing so according to non-racial
criteria would address directly a major source of the economic insecurity driving
white male opposition to affirmative a~tion.
.
.
(E) Encourage the use of flexible criteria for evaluatinz merit. This should
replace a reliance on racial quotas while· preserving. a mechanism for providing
entry to qualified minorities and women. Psychometric test scores should not be
relied upon as the sole, or dominant, determinant of entry to higher education or
employment. While some test scores may correlate well with performance, they
often fail to measure important attributes that also determine ability to perform,
such as motivation, leadership skills, interpersonal ability, perseverance and
reliabillty.
Recent claims that on average blacks are less intelligent than whites and that
compensatory social programs cannot work have gained currency among those
attacking affirmative action. These claims do not withstand scientific scrutiny.
Rigorous analysis by a growing number of social scientists finds that such
. arguments, premised on radal disparilie~ in average test scores, seriously understate
the .role of environment..:. families, schools and neighborhoods- in shaping
outcomes in life.
·
WJC LIBRARY PHOTOCOPY
�FROM : Panasoriic TAD/FAX
. PHONE NO.
Mar. 20 1995 03:37PM
P06
~g\DENr-;:
. ()~
6
<:'
.Q
i=
z
.
g \?/
()
. The ~lfference in average test scores ~outed by some opponents of
·~
compensatory sodal programs and affirmative action are largely measures of
differences in opportunities between the advantaged and the disadvantaged especially factors early in life U.ke access to high quality child care and good
schooling. The concept of flexible aiteria is to design metrics of ability that predict
success that are not captured by such tests.
Indications of these attributes may be obtained from letters of
recommendation, past performance or other measures. Mayor Daley's recent use of
"merit promotions.. in the Chicago police Department, based on such factors as job
performance and leadership ability, is an example of how such criteria can be used.
Some Pinal Remarks about Race
Let me end this memorandum with a few reflections on the sensitive issue of
race. Affirm~tive opportunity offers a principled basis for preferential treatment on
!< I the basis of race in certain contexts. This principle can be justified in several ways.
One justification is simply that discrimination continues to exclude blacks from
positions for which they are qualified and that special efforts are still required to
· overcome it. That is powerfully illuStrated by the release this week of the so-called
Glass Ceiling Commission report, which demonstrates that white men constitute
95% of top management but only 43% o~ the workforce. Newspaper accounts of the
report describe various ways the social structure of corporate management works to
perpetuate the effects of past forms of legal· discrimination. Senator Dole advocated
creation of this commission in the 1980's and the Clinton Administration should
aggressively expose his hypocrisy in now attacking the very remedies that would be
required to eliminate the lingering effects of previous forms of disaimination.
~<
Another justification for preferential treatment in this form is that ethnic
diversity is. socially valuable. In the cases of policing, fire fighting and teaching,
racial diversity contributes to stable community relations. A third justification is
that access to such professions and other municipal and government occupations
has been a major vehicle for upward social mobility for black Am~ricans. A fourth
justification is the "role model" argument: strong representation by minorities. in
the professions helps to motivate younger people to pursue high aspirations for
themselves, by demonstrating that race is not a barrier to entry. The use of flexible .
aiteria may be a way to replace the goals and timetables currently used by
government agencies and contractors.
. Having said· that, it will be extremely important to calibrate the use of flexible
~ ~criteria in practice. They must not be perceived as a ruse for loweri~~ stand~rds for
blacks. ·They must be presented as a way to expand the pool of qualified applicants by
making attributes other than raw test s~res count more. Flexible criteria must be
applied in predictable, non-subjective ways. Otherwise, the practice will be infected
with arbitrariness, which will quickly undermine public support. In this
~
WJC LIBRARY PHOTOCOPY
'1(
~
(jj
?J
)>
~
�FROM : Panasonic TAD/FAX
PHONE NO.
Mar. 20·1995 03:38PM P07
7
connection, the President should also be forthright about the fact that clumsy
applications of the principle of affirmative action have,. in the past, led to abuses.
.
Admitting, hiring or promoting unqualified blacks over qualified whites is wrong ·
~ and should not be permitted. The Presidenrs. commitment to enforce laws agains
1 race discrimination should include a pledge to prosecute clear cases of
~\DEtv,
~ discrimination against whites. He should pledge to fight against the lowerin!<'of ....
. ·(
·
·
.
.~
~
~
admission standards and qualifications.
I
0
g f
I want to mention a final justification for the administration to ma!Q "\
serious commitment to affirmative opportunity, backed up by real progra hltd
real dollars. That is the need to restore hope to the most disadvantaged amon
particularly 1ow.;,income young blacks. Growing numbers of young people are
deeply alienated from mainstream society. For them the hopes of the civil rights era
were never to be fulfilled; t;he promises always to be broken.
Since-the days when Dr. King offered black Americans his dream of a society
in which merit, not skin color, would determine how far one could go in life, a new
generation has grown up tasting ~e bitter truth that the privileges of American life
are still reserved for whites. Job opportunities have vanished for millions of blacks
living in our cities. Street violenCe and crack have ravaged once thriving, if poor,
black neighborhoods. aousing segregation still prevents most black Americans from
choosing where to live. The deterioration of the public schools, except in affluent,
mostly white, suburban communities, abandons black children to illiteracy and
innumeracy, unable to get or to keep jobs that require basic skills. More black males
between the ages of 18 and 24 are in jail than college. Homicide is the leading cause
- of death In this age group.
The rhetoric from our political leaders today demonizes black Americans as
"welfare dependent, immoral, and now, unintelligent. These are the verbal
equivalents of the police dogs in Birmingham and firehoses at the Edmund Pettus
bridge~ But the hopelessness and alienation of today _is far more dangerous than the
frustration and moral outrage of the civil rights era because a·generation of black
Americans has grown up with no stake in their futures. They have nothing to lose
by acting on their rage. Failure to respond vigorously to this assault on the
principles of fairness and equality for all Americans regardless of race will only
confirm what many black Americans have come to believe .... that America has. no
stake in them. The result could be a flrestorm of civil strife compared to which the
1992 rebellion in Los Angeles was merely a brush fire.
11
I won't presume to suggest a political strategy to educate the public on these
matters. However, it seems to me that the President should enlist highly respected
white male leaders in this effort. To the extent this message can be communicated
by white leaders of corporations and unions it will receive a better hearing. Also, ·
the President is at his best in town meeting settings in which he has an opportunity
to respond spontaneously to questions. He projects empathy well and he is able to
communicate subtle and complicated ideas in· these settings withc:lUt seeming to talk
WJt LIBRARY PHOTOCOPY
t
"
�FROM : Panasonic TAD/FAX
PHONE NO.
Mar. 20 1995 03:38PM P08
8
down to the public. It might be that a major national address to set forth" the major
themes of affirmative opportunity, followed quickly by a series of televised toWn
meetings, would be effeetlve. This would enable the President to communicate
these points in a forum in which the message would directly reach the public and
would not be filtered through the media
·
·
I hope you find this helpful.
WJC LIBRARY PHOTOCOPY
\
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECTfi'ITLE
DATE
RESTRICTION
AND TYPE
001. memo
Doug Letter to Stephanopoulos, Edley, Yu, and Mikva; re: Affirmative
Action Policy (3 pages)
4/13/1995
P5
002. memo
Doug Letter to Stephanopoulos, Edley, Yu, and Mikva; re: Affirmative
Action Policy (3 pages)
4/13/1995
P5
COLLECTION:
Clinton Presidential Records
Counsel Office
Doug Letter
OA!Box Number:
8288
FOLDER TITLE:
[Affirmative Action Review Materials] [2]
Whitney Ross
2008-0308-F
wr905
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Pl National Security Classified Information [(a)(l) of the PRA]
· P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b))
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(J) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
WJC LIBRARY PHOTOCOPY
�·~
.
THE WHITE HOUSE
WASHINGTON
E X E C U T I V E
0 F F I C E
0 F
13-Apr-~995
12:04pm
TO:
TO:
TO:
TO:
Douglas .N. Letter
Office of the Counsel
CC:
Cheri Sweitzer
SUBJECT:
P R E S I D E N T
George Stephanopoulos
Christopher F. Edley, Jr
Peter M. Yu
Abner J. Mikva
FROM:
.T H E
Affirmative Action policy
George, Ab, Chris, and Peter:
I had wanted to make a point at the meeting yesterday at 11
regarding Administration strategy in the Affirmative Action
debate, but time ran out. So, I will pass it along in this form.
I want to add another reason to the view expressed primarily
by George, Gene Sperling, and Joel Klein about the importance of
using rhetoric of inclusions in·this'debate and not falling into
trap of having the President try.to measure pain felt by different
groups, and thereby judge affirmative action programs on that
basis.
I have gathered from the various sessions we have had on this
topic that many minorities would identify themselves first or
primarily by their minority~group status: black, hispanic, etc.
(I have.no idea if this is true for women too; i.e, would they
first identiy themselves as women. For many, I suspect not, and
assume that they would identify themselves primarily in some other
way.) However, I don't think it works to contrast these groups
with white males, since I don't believe that many white males
identify themselves primarily in that sense. Thus, if the
President is comparing interests of minorities, women, and white
males, a large segment of his audience will not be attuned to the
rhetoric he is using.
I can illustrate with a personal example. I identify
myself first as a Jew. This raises a host of ethnic, historical,
religious, and other issues. It means that I view myself
primarily as part of a very tiny minority group in American
society, alien from a large conglomeration of groups -- white,
black, and hispanic, men and women -- that are Christian, and·
therefore very different from me in extremely important ways.
Thus, because of this personal self-perception, lumping me in a
group with white males in a discussion seems very strange to my
ears since I view myself as quite alien from the overwhelming
majority of them.
WJC LIBRARY PHOTOCOPY
�(
I think that most white males also identify themselves
!!!!="WaiT~6E
wPQfffi
j$1!5t3 Q N
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
primarily in other ways than as white males; they likely think of
themselves first as Catholic, or Baptist, or gay, or Californian,
or Western, or Southern, or New Yorkers, o~ Irish, or Italian,
etc. Rhetoric that compares minorities and women to white males
thus seems out of place to them because they do not view
themselves as a part of a monolithic group that is opposed to or
by minority groups.
.
Consequently, I think it is essential that the President
avoid this type of talk of comparison between groups, and instead
use a language of inclusion of all groups_ in the American dream of
equal opportunity. Otherwise, I think he loses the attention and
understanding of a large segment of his audience at the outset.
For this reason, I would not recommend that the President
speak as Walter Dellinger suggested at the meeting, saying that we
need to recognize that there is still significant discrimination
in the US. By saying· that we need affirmative action because
discrimination still exists, the President merely seems to be
accusing all white males as a group of continuing to discriminate.
We have laws against discrimination and it is conduct that should
be punished when encountered. But the President can instead make
clear that because of past very serious discrimination there are
obvious and important lingering effects that prevent certain
groups from getting their fair chance; affirmative action can be
legitimately directed at trying to overcome this problem because
the practices of the past continue to cause trouble. And the
point of affirmative action is not to give groups a leg up in
competition with a single group known as white males. Rather, it
is to use the identifications that were wrongly used in the past
in order to keep certain groups behind now to overcome that
problem and its aftereffects.
Anyway, that is my two cents worth.
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
E X E C UT I V E
0 F F I C E
0 F
T H E
P R E S I D E N T
13-Apr-1995 12:04pm
TO:
TO:
TO:
TO:
George Stephanopoulos
Christopher F.· Edley, Jr
Peter M. Yu
Abner J. · Mikva
FROM:
Douglas N. Letter
Office of the Counsel
CC:
Cheri Sweitzer
SUBJECT:
Affirmative Action policy
George~
Ab, Chris, and Peter:
I had wanted to make a point at the meeting yesterday at 11
regarding Administration strategy in the Affirmative Action
.
debate, but time ran out. So, I will pass it along in this form.
I want to add another reason to the yiew expressed primarily
by George, Gene Sperling, and Joel Klein about the importance of
using rhetoric of inclusions in this.debate and not falling into
trap of having the President try to measure pain felt by different
groups, and thereby judge affirmative.action programs on that
basis.
I have gathered from the various sessions we have had on this
topic that many minorities would identify themselves first or
primarily by their minority group status: black, hispanic, etc.
(I have no idea if this is true for women too; i.e; would they
first identiy themselves as women. For many, I suspect not, and
assume that they would identify themselves primarily in some other
way.) However, I don't think it works to contrast these groups
with white males, since I don't believe that many white males
identify themselves primarily in that sense. Thus, if the
President is comparing interests of minorities, women, and white
males, a large segment of his audience will not be attuned to the
rhetoric he is using.
·
I can illustrate with a personal example. !.identify
myself first as a Jew. This raises a host of ethnic, historical,
religious, and other issues. It means that I view myself
primarily as part of a very tiny minority group in American
society, alien from a large conglomeration of groups -- white,
black, and hispanic, men and women -- that are Christian, and
therefore very different from me in extremely important ways.
Thus, because of this personal self-perception, lumping me in a
group with white males in a discussion seems very s'trange to my
ears since I view myself as quite.alien from the overwhelming
majority of them.
WJC LIBRARY PHOTOCOPY
�I think that most white males also identify themselves
THE WHITE HOUSE
WASHINGTON
•
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
primarily in other ways than as white males; they likely think of
themselves first as Cath~lic, or Baptist, or gay, or Californian,
or Western, _or Southern, or New Yorkers, or Irish, or Italian,
etc. Rhetoric that compares minorities and women to white males
thus seems out of place to them because they do not view
themselves as a part of ~ monolithic group that is opposed to or
by minority groups.
Consequently, I think it is essential that the President
avoid this type of talk of comparison between groups, and instead
use a language of inclusion of all groups in the American dream of
equal opportunity. ·Otherwise, I think he loses the attention and
understanding of a large segment of his audience at the outset.
For this reason, I would not recommend that the President
speak as Walter Dellinger suggested at the meeting, saying that we
need to recognize that there is still significant discrimination
in the US. By saying that we need affirmative action because
discrimination still exists, the President merely seems to be
accusing all white males as a group of continuing to dis~riminate.
We have laws against discrimination and it is conduct that should
be punished when encountered. But the President can instead make
clear that because of past very serious discrimination there are
obvious and important lingering effects that prevent certain
groups from getting their fair chance; affirmative, action can be
legitimately directed at trying to overcome this problem because
the practices of the past continue to cause trouble. And the
point of affirmative action is not_to give groups a leg up in
·competition with a single group known as white males. Rather, it
is to use the identifications that were wrongly-used in the past
in order to keep certain groups behind now to overcome that
problem and its aftereffects.
Anyway, that is my two cents worth.
WJC LIBRARY PHOTOCOPY
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2008-0308-F - Affirmative Action [Part 4]
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/71d8d57d36afb136c699ed399e0558cc.pdf
0f6c7d11649acd074284d1764c890337
PDF Text
Text
l
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
Joel to Jeff, re: Race-Conscious Remedies (2 pages)
1/9/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel Office
Jeff Connaughton
OA/Box Number: 7442
FOLDER TITLE:
Affirmative Action [2]
2008-0308-F
wr890
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)]
Freedom of Information Act- 15 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified informationj(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office ](a)(2) of the PRAI
Release would violate a Federal statute ](a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(5) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�)
J
I.
>a..
0
(.)
0
To:
F'rom:
Date:
Joel
Jeff
January 9, 1995
1-
Re:
Race-conscious- Remedies
>-
I have been att~mpting.to summarize the Justice Department's
positions in the ra6e-conscious policy cases (unfortunately, I'm
ndt finished). Though they involve various context-s~ecific
issues, some of the common'themes that emerge from these cases
involve the following questions:
·
*
a..
~
<(
~
a::i
...J
Or does the goal of promoting racial diversity, even in a
nonremedial context, represent a sufficiently compelling
governmental justification that satisfies constitutional
scrutiny?
·
·.
*
::I:
Does the Constitution.limit the use of race-conscious
remedies to contexts with a proven remedial purpose?
*
0
If congress has authorized a race-conscious program in a
.· nonremedial context, Cl.oes Congress • s status as a co-equal
branch of government warrant a court upholding its
constitutionality under Fullilove-Metro Broadcasting
intermediate level scrutiny?
·
*
or should Croson-style strict scrutiny apply to federal as
well as state race-based programs, thus effectively limiting
even congressionally authorized programs to proven remedial
contexts?
*
Relatedly, do federal agencies face constitutional
limitations when employing race-conscious polic~es mandated
by congress?
*
What evidence of the vestiges of racial discrimination
justify the continued use of remedial programs?
*
Do the evidentiary standards supported by the Justice
Department amount virtually to the imposition of racial
quotas?
·
Arguably, while the rest of the country has debated the
merits of affirmative action,· the Justice Department has taken
positions in these cases which. not only favor the use of rac;:econscious remedies, but .. would expand the circumstances in which
their use is constitutionally required (or, for voluntary
·
programs, would expand the circumstances in which their use is
constitutionally defensible).
Therefore, some additional questions include the following:
*
Where do DOJ positions arguably go beyond even a strong
qommitment to affirmative action?
..
';
�>c..
0
C,.)
Taxman
Aderand
Jenkins
Podberesky
disparate impact
voting rights cases
evidence of vestiges of racial discrimination
in instances of remedial purpose
w~ere there is congressional/agency authority
in absence of remedial purpose
*
Were the Administration to cha·nge ·its commitment to
affirmative action, where does wiggle room exist (e.g.,
executive agency policies versus federal statutory
mandates)? Where does it not exist (other than in DOJ
positions before Court) (e.g., a President cannot. alter the
federal government's commitment to school desegregation, for
example, because that issue is constitutionally driven by
the federal courts).
*
What are the competing political·visionsjtheories of
democracy in this area?
·
·
*
What are the questions whose answers lead to an overriding
principle in this ar~a?-
*
Any breakout thinking possible?
(1)
(2)
(3)
(4)
(5)
school desegregation;
minority set-asides;
voting rights;
·
employment policies;
scholarship preferences;
(6) disparate impact theories.
0
10
:::I:
c.. .
>-
0::::
.<(
0::::
al
....I
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
RESTRICTION
1':7-5
001. memo
Attorney General to President Clinton, re: Choices Following
Adarand (5 pages)
6/23/1995
P5
002a. memo
Chris Edley to John Schmidt, re: Adarand Implications for Setaside
Sunsets (I page)
7/6/1995
P5
1-:tl.f
002b. letter
Christopher Edley to Deval Patrick, re: Miscellany (2 pages)
7/5/1995
P5
[)t? 158
~~~
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5747
FOLDER TITLE:
Affirmative Action- Adarand/Post-Adarand Implications [I]
2008-0308-F
wr891
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)i
Freedom of Information Act- 15 U.S.C. 552(b)i
PI
P2
PJ
P4
b(l) National security classified information i(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute i(b)(J) of the FOIAI ·
b(4) Release would disclose trade secrets or confidential or financial
information i(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
·
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells i(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office i(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy i(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�>a..
0
(.)
0.
10
:I:
----~.a---
July 6, 1995
>0::::
<(
. To:
John Schmidt
From: Chris Edley
Re:
~
Adarand Implications for Setaside Sunsets
Thanks for your note.
1. I certainly agree with your correCtion re: prime contractors. Yes, ifthe program purpose
includes (as it does) remedying discrimination· by· primes, the relevant pool· could be
constructed with .reference to existing firms.
2. But I still think my underlying point is sound. Mike Small (OLC) called to chat about my
note, and reminded me that in Croson itself the court recognized that if the pool of existing
firms is artificially depressed because identifiable discrimination has limited entry and success,
then the relevant comparison should be "grossed up" to some larger number. (There has to be
some analysis to justify the larger number, of course. And all this becomes murky, tmcharted
waters.)
There would certainly still need to be attention to identifying the cause of the low pool
numbers so as to make it more than general societal discrimination. I gather from Mike Small
that this analysis is doable -- that it is part of what some disparity studies attempted.
3. But put aside the strict scrutiny issue for a moment. If we have a serious public policy goal
of expanding entrepreneurship with a range ·of programs from outreach to setasides, then you
may want to use racially targeted efforts as far as is constitutionally permissible, and then use
race-neutral measures to get you the rest of the way to victory.
·
Even in that construct, .however, it makes sense to figure out what we mean by
"victory." So we need a test for sunsets, which may or may not turn out to be identical to the
constitutional boundary for racial targeting.
·
4. In any case, I'm leaving the White House payroll tomorrow and starting the intermittent
relationship with you folks. So,. starting next week, I will agree with you far more often, and
with far fewer qualifications!
0::::
-
co.
�.----
'::'; q .1.. I'IU • UU'+
.~ENERAL COUNSEL
. • \(. ~~
.
/.
v
~,{t~ .. ~ ~., .... ~ -\-111~:~
. July 5,
./I ),.......... .....
. . .,.,... v'
~
S"
~·~·,,.,
1995
·
~ h} - \
\~-
'-
~..,~,.
l--
'Wall\: ::ro~
a.-·
Miaeolloll)' •
,..
t" .\
t.a..
\I . \ ""fOil.t"j"'\ )t7 \ o'l>- .
I
QO
.
~ lt'O.Ho "' ~ ~~~~C> (' ~
'~",..1
r . 1•.)
· lol'~ ~ ~ \J::i~
':,}(",.'
.,.,~J o-n
. t'. ·} .AAI f'IOI\\'"ll.;'(''-"' 9,1/'t \ . \(. d\
~
I"' \u
~" , )r ~ .....> """:,.,1..,... '}J,....." ,i:J
11
\" ..,.-",&0
J "'
- \
•
'(!-~\~"". ~ ~~~~· t .f'..~> Rc '-\•" i.-A ..
"6 \
~cl . ) ,.. ~~"~ '·~
-t": ,I .C:. ~~ fl fJ"" f"*~...A e...,,.. .$ '
'i:(,J~$•"'\,•1•-'t "~;"l..\IJ.fl
concc:~Y ~t c~ g.
~'!)..
.
$:"t.t\....,' d') ·.
..
(,o )tiLt"
ohn Schmid~
bristopher Edlcy, lr. ·
>-
e~-·~'- :3
~-~i~
\o1·
... \\ \a.,.t.J. . ~L ~
cc;
r . u"
0
. DeY•I & Co.: George noteS quite
the
draft of
Rep'llPiio&
=lion onlhe hislOry of afflrQ>&tive ctionlhat is ftnmed almost entirely in term• of the African·?:; ·
Americans. Can your team druf a short suboe<:tion on affmnative action as regotd.< other fl"
&
minorities? Tho point is to lillY s mcthing about <he history of cliscrlminuti<>n and
...
1
origin of judicial and· public ' licy 'allelltion to the problem. and the origin of aflirmmive
mca5Ul"'· Doesn't have 10 b a ton ohtuiT; Ju•t two pages t!)al would provide some balance.
In porticulur: Hlspanico, Aoi n l'iu:ific lalandeR. Maybe oven a paragruph on Aleuts (l' m
,c
kidding: including thcifi. i tho original Richmond o11Unano:e was stupid, bot I assume there
1,·
. a •tory to. be told QboUt b rdships theY hove !_.i in Alaska.) Our sense ·is that oome concrete\
0
examplos/anccdates or s mctbiiiB would be helpful, As you know. the President's view is thaP" .Jr
· .,bile the historY nf .t cry and llm Crow prcsenlll tbe most compolUns justification for rakinlf> ;:
...
. remedial steps, bla<:kll
nat been alone in facing v\nllcilt dis<:riminmion· and racc·b..nd
I
of opportUnity. SoI
need to flll that ouL
.
·
0 .
.
I.
e~clusion,thc~~;')
nob'v~
i~
~ {{~
~'
·~
dcnill~
fc
'I•" l'~c.'.'
. I
.~~
2.
Walle!>'& Co.: On the •otasldc issue, I need to clarify tbc dls<:ussion I have in ~.1 •
current dr
bout sun&ets. Here's the p!Dblcm. l Il!Commo=nd on NEC-Ind effort to think about~_.,;.
equal;;,~-
· appr<>Pri•
m...,.rcs to dctcrminc when to declare .victorY in the fight to create
cntrcpt<; curial opportunity ·- I point out that the pr"J'Cr ratios to •••• ""' not ·..,l£,evidont.A )r- ·
· (Min tlY vendors as PJ"'P<'rtion of :til vendor&? Shure of minority contracts io compad;on
sb
of minorities in the adult
or minorities in the coUogc-cducoled populuti<>n?l
;
orgc notes, however, that the Court m Adam"d and Cro1on '"'""" pretty clear about tbc need \l"l,l"
with~
pop~t\on:
1,1.~
V. ~
to focu• on the pool of qualified minority llJmS,
(~J;;.
(,
But this de!ini;lon of the aoltnJlkes sense as the test onl if the com lib• lnte"'''
henCe the purpose of tbe rogrum) is to remed diliCrimination
th< conrmcrlng agency, ond r;/'
1 our tmme ltlte o jectl•
y to ensure thot agenctes o usm...s WI 1 mtnon ••• tn a o•"«-"
1
\).
f·
fairly representative of minority firms'. presence in that mari<et.
=
Of course our real purpose ls broader. The
~y
~._.,.
prob~rn i• far less a nu>Uer of the Fedcr.ll""£:.;
(o
~..
~~
f~
·--
�-.
ID:202-395-7294
S:..ENE~AL COUNSEL
JUL U:>'!.:l!:>
!_:!:Lr2 No .UU4 1-'.Uj
>-
a:..
0
broader~
c~ring
govemnwnt's discrimination, than the
objective of
!he problems in the
intcinal worJUngs of those particplar induslries, the j!!'tterps of subcontracti!Ul· the issues of
fmuncin • and so forth. 1 have assumed. witboutlirguing the point, that there is room. tu urguc
· t tnt section S of the 14th Amendment wi>uld give Con!ll"''S (and pcrhllps us?) some outbority to
·""lvc problems of discriminl\llon (oot mere diversity cont:erns) beyond anY spocitic dlscriminntion
(.)
0
10
::c
0...
>c:: .
<(
c::
·m
by rhe. Federal govemuncnr.
Am 1 concct. iri this? Noic that.J'm not changing the requirement of u factuul predicate
of di!ICI'iminotioit. The issue is 'whn.<t discriminatiOil. 1 want to argue thllt under &cellon S of 1he
14th Amendment it neOd nDl be our own discrlminatioD. Please lot me knOW whlll you obink.
3. Waller & co.: WheR nte you on the Issue of gender-based preference progl'luns? W• have·
a general oensc obat there needs to be some curef\11 homework done in onticipatlan of litigution
and. perhaps: legislative buldcs. · But thoR Is obviously no need for Ada,...nd-stylo guidlltiCC·
You •bould u:y to orystali"" your th011ghts uboul how agencies can be encouraged to do tbllt
bomcworlt ...;gnmcnt, withoul miscommunicalinl nny 'int.:ntion to raiiiC the hurdle higher thon
the Supreme Court has.
cc:
'George Stcphanopou,os
Michael Waldmu.n
James Castello
Bill Yeoman~
Down
lohns~n
Mike Smull
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTrrJTLE
DATE
Attorney General to President Clinton, re: Choices Following
RESTRICTION
6/23/1995
P5
6/21/1995
P5
6/12/1995
P5
Adarand (5 pages)
002. memo
To President Clinton, re: Policy and Strategic Choices Following
Adarand - Draft (5 pages)
003. fax
DOJ to Chris Edley, re: Affirmative Action (4 pages)
b~
174
I g0
\1-~
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5747
FOLDER TITLE:
Affirmative Action- Adarand/Post-Adarand Implications [2]
2008-0308-F
wr892
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
National Security Classified Information ·l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute j(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information j(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy j(a)(6) of the PRAI
b(l) National security classified information l(b)(J) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency j(b)(2) of the FOIAI
b(J) Release would violate a Federal statute j(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information j(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(S) Release would disclose information concerning the regulation of
financial institutions l(b)(S) of the FOIAI
b(9) Release would disclose geologic'al or geophysical information
concerning wells j(b)(9) of the FOIAI
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
JSg
�. /.~
.•·. ~·
.
....... ·~
..· ..........
;
-~.. ,''
·.-
.\ .
···/,/\
>-
a..
0
(.)
0
10
:r.
a..
Th.e President
TO;
<(
FROM:
0::
.ca
SUBJECT:
Policy ana Strategic Choices Followlu!! Ac.lar.<':lnd
By imposing a. more st.ringent: c_onstitutional t..~!;IL uu .L.::del:al
programs _that consider race, the Supreme Court's decision in
Adarand v. ~raises the need !or fundamental policy ~ml
strategic de-cisions about how the government will· respond. To a
large extent, those decisions will be driven by three urgent
imperatives: · (1}. the need to respond to litigation challenging
federal programs, including expected tast-moving request.s for ·
restraining orders, particularly in the contracting area, (2) the
need to advise federal agencies charged. with administration of
such program~, many of whom award contracts on a regular basis,
and (3) the need to respond to anticipated etforts in Congress t.o
amend various appropriations and authorization bills to eliminate
or deny funding-for affirmative acti.on programs.
POLICY OPTIONS ·
Policy Option 1
rm T:'RUan t
Defend programs that are determined to be defensible
tO ~iit.rand
•
.
P1.lrR1l.:...nt to this approach, the Adq.rand legal standard would
become the primary measure of whether a particular affirmative
action progr?Jm would. continue. When a p:rogram was challenged,
.the Deparctment of Justice would determine whether the progr~m
could, in ao6o f~ith, be defended under the strict scrutiny
standard imposed-in Adarand. There would be an overriding policy
determinat~o.n that any prng,..&m that. could reasonably be defended
should be defended. Beyond that determination,·policy would
.
yield to legal judgment, e:X:.cl'!'pt inRnf.<=~-r as policy mixes with law
in dete,i:mining whether. an interest is compelling or a program's
3tructure is narrowly tailor~d. Wh8rP. r.h~ Attorney General
determines that a challenged program is.not defensible in.the
.·absence of opecifia reforms, the Departm~?.nt-. wilL not defend the
program but will suggest specific refo:rrns for the agency's
consideration.
·
·
PlC'OS
· u
>-
0::
At least in the short term, thie approach gives the hrn~dest
possible protection to affirmative action programs.
All.l~uugh thel.-e will likely be programs ·that. the Department of Justice will conclude cannot be defended applying ·strict
scrutiny, Lhis option ~nsures that o.o mo:~.ny progra.ms·as
practicable will be defended·in court.
�>-
0..
0
(.)
0
1-
0
o
::J:
0..
·. Spirited
and
11
the base 11 who are r::oncernt?.n
~hcmt
a
>-
. 0::
affirmative action.
o
Reliance on-the adversary system to surfac~ suspect programs
will tee up th~ issue:; in a_ foct.tsed mannP.r. 'T'hR ~t:t-.orney
General can then contribute ideas for adjusting programs as
worr~nted.
o
<C
·
Thi:a option e:hifts to courts a p·art of the· ult ~ m;;~ t:P.
nt"!<:":!ision
regarding the·legitimacy of specific programs .
.
Cons
o
This option forgoes
th~
opportunity initially to move away
from existing programe on policy grou::1.da in .<!il.n effort to
occupy the middle in this debate.
·o
·By
defending every defensible program, we will likely lose a
nwul.Jt:u. of cases in court, · thereby running ·the risk of
establishing bad caselaw.on affirmative actionand.creating
additic..Hld.l pressure to dismantle progr·o..m3.
Thic concern
would be ameliorated by exercise of the Department ·of
Justice's di::;i..:Lt!L.ion to decline to defend some minimolly.
defensible programs.in order to ensure that the litigated
challenges.were focu::.i~U. uu t:he st;~:ongest.programs.
Policy Option 2
Combine the Adarand legal detei.mination with a policy
judgment ,regarding ways to improve existing progrc:wu.;.
Following on the review. of affirmative action pL:U!:JLd.m8,
Adarand may provide added opportunity to consider policy changes
that reform e~isting programs. You would dire~t the. agencie~ Lu
develop new .measures to guard again$t abuses,· such as sham·front!;l
and pass-throughs, and to tighten and enforce graduation and
asset requirements. ·· The Department of Justice would defend those
programs that are reasonably defensible under Adarand, as stat.eci.·
in policy option 1.
Proa·
o .
This position demonstrates the Administration's view of
these programs as providing a short-term ''leg up" for those
persons the programs are intended to benefit.
·
o
Following Adarand, there is more incentive, as a legal
matter, to restructure programs.
·
o
Moving in this direction would show that the Administration
i ~. s::P.rious about ensuring against abuses, while continuing
to support affirmative action.
·
0::
a:l
�:
'There is broad·agreement,·even among
affirmative action, that. abuses should be
o
o
This option is consistent with litigation 1n support of
existing programs.
·....J
Cons
(..)
;-:,·
This level of reform may be viewed as too little and too ·
late by opponents of affirmative· action.
0
.~11pporters of affirmative action may view this option as a
retreat.
-
o
· Policy Option. 3
.
Go beyond Adarand to restructure programs more
dramat:i.aally, int:!lmHTI.g jettisoning some programs and moving away
from reliance on rac,e in others.
Pros
o
Moving in this direction may take the edge off of political
. o.ttacks by oppon~nts Of a.ffirm.at j_ve Rr.~.i nn _
Thi:J option co1.1ld make the .ltdministratto:n r:!pf>P.~r flexible
and willing to compromise.
o
Cons
o
another charge of
u
11
reversal ~f current pqlicy, risking
a
This-option represents
~o.ffling.
11
IL is :pl.""emature to conclude d:i! o. mo.tter of la.w that any
program is invalid pursuant to Adarand. Even Adarand itself
did J:lUL lnvalidate the progre,m at issue, }?ut cimply remanded
· the case for application of .strict scrutiny. . ·
'
)
o
AAY cutback on affirmative action that is not required by
Adarand will ~~ viewed as ret~eat by proponents of
affirmative action.
o
Cutbacks at this point.may make it appear that the
Adminiscrat:.ion ·is unwilling Lu l::iLo.nd fil.-m in .support
principles .
.o
o
of.
Because Adarand has been decided, the Administration may not
receive cred.it for leadership for proposing t.:hd.u~j'es in
affirmative action now.
Changes now could affect our ability to defend ·programs in
court.
·;,:
�. '
>-
0....
0
(.)
0
I-'
0
:I:
STRATEGIC OPTIONS ·
a....
In addition to this basic policy decision, one strategic
decision needs to be m~n~. In order to evaluate programs
pursuant to Adarand, it·will be necessary to undertake an
intensive e€fort to g<lt-hP.r ~nri develop.facts show whether there
is compelling need for a program and it is narrowly tailored.
·'!'he resources of .ths De-partment: of Justice alone are inadequate
to perform this function.
Strategic .Option_l
""·
Direct federal agencies to undertake faotual
deve~op~cnt ~Qgard~ng the prog~ams
th@y administer.
Under this option, you would direct federal a.gFln~.i P-s to
develop·the necessary facts upon which to base a determination
whether a program complied with the, new standard imposed hy
Adararid; This factual·base could.be relied upon by the agency
iL:;~E;~l! in determining the lawfulncoo of a program and by the
Atto:r:ney General in litigating:any challenge to a program. [see
Draft A].
Pro~;;
o
o
.o
Agencie~ luiuw
their own programs well o.nd a.re- in
position to develop a factual record quickly.
the best
· Agency. fact gathering is the usual manner in which this task
would be done. ·
Agencies already have in
procedures.
.f:'lcL~t::l
.administrative factfinding
Cons
o
The findings of agencies may not be viewed as impartial,
since agencies- can be expected to attempt. Lu 1;-~r.ese:r;ve their
own prqgrams.
o
. Some agencies have already demonstrated during the review
~that they may not be capable of completing this task. r.aul~.:;k.ly
and thoroughly.
Strategic Option 2
Creat.e an independent commission to lead· the factual
inquiry.
Pursuant to this option, you would appoint a small
independent commission of respected Americans to coordinate and,
where necessary, conduct the-fact gathering effort. The
commission would have authority to conduct public hearings and
>-
0:::
<(
0:::
IXl
....J
�>a..
0
(.)
0·
·10
:I:
a..
draw on the resources of federal. agencfes in
[ooa Draft BJ
>0:::
<(
a::·
Pros
0
The oommi,ad.on' s
ind~;>p~:n~A'nr.P. may
give its· findings. greater
credibility.
.
0
o
.
.
The commission could centrali2e and ensure uniformity in the
fact gathering. prooess.
. The
· commisoion might he viewed as sufficiP.nt-.1 y ~redible that
legislative action would be postponed pending its findings.
Cons
o
The commission would likely take a mJ.nl.mum of six months to
complete it.s work. Mco.nwhile 1 events, driven by lit:i gi'lr.icm
and congressional action', ·might. overtake it.
·.
'
o
aJ
.
If the commission is truly independent, there is a risk that
·it. wi'll ~LLdi.Y beyond its mandate or mo.]<:c findings with which
the Administration disagrees or which put the Administration
in a difficulL ~ulitical position.
·
·
o
There is the poL~uLld.l that a commission finding could
conflict with and undermine a litigation position.
o
There is little support among Democratic Members of Congress
.-tcir a commission.
�IT. S. Department
of Justice
·.~:!."
·'
.'
. The Ass<Xiatc Attorney General
...•
\
'"'
Washington, D.C. 20530 ·
~-.
· FACSIMILE T;RANSMITIAL COvER SIIEET
DATE:
TO:
FACsn\DLE NO.
U!LEPHONE NO.
FROM:
. FACSIMILE NO.
TELEPHONE NO •..
· .:rohri R. schmidt
·202/514-0238
202/514~9!j00
NUMBER OF PAGES INCLUDING COVER SHEET:
~...-:.L(_·_ _
----·.~~~~·-·.~~~·.·~~-·-··--~~
COMMENTS:
�>-
IL
0
(.)
0
10
::I:
IL.
>0::::
OPTIONS FOR AFFIRMATIVE.ACTION
REVIEW IN WAKE OF
1.
<(
~n~RANQ
0::::
-·
CXl
Indicate that the review Will: go· fnrw~r.d as planned •.
downplaying any imp·agt of the Supreme- Court decision.
This 1:\.pproac::h would emphasize that thf?. m1rrent review is a
policy.-bi:ised analysis, not.dictated.. l:ly l~qal . r.nnoerns.
Moreover,
th~ Court in Adarand did .not actuall.y -invalidab-1 ~ny prog·rams but
mert;~ly
1
subjected
race-b~scd
t • ·u
proqrams to "strict f;r.ru 1ny as to
noomp~lljng
whether they are "narrowly to.ilorcd" to serve a
outright) a
i.nterest." This .approach would imply (or state
vi~w
that most clirrenl. £edeia.l proqrallts ca.n curviva such ~trict
scrutiny.
'J.'he negative to .tnis ~pproach are that it ignores; th~
like.Linood that many· cur.i:"et1t programs may not be able to ·survive
the new rigorous scrutiny.
This ls particularly true in the
absence of a congressionally-supported process -- which ia
unlikely -- to make the necessary faclual inquiries, con~idcr·
!
'
non-race-:based alternatives and re.enacl' programs a:s, appropriate.
Moreover, this. approach would appear to bt;~ trying to minimize or
.dis1-'egard what will ·.unquestionably :ne viewed ytmerally as· a mo.j or
su~reme Court decision requiring greater scrutiny or race-based.
federal programs.
�Instruct that thA review
for all race-based programs
sorutiny test.
.2.
. >0::::
<(
0::::
CXJ
-
This approach would <"Cknowledge that, in addition to the
analysis already underw~y, t.hA supreme court now-requires a :new
level of legal scrutiny .for all race-based federal programs.
The~
{.;;;~\
,~· · Pi·esident could specifically ask the Justice Department to
.,
.
.
-
a.nalyze all. federal race-based prnqr.ams for compliance under the
.
.
new· ·standard, or the ras:ponsibil i ty for· the·· analysis · could be
t:~nalysis
Thi!;
placed in.the current raview.
would also identifyr ·
cUlY further steps (suoh as congressional hearings
that
Q.rt:!
or
findinqs)
needed to 3ust.:dn programs that are n~termined to be
aesirable.
This appL·oach gives recoc;Jnition to the leqal impact of the
supreme court_ opinion.
:x,-ecogn1t1on of
I.t
also may lay th~ groundwo'l"k for the
le~<ll consideration~
'
have to be mod.i:!ied.
ac a raas:on why somP. proqrams
However, it may be taken b~ some
affirmatiVe action advocates
as
implying-
Q.
leGe aqgressive.
defense of al.l. current progntn1s in light of the Adarand decision~
3.
Appoint a bi-partisan comm.is::olonto re.vie-..r o.ll' ourrent
race-based federal programs in light of the new legal
·standard.
This would· follow the approach adopted by many localities
.
.
when the supreme court applied "strict.scrutiriy" to their racebased programs in the Crosson decision -- appointing com~issions
(oft.P.n consisting of people such as former judges)
to
review
�>-
a..
0
(.)
programs, determine faots as nac~ssary, and recommend reenactment
0
.10
::I:
a..
>-
ox:- t;hanges.
0::
<(
0::
a:J
Sll.Cll an c.pprotich
.
oan
-
be- argued to. b~ ll!';~ful
.
in·order to
derend v~rious proqrams under the riaw ~tandard -- which is why
.most locall tles adopt.ed this approach after Cros~nn.
However,
the ability of such a commission to work ef.fectiv~?.ly to. defend,
current programs may depend heuvily ori the ultimat~ willingness
ot congress to reenact themi which ic what typically h~ppened at
the local-level •. It is not eertuin. under current law whAther
Congressional .• judgment_
at
the_ time of enactment -- as; pass.t?-ci
to
· retroactiVe or atter-the-fi:\Gt -rationalization ~- 1e nece~sar~ t.n
meet the strict scrutiny test.
·a commission _is a Jtey
· effect.
to· lts
The appointment
obviously the com?osition of· such
political impact- and ultimate
O! SllCh · a
commission would pr_~sumably
. moot the current att:irmat:.ive action review.
One disadvantage of 'this approach is l.ha.t it will look like ·
an effort to cop-out· from the at:tirmative actlon 1:eview.
However, the Adarand decision might provide the ::;ubstantive and
political cover for doing that if it is desired ..
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
Igf
001. memo
Raymond Kogut to Christopher Edley, re: AA Help (2 pages)
511/1995
P5
002. memo
Christopher Edley to Susan Carr et al., re: EEOC (partial) (3 pages)
4/28/1995
P5, b(6)
I
~~
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
ONBox Number: 5749
FOLDER TITLE:
Affirmative Action- EEOC [I]
2008-0308-F
wr893
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- )5 U.S.C. 552(b)l
National Security Classified Information )(a)(l) of the PRA)
Relating to the appointment to Federal office )(a)(2) of the PRA)
Release would violate a Federal statute )(a)(J) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information )(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors )a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy )(a)(6) of the PRA)
b(l) National security classified information )(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency )(b)(2) of the FOIA)
b(J) Release would violate a Federal statute )(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information )(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy )(b)(6) of the FOIAl
b(7) Release would disclose information compiled for law enforcement
purposes )(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions )(b)(8) of the FOIAl
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAl
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be review,ed upon request.
�>.,-
a..
0
(..)
0
I0
:c
a..
>0:::
E X E C U T I V E
0 F F ICE
·oF
T H E
P R E 8 I~ E
co
-I
01-May~1995
12:34pm
(..)
J
;:::
TO:
Christopher F. Edley, Jr
FROM:
Raymond P. Kogut ~
Office of Mgmt and Budget, VAPD
CC:
Franklin S. Reeder
SUBJECT:
RE: AA Help
Response from.-Frank Reeder & Ray Ko
Chris:
Thanks for inviting us to comment on t'he draft piece on
Federal· civilian employment affirmative action. Our initial
reactions follow:
·
The OFCCP piece is better focused that the one on Federal
employment.
It's interesting that so much space was given to the
already dismissed perception that quotas and reverse
discrimination· are major concerns by including .the examples from
the only 2% of respondents who specifically raised the issue(s)
Such isolated comments don't deserve that much emphasis.
With regard to the Federal employment piece, it has it's · ·
highs and lows. Data use is'good, but not the whole story.
For
example, OPM just released a contract study showing that
mino~ities are disciplined 2+ times more often than others.
·.Further, the NPR- and NPC-identified problems with current
dispute resolution systems (MSPB/Negotiated Grievances/FLRA
processes for mixed cases and the EEOC complaint process) is not
raised, nor is the timeliness of those processes.
The whole
piece seems EEOC directed, but would be better oriented toward
the Federal civilian workforce situation.
It's not forward
looking. FTEs and reductions are issues to be confronted, but
bnly anecdoially acknowledged. Doesn't suggest any reforms.
As to the rewrite of MD-715, our only involvement with this
has been on the procedural end.
Late in the Bush Administration,
an earlier draft was floated'by.the President's Council on
Management Improvement: which had some serious concerns about the
process. Early drafts called for fully centralizing the
complaint investigation process in EEOC, with agency
reimbursement. EEOC was to have its FTEs and.spending increased,
but with no offsets from the agencies.
The OMB expert on the
substance of those deliberations is Joe Wire in Ken Apfel's area ..
. He was the EEOC examiner at the time.
�>- .
a..
0
(.)
0
10
:J:
a..·
Since you asked, here are my personal opinion·on goals and
timetables for agencies and critical job elements for relevant
Federal managers.
(Is that in contrast to irrelevant Federal
managers?)
On both I vote a strong yes with one proviso. As a
general rule, that which is not measured does not get dc:me.
Asking agencies to .set their own goals and timetables ·seems a
reasonable step. · As to setting up a CJE for ~ndividual managers,
my only reservation is that measurement be over a long enough
period of time to be meaningful. Depending on turnover, it may
take a while for the manager of a ~mall unit to chartge its
demographics. Nevertheless, making equal employment opportunity
a critical job element for relevant Federal managers is both
symbolically and substantively.important.
Ray· Kogut contribu~ed to the above. He's sending it all to you
since Frank Reeder is off to Camden Yards for season opener.
n\
\ 'b .
>-
0:::
<(
0:::
al
�.-.·.-
'
>-·
0.:
0
(..)
0
t-
o
:::z::
a..
>-
0:::
E X E C U T I V E
0 F F I C E
0 F
T.H E
PRES IDE NT
<C
0:::
CD
28-Apr-1995 04:04pm
Be~ow.)
TO:
(See.
FROM:
Christopher F.. Edley, Jr
Office of Mgmt and Budget, EG
SUBJECTi
EEOC
Just had a 30 minute chat with Gil Casellas.
We agreed.that:
(2) EEOC staff wil.l work .with Susan/OMB to develop a bold option
for POTUS. That option will challenge Dole, Gran:m and Gingrich
(who claim to be against preferences but in favor of vigorous
enforcement) ·to invest in the EEOC· the resources necessary over a
period of years· to "eliminate" the backlog.
(3)
Ori the ADR stuff -- sounds like the proposal the Commission
just adopted was carefully negotiated out, . and rel'ies on voluntary
mediation, rather than arbitration. You should obviously take a
look at it, but I would be surprised if there is enormous policy
'gain to be had·by pressing for something different.
The real
issue is:
(4) Gil will think about how much of the muti-face~ed reinvention
effort in which they have been engaged for the past four months '
can and should be rolled out as part of the President's
Affirmativ~ Action rollout.
His insti~~t is to package all of it,
but he will think about ft.
So, as Bob Litan suggested yesterday,
what we might end up with for EEOC' is (a) trumpeting. what we have'
already been up to, and .(b) perhaps a bold opt ion to get rid of
the backlog.
(5)
A final issue, (c) is what to do with Mangaement Directive
715 [MD-715], ·which was drafted under Bu~h but· never finalized.
The questions are (i)
whether we should.reverse the Reagan
Administration's elimination of diversity goals for Federal agency
· employment (the Bush draft obviously did not) , and (ii) whether we
should have a government-wide requirement that EO issues be
included in the critical job elements used in performance
appraisals for federal managers.
·
·
�I think the policy answer to both questions sho~ld be ''yes,
~
Q_
C)
~
C)
~·
C)
:c
Q_
~
~
~
~
·~
�~
a..
0
C,..)
0
1--
0
:::c
a..
carefully."
(How can we .defend keeping goals & timetables for
>0::::
private employers under E.O. 11246, but not have goals and
<(
timetables for federal ag~ncies who have job categories with
a:::
manifest imbalances?)
But we need to get to closure on these next IXl
week.
Peter, I think that means generating those 1-page option
pro-con sheets f6r each of these two issues. You ~ight try to
talk Susan into handling it for you. Good luck.
·
-
Finally, Gil is eager to ~orne over and brief Litan on all of their
activities.
I explained that, while that's a terrific idea, Bob
is in Oklahoma City mode. So timing is not ideal. Background:
-Gill and EEOC are feeling underappieciated and unloved by the West
Wing. That problem is at Leon's doorstep, but we have to cope
with the emotional fallout.
Distributl.on:
TO:
TO:
Susan M. Carr
Peter M. Yu
CC:
CC:
CC:
CC:
Robert E. Litan
Sharon K. Thomas
Alan B. Rhinesmith
Douglas N. Letter
·.·
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001-a.
res~:~me
SUBJECTfi'ITLE
DATE
Paul M. lgasakt [parttal] (I page)
I 0/12/1994
RESTRICTION
P6/b(6)
~;e----~PP;a~u~l~St~evwe~n~M~tm·ll~er~(npmart~t~al~JI(Tinpa~g~eT)-----------------------+J~0/~12~/~19~9M4r-~r6~6)
002. memo
Susan Carr to OMB Director, re: Administration's position on HR 344
(3 pages)
1/25/1995
P5
COLLECTION:
Clinton Presidential Records
Counsel's Office
Christopher Edley
OA/Box Number: 5749
FOLDER TITLE:
Affirmative Action- EEOC [3]
2008-0308-F
wr454
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)(
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
P3
P4
b(l) National security classified information !(b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI .
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy i(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions i(b)(S)·of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information i(a)(l) of the PRAI
Relating to the appointment to Federal office i(a)(2) of the PRAI
Release would violate a Federal statute i(a)(3) of the PRAI ·
Release would disclose trade secrets or confidential commercial or
financial information i(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal pd~acy i(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�~n
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
w~
Fj~
.0
:I:
a..
><c
·c::
0::
. 1anuary 25, 1995
.THROUGH:
FROM:
Susari Carr/Anna Briatico
·suBJECT:
Ailleridment to the Age Piscriminationip. Employment
Act (ADEA) of 1967 for State and Local Firefighters
and Law Enforcement. Officers
Wh~t should be the Adrrilinstration's position on HR 344, a bill to exempt State
and local firefighters and law enforcement officers from the ADEA?
.
.
Background
The Amendments of 1986 to the ADEA-established an exemption for the hiring and
retirement of State and local law enforcement officers and. firefighters. This ·exemption
expired. on December 31 ,· 1993.
·· Yesterday, the flouse Employer-Employee Relations subcommittee (Harris Fawell,
Chairman) held a hearing on HR 344 (Pickett (D) VA) to reinstate the exemption of State
and local firefighters and. law enforcement officials from the hiring and retirement provisions
of the ADEA.
.
.
.
Wittiesses at the> hearing represented the AFi-CIO, AARP, the City of Alexandria,
Virginia, and law enforcement -and firejghters organizations. There were no Administration
witnesses. ·
J
.
The AARP has .contacted EEOC, strongly opposing the bill. EEOC also strongly
opposes this bill and would like to ~end a -letter to Congress expressing its views.
Related Efforts to Pass Similar Le1;slation During the Last Congress
This bill is very similar to HR 2722, which passed the House during the last
.Congress. EEOC sent an OMB-cleared letter to the Hill opposing the bill in September
· 1993. The White House later withdrew support for the letter.
·
·
co
�>-
c..
0
c.:> .
0
r
:0
A lot of the debate over HR 2722 occurred in the context of the Crime Biti. At that
time, the Administrati0n was prepared to support a temporary, three-year extension of the
exemption, thereby allowing further study of age restriction policies for publiG safety
workers. Although HR 2J22 was included in the House-passed version of the Crime Bill, it
was excluded from the version that became law, largely because of Senator Metzenbaum's
· strong opposition.
:I:
c..
>-
0::
<(
0::
co
. .....1
· Timing of .Congressional Action this Year
:
·.
.
..
'.
.
.
.
.
. During yesterday's hearing, Chairperson Fawell indicated that he plans to move on
this issue quickly and may be introducing his own bill shortly.
.
Domestic Policy Council's Position
· The DPC .staff (Jose Cerda) supports a three-year extension of the exemption.
According to Cerda, this expression of limited preference would support the coalition of
police, firefighters, mayors and Federal law enforcement officiais who are strong proponents
of the exemption, while millimally upsetting the AARP and Civil Right~ Community, ·
·Options·
.
1. .
.
Advise EEOC. that the Adrililiistration
time.·
Pros -
Cons -
2.
.
.
will not bE( taking a position on HR 344 at this
. B~ys the Administration some time on a largely "rio-wiri" political issue .
.. The Administration ~onceivably could wait to express its views until
legislation is scheduled for markup ?r House floor consideration ..
Potentially limits the Ad~inistration;s ability to influence the outcome of
this legislation. It's unlikely that the issue will become less difficult later
in the legislative process.
·Advise EEOC to prepare a letter to the House Economic and Educational Committee
· ·
opposing HR 344.
Pro:.
Supports EEOC efforts to end age-based discrimination ..
. . •.
Cons·-
·.
'
·~
Makes Administration' look indecisive -- i.e., 'we were willing to accept -a
three-year exemption last year. Also makes Administration vulnerable to·
criticism of double standards. The Federal, Government is exempted from ,
the ADEA and maintains mandatory age restrictions for its law
S~,-0-E_N__ ·
/i
enforcement (and certain other) personnel.
t
~ \'&~· ~
~-
q_«-<::;;
1-.
2
"t-~
v
Al(
.
.
.
.
.,.,
'V
. T
�'
.....
>-
c...
o·
(.)
0
1-
·-o
3.
·Advise EEOC to prepare a letter to the House &oriomic and Educational Committee
stating the Administration prefers no exemption, but could accept a three-year
.extension of the exemption.
-Pro.,.
Is consistent with the Administration's position on the issue during
year's Crime Bill debate.
Con-
la~t
Recommendation
-Becaus~ of the tie with the Crime Bill, we recommend that you discuss which option
the Administration should pursue with the Chief of Staff, who was heavily involved in the
discussions over the last year. Jack Lew and Chris Edley favor Option 3·..
.
.
~s\OENr./.
~~( ~
,,
Q.n.___v
cc:
-~
Jack Lew
Jose Cerda
-;
:>.
v
3
~·
\
-
c...
>0::::
<(
0::::
. co
Will not fully satisfy the opponents or proponeQts of HR 344.
-
::I:
~
::0
:'\
.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTn'ITLE
DATE
Lisa Jacobs to Peter Yu, re: NSF's Urban Systemic Initiatives
Program (I page)
517/1995
RESTRICTION
P5
t8S
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
ONBox Number: 5749
FOLDER TITLE:
Affirmative Action EEOC Research Resource Documents [I]
2008-0308-F
wr895
RESTRICTION CODES
Presidential Records Act- 144 lJ.S.C. 2204(a)i
Freedom of Information Act- 15.lJ.S.C. 552(b)i
I' I
P2
P3
P4
b(l) National security classified information i(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency i(b)(2) of the FOIAI
b(3) Release would violate a Federal statute i(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells i(b)(9) of the FOIAJ
National Security Classified Information i(a)(l) of the PRA!
Relating to the appointment to Federal office i(a)(2) of the PRAJ
Release would violate a Federal statute i(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information i(a)(4) of the PRAI
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(5) of. the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy i(a)(6) of the PRAJ
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�05/07/95
15:10
'5'202 514 5715.
DOJ-OPD
141002
U.S. Department uf Juslice
>-
a..
0
(.)
Office of Policy Development
0
r-
0
:::c
a..
>-
0:::
0:::
cc
- .....J
May 7, 1995
MEMO:P.ANDUM
TO:
~eter
Yu
FROM:
Lisa Jacobs
SUBJECT:
Additional Info. on the NSF 1 s_ Urban systemic Initiat.ives
Program (USI)
· Attached is an additional background piece on the USI Program.
It. I s not particularly useful in terms of program results.
I Im
. pla11ning to check LO see if the initial. grants have made any
discernible resulLs yet.
Admir.r.edly, from a "let's depoliticize the issue" viewpoint,
programs like this are attractive, but I don't see
them as ever having the p6Lential to replace programn which are
ra.c:e o·r g~nder specific. There a:r·~ any numbel.· of issues which are
p~culi~r to race or gender· {e.g. blacks have disproportionately
high drop out n:~.t.es in jm1ior high and high !:iChool; gi1.;ls, for a.
variety of ieasons, h~come less inr.erested in _the sciences.
(typically during junior high school) and begin moving in differ:r=nl:
pareer directions) that ckn. only he addressed by programs which
focus on th~ specific grotip which ma.:n ·i 'fP.sts the "problem." Thus,
we r 11 be· on stronger footipg to the r:xtent. that. w~ c!al"l. jusr.ify the
need for t.he programs tha~ currently exist. :r:ache1.· than t.ryi11.g r.o
make them· mo:r.e palatable by "neutralizing" t.hP-m.
rac~-neutral
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
I 8Le.
001. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action Policy Issues (14 pages)
4/20/1995
P5
002. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action Policy Issues (14 pages)
4/20/1995
P5
lf=7-
003. memo
To President Clinton and Vice President Gore, re: Affirmative Action
Memo Excerpts (3 pages)
4/20/1995
P5
I gg
004. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action Policy Issues (II pages)
4/19/1995
P5
I &~
005. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Policy Issues (II pages)
4/19/1995
P5
1Cl D
006. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Themes and Hard Questions (16 pages)
4/7/1995
P5
tq I
007. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Themes and Hard Questions (16 pages)
4/7/1995
P5
1qd- t>~ 19' I
008. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action Themes and Hard Questions (16 pages)
4/7/1995
P5
lq3
COLLECTION:
Clinton Presidential Records
Counsel Office
Christopher Edley
OA/Box Number: 5759
FOLDER TITLE:
Affirmative Action POTUS Memo(s)- Final
[I]
2008-0308-F
wr896
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information J(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAI
b(J) Release would violate a Federal statute J(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
·
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAI
National Security Classified Information J(a)(l) of the PRAI
Relating to the appointment to Federal office J(a)(2) of the PRAI
Release would violate a Federal statute J(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�THE WHITE HOUSE
WASHINGTON
. .April 20, 1995
MEMORANDUM FOR TIIE P~ENT.& THE VICE PRESIDENT
·.
.
.
::j
~.
~
From:
George Stephanop~ Christophe?tfiey, Jr. & Peter ~ ·
Re: ·
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
options in four areas: education, employment, procurement, and broadcast licenses. Part II offers
three alternative, broader pe,rspectives that may be useful in your deliberations. A subsequent
memorandum will discuss the message, communications, and political dimensions of these policy
choices.
I. AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race or
gender is a condition of eligibility. This issue has two dimensions: (i) scholarships administered.
by universities receiving federal assistance and 'tii) federal scholar:ship programs.
'
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, · permits the use of race as a condition of· eligibility for
financial aid in order (a) to remedy past discrimination or (b) to promote diversity, provided the
measure is narrowly tailor.ed and does not unduly restrict access to financial aid for nonminority
students. A measure is "narrowly tailored" if (1) race-neutral means would have been
ineffective; (2} a less extensive or intrusive use of race would have been ineffective; (3) the
measure is of limited extent and duration, and is applied in a flexible manner; (4) the institution
periodically reviews the continuing need for the measure; and· (5) the effect on non beneficiaries
is sufficiently small and diffuse so as not to unduly burden their opportunity to receive financial
aid. ·These restrictions apply to university-:-administered aid, whether publicly or privately funded .
. Approximately 3.3% of all undergraduate financial aid, 4.3%• of all graduate financial aid, and
12% of all professionaF-school financial aid is administered through such scholars~ps.
Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer privately-:.funded gender-specific
WJC LIBRARY PHOTOCOPY
�scholarships if the .overall effect of such scholarships does not discriminate on the· basis of
gender. The majority of gender-specific scholarships are limited to men, rather than women.
.
..
The federal government also directly administers a ·.number of race-· or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or specialties
in which racial or gender groups have been significantly underrepresented, either because such
inclusiveness is deemed critical to the continU:ed strength of that profession,· or because inclusion
will lead to greater attention for neglected ·communities and problems. Supporters of these
programs emphasize that these scholarships are necessary to attract women and minorities to
these areas. Examples include: NSF's Minority Graduate Fellowship Program designed to
. increase the number of minority. scientist and engineers and NIH's Minority Clinical Associate
. ·
·Physician Program designed to increase the number of minority physi-cians.
.
)
Options. The policy options include:
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity-based use of race- or gender-specific scholarships.
·Option 2:. "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar 'use of such scholarships except as · necessary to remedy past
discrimination;· otherwise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and scholarships are central to public concerns
about affirmative action. Some view race- or gender-specific scholarships as a form of "setaside" and thus reminiscent of quota-driven admissions policies (such as the dual-admissions
system struck down in Bakke). On the other hand, education and training are on the
"opportunity" end of the opportunity-to-results spectrum, and the current policy requires that any
race- or gender-specific pro'grams be narrowly tailored.
Option 3, which focuses on race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message thatno applicant should be
excluded from a scholarship program on the basis of race or gender. Arguably, this would be
a curious rule, as it would leave intact numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria. ·
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
. such scholarships (outside of a remedial context) first analyze race- or gender-neutral approaches
. and conclude they would not be effective substitutes for more exclusive scholarships. The policy
guidance would be amended to require the institution to be prepared, if challenged, to present the
evidence and analysis tipon which its conclusion was based.· (This is the formulation used
elsewhere· in the guidelines, and by the courts, in explaining that when an institution may invoke
its history of discrimination (lS a remedial justification for race-specifiC scholarships.) On the one
hand, this option amounts to a declaration that race or gender should only be used as a condition
of eligibility when truly necessary. On the other hand, it
ractical effect might not
justify the anxiety it would likely generate among mino
' groups.
.
.
-
.
Q
6
1-
z
~
u
2
LIBRARY PHOTOCOPY
�Option 1 would maintain current policy. As noted in our discussions, race-. or genderspecific scholarships are small slices of a much larger pie -- much of which is administered on
the basis of need. As there are so many different avenues for financial aid, it is possible to argue
tha~ race-: or. gender-specific schoiarships do not meaningfully. limit ·the opportunity of any
student, or at least no more so than does a scholarship limited to offspring of the Knights of
·
Columbus or the Daughters of the American Revolution.
Indeed, current antidiscrimination enforcement guidance from the Department of Education,
promulgated during the Reagan Administration pursuant to Title IX, makes the test for gender.
.
specific scholarships whether the· financial aid practices of the institution, taken as a whole,
provide equal opportunity. As a ·matter of constitutional doctrine, race-based distinctions are
subject to s~ricter scrutiny than gender-based distmctions. · But this distinction seems untenable
as a.general matter of policy or politics. Hence, any toughening of prohibitions on race-based
aid should probably be similarly applied to gender-based aid.·
Finally, we should note the relationship between these options .and the familiar hypothetical:
a college admissions or scholarship policy that favors the African-American son of a successful
neurosurgeon, but not the son of a steelworker. Some argue tliat _affirmative action should. be
only for economically disadvantaged minorities, because affluent minorities are evidently not
suffering from a lack of opportunity, relative to many less economieally advantaged whites. The
rebuttal has three central points. First, there should be affirmative efforts to provide opportUnity
for economically disadvantaged individuals, both white and non-white; such efforts need not
come at the expense of affirmative ·action when it is legitimately directed at minorities on the
basis of concerns apart from economic disadvantage. Second, apart from economic di~advantage,
but still within the realm of "private fairness," it is often observed that comparatively advantaged.
minorities nevertheless continue to face social and other obstacles solely because of prejudice and
discrimination, and that these disadvantages, while different from badges of poverty, are a fair
basis for attention. Third, in the realm of institutional and societal benefit, a college might
properly conclude that the institution will benefit from inclusion of the neurosurgeon's son -even though affluent -- just as they might conclude that the diversity benefit of including a
bassoonist is weighty not withstanding the musiCian's affluence. In America today, it remains
likely that the neurosurgeon's experiences, perspective, and aspirations will reflect some aspect
of the distinctive reality facing blacks. And the college may choose to value that.
.
lL .
.
Employment: · Race or Gender in Layoff Decisions
Background. The central issue in this area concerns race or gender as a consideration in layoffs.
Under current law, two propositions are clear. First, layoffs cannot be used as a means to
implement an affirmative action policy by "making room" for new, diverse employees. Second,
race or gender cannot trump a bona fide seniority system.
3
LIBRARY PHOTOCOPY
�--------~-----------------------·---------------------~-----.
Thus, reportedly, many large firms expressly consider diversity in their layoff policies, and with
significant results: illinois Bell cut recently 930 management jobs, but the proportion Of minority
managers rose from 25 to 27%; Baxter cut 20% of its 2000 employees, but the proportion Of
minority managers increased from 10 to 12%.
, The narrow question of "tie-breakers" is thus most likely to arise in the context of a seniority
system where layoff decisions. are more. structured.. · In the Piscataway case, the Justice
Department has argued thaf Title VII does not prohibit the School Boaid from using race as a
tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of the
federal civil service, the OPM regulations are silent: the Department of Justice (Office of Legal
Counsel) believes the statutes and caselaw would, as in Piscataway, permit narrowly tailored
consideration of race or gender.
,
·
Options. The policy options include:
Option 1: As a policy matter; when not inconsistent with a bona fide seniority system,
· diversity may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or gender ·should not be considered in layoff
decisions.
Analysis. Concerns about employment are two-fold. In certain sectors~ there is a sense that
some job opportunities are limited to· "diversity candidates" and thus that white males are
excluded. Second, there are concerns that in a continuing era of corporate reengineering, women
and minorities are, due to af:f:irrilative·action, at less risk of being laid off. (As you have noted,
affirmative action is sometimes used cynically to justify decisions niade for other reasons,
legitimate and otherwise.)
Option· 2 would issue a sharp and clear statement and would provide some comfort to whites,
males, and their dependents, in a time of insecurity. (There would be a corresponding· ·
reinforcement of minority and women concerns about their marginality.) In the public
employment context, this is likely to have little policy impact because. of seniority rules, and thus
will affect only tie-breaker-type situations. However, this option would send a loud signal to
the private sector and could have art effect on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity interest
and the burden on identifiable.majority employees. Consideration of race or gender would be
permissible only: when necessary for. the institution's operation; when a manifest racial or gender
imbalance exists; and when less race-intrusive considerations are not effective. If you select this
option, announcing a clarification of federal layoff policy could underscore the. very high hurdle
you would impose, but might also serVe to focus resentments around the entire issue. In any
.
e law and policy
case, however, we are likely to face continuing questions re
«.<(-."(;.
tv.,.4
. ·
surrounding the Piscataway situation.
\1\
<'
~· \~~
. .
;.)
t)
.
'(
4.
·.
PHOTOCOPY
�k
Procurement: Preferences & Set-asides
Background. Federal law establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (SDBs --.
virtually all of which are minority...:...owned 1); and 5% for women-owned businesses. There is
aweb of programs designed to reach these goals; some are government-wide, others are agency..:...
specific. These efforts use several tools:
·
• Sole source procurements: Under SBA's § 8(a) prograin, small disadvantaged businesses
·
(SDBs) can secure smaller sole-source contracts (usually less than $3 million).
• .Sheltered. competition: Under DOD's "rule of two," a contract is set aside for SPBs if the.
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses. Failing
this, there is open competition.)
• Bid .preferences: In open competitions, DOD awards a 10% bid price preference to SDBs;
.
(
.
.
last year's procurement reforms authorized government-wide use of this preference. The RTC
program uses a 10% "bonus" preference on contract price and a 1.5% point bonus on
"technical merit," provided th~ SDB is within the qualified range; the preferences are also
provided to joint ventures where the SDB has 40% or more of the transaction.
.
• Subcontracting incentives: DOT .provides an incentive payment to prime contractors who·
(voluntarily) subcontract with SDBs. (The Adarand issue.)
These· efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. · Between 1982 and 1991, while the dollar volume of all contracts
increased by 24%, contra:cts awarded to women-owned firms tripled and contracts awarded to
minority~owned firms doubled. Of late, these increases have been accompanied by actual
decreases for non-disadvantaged small firms. For example, while DOD's contracting with SDB's
more than·- doubled, its contracting with other small businesses fell by nearly 20%.
Notwitl,lstanding these gains, 97 percerit of contracting opportunities continue to b~ awarded to
non-SDBs ..
Some aspects of these efforts have been problematic. Rates of successful graduation from the
8(a) program remain low and the possibility of abusive practices remains, although recent
statutory and administrative efforts promise· some improvements. Outside of the limited 8(a)
program, however, there are no graduation requirements apart from what happens naturally if a
business is no longer "small" or an entrepreneur accumulates substantial wealth. In addition,
these programs have in some instances had a disparate impact on particular regions and industries
--such as smaller construction projects and certain transportation sub-industries. Finally, while
~~SIDEtv,_t:
q
~(
1
~
In the Department of Transportation's program only, the SDB definiti Cfucludes women.
~ \\\t
5
WJC LIBRARY PHOTOCOPY
�the 8(a) program permits nonminority firms to participate upon a showing that a finn's owners
are "socially and economically disadvantaged," in practice only about 1.6% of all 8(a) firms are
white-owned (and those mostly disabled), because the statute links "social disadvantage" to
membership in a group subject to discrimination.
Options. The policy options are:.
· Option 1: Eliminate misuses; expand pre-bid assistance. In particular: establish tighter
asset-related eligibility rules to prevent the "disadvantaged . millionaire"
phenomenon; limit the concentration of set-asides in a single region or industry;
a.D.d set standards. (by business sector· and by region) to determine when
preferences are no longer necessary. With regard to pre-bid assistance: invest
in new, vigorous outreach, technical assistance~ and surety bonding programs to
help level the contracting playing field; continue efforts to ... mainstream" minority
and women-owned businesses in SBA'S programs.
Option 2: Broaden eligibility; but retain race- and gender-based preferences;.
emp~asize the transitional character of program. In addition to the measures
in option 1, take the following steps:
-
Social QL Economic Disadvantage: Eliminate the requirement that owners be
"socially disadvantaged," thus opening up eligibility to white owners who
demonstrate "economic disadvantage." Maintain a less stringent economic
disadvantage test for minorities and (for the first time outside von· for women;
this separate standard would preserve some differential benefit for minorities and·
women, but without excluding disadvantaged whites from the program altog~ther.
To minimize any harm to current participants, inciease the goal for total· SDB
procurement from 5% to 10%.
· -
-
Strict transition requirements: Require graduation from the program for all SDBs
after, say, four years or four contract awards. This limits the moral cost of
maintaining preferential treatment for women and minorities.
Option 3: Convert to . race-neutral programs. Phase out race- and gender-based
eligibility, relying instead on race- and gender-neutral criteria of economic
disadvantage only.
Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either education or employment policies for two reasons. First, the policies rely
heavily on racially exclusive set-asides: the practical effect of a set-aside is to take a contract .
and hang out a shingle saying "whites need not apply." Second, some view procurement setasides as more problematic than, say, minority-specific scholarships, believin
at providing
profitable business opportunities seems more directed toward equal result
IN
equal
q,«!'-'<~(
opportunity. These observers emphasize that "education is different."
<"
:
~ \\~
.)
WJC
"
/
6
~OTOCOPY
�At the same time, preferences may be more necessary in procurement' for several reasons.
First, anti-discrimination laws are more difficult to enforce in this area, especially ~ the
subcontracting realm. Second, "old-boy" networks a:re arguably stronger in this area, so that
informal exclusionary practices beyond the reach of law enforcement can be potent and persistent.'
And finally, procurement decisions often turn on a single factor-- price·-- and thus the multi.
factor mechanisms used in education and employment are less available in this area.
Option 3. would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Current preference programs would be converted to focus on economic
disadvantage (albeit with a tighter asset test than current policy). This option represents. a
judgment that whatever the group-based discrimination or disadvantages faced by minority or
women entrepreneurs, no specia~ policy measures are appropriate beyond ·"pool-development
·strategies ... such as aggressive outreach and teclniical assistance.
As noted above, one can support race-specific scholarships but reject ~ace-specific contracting
.set-asides by distinguishing procurement as "more related to results than to opportunity." This
approach is far more restrictive than Supreme Court precedents·, which permit set-asides based
·on legislative findings of discrimination or lingering effects. 2
Option 2 would retain a minority- and gender-specific preference program, but reform it in
three critical respects. First, it would ameliorate several of the most problematic aspects of the
current programs. Tightening the asset test emphasizes that the goal is to create opportunity, not
endow millionaires. Limiting the concentration of preferences reduces the unfairness to white .
bidders in a particular region or business sector. Capping the number of contracts awarded
through shelteredcompetition ensures that opportunities are spread over more SDBs.
· Second, the program would emphasize creating opportunity for entrepreneurship, rather than
ensuring entrepreneurial success. Thus, in addition to pool-development measures, this approach
would require prompt graduation, emphasizing that preferences help "break the ice," but that
entrepreneurs should quickly be ready to compete with small businesses generally. Limiting the·
"bites·atthe apple" serves to emphasize that the program is an entryway, not an entitlement. It
also underscores that benefits from the program should not be unduly concentrated.
Third, the racial exclusivity of current preferences would be reduced by opening eligibility to.
.
non-minority firms based on economic disadvantage. Operationally, this is likely to have only
a modest effect on minority contracting. Prior to the codification of its minority entrepreneurship
focus in 1978, the 8(a) program used this "minority QL need" approach; at that time, only about
4% of all 8(a) firms were white-owned, compared with 1.6% today. Increasing the SDB goal
to 10% should help address concerns about diluting benefits to minority-owned firms.
c;\OEN~
The Court has required a somewhat more rigorous demonstration by~t ~no local ge1
ents than
by the Congress. TheAdarand ruling, expected before July, presents an opportunit :gr the Court to a~ ce more
0)
restrictive principles.
2
i5
r-
tt \Q $!
~ \~
'\
\
~
7
..
WJC LIBRARY PHOTOCOPY
�Option 1 would maintain the basic structure of the program -- including its use of race. This
option would emphasize eliminating misuses and expanding efforts to develop the pool and level
the playing fi,eld.
Distressed Areas: In addition to these policy options, we have begun .to develop a
complementary option: procurement preferences that focus less directly on minority capitalism
and more on job-creation for disadvantaged persons and distressed communities. Some of these
alternatives would be place-based and others employee-based; we are currently examining issues
of administrability. ·Example of such initiatives include:
.•
•
•
•
Provide set-asides or other preferences for firms whose workforce (on the contract) would .
be drawn more than X% from chronically .distressed areas, using measures based on
Census and BLS data. (There are two especially well..:.regarded alternative indices of
_distress in the social science literature. ) Or
Provide preferences to firms whose workforce would be ·drawn more than X%· from
targeted population groups, such as recent AFDC or food stamp recipients. Or
Provide preferences as above, but based also on the employment of underrepresented
·groups. Or
Employ any of these approaches, but seale the magnitu<(le or duration of the preference
according to the firm's workforce "score."
Bearing in mind that such an initiative speaks to somewhat separable policy and political
objectives, you may decide that such an empowerment contracting scheme should be a (i)
substitute fo~, (ii) complement to, or(iii) condition of the reformed entrepreneurship preferences.
FCC Auctions:
Your decision on procurement set-asides will also govern the
Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the PCS auction have been stayed pending resolution of a
constitutional challenge to bid preferences afforded minority- and women-owned firms by
Commission regulations. Because PCS licenses are for cellular and other wireless communication
rather than for broadcasting, a programming-diversity rationale will not justify group-based
preferences. Instead, the motivation is to create inclusive entrepreneurial opportunity, where there
otherwise would be none; in a critical emerging industry. Preferences in the PCS auction should
be· handled like procurement preferences.
II. PUTTING THE PIECES TOGETHER:·
BROADER PERSPECTIVES
Your policy choices in this area may be most easily defended if they reflect a coherent theory
or approach; This Part outlines three such approaches, and describes the p ·
· s thaf seem
most easily justified within that approach. (See Exhibit 1.) Each is c
~nt wi'""""'"'""~
inclinations you expressed in our vadous "vision" discussions, inclu iSg:
~ .\·~\9_
\.)
.\)
\
8
�• Emphasize antidiscrimination and opportunity, rather than guaranteeing results.
• . Stress the remedial justification, but also embrace the goal of inclusion.
•
Respect the interests of bystanders, by crafting policies carefully and narrowly.
.
.
-
·~
The "Calibrated" Approach
.
'
..
This approach emphasizes the difference between equal opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outreach and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, a specific
affirmative action tool is less problematic in education (which expands opportunity) than similar
·efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than ln
procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices outlined above, this approach
·. would support:
·
Education:
Employment:
Procurement:
lL
Option 1 -- Maintain current policy.
.
Option 1 -- Permit race or gender to be considered in layoff decisions.
Option 2 or 3 -- Reform and sharply narrow procurement preferences, or·
phase them out.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that affirmative
action must be narrowly tailored to minimize exclusivity and the use of race-.or gender-based
decisioiunaking. ·. Thus, result-driven quotas are always inappropriate (except in rare courtordered remedies), and set-asides may only be used (i) when they are either broadly remedial
or (ii) when less intrusive alternatives are not effective. In essence, this approach would apply
the Title VI scholarship policy to all three sectors. .
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of the
benefits of inclusion with the costs of exclusion. Plior discrimination is relevant, as is the
opportunity..:.results distinction. So, one might weigh those costs and benefits .somewhat
differently in different contexts: it matters if an institution or industry has a history of
discrimination, in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
�-----~~---~-~-
illustrated in Attachment 2):
Education: ·
~Employment:
Procurement:
C.
Option 1 or 2 -~ Maintain or tighten current policy.
Indeterminate -- Either option on consideration of race/gender in layoffs.
Option 2 -- Reform and sharply narrow preferences.
The "Anti;_Exclusion" Approach
A third· approach emphasizes the moral cost of maintaining programs ·that exclude persons on
the basis of race or gender-- even in the·.name of diversity. This approach entails opposition
to the rule-of-two SDB set-aside and to race- or gender-specific scholarships; these are
effectively indistinguishable from quotas. Instead, such programs··would have to be revamped
to rely on multifactor considerations in which race is but one factor, or on race- and genderneutral appr_oaches.
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3): ·
Education:
Employment:
. Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3,-- Reform and sharply· narrow. procurement preferences, or
phase them out.
•
I
10
WJC LIBRARY PHOTOCOPY
�EXIDBIT 1
Provisional Decisions: Check one box (D) in each column. ·
(#) _ _:
indicates option number·
in the memorandum
Calibrated,
Opportunity 11
Approach
Edu·cation
Employment
Least Intrusive
Alternative 11
Approach
'
"Anti-Exclusion"
Approach
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
O
11
11
Procurement
o (1) Maintain current policy
requiring exhaustion.
o (1) Permit limited
consideration of race/gender in
layoffs.
o (3) Convert to race-neutral
programs.
o (1) Maintain current policy
requiring exhaustion; or
o (1) Permit limited
consideration of race/gender in
layoffs; or
o (2) "Tweak" current policy,
requiring added analysis.
o (2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility. ·
o (2) Oppose consideration of
race/gender in layoffs ..
o (3) Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
o (2) Oppose consideration of
o (2) Reform & ·sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
race/gender in layoffs.
0
(3) Convort to '
\ pmgnms.
=E
ace.:..neut~ral
. .
c,UN OJit .<>
_
~
c..
.
("")
r
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results.
-~
~
o :J
:::0
)>
B. ''Least Intrusive Alternative" Approach: Emphasize narrow tailoring, and concern for bystanders.
:::0
-<
""tJ
::I:
0
-1
0
C. ''A.nti-Exclusion" Approach: Emphasis on avoiding bald set-asides that announce: "No whites need apply"
AdditionalDecision: FCC Broadcast' Licenses: o (1) Maintain status quo, or
D
1.
~\ttl
-<
CJ
(2) Establish a limited tax-certificate program.
11
~
~v
a" ""
~
("")
0
""tJ
(/)
�Attachment 1: A Calibrated Approach
0 p port unity -----------------------,:---•-----;_------------------------------------------------------ Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Set-asides
Multi factor
admissions policies:
e.g.; UC-Berkeley
Group:-based
programs:
e.g., Banneker;
NIH Minority
Fellowship;
San Bernardino's
Bridge Pro·gram
.....
......
·= ,
......
::I
~...,
0
Education
c.
c.
Compensatory ed;
Outreach & recruiting;
HBCUs
0
Employment
Outreach &. recruiting;
Apprenticeships;
Second look programs:
e~g., the military
Multifactor hiring:
e.g., judicial selection;
the Chicago police
dept.
Quotas
under this
approach,
shaded policies
w·ould be
appropriate only
as remedies for
· lingering-or
ongomg
discrimination
I
I
I
:e.
C....
C')
I
r,
-I
OJ
I
:::0 I
)>'
:::o'
-<
-c'
:I:~
o-::
~;;;
oa.~
nO::
0
-c
-<
Contracting
&
Procurement
Technical assistance;
Mentoring;
Bonding assistance
'.----·~
~
�Attachment 2: A Least Intrusive Alternative Approach
0 p port unity ---------------------------------------------------------------------------------------~ Res u Its
.
'
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Compensatory ed;
Outreach & recruiting;
HBCUs
Multi factor
admissions policies:
e.g., UC-Berkeley
'
Set-asides
Quotas
.......
.....
c
:::1
.....
I..
0
c.
0.
0
Education
..
I
I
Employment
Outreach & recruiting;
· Apprenticeships; _
Second look programs:
e.g., the military
Multifactor hiring:
e.g., judicial selection;
· the Chicago police
. dept.
:e
c....
("')
r
OJ
:::0
)>
:::0"'
-<.!::
::
:z::a.l
00::
""C"'
-I
0
("')
0
""C
-<
I 0% bid preference;
Contracting
&
Procurement
Technical, assistance;
Mento ring;
Bonding assistance
"Subcontractor .
Compensation
program":
e.g., the Adarand case
under this
approach, shaded
policies would be
appropriate only
in court-ordered
· remedies
lined programs
·would be available
either to remedy
lingering or
ongoing
discrimination or
to increase
diversity, but only
if less intrusive
policies are not
effective ·
.
I
I
�Attachment 3: An Anti-Exclusion Approach
0 p p o rtu n i ty --------------------------------------------'"--------------------------------------------- Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Compensatory ed;
Outreach & recruiting;
HBCUs
Multifactor
admissions policies:
e.g., UC-Berkeley
Set-asides
Quotas
»
.......
·-'
c
:I
lo.
0
g: I
0'
Education
Employment
Outreach & recruiting; ,
Apprenticeships;
Second look programs:,
e.g., the mili~ary
Multifactor hiring:
e.g., judicial selection;
the Chicago police,
dept.
under this
approach,
shaded policies
would be
appropriate only
as court -ordered
ongomg
discrimination
::e
'-
(")
r
to
::::0
)>
::::0
-<
""0
:I:
0
--i
0
(")
0
""0
-<
.,
I
-
~
~
~
Contt·acting
&
Procurement
Technical assistance;
Mentoring;
Bonding assistance
10% bid preference;
"Subcontractor
Compensation
program"
e.g., the Adarand case
�.·
THE WHITE HOUSE
WASHINGTON
April 20, 1995
MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
.
~
•5-:
~
From:
George Stephanopo6los, Christoplier Edley,._Jr. & Peter Yu
Re: ·
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
options in four areas: education, employment, procurement, and broadcast licenses. Part II offers
three_ alternative, broader perspectives that may be useful in your deliberations.· A subsequent
memorandum will discuss the message, communications, and political dimensions of these policy
·
choices.
I. AFFIRMATIVE ACTION IN
EDUCATION, EMPWYMENT, AND PROCUREMENT
A.
/
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race or
gender is a condition of eligibility. This issue has two dimensions: (i) scholarships administered
· by universities receiving federal assistance and(ii) federal scholarship programs.
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994; permits the use. of race as a condition of eligibility for
financial aid in order (a)to remedy past discrimination or (b) to promote diversity, provided the
measure is narrowly tailored and does not unduly restrict access to financial aid for nonminority
students. A measure is "narrowly tailored" if (1) race-neutral means would have been
ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3) the ·
measure is of limited extent and duration, and is applied in a flexible manner; (4) the institution
periodically reviews the continuing need for the measure; and (5) the effect on nonbeneficiaries
is sufficiently small and diffuse so as not to unduly burden their opportunity to receive financial
aid. These restrictions apply to university-administered aid, whether publicly or privately funded.
Approximately 3.3% of all undergraduate financial aid, 4.3% of all graduate financial aid, and
·
12% of all professional-school financial aid is administered through such scholarships.
Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer. privately-:-funded gender-specific
WJC LIBRARY PHOTOCOPY
�The federal government also directly administers a number of race- or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or specialties .
in which racial or gender groups have been significantly underrepresented, either because such
inclusiveness is deemed critical to the continued strength of that profession, or because inclusion
will lead to greater attention for neglected communities and problems. Supporters of these
programs emphasiie that these. scholarships are necessary to attract women and minorities to
these areas. Examples include: NSFs Minority Graduate _Fellowship Program designed to
increase the number of :rpinority scientist and engineers and Nlli's Minority Clinical Associate
Physician Program designed to increase the number of minority physicians.
Options. The policy options i?clude:
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity ..:..Chased use of race- or gender-specific scholarships ..
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar iise of such scholarships except as necessary to remedy past
discrimination; otherwise, dilute exclusivity ·through broader eligibility.
·
·,
Analysis. Education policies regarding admissions and scholarships are central to public concerns ·
about affirmative action. Some view ra~- or gender-specific scholarships as a form of "setaside" and thus reminiscent of quota-driven admissions policies (such as the dual-admissions
system struck down in Bakke). On the other hand, .education and training are on the
"opportunity" end of the opportunity-to-results spectrum, and the current policy requires that any ·
race- or gender-specific programs be narrowly tailored.
·
Option 3, which focuses on race-speCific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should be
·excluded from a scholarship program on the basis of race or gender. Arguably, this would be
a curious rule, as it would leave intact· numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships (outside of a reniedial.context) first analyze race- or gender-neutral approaches
and conclude they would not be effective substitutes for more exclusive scholarships. The policy
guidance would be amended to require the institution to be prepared, if challenged, to present the
evidence and analysis upon which its conclusion was based. (This is the formulation used
elsewhere in the guidelines, all~ by the courts, in explaining that when an institution may invoke
its history of discrimination as a remedial justification for race-specifiC scholap;hips.) On the one
hand, this option amounts to a declaration that race or gender should only be used as a condition
of eligibility when truly necessary. On the other band, its minimal practical effect might not
justify the anxiety it would likely generate among minority' and women's gro~ps.
2
WJC LIBRARY PHOTOCOPY
�R:-<(;
q
f \~<}
?0
Option 1 would maintain current policy. As noted in our discussions, race- o enderspecific scholarships are small slices ofa much larger pie-- much of which is administe · on
the basis of need. As there are so many different avenues for financial aid, it is possible to argue
that· race:.. or gender-specific scholarships do not meaningfully limit the opportunity of any
student, or at least no more so than does a scholarship limited to offspring of the Knights of
Columbus or the Daughters of the American Revolution.
Indeed, current antidiscrimination enforcement guidance from the Department of Education,
· promulgated during the Reagan Administration pursuant to Title IX, makes the test for genderspecific scholarships whether the financial aid practices of the institution, taken as a whole,
provide equal opportunity~ As a matter of constitutional doctrine, race-based distinctions. are
subject to stricter scrutiny than gender-based distinctions. But this distinction seeins untenable
as a general matter of policy or politics. Hence, any toughening ofprohibitions on race-based
aid should probably be similar:ly applied to gender-based aid. ·
Finally, we should note the relationship between these options and the familiar hypothetical:
a college admissions or scholarship policy that favors the African-Anierican son of a successful
neurosurgeon, but not the son of a steelworker. Some -argue that affirmative action should ·be
only for economically disadvantaged minorities, because affluent minorities are evidently not
·suffering from a lack of opportunity, relative to many less economically advantaged whites. The
· rebuttal has three central points. First, there should be affirmative efforts to provide opportunity
for economically disadvantaged individuals, both white and non-white; such efforts need not
come at the expense of affirmative action when it is legitimately directed at minorities on the
basis of concerns apart from economic disadvantage. Second, apart from economic disadvantage,
but still within the realm of "private fairness," it is often observed that comparatively advantaged
minorities nevertheless cOntinue to face social and other obstacles solely because of prejudice and
discrimination, and that these disadvantages, ~hile. different from badges of poverty, are a fair
basis for attention. Third, in the realm of institutional and societal benefit, a college might·
properly conclude that the institution will benefit from inclusion of the neurosurgeon's son .:.._
even though affluent -- just as they might conclude that the diversity benefit of including a
bassoonist .is weighty not withstanding the musician's affluence. In America today, it remains
likely that the neurosurgeon's experiences, perspective, and aspirations will reflect some aspect.
of the distinctive reality facing blacks. And the college may choose to value that.
B..
Employment: Race or Gender in Layoff Decisions
Background. The central issue in this area concerns race or gender as a consideration in layoffs.
Under current law, two propositions are clear. First, layoffs cannot be used as a means to
implement an affirmative action policy by "making room" for new, diverse employees. Second,
·
nice or gender cannot trump a bona fide seniority system.
The reach of this second principle is limited.· While seniority systems are common in the
public sector, the decline of unionism has reduced the private sector's reliance on such systems.
3
WJC LIBRARY PHOTOCOPY
�<.
Thus, reportedly, many large finns expressly consider diversity in their layoff policies,
significant results: Ulinois Bell cut recently 930 management jobs, but the proportion of mino~·""'-managers rose from 25 to 27%; BaXter cut 20% of its 2000 employees, but the proportion of
minority managers increased from 10 to 12%.
The narrow question of "tie-breakers" is thus most likely to arise in the context ofa seniority
system where layoff decisions are more structured. In the Piscataway case, the Justice
Department has. argued that Title VII does not prohibit the School Board from using race as a
tie....:.breaking consideration in purSuit of a legitimate interest in diversity. In the context of the
federal civil service, the OPM, regulations are silent: the Department of Justice (Office of Legal
Counsel) believes the statutes and caselaw would, as in Piscr,ztaway, permit narrowly tailored
· consideration of race or gender.
·
Options. The policy options include:
Option 1: .As a policy matter, when not inconsistent with a bona fide seniority system,
diversity may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or ge_nder should not' be considered in layoff
decisions.
· Analysis. Concerns about employment are two-fold. In certain· sectors, there is a sense that
some job opportunities are limited. to "diversity candidates" and thus that white males are
excluded~ Second, there are concerns that in a continuing era of corporate reengineering, women
and minorities are, due to affirmative action, at less risk of being laid off. (As you have noted, .
affirmative action is sometimes used cynically to justify decisions made for other re.asons,
legitimate and otherwise.)
·
Option 2 would issue a sharp and clear statement and would provide some comfort to whites,
males, and their dependents, in a time of insecurity. (There would be a corresponding·
reinforcement of minority and women concerns about their marginality.) ·In the public
empioyment context, this is likely to have little policy impact because of seniority rules, and thus
will affect only tie-breaker-type situations. However, this option would send a loud signal to
· the private sector and could have an effect on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity interest
and the burden on identifiable majority employees. Consideration of race or gender. would be
permissible only: when neces~ary for the institution's operation; when a manifest racial or gender
imbalance exists; and when less race-intrusive considerations are not effective. If you select this
option, announcing a clarification federal layoff policy could underscore the very high hurdle
you would impose, but might also serve to focus resentments around the entire issue. ·In any
case, however, we are likely to face continuing questions regarding the law and policy
surrounding the Piscataway situation.
ot
4
WJC LIBRARY PHOTOCOPY
�-
~s\DENI"t.
Q..~
'AI(
.
Procurement: Preferences & Set-asides
-
·
.
.
·
.
.
-
<-
~
/
. . ..>.
·
..,
0
\
~ n__
~
Background. Federal law establishes several goals for the distribution of federal p b'curement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (
s -virtually all of which are minority-owned1); and 5% for women-owned businesses. There IS
a web of programs designed to reach these goals; some are government-wide, others are agency;_
-. specific. These efforts use several tools:
~
~
)>
::0
""
·
• Sole source procurements: Under SBA's § 8(a) program, small disadvantaged businesses
(SDBs) ean secure smaller sole-source contracts (usually less than $3 million).
· •. Sheltered competition: Under DOD's "rule of two," a contract is set aside for SDBs if the
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a siniilar "rule of two" for all small businesses. Failing
.
.
this, there is open competition.)
. • Bid preferences: In open competitions, DOD awards a 10% bid price preference to SDBs;
· last year's procurement reforms authorized government-wide use of this prefe.rence. The RTC
program uses a 10% "bonus" preference on contract price and a 15% point bonus on
"technical nierit," provided the SDB is within the qualified range; the preferences are also
provided to joint ventures where the SDB has 40% or more of the transaction.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(voluntarily) subcontract with SDBs. (The A.darand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. Between 1982 and 1991, while the dollar volume of all contracts
'increased by 24%, contracts awarded to women-owned firms tripled and contracts awarded to
mmority-owned firms doubled. Of late, these increases have been accompanied by actual
decreases for non-disadvantaged small firms. For example, while DOD's contracting with SDB's
more than doubled, . its contracting with other small businesses fell by nearly 20%.
l'{otwithstanding these gains, 97 percent of contracting opportunities continue to be awarded to
non-SDBs.
·
,., · ·
-
.
Some aspeCts of these efforts have been problematic. Rates of successful graduation from the
8(a) program remain low and the possibility of abusive practices n~mains, although recent
s!atutory and administrative efforts promise some improvements. Outside of the limited 8(a)
program, however, there are no graduation requirements apart from what happens naturally if a
business is no longer "small" or an entrepreneur accumulates substantial wealth. In addition,
these programs have in some instances had a disparate impact on particular regions and industries
--such as smaller construction projects and certain transportation sub-:-industries. Finally, while
1
In the Department of Transportation's program only, the SDB definition includes women.
5
WJC LIBRARY PHOTOCOPY
�· £-S\OENr...:
. '-<1(
~:v
~~ \~g-- l
.
. . firm
..
.·h .
h
the 8() program permits nonmmonty
a
s to partiCipate upon a s owmg t at a
s owners
· are "socially and economically disadvantaged," inpractice only about 1.6% of all 8
white-owned (and those mostly disabled), because tl_le statute links "social disadv
members~ip in a group subject to discrimination.
::U
"'
· Options. The policy options are:
Option 1: Eliminate misuses; expand pre-bid assistance. In particular: ·establish tighter
asset-related eligibility·. rules to prevent the "disadvantaged millionaire"
phenomenon; limit the concentration of set-asides in a single region or industry;
and set standards (by business sector and· by region) to determine when
preferences are :no longer· necessary. With regard to pre-bid assistance: invest
in new, vigorous outreach, technical assistance, and surety bonding programs to
help level the contracting playing field; continue efforts to "mainstream" minority
.
and women-owned businesses in SBA's programs. ·
Option 2: Broaden eligibility, but · retain race- and gender-based preferences;
emphasize the transitional character of program. I:iJ. addition to the measures
in option 1, take the following steps:
-
Social QL Economic Disadvantage: · Eliminate the requirement that owners be
"sodally disadvantaged," thus opening up eligibility to white owners who
demonstrate "economic disadvantage." Maintain a less stringent economic
- disadvantage test for minorities and (for the first time outside DOT) for women;
this separate standard would preserve some differential benefit for minorities and
women, but without excluding disadvantaged whites from the program altogether.
To minimize any harm to current participants, increase the goal for total SDB
procurement from 5% to 10%.
-. Strict transition requirements: Require graduation from the program for all SDBs
after, say, four years or four contract awards~ This limits the moral cost of
maintaining preferential treatment for women and minorities.
Option 3: Convert to race-neutral programs. Phase out race- and gender-based
eligibility, relying in~tead on race- and gender-neutral criteria of economic
disadvantage only.
··Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either.education or employment policies for two reasons. First, the policies rely
heavily on racially exclusive set-asides: the practical effect of a set-aside is to take a contract
and hang out a shingle saying "whites need not apply." Second, some view procurement set:_
asides as more problematic than, say, minority-specific scholarShips, believing that providing
profitable business opportunities seems more directed toward equal results than towards equal
opportunity. These observers emphasize that "education is different."
6
WJC LIBRARY PHOTOCOPY
�«:-s'o
'ttq-
t:J.~
. '( <: .
6 '\~~ ~
r.
-g
-z. .
.
At the same time, preferences may be more necessary in procurement for seve ~ easons.
First, !llti-discrimination laws ·are more difficult to enforce in this area, especia · in the
subcontracting realm. Second, "old:_boy" networks are arguably stronger in this area, s(l"'<l.n:u-informal exclusionary practices beyond the reach of l;:tw enforcement can be potent and persistent.
And finally, procurement decisions often tum on a single factor__:_ price --.and thus the multifactor mechanisms used in education and employment are less available in this area. ·
:::0
'
Option 3 would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Current preference programs would be converted to focus on·economic .
. . disadvaptage (albeit with a tighter asset test than current policy). This option represents. a
judgment that whatever the group-:-based discrimination or disadvantages faced by minority or
women entrepreneurs, no special policy measures are appropriate beyond "pool-development .
strategies" such as aggressive outreach and technical assistance.
·
As noted above, one can support race-specific scholarships but reject race-specific contracting
set-asides by distinguishing procurement as "more related to results than to opportunity." This
. approach is far more restrictive than Supreme .Court precedents, which permit set-asides based.
·. on legislative findings of discrimination or lingering effects?
Option 2 would retain a minority- and gender-specific preferenCe program, but reform it in
three critical respects. First, it would ameliorate several of the most problematic aspects of the·
CJJrrent programs. Tightening the asset test emphasizes that the goal is tocreate opportunity, not
endow millionaires. Limiting the concentration of preferences reduces the unfairness to white
bidders in a particular region or business sector~ Capping the number of contracts awarded
. through sheltered competition ensures that opportunities are spread over more SDBs.
Second, the program would emphasize creating opportunity for entrepreneurship, rather than
· ·ensuring entrepreneurial success . Thus, in addition to pool-development measures, this approach
would require prompt graduation, emphasizing that preferences help "break the ice," but that
entrepreneurs should quickly be ready to compete with small businesses ge11erally. Limiting the
"bites at the apple" serves to emphasize that the program is an entryway, not an entitlement. It
also underscores that benefits rrom the program should not be unduly concentrated.
Third, the racial exclusivity of current preferences would be reduced by opening eligibility to
non-minority firms based on economic disadvantage. Operationally, this is likely to have only
a modest effect on minority contracting. Prior to the codification of its minority entrepreneurship
focus in 1978, the 8(a) program used this "minority QL need" approach; at thattime, only about
4% of all 8(a) firms were white-owned, compared with 1.6% today. Increasing the SDB goal
to 10% should help address concerns about diluting benefits to minority-owned firms.
2
The Court has required a somewhat more rigorous demonstration by state and local governments than
by the Congress. TheAdarand ruling, expected before July, presents an opportunity for the Court to announce more
restrictive principles.
-
7
WJC LIBRARY PHOTOCOPY
�<
0
1-
?ption 1 would m~inta~ t~e ~asic ~tructure of the pr~gram -- including its use o B,ce.. This ·
option yvould emphasize ehmmatmg misuses and expandmg efforts to develop the poo iihd level
the playing field.
.
'
· Distressed Areas: In addition to these policy options, we have begun to develop a
complementary option: .procure~ent preferences that focus less directly on ininority capitalism
and more on job-creation for disadvantaged persons and distressed communities. Some of these
alternatives would be place-based and others employee-based; we are currently examining issues
of administrability. Example of such initiatives include:
•
•
•
•
Provide set-asides or other preferences for firms whose workforce (on the c:ontract) would
be drawn more than X% from chronicaUy distressed areas, using measures based on
Census and BLS data.· (There are two especially well-regarded alternative indices of
distress iri the social science literature. ) Or
Provide preferences to· firms whose workforce would be drawn more than X% from
targeted population groups, such as recent AFDC or food stamp recipients. Or
Provide preferences as above, but based also on the employment of underrepresented
groups. Or
Employ any of these approaches, but scale the magnitude or duration of the preference
according to the firm's workforce "score;"
·
·
Bearing in mind that such an initiative speaks to somewhat separable policy and political
objectives, you may decide that such ·an empowerment contracting scheme should be a· (i)
substitute for, (ii) complement to, or (iii) condition of the reformed entrepreneurship preferences.
· FCC Auctions:
Your decision on· procurement set-asides will also govern -the
Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the · PCS auction have been stayed pending resolution of a
constitutional challenge to bid preferences afforded minority.,. and women-owned firms by
. Commission regulations. Because PCS licenses are for cellular and other wireless communication
rather than "for broadcasting, a programming-diversity rationale will not justify group-based
preferences. Instead~ the motivation is to create inclusive entrepreneurial opportunity, where there
otherwise would be none; in a critical emerging industry. Preferences in the PCS auction should·
be handled like procurement preferences.
ll. PUTIING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your policy choices in this area may be most easily defended if they reflect a coherent theory
or approach. This Part outlines three such approaches, and describes. the policy choices that seem
'most easily justified within that approach. (See Exhibit 1.) Each is consistent with some basic
inclinations you expressed in our various "vision" discussions, including:
8
WJC LIBRARY PHOTOCOPY
�<
.
.
.
.
.
0
~
• Emphasize antidiscrimination and opportunity, rather than gUaranteeing result-~
• · Stress the remedial justification, but also embrace the goal of inclusion.
0
•
Respect the interests of bystanders, by crafting policies carefully and narrowly.
A..
The "Calibrated" Approach
This approach emphasizes the difference between equal opportunity and equal results in two .
dimensions. In terms of the policy tools one uses, outreach and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, a specific
affirmative action tool is less problematic in education (which expands opportunity) than similar
efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than in procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be elinlmated or
sharply focused in procurement. With regard to the policy choices outlined above, this approach
would support:
·
Education:
Employment:
Procurement:
lL
Option 1 -- Maintain current policy.
Option 1 -- Permit race or gender to be considered in layoff decisions.
Option 2 or 3 -- Reform and. sharply narrow procurement preferences, or
phase them out.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that affirmative
action must be narrowly tailored to minimize exclusivity and the use .of race- or gender-based
decisionmaking. Thus, result-driven quotas are always inappropriate (except in rare courtordered remedies), and set-asides may only be used (i) when they are either broadly r~medial
or (ii) when less intrusive alternatives are not effective. In essence, this approach would apply
the Title VI scholarship policy to all three sectors.·
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of the
benefits of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the
· opportunity-results distinction. So, one might weiib those costs and benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
disCrimination, in. which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
This approach leads to support for limited use of race-specific programs. In particular (as
' 9
WJC LIBRARY PHOTOCOPY
�illustrated in Attachment 2):
Education:
Employment:
Procurement:
C
Option 1 or 2 -- Maintain or tighten current policy.
Indeterminate -- Either option on consideration of race/gender in layoffs.
Option 2-- Reform and sharply narrow preferences.
The "Anti-Exclusion" Approach
·. A third approach emphasizes the moral eost of maintaining programs that exclude persons on
the basis of race or gender-- even in tlie name of diversity. This approach entails opposition
to the rule...:of-two SDB set-aside and to race- or gender-specific· scholarships; these are
effectively indistinguishable from quotas. Instead, such programs would 'have to be revamped
to rely on multifactor considerations in which race is but one factor, or on race- and genderneutral approaches.
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:·
Employment:
Procurement:·
Option 3 -- Eliminate race- or gender-specific scholarShips.
Option 2 -:-- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Reform and sharply narrow procurement preferenCes, or
phase them out.
10
. WJC LIBRARY PHOTOCOPY
�EXHIBIT 1
..
Provisional Decisions: .Check one box (D ) in each cohimn
(#) --
"Calibrated,
Opportunity"
Approach
"Least Intrusive
Alternative 11
Approach
11
Anti-Exclusion"
Approach
Procurement
Employment
Education
indicates option number
in the memorandum
o (1) Maintain current policy .
·o (1) Permit limited
consideration of race/gender in
layoffs.
requiring exhaustion.
o (2) Reform & sharply narrow·
preferences; emphasize transition;
add disadvantage eligibility; or
o (3) Convert to race-neutral
programs.
o (1) Maintain current policy
requiring exhaustion; or
o (2) "Tweak" current policy,
requiring added analysis.
d
(3) Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
o (1) Permit limited
consideration of race/gender in · o (2) Reform & sharply narrow
preferences; emphasize transition;
layoffs; or
add disadvantage .eligibility.
o (2) Opp<)se consideration of
race/gender in layoffs.
o (2) Oppose consideration of
race/gender in layoffs.
.
.
o (2) Reform & sharply narrow
preferences; emphasize transition;
' add disadvantage eligibility; or
o (3) Convert to race-neutra1
programs.
=E
c...
n
r
,_;.,
OJ
::0
)>
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results.
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, ·and concern for bystanders.
~
n
"'0
-<
~
~ -~-"'ry
C. ''Anti-Exclusion" Approach: Emphasis on avoiding bald set-asides that announce: "No whites need apply."
:I:
0
~
2
~·
"'0
0
-1
0
~ION~
~
·-._\).;::::}
::0
-<
~ ~~
.
. Additional Decision: FCC Broadcast Licenses:
D
(1) Maintain status quo, or
o (2) Establish a limited tax-certificate program .
11
�Attachment 1: A Calibrated Approach
0 p po rtu n ity -----------------------------:---------------------------------------------------------- Results
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Set-asides
Multi factor
admissions policies:
e.g., UC-Berkeley
Group-based
programs:
e. g., Banneker;
NIH Minority
Fellowship; .
San 'Bernardino's
Bridge Pro grain
.0
....
t:: I Education
0
0.
Q,
Compensatory ed;
Outreach & recruiting;
HBCUs
0
,I
I
Employment
::E
I
C')
Outreach & recruiting;
Apprenticeships;
Second look programs:
e.g., the military
I
c._
I
r
co
Contracting
::::0
)>
&
:::0
-<
""'0
:I:
I
I
0
......
"'
:::
0
ProcUJ·ement
Technical assistance;
Mento ring;
Bonding assistance
0::
""'-!
C')
"'
~
0
""C
-<
·:.
Multifactor hiring:
e.g., judicial selection;
the Chicago ·police
dept.
Quotas
under this
approach,
shaded policies
would be
appropriate only
as remedies for
lingering or
ongomg
discrimination
�Attachment 2: A Least Intrusive Alternative Approach
'
-
.
.
0 p port unity "---..:--------------------:-------------------:...----------~----------.----------------------:... Res u Its
Opportunity
Enhancing
Assistance
. Advantages &
· Flexible Preferences ·
Compensatory ed;
Outreach & recruiting;
HBCUs
Multi factor
admissions policies:
e.g., UC-Berkeley
Set-asides
Quotas
.......
.....
·-::
c
='
......
,_
0
0.
0.
0
Education
Employment
Outreach & recruiting;
Apprenticeships;
Second look programs:
e.g~, the military -
Multifactor hiring:
e.g., j udidal selection;
the Chicago police
.dept.
Technical assistance;
Mento ring;
Bonding assistance
10% bid preference;
"Subcontractor
Compensation
program":
e.g., the Adarand case
:e:
c...
(")
r
,_.
to
:::c
)>,
:::c
-<~
"'tJ~
:I:
<l).
o~X
-+
0
(")
0
"'tJ
-<
·Contracting
&
Procurement
under this
approach, shaded·
policies would be
appropriate only
in court-ordered
remedies
lined programs
would be available
either to remedy
lingering or
ongoing
discrimination or
to increase
diversity, but only
if less intrusive
policies are not
effective
�Attachment 3: An Anti-Exclusion Approach
0 p po rtu n itY
------------------------------------------------------------------------------------------ Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Compensatory ed;
Outreach & recruiting;
HBCUs
Multifactor
admissions policies:
e.g., UC-Berkeley
Set-asides
Quotas
;;.-,
.....
·=
=
.....
1-.
0
0.
.
o.1 Education
0
.
}':}\:=:=: : ' ·
:::
Employment
Outreach & recruiting;
Apprenticeships;
Second look programs:
e.g., the military
. Multifactor hiring:
e.g., judicial selection;
the Chicago police
dept.
l
under this
approach,
: J shaded policies
would be
mu&1[;~'.=.::::::-l :~~~oJ~~~;d~~~
ongomg
discrimination
=E
c...
C')
rto
::0
Contracting
)>
::0
-<
""C
:I:
0
~
0
C')
0
""C
-<
I
&
- Procurement
=
.....
<I)
<I)
~
~
Technical assistance;
Mento ring;
Bonding assistance
10% bid preference;
"Subcontractor
Compensation
program".
e.g., the Adarand case
__..-'
~
-v
�(May 3, 1995)
April 20, 1995
MEMORANDUM FOR THE 'PRESIDENT & THE VICE PRESIDENT (EXCERPTS)
A.
Education: Race- or Gender-Specific Scholarships ·
Option 1:
Maintain current policy' which requires exhaustion of alternatives to eli versitybased use of race- or gender-specific scholarships. ·
·
II
II
Option 2: ."Tweak" current policy to require added analysis of alternatives.
Option 3:. Bar use of such scholarships except as necessary to remedy past discriillination;
otherwise, dilute exclusivity through broader eligibility.
B.
Employment: Race or Gender in Layoff Decisions
Option 1:
Option 2:
C.
As a policy matter, whennot inconsistent with a bona fide seniority system,
diversity may be. considered in layoffs, but only in limited circumstances.
As a policy matter, race or gender should not be considered in layoff decisions.
Procurement: Preferences & Set-asides
Option 1:
Eliminate misuses; expand pre-bid assistance. In particular: establish tighter
asset-'related eligibility rules to prevent the "disadvantaged millionaire"
·phenomenon; limit the concentration of set-asides in a single region or industry;
and set standards (by business sector and by region) to determine when
preferences are no longer necessary. · With regard to pre-bid assistance: invest in
new, vigorous outreach, technical assistance, and surety bonding.programs to help
level the contracting playing_ field; continue efforts to "mainstream" minority and
·women-owned businesses in SBA's programs.
Option 2:
Broaden eligibility, but retain race- and gender-based preferences; emphasize the
transitional character of program. In addition to the measures in option 1, take the
following steps:
Social or Economic Disadvantage: Eliminate the requirement that owners be
WJC LIBRARY PHOTOCOPY .
�_,
"socially disadvantaged," thus opening up eligibility to white owners who
demonstrate "economic disadvantage." Maintain a less stringent economic
disadvantage test for minorities and -cjor the first time outside DOT) for
women; this separate standard would preserve some differential benefit for
minorities and worrien, but without excluding disadvantaged whites from the
program altogether. To minimize ·any harm to current participants, increase
·
the goal for total SDB procurement ~rom 5% to 10%.
Strict transition requir~ments: Require graduation) from the program for all
SDBs after, say, four years or four contract awards. This. limits the moral cost
of maintaining preferential treatment for women and minorities.
Option 3:
Convert to race-neutral programs. Phase out race- and gender-based eligibility,
relying instead on race- and gender-neutral criteria of economic disadvantage only.
\
2
WJC LIBRARY PHOTOCOPY
�>ll..
(.\BRA"f?
0
u
~~-
l~ ~
''" ___.
~OJ.N\
(#) --
j
9/
'
Procurement
Employment
Education
indicates option number
in the memorandum
:I:
ll..
>-
0::
<(
D
''Calibrated,
Opportunity''
Approach
D
(1) Maintain current policy
requiring exhaustion.
D
(1) Permit limited
consideration of race/gender in
layoffs.
-
''Least Intrusive
Alternative''
Approach
''Anti.;.Exclusion''
Approach
)
D
D
(1) Maintain current policy
requiring exhaustion; or
(2) "Tweak" current policy,
requiring added a11alysis.
D - (3)
Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
D
(2) Oppose consideration of
race/gender in layoffs.
_j
u
==
(3) Convert· to race-neutral
programs.
D
(2) Reform & sharply narrow
preferences; emphasiZe transition;
add disadvantage eligibility.
·D
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
(2) Oppose consideration of
.race/gender in layoffs.
D
-
a:~'
'
(1) Permit limited
consideration of race/gender in
layoffs; or
D
0::
(2) Reform & sharply narrow
. preferences; emphasize transition;
add disadvantage eligibility; or
J
D
'
0
1-0
D
(3) Convert to race-neutral
programs.
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, .not guaranteeing results.
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, and concern for bystanders.
.
.
C. ''Anti-Exclusion" Approach: Emphasis on avoiding bald set-asides that annolJnce: "No whites need apply."
Additional Decision: FCC Broadcast Licenses: o (1) Maintain status quo, or
o (2) Establish a limited tax-certificate program.
3
�----· ····· ·....
*
. April 19, 1995
MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
From:
George Stephanopoulos, Christopher Edley, Jr. & Peter Yu
Re:
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
_options in four areas: .education, employment, procurement, and broadcast licenses. Part II
offers three alternative, broader perspectives that may be useful in your deliberations~ A
subsequent memorandum will ~iscuss the message, communications, and political dimensions
of these policy choices.
I.
AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race-
or Gender-Specific
Scholarships
Background. The central issue in the area of education concerns scholarships for which race
or gender is a condition of eligibility. This issue has two dimensions: (i) scholarships
administered by universities receiving federal assistance and (ii) federal scholarship programs.
With regard to (i),the current Administration· policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, permits the use of race as a condition of eligibility for
financial aid in order (a) to remedy past discrimination or (b) to promote diversity, provided
the measure is narrowly tailored and does not unduly restrict access· to fmancial aid for
nonminoritY students. A measure is "narrowly tailored" if (1) race-neutral means would have
been ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3)
the measure is of limited extent and duration, and is ·applied in a flexible manner; (4) the
institution periodically reviews the continuing need for the mea~un~; and (5) the effect on
nonbeneficiaries is sufficiently small and diffuse so as not to unduly burden their opportunity
to receive fmancial aid. These restrictions apply to university-administered aid, whether
publicly or privately funded. Approximately 3.3% of all undergraduate fmancial aid, 4.3% of
ail graduate financial aid, and 12% of all professional-school fniancial aid is administered
through such scholarships.
WJC LIBRARY PHOTOCOPY
�~~E.SIDs--11
q~
f t~.
~
....I
~
'
Current policy with regard to gender-specific scholarships provides that institutio ~ may not
discriminate on· the basis of gender, but may administer privately-funded gend -specific
scholarships if the overall effect of such scholarships does not discriminate on the · is of
:gender. The majority of gender-speCific scholarships are limited to men, rather than women.
The federal government also directly administers a number of race- or gender-specific
scholarship programs. All · of these are designed to increase diversity in professions or
specialties in which racial or gender groups have been significantly underrepresented, either
because such inclusiveness' is deemed critical to the continued strength of that profession, or
because inclusion will lead to greater attention for neglected coinmunities and problems.
Supporters of these programs emphasize that these scholarships are necessary to attract women
and minorities to these areas. Examples include: NSF's Minority Graduate Fellowship
Program designed to increase the number of minority scientist arid engineers and NIH's
Minority Clinical Associate Physician Program designed to increase the number of minority
physicians.
Options. The policy options include:
.
'
.
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity-based use of race- or gender-specific· scholarships .
Option 2: ."Tweak" current policy to require added analysis of alternatives.
Option 3: Bar use of such scholarships except as necessary to remedy past
discrimination; otherwise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and· scholarships are central. to public
concerns about affirmative action. Some view race- or gender-specific scholarships as a form
of "set-aside" and thus- reminiscent of quota-driven admissions policies (such as the dualadniissions system struck down in Bakke). On the other hand, education and training are on·
the· "opportunity" end of the opportunity-to-results spectrum, and the current policy requires
· that any race- or gender-specific programs be narrowly tailored.
·
Option 3, which focuses oh race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should
be excluded from a scholarship prograni on the basis of race or gender. Arguably, this would
be a curious rule,· as it would leave intact numerous scholarships limited by religion, surname,
· geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships (outside .·of a remedial context) first analyze race- or gender-neutral
approaches and conclude they would not be effective substitutes for more exclusive
scholarships. The policy guidance would be ~ended to require the institution to be prepared,
if challenged, to present the evidence and analysis upon which its conclusion was based. (This
is the formulation used elsewhere in the guidelines, and by the courts, in explaining that when
an institution may invoke its history of discrimination as a remedial justification for race2
WJC LIBRARY PHOTOCOPY
�?RESto
.
.
.
.
.
.
.
.
~0~. (f/~ ~~~
~
~
0
specific scholarships.) On the one hand, this option amounts to a declaration t €race or gender r
should only be used as a condition of eligibility when truly necessary. On t e other hand, its [i
minimal practical effect might not justify the anxiety it would likely generate
ong minority...\~ ·
}-~
and women's groups.
·.Option 1 would maintain current policy. As noted in our discussions, race- or genderspecific scholarships are small slices of a much larger pie -- much of which is administered on
the basis of need. As there are so many different avenues for fmancial aid, it is possible to
argue that tace- or gender-specific scholarships do. not meaningfully- limit the opportunity of
any student, or· at least no more so· than does a scholarship limited to offspring of the Knights
of Columbus or the Daughters of the American. Revolution. ·
.Indeed, current antidiscrimination enforcement guidance from the Department of Education,
promulgated during the Reagan Administration pmsuarttto Title IX, makes the test for genderspecific scholarships whether the financial aid practices of the institution, taken as a whole,
provide equal opportunity. As a matter of constitutional doctrine, race-based distinctions are
subject to stricter scrutiny than gender-based distinctions. But this distinction seems tintenable
as a general matter of policy or politics. Hence,· any toughening of prohibitions on race-based
aid should probably be similarly applied to gender-based aid.
. Finally, we should note the ~elationship betw~en these options and the familiar hypothetical:
a college admissions or scholarship policy that favors the African American son of a successful
neurosurgeon, but not the son of a steelworker. Some argue that affirmative· action should be
only for economically disadvantaged minorities, because affluent minorities are evidently not
suffering from a lack of opportunity, relative to many less economically advantaged whites ..
The rebuttal has three central points. First, there· should be affmnative efforts to. provide
opportunity for economically disadvantaged individuals, both white and non-white; such efforts
need not come at the expense of affirmative action when it is legitimately directed at minorities
on the basis of concerns apart· from economic disadvantage. Second, apart from economic
disadvantage, but still within the realm of "private fairness," it is often observed that
comparatively advantaged minorities nevertheless continue to face social and other obstacles
solely because of prejudice and discrimination, and that these disadvantages, while different ·
from badges of poverty, .are a fair basis for attention. Third, in the realm of institutional and
societal benefit, a college might properly conclude that the institution will ·benefit from
inclusion of the neurosurgeon's son-- even though affluent-- just as they might conclude that
the diversity benefit of including a bassoonist is weighty not withstanding the musician's
affluence. In America today, it remains likely that the neurosurgeon's experiences, perspective,
and aspirations will reflect some aspect of the distinctive reality facing blacks. And the
college may choose to value that.
B. .
Employment: Race· or Gender in Layoff Decisions
Background.
The central issue in this area concerns_ race or gender as a consideration m
3
WJC LIBRARY PHOTOCOPY
�layoffs: Under ci.rrrent !aw, two propositions are clear. . First, layoffs cannot b
m~ans to implement an· affirmative action policy ·by. "making room" for ne
. employees.. Second, race or gender cannot tnunp a bona fide seniority system.
The reach of this second pr~ciple is limited. while seniority systems ·are common in the
public :;ector, the decline of unionism has reduced the private sector's reliance on such systems.
Thus,. reportedly, many large firms expressly consider diversity in their layoff policies, and
with significant results: Illinois Bell cut 930 management jobs, butthe proportion ofminority
_managers rose from. 25 to 27%; Baxter cut 20% of its 2000 employees, but the proportion of
minority managers increased from 10 to 12%;
.The narrow question of "tie-breakers". is thus most likely to arise in the context of a seniority
system · where layoff dec!sions are more structUred. In the Piscataway case, the Justice
Department has argued that Title VII does not prohibit the School Board from using race as
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In th~ context of
the federal civil service, the OPM regulations are silent: the Departnient of Justice (Office of
Legal Counsel) believes the statutes and caselaw would, as in Piscataway, permit narrowly
tailored consideration of race or gender. ·
·
Options. The policy options inelude:
Option 1: As a policy matter, when not inconsistent with a bona fide seniority system,
diversity may be considered· in layoffs; but only in limited circumstances.
Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
· Analysis~ . Concerns about employment are two-fold. In certain· sectors, there is a sen·se that
. some job opportunities are limited to "diversity candidates" and thus that white .males are
excluded. Second, there are concerns that in a continuing era of corporate reengineering,
women and minorities are, due to affrrmative action, at less risk of being laid- off.· (As you .
have noted, affirmative action is sometimes used cynically to justify decisions made for other
reasons, legitimate and otherwise.)
Option 2 would issue a sharp and clear statement and would provide some comfort to
whites, males, and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minoritY _and women concerns about their marginality:) In. the public
employment context, this is likely to have little policy impact because of seniority rules, and
thus will affect only tie-breaker-type situations. However, this option would send a loud signal
to the private sector and could have an effect on private practices~
Option 1 is closer to the status quo, but does not l~nd itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity
interest and the blirden on identifiable majority employees. Consideration of race or gender
would be permissible only: .when necessary for the institution's operation; when a mallifest
4
WJC LIBRARY PHOTOCOPY
�· racial or gender imbalance exists; and when less race-intrusive considerations ar
If you select this option, announcing a clarification of federal layoff policy coul underscore
the very high hurdle you would impose, but might also serve to focus resentments ound the
entire issue. In ai1Y case, however, we are likely to face continuing questions regarding ~~or
and policy surrounding the Piscataway situation.
C.
Procurement: Preferences & Set-asides
Background. Federal law· establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (SDBs -virtually all of which are minority-owned 1); and 5% for women-:owned businesses. There is
· a web of programs designed to reach these goals; some are government-wide, other are agencyspecific. These efforts use several tools:
·
• Sole source procurements: Under SBA's 8(a) program, small disadvantaged businesses
(SDBs) can secure smaller sole-source contracts· (usually less than $3 million).
• Sheltered competition: Under DOD's "rule of two," a contract is set aside for SDBs ifthe
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses.
Failing this, there is open competition.)
• Bid preferences: Iri open competitions, DOD awards a 10% bid preference to SDBs; last
year's procurement reforms authorized government-wide use of this preference.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(vo~untarily) subcontract with SDBs, including wo~en-owned firmsj (The Adarand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. Between 1982 and 1991, while the dollar volume of all contracts
increased by 24%, .contracts awarded to women-oWned firms tripled and contracts awarded to ·
minority-owned firms doubled. Of late, these increases have been accompanied by actual
decreases for non~disadvantaged small firms. For example, while DOD's contracting with
SDB's more than doubled, its contractirig with other small businesses fell by nearly 20%.
·Several aspects of these efforts have not been successful. Graduation ·rates from the 8(a)
program remain low and the possibility of abusive practices remain, although recent statutory
and administrative efforts promise some improvements. Outside of the limited 8(a) program,
however, ·there are no graduation requirements apart from what happens naturally if a business
is no longer "small" or an entrepreneur accumulates substantial ~ealth. In addition, these
1
In the Department of Transportation's program only, the SDB definition includes women.
5
WJC LIBRARY PHOTOCOPY
�~~~§to~
"o
l lSI
programs have had a disparate impact on particular regions and industries -- sue ~ smaller
construction projects and certain transportation sub-industries. Finally, while the 8 ~program
permits nonminority firms to participate upon a showing that a firm's owners are 11 cially and
economically disadvantaged," in practice only about 1.6% of all 8(a) firms are w e-owned
(and those· mostly disabled), because the 1978 statute links 11 social disadvant
membership in a group subject to discrimination.
'11;..
.
Options. The policy options include:
Option 1: Reform the programs to emphasize their transitional character; eliminate
misuses. This would involve tighter asset-related eligibility· rules, phased
graduation for all SDBs, limits on the concentration of set-asides in a single
region or industry, and standards to determine when preferences are no longer
necessary by business sector and by region.
Option 2: Expand eligibility to include more nonminority firms. This would involve
revising the current conjunctive statutory criterion ( 11 socially and economically
. disadvantaged .. ) to a disjunctive ( 11 socially or economically disadvantaged .. ). In
addition, the goal for total SDB procurement could be increased from 5 to 10%.
Option 3: Sharply focus on "entryway" to entrepreneurship for both minorities and
disadvantaged. In addition to the anti-misuse reforms it} option 1, and the
broader class- or need-based eligibility of option 2, impose very tight limits on
the number of contracts an individual· SDB or entrepreneur could win through
sole-source, set-aside or bid pr..eferences.
Option 4: Convert to race-neutral programs. Phase out race-. and gender-based
eligibility, relying instead on race- and gender-neutral criteria of economic
disadvantage. Limit race or gender..;specific assistance to less exclusive and less ·
intrusive assistance tools . -- i.e., technical assistance, surety bonding and
outreach.
Analysis. While procurement policies do not have wide visibility, they are. arguably more
problematic than either education or employment policies. The practical effect of a set-aside
such as the rule-of-two is to take a specific contracting opportunity and hang out a shingle
saying 11Whites need not apply... . Some view this as more problematic than minority-only
scholarships, suggesting an intuition that providing profitable business opportunities seems
more directed toward rewards or equal results than towards ·equal.opportunity; education is
different. Moreover, some view the procurement set-aside as problematic, even though 97
percent of contracting opportunities continue to go to rion-SDBs.
At the same time, preferences may be more necessary in procurement for several reasons.
First, anti-discrimination laws are more difficult to enforce in this area, especially in the ·
subcontracting realm. Second, 11 0ld""boy 11 networks are arguably stronger in .this area, so that
informal exclusionary practices beyond the reach of law enforcement can be potent and
persistent. And fmally, procurement decisions often turn on a single factor --price --and thus
the multi-factor mechanisms used in education and employment are less available in this area._·
6
WJC LIBRARY PHOTOCOPY
~
�.
.
.
.
..
.
Option 4 would issue a clear statement that federal contracts should not be aw
basis of race or gender. Under this view, set-asides are much like quotas. Curren preference
programs would be converted to focus on economic disadvantage. This option r re.sents a
judgment that whatever the group-based discrimination or disadvantages faced by : ority
entrepreneurs,· no special policy measures ·are appropriate beyond pool,. development strategies
and race.:. neutral preferences. If one were to support race-specific scholarships but embrace this
option, one could distinguish procurement as "more related to results than to opportunity."
This approach is far inore· restrictive that Supreme Court precedents, which permit set-asides
based on legislative fmdings of discrimination or lingering effects. 2
Option 3 would retain a· reduced preferen~e program, but focus it sharply on mechanisms
more unambiguously related to creating opportunity for entrepreneurship, rather than a
guarantee .of entrepreneurial success. Thus, in addition to technical assistance and other poolenhancing activities described above, this approach .would use preferences and sheltered
competition on a limited basis to help "break the ice," but then quickly push entrepreneurs to .
compete on terms comparable to small business·es generally. (Recall that all small businesses
have· a rule-of-two set-aside available to them as well, but only if an SDB set-aside is not
triggered.) The racial exclusivity of the preferences. would be alleviated by opening eligibility
to non-minority firms based on economic disadvantage.
·
Option 2 would simihirly render these programs less exclusive and recharacterize them a:s
for "disadvantaged" businesses, with race merely one-- but not the only-- way to demonstrate.
· disadvantage. _It would not narrow the overall ambition of the program to the extent of option
3. Operationally, this is likely to have only a modest effect on minority contracting. Prior to
the codification of its minority entrepreneurship focus in 1978, the 8(a) program used this
approach; at that time, about 4% of all 8(a) firms were white-owned. In sum, race becomes
irrelevant in option 4; in this option its exclusionary effect is diluted.
· ·Option 1 would ameliorate several of the most problematic practices in the program.
· Limiting participation, encouraging graduation, and tightening the asset tests emphasizes that
8(a) is an entryway, not an entitlement. Limiting concentrated use of preferences reduces the
unfairness to white bidders in a particular region or sector. While these changes would be
significant, some would view this as ,;mere tinkering" that does not address the fundamental
objection --namely, the exclusivity of these programs.
Distressed Areas:· In addition ·to these policy options, we have also beglin to develop a
complementary option: procurement preferences that focus less directly on minority capitalism
and more on job-creation for disadvantaged persons and distressed communities.· Some of
these alternatives would be place-based and others employee-based; we are currently examining
issues of administrability. Example of such initiatives include:
2
The Court has required a somewhat more rigorous demonstration by state and local governments than
by the Congress. The Adarimd ruling, expected before July; presents an opportunity for the Court to announce
more. restrictive principles.
7
WJC LIBRARY PHOTOCOPY
�·
~~ESID~
f~ \8~ \
•
•
·•
•
Provide set-asides or other preferences for firms whose workforce (o ahe contract)
asures based
would be drawn more than X% from chronically distressed areas, using
on Census and BLS data. (There are two especially well-!egarded altern 've indices
of distress in the social science literature. ) Or
·
· Provide pre~erences to firms whose workforce would be drawn more than X% from
targeted population groups, such as recent AFDC or food stamp· recipients. Or
Provide !?references as above, but based also on the employment of underrepresented
~~~&
.
.
Employ any of these approaches, but scale the magnitude or duration of the preference
according to the firm's workforce "score."
Bearing in mind that such an initiative speaks somewhat separable policy and political
objectives, you may decide that such an empowerment contracting scheme should be a (i)
substitute for, (ii) complement to, or (iii) condition of the reformed entrepreneurship
preferences.
.
FCC Auctions:
Your decision on procurement set-asides Will also govern the
. Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the PCS auction have been stayed pending resolution of a
constitutional challenge to bid. preferences afforded minority- imd women-owned firms by
Commission regulations.
Because PCS licenses are for cellular and other . wireless
communication rather than for broadcasting, a programming-diversity rationale will not justify
group-based preferences. Instead, .· the motivation is to create inclusive entrepreneurial
opportunity, where there otherwise would be none, in a critical emerging industry. Preferences
'
in the PCS auction should be handled like procUrement preferences.
D.
FCC Preferences in Broadcast Licenses
Background. Programs administered by ·the FCC concerning broadcast licenses are sui generis
. because of th~ linkage between diversity of ownership and diversity of prograri:uning. Of the
FCC's three "affmnative action" efforts, one is not significant (a preference for minority
purchasers in distress sales which is rarely used), a second is not controversial (consideration
of race as one of many factors in comparative licensing decisions), and the third -- the "§
1071" tax certificate at issue in the Viacom transaction --has just been repealed. The primary
issue here is whether we should attempt to revive the tax certificate program in a more limited
form.
Options. The policy options include:
Option 1: Maintain the status quo.
Option 2: Establish a limited tax certificate program. Potential misuse of the program
would be limited by (i) capping the value of the tax benefit at an amount below
$100 million; (ii) lengthening the period a minority owner must retain a license
8
WJC LIBRARY PHOTOCOPY
�from one to several (possibly five) years; and (iii) ensuring
actually control the licensed company.
Analysis.· The tax certificate program has been highly successful. In 1978, minorities;....,.._.,.,
0.5% of all broadcast licenses; today, 17 years later, that proportion has increased five-fold to
2.9%. FCC officials, including the Chairman, believe that, but for § 1071, most of these
transactions would not have occurred. Option 2 would propose to reinstitute this program, but
in a manner that would prevent Viacom-like transactions by capping the aniount of the tax
benefit in any one transaction, increasing the holding period for the riiinority purchaser to
prevent quick resales, and ensuring that no individual entrepreneur or firm benefitted repeatedly
fromthe preference.· (We have not identified a PAYGO offset for this option.) Option 1
would avoid reopening the battle over these issues ..
II.. PUTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your. policy choices in this area may be most easily defended if they reflect a .coherent
theory or approach. This Part outlines three such approaches, and describes the policy choices
that seem· most· easily justified within that approach. (See Exhibit L) Each is consistent. with
some basic inclinations you expressed in our various "vision" discussions, including:
.
.
•
il
•
A.
·. Emphasize antidiscrimination and opportunity, rather than guaranteeing results.
Stress the remedial justification, but also embrace the goal of inclusion.
Respect the interests of bystanders, by crafting policies carefully and narrowly.
The "Calibrated" Approach
·This approach emphasizes the difference between equal opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outreach and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, ant
specific affirmative action tool is less problematic in education (which expands opportunity)
than . similar efforts in procurement (which more directly affects the distribution of wealth).
.
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagonal orientation of the "border· area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices outlined above, this .
approach would support:
Education:
Employment:
Option 1 -- Maintain current policy.
Option 1 -- Permit race or gender to be considered in layoff decisions.
9
WJC LIBRARY PHOTOCOPY
�Procurement:
B.
Option 4 or 3 -- Phase out or sharply narrow procurement p
set-asides.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that
· affirmative action m~st be narrowly tailored to minimize exclusivity and the use of race- or
gender-based decisioninaking. Thus, result-driven quotas are ·always inappropriate (except in
rare court-ordered remedies), and set-asides may only be used (i) when they are either broadly
remedial or (ii) when less intrusive alternatives are not effective. In essence, this approach
would· apply the Title VI scholarship policy to all three sectors.
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of
the benefits of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the
opportunity-results distinction. So, one might weigh those costs and· benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
discrimination, . in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be· narrowly tailored indeed.
This approach leads to support for limited use of race-specific programs. In particular (as
illustrated in Attachment 2):
Education:
Employment:
Procurement:
C.
Option 1 or 2 -- Maintain or tighten cirrrent policy. ·
Indeterminate -- Either option on consideration of race/gender in layoffs.
Option 1 or 3 -- Reform or sharply narrow preferences and set-asides.
. The "Anti-Exclusion" Approach
A third approach emphasizes the moral cost of maintaining programs that exclude persons
on the basis of -race or gender -- even in the. name of diversity. This approach entails
opposition to the rule-of.:·two SDB set-aside and to race- or gender-specific scholarships; these
are effectively indistinguishable from quotas. . Instead, such programs would have to be
revamped to rely on multifactor consideratio:q.s in which.race is but one factor, or on race~ and
gender-neutral approaches.
·
·
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Expand eligibility to include nonminority firms.
10
WJC LIBRARY PHOTOCOPY
�EXHIBIT
l
Provisional Decisions: Check one box (D ) in each colurrui_
(#) --
indicates option number
in the memorandum
Education
Employment
Procurement · ·
0
0
(1) Maintain current policy
0
requiring exhaustion.
Approach
o (i) Maintain current policy
"Least Intrusive
Alternative"
Approach
0
requiring exhaustion; or
0
(2) "Tweak" current policy,
requiring added analysis.
(3) Narrow preferences; emphasize
"entryway"; add disadvantage as a
basis of eligibility; or
0
"Calibrated,
Opportunity"
(4) Convert to race-neutral
programs; build the pool -
0
(1) Reform to address abuses, limit
unfairness; or
(1) Permit limited
consideration of race/gender
in layoffs.
(1) Permit limited
consideration of race/gender
in layoffs; or
\
0
0
'
(2) Oppose consideration of
race/gender. in layoffs.
(3) Narrow preferences; emphasize
"entryway"; add disadvantage as a
basis of eligibility.
o · (2) Expand eligibility to include
. "Anti-Exclusion"
Approach
'
o (3) Eliminate race- and
gender-based aid by
expanding eligibility,
softening exclusion.
disadvantaged majority firms; or
0
(2) Oppose consideration of
race/gender in layoffs.
0
(3) Narrow preferences; emphasize
"entryway"; add disadvantage as a ·
_basis of eligibility.
=e
c...
C')
r
OJ
;::c
)>
;::c
-<
A. ''Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results. Therefore, oppo
building contexts (education) and tools (outreach) are strongly favored.
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, that use of race/gender in decisionmaking
moral cost, and that the interests .qf bystanders are entitled to sorne ·weight in constructing affirmative measures. ·
C. "Anti-Exclusion" Approach: Emphasis on avoiding bald· set-asides that announce: No whites need apply." ·
""0
:c
0
-1
0
C')
Additional Decision Point: FCC Broadcast Licenses
o (1) Maintain the status quo.
o (2) Establish a limited tax-certificate program.
0
""0
-<
11
�\
··.:).
April 15, 1995
:MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
From:
George Stephanopoulos, Christopher Edley, Jr. & Peter Yu
Re:
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affliiliative action policy. Part I outlines
options in three areas: education, employment, and procurement. Part II offers two alternative,
. · broader perspectives that may be useful in your deliberations. A subsequent memorandum will
discuss the message, communications, and political dimensions of these policy choices.
I.
AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race
or gender. is a condition of eligibility. This issue has two dimensions: (i) scholarships
administered by universities receiving federal assistance and (ii) federal scholarship programs.
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, permits the use of race as a condition of eligibility for
fmancial aid· in order (a) to remedy past discrimination or (b) to promote diversity, provided
the measure is narrowly tailored and does not unduly restrict access to. fmancial aid for
nonminority students. A measure is "narrowly tailored" if (1) race-neutral means would have
been ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3)
the measure is of limited extent and duration, and is applied in a flexible manner; (4) the
institution periodically reviews the continuing need for the measure; and (5) the effect on
nonbeneficiaries is sufficiently small and diffuse so as not to unduly burden their opportunity
to receive .financial aid. These restrictions apply to university-administered aid, whether
publicly or privately funded. Approximately 3'.5% of all minority students at four-year colleges
receive race-specific scholarships.
This represents less than 1% of all fmancial aid
administered by these institutions.
Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer privately-funded gender-specific
scholarships if the overall effect of such scholarships does not discriminate on the basis of
WJC LIBRARY PHOTOCOPY
�gender. The majority of gender-specific scholarships are liinited to men, rather
The federal government also directly administers a number of race- pr gender ecific
scholarship programs. All of these are designed to increase diversity in professions or
specialties in which racial or gender groups have been significantly underrepresented, either
because such inclusiveness is deemed critical to the continued strength of that profession, or
because inclusion will lead to greater attention for neglected communities and problems.
Supporters of these progranis emphasize that these scholarships are necessary to attract women
and minorities to these· areas. · Examples include: NSF's Minority Graduate Fellowship
Program designed to increase the number of minority scientist and engineers ($ · _ million
in FY1995) and NIH's Minority Clinical Associate Physician Program designed to increase the·
number of minority physicians ($_million in FY1995).
Options. The policy options include:
Option
i: ~Maintain
current policy, which requires "exhaustion" of alternatives to
diversity.:based use of race- or gender-specific scholarships.
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar use of such scholarships except as necessary to remedy ·past
discrimination; otherwise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and scholarships are central to public
concerns about affmnative action. Some view race- or gender-specific scholarships as a form.·
of "set-aside" and thus reminiscent of quota-driven admissions policies (such 1as the dualadmissions system struck down in Bakke). On the other hand, education and training are on
the "opportunity" end of the. opportunity-to-results spectrum, and the current policy requires
that any race- or gender-specific programs are narrowly tailored.
Option 3, which focuses on race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should
be excluded from a scholarship program on the basis of race or gender. Arguably, this would
be a curious rule, as it would leave intact numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships for non-remedial, diversity-related purposes first analyze race- or genderneutral approaches and conclude they would not be effective substitutes· for more exclusive
scholarships. The policy guidance would be amended to require the institution to be prepared,
if challenged, to present the evidence and analysis upon which its conclusion was based. (This
is the formUlation used elsewhere in the g~idelines, and by the courts, in explaining that when ·
an institution inay invoke its history of discrimination as a remedial justification for racespecific-scholarships.) On the one hand, this option amounts to a declaration that race or gender
should only be used as a condition of eligibility when truly necessary; On the other hand, its
minimal practical effect might not justify the anxiety it would likely generate among minority
2
WJC LIBRARY PHOTOCOPY
�.
and women's groups.
~
0
~
1-...
'(~ESIDs-1'
b
-l
~
\0
~
r-
..J
Option 1 would maintain current policy. As noted in our discussio , race- or gende
specific scholarships .are small slices of a much larger pie -- much of whicli ·s administered
the basis of need. As there are so many different avenues for financial ai , .t is possibl~ o
argue that race- or gender-specific scholarships do not meaningfully limit the o
. of
any student, or at least no niore so than does a scholarship limited to offspring of the Knights
of Columbus or the Daughters of the American Revolution.
·
Indeed, current antidiscrimination enforcement guidance from the Department of
Education, promulgated during the Reagan Administration pursuant to Title IX, makes the
test for gender-specific scholarships whether the fmancial aid practices of the institution,
taken as a whole, provide equal opportunity. As a matter of constitutional doctrine, racebased distinctions are subject to stricter scrutiny than sex-based distinctions. But this
. distinction seems untenable as a general matter of policy or politics. Hence, any .
toughening of prohibitions ori race-based aid should probably be similarly applied to sexbased aid.
Finally, we should note the relationship between these options and the familiar
hypothetical: a college admissions or scholarship policy that favors the African Americari
son of a succesful neurosurgeon~ but not the son of a steelworker. Some argue that
affirmative action should be only for economically disadvantaged minorities, because
affluent minorities are ·evidently not suffering from a lack of opportunity,· relative to many.
less economically advantaged whites. The rebuttal has three central points. First, there
should be affirmative efforts to provide opportunity for economically disadvantaged
individuals, both white and non-white; such efforts need· not come at the expense of
affirmative action when it is legitimately directed at minorities on the basis of concerns
apart from econonomic disadvantage. Second, apart from economic disadvantage, but still
within the realm of "private fairness," it is often observed that comparatively advantaged
minorities n:evertheless continue to face social and other obstacles solely because of
prejudice and discrimination, and that these ~isadvantages, while different from badges of
poverty, are a fair basis for attention. Third, in the realm of institutional and societal
benefit, a college might properly conclude that the institution will benefit from inclusion of
the neurosurgeon's son-- even though affluent --just as they might conclude that the
diversity benefit of including a basoonist is _weighty not withstanding the musician's
affluence.· In America today, it remains likely that the neurosurgeon's experiences,
perspective, and aspirations will reflect some aspect of the distinctive reality facing blacks.
And the college may choose to value that.
B.
Employm~nt: Race or Gender in Layoff Decisions
· Background. The central issue in this area concerns race or gender as a consideration in
layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a
3
WJC LIBRARY PHOTOCOPY
�The reach of this second principle is limited. While seniority systems are c · on i
e
public sector, the decline ofunionism has reduced the private sector's reliance on such systems.
Thus, reportedly, many large firms expressly consider diversity in their layoff policies, and
with significant results: Illinois Bell cut 930 management jobs, but the proportion of minority
·managers rose from 25 to 27%; Baxter cut_20% of its 2000 employees, but the proportion of
minority managers increased froin 10 to 12%.
The narrow question of "tie-breakers" is thus most likely to arise in the context of a seniority
system where layoff decisions are more s~ctured. In the Piscataway case, the Justice
Department has argued that Title VII does not prohibit the. School Board from using race as
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of
the federal civil service, the OPM regulations are silent: the Department of Justice (Office of
Legal Counsel) believes the stC~:_tutes and caselaw woUld, as in Piscataway, permit consideration
of race or sex, while OPM staff counsel believes· tie-breakers must be random.
Options. The policy options include:
.
.
Option 1: As a policy matter, when not inconsistent with a_ bona fide seniority system,
diversity may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
Analysis. Concerns about employment are two-fold. In certain sectors, there is a sense that
some job opportunities are limited to "diversity candidates" and thus that white males are
excluded. Second, there are concerns that in· a continuing era of corporate reengineering,
women and minorities -are, due to affirmative action, at less risk of being laid off. (As you
have noted, affirmative action is sometimes used cynically to justify decisions made for other
reasons, legitimate and otherwise.)
Option ·2 would issue a sharp and clear statement and would provide some comfort to
whites, males, and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minority and women concerns about their marginality.) In the public·
employment context, this is likely to have little policy impact because of seniority rules, and
thus will affect only tie-breaker-type situations.· However, this option would send a loud signal
to the private sector and could have an effect on private practices. ·
Option 1 is closer to the status quo; but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity
interest and the burden on identifiable majority employees. ·Consideration .of race or sex would
be permissible only: when necessary for the institution's operation; when a manifest racial or
gender imbalance exists; and when the less race-intrusive considerations are not as effective.
4
WJC LIBRARY PHOTOCOPY
�If y9u select this option, announcing a clarification of federal layoff policy
C.
Procurement: · Preferences & Set-asides
Background. Federal law establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses (SDBs -virtually all of which are minority-owned 1); and 5% for women-owned businesses. There is·
a web of programs designed to reach these goals, some are government-wide, other are agencysp-ecific. These efforts use several tools:
• Sole source procurements: Under SBA's 8(a) program, small disadvantaged businesses
(SDBs) can secure smaller sole-source contracts (usually Ie~s than $3 million).
• Sheltered competition: Under DOD's "rule of two," a·contract is set aside for SDBs if the
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses.
Failing this, there is open competition.)
• Bid preferences: In open competitions, DOD awards a 10% bid preference to SDBs; last
year's procurement reforms authorized government-wide use of this preference.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(voluntarily) subcontract with SDBs, including· women-,owned firms. (The Adarand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned firms. Between 1982 and 1991, while the dollar volillne of all contracts
increased by 24%, contracts awar~ed to women-owned firms tripled and contracts awarded to
minority-owned firms doubled. Of late, these increases have been accompanied by actual
· . decreases for non-SDB and male-owned firms. For example, while DOD's contracting with
SDB' s more than doubled, its contracting with non-S DB firms fell by more than 20%.
Several aspect~ of these efforts have not been successful. Graduation rates from the 8( a)
· program remain low and the possibility of abusive practices remain, although recent statutory
and administrative efforts promise some improvements; outside of the limited 8(a) program,
however, there are no graduation requirements at all. In addition, these programs have had a
disparate impact on particular regions and industries -- such as construction and transportation ..
1
In the Department of Transportation's program only, the SDB defmition includes women. In the
· DOD and 8(a) programs, minorities own and control _. percent and _.·_percent of SDB firms, respectively.
5
WJC LIBRARY PHOTOCOPY
�Finally, while the 8(a) program permits nonminority firms to partiCipate upon
a firm's owners are "socially and economically disadvantaged," in practice o
of all 8(a) firms are white-owned, because the 1978 statute links "social dis
membership in a group subject to discrimination.
Options. The policy options 'include:
Option 1: Reform the programs to emphasize ·transition, eliminate misuses. This
would involve tighter asset-related eligibility rules, phased graduation for all
SDBs, limits on the concentration of set-asides in a single region or industry,
and standards· to determine when preferences are no longer necessary ·by
business sector and by region.
Option 2: Expand eligibility to include more nonminority firms. This would involve
revising the current conjunctive statutory criterion ("socially and economically
disadvantaged") to a disjunctive ("socially or economically disadvantaged"). In
addition, the over goal for SDB procurement could be increased from 5 to 10%.
Option 3: Sharply focus on "entryway" to entrepreneurship. In addition to the reforms
in option- 1, tight limits on the number of contracts an individual SDB or
entrepreneur could win through sole-source, set-aside or bid preferences.
Strengthen outreach, surety bonding and other·pool-building measures.
Option 4: Phase out these programs. Under this option, less exclusive and less intrusive
assistance to SDBs, such as technical assistance and outreach, would be
expanded..
Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either education or employment policies. The practical. effect of a set-aside·
such· as the rule-of-two is to take a specific contracting opportunity and hang out a shingle
saying "whites need not apply." Some view this as more problematic than minority-only
scholarships, suggestirig an intuition that providing profitable business opportunities seems
more directed toward rewards or equal results than towards equal opportunity; education is
different. Moreover, some view the procurement set~asid.e as problematic, even though 97
percent of contracting opportunities continue to go to non-SDBs.
At the same time, preferences may be more necessary in procurement for several reasons.
First, anti-discrimination laws are more difficult to enforce in this area, especially in the
subcontracting realm. Second, "old-boy" networks are arguably stronger in this area, so that
inforn:lal exclusionary practices beyond the reach of law can be potent and persistent. And
fmally, procurement decisions often turn on a single factor --price --and thus the multi-factor
mechanisms used in education and emJ?loyment are less available in this area. ,
Option 4 ·would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Under this view, set~asides are much like quotas. If one were to
support race-specific scholarships but embrace this option, one could distinguish procurement
as "more related to results than to opportunity." This approach is far more restrictive that
6
WJC LIBRARY PHOTOCOPY
�~?-ESID~t\1
~\~()' ~
E -~ t
('·.
Z
I
Supreme . Court precedents, · which permit .set-asides based on legislati ·eG fmdings of 05
discrimination or lingering effects. 2 Support through Federal procurement · r opening up /
entrepreneurship opportunities would be limited to pool-enhancing methods, sue .as technical r .
assistance, expansion of SBA's surety bond program, and outreach by procurement O~~~,....,.~.,......
prime contractors.
Option 3 would retain a small preference program, but focus it sharply on mechanisms more
unambiguously related to creating opportunity for entrepreneurship, rather than a guarantee of
entrepreneurial success. Thus, in addition to technical assistance and other pool-enhancing·
activities described above, this approach would use preferences and sheltered competition on
alimited basis to help "break the ice,"but then quickly push entrepreneurs to compete on terms
comparable to small businesses generally. (Recall that small businesses genergtlly have a rule:.
of-two set-aside available to them as well, but only if an SDB set-aside is not triggered.)·
Option 2 would render these program~ less exclusive and recharacterize them as for
"disadvantaged" businesses, with race merely one -- but not the only -- way to demonstrate
disadvantage. Operationally, this is likely to have only a modest effect on minority contracting.
Prior to the codification of the 8(a) program in 1978, SBA employed this approach; at that
time, about 4% of all 8(a) firms were white-owned.
Option 1 would ameliorate some of the most problematic practices . in the program ..
Limiting participation, encouraging ·graduation, and tightening the. asset tests emphasizes that
8(a) is an entryway, not an entitlement. Limiting concentrated use of preferences reduces the
unfairness to white bidders in a particular region or sector. While these· changes would be
significant, some would view this as "mere tinkering" that does not address the fundamental
objection -- namely, the ~xclusivity of these programs.
In addition to these policy options, we have also begUn. to develop a complementary option:
procurement preferences that focus less on minority capitalism and J!lOre on job-creation·· for
minorities and other disadvantaged persons. Some of these strategies are place-based and
others are employee-based. Preliminary alternatives are ·outlined in Attachment 4. ·
II. PUTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
.
Your policy choices in this area may be most easily defended if they reflect a coherent
theory or approach. This Part outlines three such approaches, and describes the policy choiCes
that seem most easily justified within that approach. (See Exhibit 1.) ·Each is consistent with
'
2
The Court has required a somewhat more rigorous demonstration by state and local governments
than by the Congress. The Adarand ruling, expected before July, presents an opportunity for the Court to
announce more restrictive principles.
7
WJC LIBRARY PHOTOCOPY
�some basic inclinations you expressed. in our various "vision" discussions, incl
•
•
•
A.
.Emphasize antidiscrimination and opportunity, rather than guaranteeing re
Stress the rem_edial justification, but also embrace the goal of inclusion.
Respect the interests of bystanders, by crafting policies carefully and narrowly.
The "Calibrated" Approach
This approach emphasizes the difference between equal· opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outreach and training,.are less result-driven.
and thus less problematic than set-asides or quotas. ·Similarly, in terms of the context, ant
specific affirmative action tool is less problematic in education (which expands opportunity)
than similar efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices . outlined above, this
approach would support:
Education:
Employment:
Procure_ment:
B.
Option 1 -- Maintain current policy.
Option 1 -- Permit race or gender to be considered in layoff decisions.
Option 4 or 3 --Phase out procurement preferences and set-asides.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressmg. that
affirmative action must be narrowly tailored to minimize exclusivity and the use of race- or
gender-based decisionmaking. Thus, result-driven quotas are always inappropriate (except in
rare court-ordered remedies), and set-asides may only be used (i) when they are either broadly
remedial or (ii) when less intrusive alternatives are not effective. In essence, this approach
would apply the Title VI scholarship, policy to all three sectors.
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of
the benefits: of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the .
.opportUnity-results distinction. So, one might weigh those costs and benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
. discrimination, in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
This approach leads to support for limited use of race-specific programs. In particular (as
illustrated in Attachment 2):
8
WJC LIBRARY PHOTOCOPY
�Option 1 or 2 -- Maintain or tighten current policy ..
Education:
Indeterminate -- Optiori 1 or 2.
Employment:
· Procurement: . Option 1 or 3 -- Reform or sharply narrow preferences and set-as.~~~--
C.
The "Anti-Exclusion" Approach
A third approach emphasizes the moral cost of maintaining programs that exclude persons
on the basis of race or gender -- even in the name of diversity. This approach entails·
opposition to the. rule-of-two SDB set-aside and to race- or gender-specific scholarships; these
are effectively indistinguishable fr_om quotas. Instead, such. programs would have to be
revamped to rely on multifactor considerations in which race is but one factor, or on race- and
gender-neutral approaches.
· This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff deCisions.
Option 2 -- Expand eligibility to include nonminority firms.
9
WJC LIBRARY PHOTOCOPY
�illustrated· in· Attachment 2):. ·
Education:
Employment:
· Procurement:
C..
Option 1 or 2 -- Maintain or tighten current policy.
Indeterminate -- Either option on consideration of race/gen.uel~l.da'Vt
Option 2 --Reform and sharply narrow preferences~
The "Anti-Exclusion" Approach
A third approach emphasizes. the moral cost of maintaining programs that exclude persons on
the basis of race or gender-:- even in the name of diversity. This approach entails opposition .
to the rule-of-two SDB ·set-aside and to race- or gender-specific scholarships; these are
effectively indistinguishable from quotas. Instead, such programs would have to _be revamped
to rely on multifactor considerations in which race is but one factor, or on race- and genderneutral approaches.
·
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attacmnent 3):
Education:
Employment:
Procurement:
Option 3 -~ Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Reform and sharply narrow procurement preferences, or
phase them out.
10
WJC LIBRARY PHOTOCOPY
�. EXHmiT 1
Provisional Decisions: Check one box (D ) in each column .
(#) --
Calibrated,
-Opportunity 11
Approach
D
11
Anti-Exclusion 11
Approach
D
(1) Maintain current policy
requiring· !!xhaustion.
o (1) Maintain current policy
requiring exhaustion; or
o (2) "Tweak" current policy,
requiring added analysis.
D
(3) Elimiriate race:.. and
gender-based aid by
expanding eligibility,
D
D
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility; or
D
11
"Least Intrusive
Alternative 11
Approach
Procurement·
Employment
Education
indicates option number
in the memorandum
(3) Convert to race-neutral
programs.
D
(2) Reform & sharply narrow
preferences; emphasize transition;
add disadvantage eligibility.
(1) Permit limited
consideration of race/gender in
layoffs.
(1) Permit limited
consideration of race/gender in
layoffs; or
D
(2) Oppose consideration of
race/gender in layoffs.
D
(2) Oppose consideration of
race/gender. in layoffs.
D. (2) Reform & sh,arpfy narrow
preferences; emphasize transition;
add disadvantage eligibility; or
softening exclusion.
D
::e
c....
(3) Convert to rac~-neutral
programs.
(")
rti::J
A. "Calibrated Opportunity" Approach: Emphasize creating opportunity, not guaranteeing results.
:::0
)>
:::0
B. "Least Intrusive Alternative" Approach: Emphasize narrow tailoring, and concern for bystanders.
::I:
0
C. ''Anti-Exclusion" Approach: Emphasis on avoiding bald set-asides that announce: "No whites need apply."
-<
..,
-i
0
(")
..,
0
-<
.....--;::::.•
. _.S)
Additional Decision: FCC Broadcast Licenses: o (1) .Maintain status quo, or
D
0·
·'1l
?J
m
(/)
0
~'<X
~~
~en ,~,).: .
--.:..--'
(2) Establish a limited tax-certificate program.
·u
�THE WHITE HOUSE
WASHINGTON
April 7; 1995
MEMORANDUM FOR THE PRESIDENT & TIIE VI..CE PRESIDENT/
.
/y
.·.
0 / ·.
.
/_?/
From:
George Stephanopoulos, Christopher Edley, Jr. & Peter
Re:
Yu
Affirmative Action: Themes and Hard Questions
This memorandum summarizes our evolving thoughts regarding policy and communication
choices arising out of the Review. Part I outlines the central issue and Senator Dole's response;
Part II offers an alternative response, building on our earlier conversations and on the Review.
Attachment A presents seven "hard cases" that may facilitate your deliberations. We plan to
discuss this memorandum and the cases with you on Monday. On Tuesday, we will discuss the
more specific policy options; some of which are presented in rough draft in Attachment B.
L
The Central Issue: Questions about "Preferences"
The central and most difficult questions--substantively and politically--concern groupbased preferences: what are those preferences and when are they appropriate?
In public statements, Senator Dole has expressed support for affirmative action as a
remedy for "proven past discrimination against individuals" and for expanded outreach and
recruitment of "qualified minorities and women to give them an opportunity to compete without
guaranteeing the. results of the competition." However,. he has expressed his opposition to
"quotas, set-asides, and other preferences thatfavor individuals simply because they happen to
,
'
belong to certain groups. "
The most likely construction of Dole's opposition to preferences implies opposition to
several existing policies identified in the Review, for example:
·
•
Contracting programs, including: the 8(a) program; sheltered competition among small
. disadvantaged businesses (SOBs); and the 10-percent bid preference for SDBs. (Some
of these could be saved, perhaps, if Dole's phrase "simply because" is satisfied by the
current requirement that SOB's demonstrate "economic disadvantage"; this, however,
requires a somewhat tortured construction.}
•
Race-specific and gender-specific scholarships and fellowships motivated by inclusion
rather than remediation. Examples include an academic scholarship ·program for
minorities that Secretary Shalala established at the University of Wisconsin and an NSF
program designed to support women in basic research.
.
.
WJC LIBRARY PHOTOCOPY
�•
Clinton-style judicial and Cabinet appointments, assuming consideration of
or ethnicity amounts to a "preference."
IL
An Alternative Approach
There is an alternative approach to the question of preferences, one more consistent with the
President's rejection of the "colorblindness" and "pure remediation" visions and his embrace of
a broader justification which includes remediation, opportunity, and inclusion. This approach
would emphasize five points.·
1•
' We oppose quotas and numerical straitjackets (outside of narrow remedial contexts).
2•
We oppose the use of set-asides in employment and contractfng (outside of narrow
remedial contexts).
3•
We oppose giving group-based preferences to unqualified persons m the name of
affirmative action.
4•
We oppose group-based preferences when need-based preferences would be just as
·
effective at creating genuine opportunity.
5•
We oppose group-based preferences when the benefits .or burdens of those preferences
are unduly concentrated.
This Part summarizes the approach, proposing definitions and central .propositions, and then
discussing the most significant implications of such a position.
A .. Definitions
•
A q!!Qta is a rigid numeric or proportional measure that must be attained or that
cannot be exceeded, without regard to the number of potential applicants who meet
necessary qualifications. Example: Befo~e the Bakke decision, the UC-Davis Medical
School maintained _a two-track admissions policy reserving a minimum of 16 of 100
spaces for minority students.
•
A set-aside is a reservation of a set of opportunities or benefits for a particular
group of potential candidates that effectively excludes members of other groups.
Example: Under the "rule of two," procurement contracts meeting certain requirements
may be reserved for small disadvantaged businesses (SDBs). This set-aside is not a
quota because it does not involve "a numeric or proportional measure that must be
attained or cannot be exceeded"; in other words, set'-asides respect minimum
qualifications, but quotas need not.
·
•
A preference is an
ad~antage
assigned to a candidate solely on the basis of his/her
2
WJC LIBRARY PHOTOCOPY
�gender, race, or ethnicity. A preference does IlQi include consideration of such
characteristics, when consideration is essential to the effective operation of the
institution or. enterprise. Example: DOD provides a 10% bid preference to SDBs in
certain situations. Because status as an SDB is not "essential to the effective operation"
of DOD contracting, this advantage is a preference~ In the case of the police force of a
raCialiy-diverse. city, race may be a bona fide consideration and thus positive
consideration of race would not constitute a preference. Similarly, race, gender, or
ethnicity ~ay be a bona fide consideration in university admissions if diversity is essential
to· the effective functioning of the .institution.
In sum, the concepts as illustrated in Exhibit ·1:
All quotas are set-asides, but not all. set-asides are quotas.·
All set-asides are preferences, but not all preferences are set-asides.
All preferences are considerations, but not all considerations are preferences.
Icq (
B. Central Propositions
•
Proposition 1: Discrimination -in every sector of our society and economy must be
eliminated root and branch.
Corollary: Affirmative action practices may be more aggressive and, if necessary,
intfl:lsive in settings in which there is a demonstration of present discrimination or the
lingering effects ofpast discrimination.
•
Proposition 2: Our paramount aspiration is complete equality of opportunity. We
· do not guarantee equality of results ..
• Corollary: We must distinguish among affirmative action in different contexts.
Education is more closely related to opportunity-creation than is federal contracting; thus,
minority scholarships differ from procurement se!-asides.
Corollary: We must distinguish among affirmative action 1Q.Qls.. Some tools enhance
opportunity and level the playing field, others come closer to ensuring certain results;
thus, a targeted surety bond program differs from a procurement set-aside, and multifactor admissions differ from admissions quotas.
•
Proposition 3: Affirmative action remains necessary, but must be transitional.
Inequality of opportunity persists, as illustrated by the persistence of both discrimination
and severe social and economic inequalities.
Corollary: Affirmative action should be transitional for individual participants: these
programs should be entryways, not entitlements. Each program should have graduation
requirements and related supports.
3
WJC LIBRARY PHOTOCOPY
�. WJC LIBRARY PHOTOCOPY
�Corollary: Affirmative action should be transitional for society: when
accomplishes its objectives, it should end.
Proposition 4: We must recognize--and limit--any harm that
programs cause. We must do the right thing, but in the right way.
a
Corollary: Affirmative action programs inust respect individual merit. Quotas--'-in
virtually all contexts--are unacceptable because they subordinate individual merit to rigid
numerical objectives. ·
Corollary: Affirmative action programs must not unduly concentrate burdens. The
burdens that affirmative action imposes on vested interests (such as seniority rights) or
on particular regions or sectors of the economy must be limited.
C. Policy Implications
Fully developed, these propositions· have significant policy implications, particular as
concerns set-asides and preferences.
·
Implication. 1: In general, we are opposed to set-asides .in employment 1 and
government procurement because they are exclusionary; alternative tools. should be
used. We oppose excluding any person from an employment or contracting opportunity
on the basis of race, gender, or ethnicity. There are two options for when this general
rule should not obtain:
•
Alternative 1 (a): Oppose set-asides except in court-ordered or -supervised remedies.
Under this alternative, we would oppose the "rule of two" procurement set-aside and the
8(a) program as currently constituted.
Alternative l(b): Oppose set-asides except as a remedy for specific findings of
·discrimination (by court, Congress, or agency). Under this alternative, we would examine.
procurement practices to determine whether set-asides are necessary.
Implication 2:
Preferences and set-asides in education and preferences in
employment are appropriate to maximize equal opportunity and inclusiveness but
only if they
·
-
•
(a) are never awarded to unqualified persons;
(b)are transitional--establish objectives and terminate when those objectives are met;
1
We know of no formal "set-asides" in the employment context, but there is some
anecdotal evidence that majority candidates sometimes feel that certain positions are set-aside
by "bean counters" for minority candidates only (e.g., university faculties).
4
WJC LIBRARY PHOTOCOPY
�(c) are flexible--are neither actually or effectively quotas; and
(d) are narrowly tailored--are the least race-conscious means of maximizing equal
opportunity and inclusiveness.
Example: Race, gender, and ethnicity are often bona fide considerations in education and
employment. For example, scholarships set aside for women, if appropriately designed,
·
are justified by the values of inclusion and equal opportunity.
•
Implication 3: Contracting is on the "results" end of the continuum because receipt
of a contract seems in significant measure a commercial success rather than a mere
entrepreneurial opportunity. Preferences in procurement, therefore,. may be
appropriate only if the above conditions are met and only when necessary to remedy
demonstrated present discrimination or the lingering effects ofdemonstrated past .
·
discrimination.
Example: Procurement preferences, such as the §1207 bid preference, must be
_appropriately designed and justified by the demonstration of past discrimination or
· -lingering effects. Race- and gender-neutral advantages--such as competitive advantages
based on "opportunity creation" as measured by employment and entrepreneurship for
disadvantaged groups--need not be justified in this way.
In sum, as illustrated in Exhibit2, we are opposed to certain practices (the shaded area).
In addition, we believe other practic~s must be both tailored and justified by past discrimination
or lingering effects (the cross-hatched area).
llL
Conclusion
The Attachment presents seven "hard cases" and outlines both a "Dole" perspective and
an "alternative" perspective on each case. The cases are: ·
1•
SOB set-asides: ·the "rule-of-two" for reserving contracts exclusively for SOB bidders
2•
The Adarand case: bonus payments for subcontracting with SOBs
3•
The Piscataway case: race as a consideration in layoffs
4•
Chicago Police Department promotions (Rep: Lipinski's example)
5•
Banneker Scholarships: black-only merit scholarships at the University of Maryland
6•
Admissions to
. 7•
~he
University of California at Berkeley
Remedial education: a black-only community college course
s·
WJC LIBRARY PHOTOCOPY
�Selected Affirmative Action Efforts
0 p port unity ---------------------------:---------------------------------------------------------------------.:____ Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
Set-asides
Education
Compensatory ed
Outreach & recruiting
HBCUs
Multifactor adinissions
policies
Minority-specific
scholarships
(limited competition
among qualified
candidates)
Employment
OutreacJ-t & recruiting
Apprenticeships
Training
Second look programs
Multifactor hiring
(e.g., judiciat·selection)
.f'
c
=
,...
0
0.
0.
0
Quotas
~
c...
(")
-
Contracting
r
OJ
I
:::0
&
Procurement
Technical assistance
.Mentoring
Bonding assistance
---
)>I
:::0
-<!l
-c.,
.· =
~
.--
:I:~
oo::
-1
0
(")
0
""0
-<
Yu DrafUApril 6, 1995 AM
Exhibit 2
�Attachment A: Seven Hard Cases
Case 1. Government Contracting: Sheltered Competition.
·Scenario:
. As part of a larger effort to reach its Department-wide goal of obtaining 5% of all
procurements from small disadvantaged businesses (SOBs), the Department of Defense has
promulgated regulations that direct that a "contracting officer shall set aside an acquisition for
small disadvantaged businesses when there is a reasonable expectation that -- ·
(1) offers will be received from at least two responsible [] SDBs ...
(2) the award will be made at not more than ten percent above fair market price ... ".
Each year .about $800 million in procurements (20% of all SDB procurement by DOD) are
awarded under this so-called i'rule of two."
· · Such set-asides are viewed by some majority-pwned contractors as exclusive, race-based
quotas. Moreover, in some regions and industrial sectors, ·large proportions of the acquisitions
are set aside under this rule. For example, during one period, Barksdale AFB set aside all of its
construction contracts for SOBs under the rule of two.
The "Dole" Perspective:·
"This is a preference because it limits the competition that minority-owned firms must
face. While I support efforts to reach out to minority contractors, Ido not support preferences."
The "Alternative" Perspective:
"While I· believe preferences are sometimes· appropriate in the contracting arena, setasides are only appropriate in [narrow] remedial contexts. Here's why: a set-aside effectively
says: 'No white-owned firms need bid.' That-is unnecessary. I support assisting disadvantaged
firms through preferences, but I don't believe we should ever bar a firm from bidding on a
·
contract simply because of the race or gender of its owner.·
"I have two other concerns about these set-asides. First, they have been implemented in
a way that has had a disparate impact on certain industries and regions. That's urifair. Second,
the program has no graduation requirement and so is not transitional.,--it encourages dependency
rather than diversification and growth ..
"There's a better way that includes: (1) outreach and technical assistance to SDBs to
enhance opportunity; (2) narrowly tailored preferences to SDBs to redress discrimination; and (3)
a broader race-neutral program focusing on the creation of opportunity through race-neutral
preferences for companies that create opportunities for disadvantaged workers an:d communities."
1
WJC LIBRARY PHOTOCOPY.
�Case 2. Government Contracting & Subcontracting: Incentives~
Scenario:
Based on its finding of discrimination, Congress has established certain goals with r
to minority .contracting and subcontracting. · To make progress toward those goals, the
Department of Transportation has provided its prime contractors with incentives to use minority
subcontractors (typically, these incentives total t:S-2.0% of the contract price). This incentive
is referred to as a "subcontractor compensation clau~e" (SCC) .
.In 1989, an agency within DOT awarded a $1 million prime highway-construction
contract to Mountain Gravel (in most cases, DOT awards are administered through state or local
entities; this project happened to be on federal land). Adarand bid for a subcontract -to construct
a guardrail. Although Adarand's bid was the lowest, Mountain Gravel selecteda "disadvantaged
business entity" (DBE) with a slightly higher bid. Under the SCC, Mountain Gravel qualified .
f~r a bonus of approximately $10,000.
The "Dole" Perspective:
"The SCC is a preference based the race of the owner of the subcontractor. I'm generally
opposed to such preferences.· Let me just say that race seems truly irrelevant to the business of
road-building. If there is discrimination in contracting, it should be prosecuted and eradicated.
But contracting takes place in a market in which the bases of competition are clear: quality and
price. Why should a minority-owned firm get a special break?"
The "Alternative" Perspective:
"This is not a set-aside; Adarand was free to bid on the oontract. 1 These efforts are
appropriate only if they are transitional, flexible, narrowly tailored, and necessary to remedy
demonstrated pres;ent discrimination or ,the lingering effects of past di!!!crimination.
"While I believe the SCC is flexible, I would revise it to ensure it was transitional-:-to
make clear that the. program ends when SCCs are no longer needed. I support these programs
as an effort to remedy past or lingering discrimination, to level the playing field. These bonuses
encourage the rethinking of old prejudices and the opening tip old-boy networks."
1
Analytically, this program is a preference but not a set-aside.
2
WJC LIBRARY PHOTOCOPY
�Case 3. Public Employment: Layoffs.
Scenario:
Although Piscataway's Board of Education had never been to found to have discriminated
on the basis of race or ethnicity, the Board has long maintained an aggressive-- and effeCtive
~~ affirmative action poiicy. Piscataway schools have hired the most qualified candidates, but,
in cases in which candidates were otherwise comparably qualified, have favorably considered
minority status. As a result, by 1985, 9.6% of Piscataway's teachers were minorities, compared
to 7.4% of all New Jersey teachers and 12.1% of the statewide labor pool. More than 40% of
the school district's students were minorities.
In 1989, budget cuts required Piscataway to dismiss one business education teacher at
Piscataway High School. The two most junior teachers had been hired on the same day and (it
is. stipulated) were of equal qualifications. Rather than follow another tie-breaking procedure
(such as drawing lots), the Board looked to the racial composition of the business education
department and found that one of the most junior teachers (Williams) was the only AfricanAmerican in the department. Based on this fact, the Board decided to layoff the white teacher
(Taxman) and sent her a letter explaining the use of affirmative action as a tie-breaker.
The Third Ci_rcuit is currently considering whether Title VII permits the Board to act as
it did; the Justice Department has argued that it does. The further issue is whether we would,
as a policy matter, agree with the Board.
The "Dole" Perspective: ·
"This is a preference, plain and simple. Except in the remedial context (which this isn't),
Idon'tthink race should be a preference in hiring, and, as the Supreme Court has recognized,
layoffs are even more problematic: the costs of any affirmative consideration of race or ethnicity
· in layoffs fall direct! y and solely on the losing employee."
.
I
Two "Alternative" Perspectives:
A:
·"Race seems to be a legitimate consideration, particularly in light of the demographics.
Thus I don't think of the Board as assigning a 'preference.' Race favored Williams in. this case,
but in another setting, such as in an effort to desegregate a black school in a dual system, .
Taxman might well have benefitted from the same consideration."
B:
"A tie-breaker that favors one party feels like a preference. Group-based preferences can
be appropriate in the employment context if they are transitional, flexible, and narrowly tailored.
My concern with this case is that it seems to unduly concentrate the burden on Ms. Taxman.
That's why layoffs are different from hiring decisions." ·
3
WJC LIBRARY PHOTOCOPY
�Case 4. Public Employment: Promotions.
Scenario:
Chicago's population is diverse: 39%' African-American, 38% white, 20% His~,-:nHJ-
Its police force is less diverse: 66% white, 34% minority (even in the Department's higher
ranks). These facts have been the subject and source of litigation arid co~:~rt-ordered remedial
hiring and promotion. In addition, the Department has undertaken extensive efforts to redesign
its written tests to reduce disparate impact.
Earlier this year, after administering a promotion test, the Department announced 67
promotions from sergeant to lieutenant. Most of the promotions (54) were awarded to those with
the highest scores on the promotion exam. Only 3 of these- 54 new lieutenants are AfricanAmericans. Probably in response this imbalance, the Department also announced 13 "merit" or
- performance-based promotions to persons, none of whom scored in the top 67 on the exam. Of
the 13, 5 are white, 5 are African-American, and 3 are Hispanic. It is widely assumed that race
and ethnicity were considered in the inerit promotions. A white sergeant with the 56th-highest
score on the exam has sued the Department.
-
The "Dole" Perspective:
"The Department ignored qualifications in the name of race. The Department promoted
some sergeants simply because they belong to certain racial and ethnic groups. This looks like
a quota to me: the 5-5-3 ratio of 'merit' promotions precisely tracks the City's population._
"Clearly, minorities did poorly on the_ promotion exam. The racial composition of the
group receiving 'merit' promotions indicates to me that certain candidates received a preference-th-ey_ had lower test score than white candidates but were nonetheless promoted."
The "Alternative " Perspective:
"This is a classic situation in which race is a bona fide consideration; the racial
composition of a police force can be essential to its effective performance. Even if one were to
regard this as a preference, it is an appropriate preference. First, there is no indication that the
13 candidates were unqualified; the fact that they had slightly lower scores is insignificant.
Moreover,- the fact that five of the merit promotion's were awarded to white sergeants indicates
that this was a flexible preference and not a quota or set-aside. "The Department's real error was in ever assuming that a written test _could somehow
capture the full richness of what it means to be a good police officer. The initial list should have
been based on the test scores and other relevant considerations,
II
4
WJC LIBRARY PHOTOCOPY
�Case 5. Public Education: Scholarships.
Sce1iario:
~-.
The University of Maryland refused to admit African-American students for most of its .
existence. In the late 1960s, the federal government found the University in violation of Title
VI and directed the school to develop a remedial plan. fu 1978, the University established the
Banneker Scholarship Program, which offers full scholarships to African-American candidates
who meet certain academic. qualifications. ·The Program represents about 1 percent of the
University•s financial aid budget and provides assistance to about 30 entering students each year.
Podberesky met the academic criteria for the Banneker Scholarships, but is Hispanic and
not African-American. He has sued, challenging the legality of the exclusivity of the Banneker
program.
The "Dole" Perspective:
"This. is a set-aside--and no different from UC-Davis• two-track system that the
. Supreme Court struck down in Bakke. fu todafs financial climate, a full scholarship can be the
difference between going to college and not going to college. Moreover, if the justification is
to remedy past disadvantage, the raee requirement of the scholarship is underinclusive: why
should the son of a wealthy Jamaican doctor get a scholarship and the needy daughter of a West
Virginia coal miner not?"
The "Alternative " Perspective:
· "This case illustrates how procurement set-aSides differ from targeted scholarships. After
more than a century of exclusion and intimidation, the University of Maryland is finally open to
African-Americans. The University must put out an effective welcome• sign--after all, the
fathers and mothers of many potential applicants were themselves likely turned away simply on
the basis of their race.
"Even outside the remedial context, I believe that targeted scholarships-~ like fellowships
for women in basiC research--serve important and legitimate purposes. I support them so long
as they are flexible, tailored, and there is no comparably effective and group-neutral alternative.
In that regard, I would note that the Banneker program is not a quota. There is no requirement
that a fixed number of African-Americans irrespective of qualifications . be admitted each year."
.
5
WJC LIBRARY PHOTOCOPY
�Case 6. Public Education
Admissions.
Scenario:.
Admission to the University of California atBerkeley is extremely co~petitive; more than
20,000 students apply for 3,500 spaces. To ensure "diversity of cultural, racial, geogra:phic, and
socioeconomic backgrounds," Berkeley uses the following method: about 55 percent of the
spaces are assigned strictly on quantitative academic measures (grades.and SAT scores); about
5 percent are . reserved for "special . admissions" (athletes, older students, and the
socioeconomiCally disadvantaged); the remaining 40 percent are admitted based on a number of
factors, including race and ethnicity. The results. fm ·a recent year: .
% white
% Hispanic ·
% Asian
% black
Entering class
40 . ·
20
28
11
Cal. H.S. grads
63
20.
9
8
------~------~----~------------~~----------~1
By statute, an applicant must have a "B+" average toapply to the UC-systei.ll. Because Afriean-.
Americans have lower high school grade-point averages, one commentator estimated that an
African-American graduate with the requisite average had a 70% chance to get into Berkeley;
while a white student with the same average would have less than a 10% chance.
The "Dole" Perspective: ·
"Berkeley is clearly granting a preference to African-Americans. Competing on the
merits of grades and SAT scores, whites would likely capture half or inore of the spaces .. It's
irrelevant that race is 'one of several factors' -- it is still the decisive factor in many cases.
"Let me also say that this system also disserves African-Americans: in the name of
fairness they are placed in schools where cOmpetition is fierce and for which many of them -due to discrimination and other causes -...,..·are ill-equipped. As a result, while 71% of white
~erkeley students. graduate in five years, only 37% of African-American students do."
The ''Alternative" Perspective:
"Creating opportunity and .ensuring diversity are appropriate goals--if not obligations-of otir universities. ·Accordingly, race can be a bona fide consideration in admissions. This
system does not award preferences to unqualified candidates. The admitted African-American
students are clearly as qualified (even in numerical terms) as the rejected white students: because
the system is so selective,. the students of all races must meet strict threshold requirements, such
as a B+ average."
6
WJC LIBRARY PHOTOCOPY
�Case 7. Public Education: Remedial Education.
Scenario:
Twenty years ago, San Bernardino Valley College created two special programs. The
Bridge Program is designed to serve African-Americans students who are having academic
problems but wish to attend a four-year college. The Puente Program is designed to serve
Hispanics facing similar difficulties. Both provide specialized classes and curricula targeted at
· minority students and offer personal, academic, and career advice. The. programs have been
successful: 66% of the Puente students go on to attend four-year colleges (compared to 7% of
all Hispanic students}. ·
·
Earlier this year, a 25-year old widowed mother of three was denied access to an English
101 class that was part of the Bridge Program--the only class that fit her schedule. The precise
reason for this rejection is disputed: she claims she was not adn1itted to the class because she
was n9t African-American, the school suggests othenyise.
The "Dole " Perspective:
"This is simply a case of 'separate but equal.' Schools are, of course, free to design
courses however they wish-- but they cannot exclude a student from a course simply on
account of her race. · One possible justification for such classes is a desire to build strong ethnic
·communities -- but must such classes be segregated? African-Americans may have distinct
needs, but those could be served through specially trained counselors to provide services outside
of the classroom. Moreover, the programs are based on crude stereotypes: why should a
privileged African-American be allowed in these classes, but not a disadvantaged white?"
The "Alternative" Perspective:
"I oppose this program as an unnecessary race-based set-aside.
"I'm generally· opposed to 'set-asidei programs in employment and procurement -- I
believe that no one sho~ld ever be barred from applying for a job or bidding on a contract on
.the basis of race, gender, or ethnicity. In education, these sorts of set-asides are a little different,
but still must be narrowly tailored. The Bridge and Puente programs arc designed to meet the
special needs of disadvantaged minority students by using familiar curricular material and new
eaucational techniques. I support that objective entirely. It is not, however, necessary to exclude
non-minority students in order to achieve these important objectives."
7
WJC LIBRARY PHOTOCOPY
�Attachment B
DRAFT PROCUREMENT OPTIONS
OPTION (A) --Remedial Preferences and Empowerment Set-Asides
• ' Eliminate race/sex-based quotas and set-asides, including "rule-of-two" set-aside
• Remedial Preferences: Use § 1207-style bid price preferences only in modified Croson situations
only, i.e., where there is a legislatively or administratively determined factual predicate of
discrimination or lingering effects of past discrimination, and race- and sex-neutral means will be
inadequate.
·
• Empowerment Contracting: Set-asides for "Most Favored Businesses" who are periodically
recertified based on objective performance ·in a combination of (i) hiring targeted disadvantaged
workers and (ii) activity in distressed communities. 1 Reform 8(a) to be focus sheltered competition
and sole-source contracting for Most Favored Businesses. (Transition for currerit 8(a) firms.)
OPTION (B) _.:Reform Current Programs to Address Perceived Unfairness and Abuses
· •
Transitional:
• Graduation: Graduation requirements for all contracting programs. Link graduation to size,.
experience. Link "graduation" issue to the individuals, as well as to the firm; avoid churning
· in corporate form.
• Sunsets and Rheostats: With introduction of electronic commerce,. growth of the surety
program, and sophistication of the technical assistance, create "rheostats" to moderate the terms
of procurement preferences· as conditions change. For example, electronic commerce may
justify converting the preferences for small SDB contracts into technical assistance and a very
short duration in sheltered competition. ·
•
Curb abuses:.
.
• Anti-Fraud: Increased enforcement resources against shams and fronts; increased penalties.
• Need: Economic disadvantage: tighten the test to exclude millionaires.
•
Deconcentrate Burdens and Benefits:
.
• Disaggregate Goals: Refine goals to incorporate concern for sectoral- and regional integration - opening up opportunities outside of the customary fields, and outside of the customary
regions.
.
• No Concentrated Burdens: Limit regional set-aside "crowding," as at Barksdale AFR No
contracting entity my apply preferences to more than a set percent of contracts.
• ·Enhancing the effort:
. .
• Pool Outreach/Technical Assistance: Better linkage of technical assistance efforts with
procurement opportunities. Better technical assistance for prime contractors looking for
subcontractors (in part to avoid pressure to rely on fronts and shams); expand the OFCCP/GSA
pilot program.
• Reorgcmiz,ation: SBA's 8(a) program and Commerce's :MBDA program at Commerce.
• Subcontracting Plans: Strengthen requirements/incentives for large primes to develop plans for
outreach to SDB subcontractors.
·
1
This recasts the Labor Surplus Area program to make it far more effective and aggressive, focused on structural distress
rather than countercyclical. assistance.
.
draft 4/7:
p.l
WJC LIBRARY PHOTOCOPY
�DRAFT EMPLOYMENT OPTIONS
•
Strengthen Enforcement:
•.
More enforcement resources for OFCCP -- both for compliance and for reverse
discrimination.
•
More enforcement resources, and added dispute resolution flexibility, for the EEOC to
eliminate its backlog over three years.
•·
Update the statistical labor market data base used by OFCCP to determine the
reasonableness of employment goals.
•
Reduce burdens:
• Raise the OFCCP threshold to $100,000 as part of paperwork reduction and procurement
.reform. [DOL strongly opposes.]
.
.
• Eliminate nflowdown" of OFCCP requirements to subcontractors on commercial procurements.
[DOL strongly opposes.]
·
·
·
• Eliminate the 30-day delay for pre-contracting surveys (since adverse survey result does not, by
court order, result in delay or modification of the procurement action anyway).
• Scale the reporting and _audit "burden" to .the size of the enterprise or the magnitude of the
contract, or both. [DOL-questions.]
.
• Relaxed paperwork and audit burden for good performers. Reduce paperwork burden
.otherwise -- form simplification, etc.
•
Clarify rights and responsibilities:
• Revise E.O. 11246 or the regulations to require that plans expressly prohibit hiring unqualified
individuals in order to achieve a plan's goals.
• Revise regulations so that, for the largest employers, plans should provide for EO training of
personnel officers to prevent abuses of reverse discrimination and numerical straight jackets.
• Balanced notice. Ensure that employees receive notice about the legal limitations on
affmnative action plans, and of their right to redress for discrimination and reverse
·discrimination.
•
Research· on Diversity and Merit Selection:
.
• Interagency development of alternative job-related selection devices as alternatives to, or in
addition to, paper-and-pencil tests. The goal would be to develop a variety of mechanisms that
would provide broader criterion on which to· base merit selection, without disparate impact.
draft 4/7:
p.2
WJC LIBRARY PHOTOCOPY
�THE WHITE HOUSE
WASHINGTON
April 7, 1995
·MEMORANDUM-FOR THE ~ESIDENT &~VICEPRESIJ?EN~
Christophe~ey, Jr. & Peter~
From:
George Stephan¥ulos,
Re:
Affirmative Action: Themes and Hard Questions
This memorandum summarizes our· evolving thoughts regarding policy and communication
choices arising out of the Review. Part I outlines the central issue and Senator Dole's response;
Part II offers an alternative response, building on our earlier conversations and on the Review .
. Attachmen.t A presents seven "hard cases" that may facilitate your deliberations. We plan to
discuss this memorandum and the cases with you on Monday. On Tuesday, we will discuss the
more specific policy options, some of which are presented in rough draft in Attachment B ..
L·
The Central Issue: Questions about "Preferences"·
The central and most difficult questions--substantively and politically...:...-concern group.:...
based preferences: what are those preferences and when are they appropriate? In public statements, Senator Dole has expressed support for affirmative action as a
remedy for "proven past discrimination against individuals" and for expanded .outreach and
recruitment of "qualified minorities and women to give them an opportunity to compete without
guaranteeing the results of the competition." However, he has expressed his opposition to
"quotas, set-asides, and other preferences that favor individuals simply because they happen to
belong to certain groups."
.
·The most likely construction of Dole's opposition to preferences implies opposition to
several existing policies identified in the Review, for example:
•
Contracting programs, including: the 8(a) program; sheltered competition among -small
disadvantaged businesses (SDBs); and the 10..,-percent bid preference for SDBs. {Some
of these could be saved, perhaps, if Dole's phrase "simply because" is satisfied by the
current requirement that SOB's demonstrate "economic disadvantage"; this, however,
requires a somewhat tortured construction.)
·
·
•
Race-specific and gender-specific scholarships and fellowships motivated by inclusion
rather than remediation. Examples include an academic scholarship program for
minorities that Secretary Shalala established at the University of Wisconsin and an NSF
program designed to support women in basic research. ·
WJC LIBRARY PHOTOCOPY
�•
Clinton-style judicial and Cabinet appointments, assuming consideration of rae , gender,
or ethnicity amounts to a "preference.
II
IL
An Alternative Approach
. There is an alternative approach to the question of preferences, one more consistent with the
President's rejection of the "colorblindness" and "pure remediation" visions and his embrace of
a broader justification which includes remediation, opportunity, and inclusion.· This approach
would emphasize five points.
1•
We oppose quotas and numerical straitjackets (outside of narrow remedial contexts).
2•
We oppose the use of set-asides in employment and contracting (outside of narrow
remedial contexts).
3•
We oppose giving group.:...based preferences to unqualified persons m the name of
affirmative action.
4•
We oppose group-based preferences when need-based preferences would be just as
effective at creating genuine opportunity.
·
5•
We oppose group-based preferences when the benefits or burdens of those preferences
are unduly concentrated.
This Part summarizes the approach, proposing definitions and central propositions, and then
discussing the most significant implications of such a position.
A. Definitions
•
A quota is a rigid numeric or proportional measure that must be attained or that
cannot be exceeded, without regard to the. number of potential applicants who meet.
necessary qualifications. Example: Before the Bakke decision, the UC-Davis Medical
School maintained .a two-track admissions policy reserving a minimum of 16 of 100
spaces for minority students.
•
A set-aside is a reservation of a set of opportunities or benefits for a particular
group of potential candidates that effectively excludes members of other groups.
Example: Under the "rule of two," procurement contracts meeting certain requirements
may be reserved for small disadvantaged businesses (SDBs). This set-aside .is not a
quota because it does not involve "a numeric or proportional measure that must be
attained or cannot be exceeded"; in other words, set-asides respect m1mmum
qualifications, but quotas need not.
•
A preference is an adyantage assigned to a candidate solely on the basis of his/her
2
WJC LIBRARY PHOTOCOPY
�gender, race, or ethiiicity. A preference does nQ1 include consideration of such
characteristics, when consideration is essential to the effective operation of the
ins,titution or. enterprise. Example: DOD provides a 10% bid preference to SDBs in
certain situations. Beeause status as an SOB is not"essential to the effective operation"
of DOD contracting, this advantage is a preference. In the case of the police force of a
racially-diverse city, race may be a bona fide consideration and thus positive
· consideration of race would not constitute· a preference. Similarly, race, gender, or
ethnicity may be a bona fide consideration in university admissions if diversity is essential
to the effective functioning of the institution. ·
In ·sum, the concepts as illustrated in. Exhibit ·1:
All quotas are set-asides, but not all set-asides are quotas.
All set-asides are preferences, but not all preferences are set-:-asides.
All prete'rences are considerations, but not .all considerations are preferences.
B. Central Propositions
•
Proposition 1: Discrimination in every sector of our society and economy must be
eliminated root and branch.
Corollary: Affirmative action practices may be more aggressive and, if necessary,
intrusive in settings in which there is a demonstration of present discrimination or the
·lingering effects of past discrimination.
•
Proposition 2: Our paramount aspiration is complete equality of opportunity. We
do not guarantee equality of results.
Corollary: We must distinguish among affirmativ.e action in different contexts.
Edu.cation is niore closely related to opportunity""'"creation than is federal contracting; thus,
minority scholarships differ from procurement set-asides.
Corollary: We must distinguish among affirmative action .tool.s.. Some tools enhance
opportunity and level the playing field, others come closet to ensuring certain results;
thus, a targeted surety bond program' differs from a procurement set-aside, and multifactor admissions differ from admissjons quotas.
·
•
Proposition 3: Affirmative action remains necessary,· but must be transitional.
Inequality of opportunity persists, as illustrated by the persistence of both discrimination
and severe social and economic inequalities.
,
Corollary: Affirmative action should be transitional for individual participants: these
programs should be entryways, not entitlements. Each program should have graduation
requirements and related supports.
3
WJC LIBRARY PHOTOCOPY
�WJC LIBRARY PHOTOCOPY
�Corollary: Affirmative action should be transitional for society: when each program.
accomplishes its objectives, it should end.
•
Proposition 4: We must recognize--and limit--any· harm that these essential
programs cause. We must do the right thing, but in the right way.
Corollary: Affirmative action programs must respect individual merit. Quotas--in
virtually all contexts--are unacceptable because they subordinate individual merit to rigid
· numerical objectives.
·
· .
·· ·
·
. Corollary: Affirmative action programs must not unduly concentrate burdens.
burdens that affirmative action imposes on vested interests (such as seniority ·
on particular regions or sectors of the economy must be limited.
C. Policy Implications
Fully developed, these propositions have significant policy implication~, partie· ar as.
concerns set-asides and preferences.
1
•
Implication 1: In general, we are opposed to set-asides in employment and
government procurement because they are exclusionary; alternative tools should be
us'ed. We oppose excluding any person from an employment or contracting opportunity
on the basis of race, gender, or ethnicity. There are two options for when this general
rule should not obtain:
'
Alternative l(a): Oppose set-asides except in court-ordered or -supervised remedies.
Under this alternative, we would oppose the "rule of two" procurement set-aside and the
· 8(a) program as currently constituted. ·
Alternative l(b): Oppose set-asides except as a remedy for specific findings of
discrimination (by court, Congress, ~r agency). Under this alternative, we would examine
procurement practices to determine whether set-asides are necessary .
Implication 2:
Preferences and set.,.asides . in education and preferences in
employment are appropriate to maximize equal opportunity and inclusiveness but
· only if they
.•
(a) are never awarded to unqualified persons;
(b) are transitional--establish objectives and terminate when those objectives are met;
1
We know of no formal "set-asides" in the employment context, but there is some
anecdotal evidence that majority candidates sometimes feel that certain positions are set-aside
by "bean counters" for minority candidates only (e.g., university faculties).·
4
WJC LIBRARY PHOTOCOPY
�(c) are flexible--are neither actually or effectively quotas; and
(d) are narrowly tailored--are the least race-conscious means of maxi
opportunity and inclusiveness.
Example:· Race, gender, and ethnicity are often bona fide considerations in educa ••·.~~_..
employment. For example, scholarships set aside for women, if·appropriately designed,
are justified by the values of inclusion and equal opportunity.
Implication 3: Contracting is on the "results" end of the continuum because receipt
of a contract seems in significant measure a commercial success rather than a mere
entrepreneurial opportunity. Preferences in procurement, therefore,· may be
appropriate only if the above conditions are met and only when necessary to remedy
demonstrated present discrimination or the lingering effects of demonstrated past
discrimination.
•
Example: Procurement preferences, such as the §1207 bid preference, must be
appropriately designed and justified by the demonstration of past discrimination or
lingering effects. Race- and gender-neutral advantages--such as competitive advantages
based on "opportunity creation" as measured by employment and entrepreneurship for
disadvantaged groups--need not be justified in this way.
In sum, as illustrated in Exhibit 2, we are opposed to certain practices (the shaded area).
In addition, we believe other practices must be both tailored and justified by past discrimination .
or lingering effects (the cross-hatched area).
·
IlL
Conclusion
The Attachment presents· seven "hard cases" and outlines both a "Dole" perspective and.
an "alternative" perspective on each case. The cases are:
'
'
I
•
1•
SDB set-asides: the "rule~of-two" for reserving contracts exclusively for SDB bidders
2•
The Adarand ease: bonus payments for subcontracting with SDBs
3•
The Piscataway case: race as a consideration in layoffs
4•
Chicago Police Department promotions (Rep: Lipinski's example)
5•
Banneker Scholarships: black-,only merit scholarships at the University of Maryland
6•
Admissions to the University of California at Berkeley
7•
Remedial education: a black-only community college course
WJC LIBRARY PHOTOCOPY
�Selected Affirmative Action Efforts
0 p port unity
--------------------------'-----------------------------------------------~---------------------------
Opportunity
Enhancing
Assistance
.c
c
·-:
....
=
lo.
0
Education
Q.
Compensatory ed
Outreach & recruiting
HBCUs
0.
Advantages &
Flexible Preferences
Multifactor admissions
policies
0
Employment
Outreach & recruiting
Apprenticeships
Training
Second look programs
Multifactor hiring
(e.g., judicial·selection)
:::e
c....
(")
Contracting
r
&
to
:::0
Procurement
)>
:::0
Teclmical assistance
Mento ring
Bonding assistance
-
-<Vl
.....
"tJ=
:::cVl
0~
--~~
0
C')
0
"tJ
-<
Yu DrafUApril 6, 1995 AM
Exhiblt 2
Res u Its
Quotas
�Attachment A: Seven Hard Cases
Case 1. Government Contracting: Sheltered Competition.
Scenario:
·. As part of a larger effort to reach its Department-wide goal of obtaining 5% of all
procurements from small disadvantaged· businesses (SDBs), the Department of Defense has
promulgated regulafions that direct that a "contracting officer shall set aside an acquisition for
small disadvantaged businesses when there is a reasonable expectation that -(1) offers will be received from at least two responsible [] SDBs ...
(2) the award will be made at not more than ten percent above fair market price ... ".
Each year about $800 million in procurements (20% of all SDB procurement by DOD) are
· awarded under this so-called "rule of two." ·
Such set-asides are viewed by some majority-owned contractors as exclusive, race-based
quotas. Moreover, in some regions and industrial sectors, large proportions of the acquisitions
are set aside under this rule. For example, during one period, Barksdale AFB set aside all of its
construction contracts for SDBs under the rule of two.
The "Dole" Pe1-spective:
"This is a preference because it limits the competition that minority-owned firms must
face. While I support efforts to reach out to minority contractors, I do pot support preferences."
·The "Alternative ,. Perspective:
"While I· believe preferences are sometimes appropriate in the contracting arena, setasides are only appropriate in [narrow] remedial contexts. Here's why: a set-aside effectively
says: 'No white-owned firms need bid.' Thaf'is unnecessary. I support a<;sisting disadvantaged
firms through preferences, .but I don't believe we should ever bar a firm from bidding on a
contract simply because of the race or gender of its owner.
.
.
"I have two other concerns about these set-asides. First, they have been implemented in
a way that has had a disparate impact on certain industries and regions. That's unfair. Second,
· the program has no graduation requirement and so is not transitional~-it encourages dependency
rather than diversification and growth.
"There's a better way that includes: (1} outreach and technical assistance to SDBs to
enhance opportunity; (2) narrowly tailored preferences to SDBs to redress discrimination; apd (3)
· a broader race-neutral program focusing on the creation of opportunity through race~neutral
preferences for companies that create opportunities for disadvantaged workers and communities."
1
WJC LIBRARY PHOTOCOPY
�Case 2. Government Contracting & Subcontracting: Incentives.
Scenario:
Based on its finding of discrimination, Congress has established certain goals with regard
to minority .contracting and subcontracting. To make progress toward those goals, the
Department of Transportation has provided its prime contractors with incentives to use minority ·
·subcontractors (typically, these incentives·totall.S-2.0% of the contract price). This incentive
is referred to as a "subcontractor compensation clause" (SCC).
In· 1989, an· agency within DOT awarded a $1 million prime highway-construction
contract to Mountain Gravel (in most cases, DOT awards are administered through state or local
entities; this project happened to be on federal land). Adarand bid for a subcontract to construct
a guardrail. Although Adararid's bid was the lowest, Mountain Gravel selected a "disadvantaged
business entity" (DBE) with a slightly higher bid .. Under the SCC, Mountain Gravel qualified
f~r a bonus of approximately $10,000.
The "Dole" Perspective:
"The SCC is a preference based the race of the owner of the subcontractor. I'm generally
opposed to such preferences.· Let me just say that race. seems truly irrelevant to the business of
road-"building. If there is discrimination in contracting, it should be prosecuted and eradicated.
But contracting takes place in ·a market in which the bases of competition are clear: quality and
price. Why should a minority-owned firm get a special break?"
The "Alternative" Perspective:
free·
1
. "This is not a set-aside; Adarand was
to bid on the contract. These e.fforts are
appropriate only if they are transitional, flexible, narrowly tailored, and necessary to remedy
demonstrated present discrimination or the lingering· effects of past discrimination.
"While I believe the SCC is flexible, I would revise it to ensure it'was transitional--to
make clear that the. program ends when SCCs are no longer needed. I support these programs
as an effort to remedy past or lingering discrimination, to level the playing field. These bonuses
·encourage the rethinking of old prejudices and the opening up old-boy networks."
1
Analytically, this program is a preference but not a set-aside.
2
WJC LIBRARY PHOTOCOPY
�C~se
3. Public Employment: Layoffs.
Scenario:
. .
.
.
Although Piscataway's Board of Education had never been to.found to have discriminated
on the basis of race or ethnicity, the Board has long maintained an aggressive -- and effective
-- affirmative action policy. Piscataway schools have hired the most qualified candidates, but,
in cases in which candidates were otherwise comparably qualified, have favorably considered
.minority status. As a result, by 1985, 9.6% of Piscataway's teachers were minorities, compared
to 7.4% of all New Jersey teachers and 12.1% of the statewide labor pool. More than 40% of
the school district's students were minorities.
In 1989, b~dget cuts required Piscataway to dismiss one business education teacher at
Piscataway High School. The two most junior teachers had been hired on the same day and (it
is stipulated) were of equal qualifications. Rather than follow another tie-breaking procedure
(such as drawing lots), the Board looked to the racial composition of th~ business education
department and found that one of the most junior teachers (Williams) was the only AfricanAmerican in the department Based on this fact, the Board decided to layoff the white teacher
(Taxman) and sent her a letter explaining the use of affirmative action as a tie-breaker.
The Third Circuit is currently considering whether Title VII permits the Board to act as
it did; the Justice Department has argued that it does. The further issue is whether we would,
as a policy matter, agree with the Board.
· The "Dole" Perspective:
.
"This is a preference, plain and simple. Except in the remedial context (which this isn't),
I don't think race should be a preference in hiring, and, as the Supreme Court has recognized,
layoffs are even more problematic: the costs of any affirmative consideration of race or ethnicity
-in layoffs fall directly and solely on the losing employee."
Two "Alternative " Perspectives:
A:
"Race seems to be a legitimate consideration, particularly in light of the demographics.
Thus I don't think of the Board as assigning a 'preference.' Race favored Williams in this case,
but in another setting, such as in an effort· to desegregate a black school in a dual system, .
Taxman might well have benefitted from the same consideration."
·
B:
"A tie-breaker that favors one party feels like a preference. Group-based preferences can
be appropriate in the employment context if they are transitional, flexible, and narrowly tailored.
My concern with this case is that it seems to unduly concentrate the burden on Ms. Taxman..
That's why layoffs are different from hiring decisions." ·
3
WJC LIBRARY PHOTOCOPY
�Case 4. Public Employment: Promotions.
Scenario:
Chicago's population is diverse: 39% African-American, 38% white, 20% · Hispanic.
Its police force is less diverse: 66% white, 34% minority (even in the Department's higher .
ranks). These facts have been the subject and source of litigation and col:lrt-ordered remedial
hiring and promotion. In addition, the Department has undertaken extensive efforts to redesign
its Written tests to reduce disparate impact.
Earlier this year, after administering a promotion test, the Department announced 67
· promotions froni sergeant to lieutenant. Most of the promotions (54) were awarded to those with
the highest scores on the promotion exam. Only 3 of these 54 new lieutenants are AfricanAmericans. Probably in response this imbalance, the Department also announced 13 "medt" or
performance-based promotions to persons, none of whom scored in the top 67. on the exam. Of
the 13, 5 are white, 5 are African-American, and 3 are Hispanic. It is widely assumed that race
and ethnicity were considered in the merit promotions. A white sergeant with the 56th-highest
•score on the exam has sued the Department.
The "Dole" Perspective:
"The Department ignored qualifications in the name of race. The Department promoted
some sergeants simply because they belong to certain racial and ethnic groups. This looks like
a quota to me: the 5-.5-3 ratio of 'merit' promotions precisely tracks the City's population ..
"Clearly, minorities did poorly oil the promotion exam. The racial cOmposition of the
group receiving 'merit' promotions indicates to nie that certain candidates received a preference-th~y had lower test score than white candidate.s but were nonetheless promoted." ,
The "Alternative" Perspective:
"This is a classic situation in which race is a bona fide consideration; the racial .
composition of a police force can be essential to its effective performance. Even if one were to
regard this as a preference, it is an appropriate preference. First, there is no indication that the
13 candidates were unqualified; the fact that they had slightly. lower scores is insigniticant.
Moreover, the fact that five of the merit promotions were awarded to white sergeants indicat_es
that this was a flexible preference and not a q\lota or set-aside.
"The Department's real error was in ever assuming that a written test could somehow
capture the full richness of what it means to be a good police officer. The initial list should have
been based on the test scores and other relevant Considerations."
4
WJC LIBRARY PHOTOCOPY
�· Case 5. Public Education: Scholarships.
Scenario:
The University of Maryland refused to admit African-American students for most o 1 s
existence. In the late 1960s, the federal government found the University in violation of Title.
VI and directed the school to develop a remedial plan. In 1978, the University established the
Banneker Scholarship Program, which offers full scholarships to African-Americancandidates
who meet certain academic qualifications. · The Program represents about 1 percent of the
University's financial aid budget and provides assistance to about 30 entering students each year.
Podberesky met the academic criteria for the Banneker Scholarships, but is Hispanic and
. not African-American. , He has sued, challenging the legality of the exclusivity of the Banneker
program.
The "Dole" Perspective:
"This. is a set-aside--and no different from UC-Davis' two-track system that the
.
.
Supreme Court struck down in Bakke. In today's financial climate, a full scholarship can be the
difference between going to college and not going to college. Moreover, if the justification is
remedy past disadvantage, the race requirement of the scholarship is underinclusive: why
should the son of a wealthy Jamaican doctor get a scholarship and the needy daughter of a West
Virginia coal miner not?''
to
The "Alternative'' Perspective:
"This case illustrates how procurement set-asides differ from targeted scholarships. Aft~r
· more than a century of exclusion and intimidation, the University of Maryland is finally open to
·. African-Americans. The University must put out an effective 'welcome' sign--after all,' the
fathers and mothers of many potential applicants were themselves likely turned away simply on
the basis of their race.
"Even outside the remedial context, I believe that targeted scholarships--like·fellowships
for women in basic research--serve important and legitimate purposes .. ·r support them so long
as they are flexible, tailored, and there is no comparably effective and group-neutral alternative.
In that regard, I would note that the Banneker program is not a quota. There is no requirement
that a fixed number of African-Americans irrespective of qualifications be admitted each year."
5
WJC LIBRARY PHOTOCOPY
�Case 6. Public Education: Admissions.
Scenario:
Admission to the University of California at Berkeley is extr~mely competitive; niore than
20,000 students apply for 3,500 spaces. To ensure "diversity of cultural, racial, geographic, and
socioeconomic backgrounds," Berkeley uses ·the following method: · about 55 percent of the
spaces are assigned strictly on quantitative academic measures (grades and SAT scores); about
. 5 percent are reserved for "special admissions" (athletes, older students, ·and the
socioeconomically disadvantaged); the remaining 40 percent are admitted based on a number of
factors, including race and ethnicity. The results for a recent year:
% white
% Hispanic·
% Asian-
% black
Entering class
40
20
28
11
Cal. H.S. grads
63
20.
9·
8
By statute, an applicant must have a "B+" average to apply to the UC-systt~xn. Because AfricanAmericans have lower high school grade-point averages, one commentator estimated that an
African·:.·American graduate with the requisite average had a 70% chance to get into Berkeley;
while a white student with the same average would have less than a 10% chance.
The "Dole" Perspective: .
"Berkeley is clearly granting a preference to African-Amerk..ans. Competing on the
merits of grades and SAT scores, whites would likely capture half or more of the spaces. It's
irrelevant that race is 'one of several factors' -- it is still the decisive factor in many cases.
"Let me also say that this system also disserves African-Americans: in the name of
fairness they are placed in schools where competition is fierce and for· which many of them-due to discrimination and other causes --·are ill-equipped. As a result, while 71% of white
Berkeley students graduate in five years, only 37% of African-American students do."
The "Alternative" Perspective:
"Creating opportunity and ensuring diversity are appropriate goals--if not obligations-of our universities. Accordingly, race can be a bona fide consideration in admissions. This
system does not award preferences to unqualified candidates. The admitted African-American
students are clearly as qualified (even in numerical terms) as the rejected white students: because
the system is so selective,.the students of all races must meet strict threshold requirements, such.
as a B+ average."
6
WJC LIBRARY PHOTOCOPY
�Case 7. Public Education: Remedial Education.
)43
Scenario:
Twenty years ago, San Bernardino Valley College· created two special programs. The
Bridge Program is designed to serve African.;...Americans students who are having academic ·
problems but wish to attend a four-year college. The. Puente Program is designed to serve
Hispanics facing similar difficulties. Both provide speciaJized classes and curricula targeted at
minority students and offer personal, academic, and career advice. The programs have been
successful: 66% of the Puente students go on to attend four-year colleges (compared to 7% of
all Hispanic students).
Earlier this year, a 25-year old widowed mother of three was denied access to an English
lOlclass that was part of the Bridge Program--the only class that fit her schedule. The precise
reason for this rejection is disputed: she claims she was not admitted to the class ~ecause she
was not African-American, the school suggests otherwise.
r-
The "Dole" Perspective:
"This is simply a case of 'separate but equal.' Schools are, of course, free to design
courses however they wish -- but .they cannot exclude a student from a course simply on
account of her race. One possible justification for such classes is a desire to build strong ethnic
communities -- but must such classes be segregated? African-Americans may have distinct
needs,. but those could
served through specially trained counselors to provide services outside
of the classroom. Moreover, the programs are based on crude ster~otypes: why should a
·
privileged African-American be allowed in these classes, but not a disadvantaged white?"
be
The "Alternative" Perspective:
"I oppose this program as an unnecessary race-based set-aside.
''I'm generally opposed to 'set-aside .. programs in employment and procurement -- I
believe that no one should ever be barred from applying for a job or bidding on a contract on
th~ basis of race, gen9er, or ethnicity. ·In education, these sorts of set-asides are a little different,
but still must be narrowly tailored. The Bridge and Puente programs arc designed to meet the
special needs of disadvantaged minority students by using familiar curricular material and new
educational techniques. I support that objective entirely. It is not, however, necessary to exclude
non-minority students in order to achieve these important objectives."
7
WJC LIBRARY PHOTOCOPY
�Attachment B
DRAFT PROCUREMENT OPTIONS
OPTION (A) --Remedial Preferences and Empowerment Set-Asides
•
•
•
Eliminate race/sex-based ·quotas and set-asides, including "rule-of-two" set-aside
Remedial Preferences: Use § 1207-style bid price preferences only in modified Croson situations
only,. i.e., where there is a legislatively or administratively determined factual predicate of
discrimination or lingering effects of past discrimination, and race- and sex-neutral means will be
inadequate.
Empowerment Contracting: Set-asides for "Most Favored Businesses" who are periodically
recertified based on objective performance in a combination of (i) hiring targeted disadvantaged
workers and (ii) activity in distressed communities. 1 Reform. 8(a) to be focus sheltered competition
and sole-source contracting for Most Favored Business~s. (Transition for current 8(a) firms.)
OPTION (B) ..;_Reform Current Programs to Address Perceived Unfairness and Abuses
•
Transitional:
• Graduation: Graduation requirements for all contracting programs. Link graduation to size,
experience. Link "graduation" issue to the individuals, as well as to the firm; avoid churning
in corporate form.
·
.
• Sunsets and Rheostats: With introduction of electronic commerce, growth of the surety
program, and sophistication of the technical assistance, create "rheostats" to moderate the terins
of procurement preferences as conditions change. · For example, electronic commerce may
justify converting the preferences for small SDB contracts into technical assistance and a very
short duration in sheltered competition.
'·
.
.
•
Curb abuses:
• Anti-Fraud: Increased enforcement resources against shams and fronts; increased penalties.
• Need: Economic disadvantage: tighten the test to exclude millionaires.
•
Deconcentrate Burdens and Benefits:
• Disaggregate Goals: Refme goals to incorporate concern for sectoral and regional integration - opening up opportunities outside of the customary fields, and outside of the customary
regions.
.
.
.
• No Concentrated Burdens: Limit regional set-aside "crowding," as at Barksdale AFB. No
contracting entity my apply preferences to more than a set percent of contra9ts..
.,
•
Enhancing the effort:
.
.
. • Pool Outreach/Technical Assistance: Better linkage of technical assistance efforts with
procurement opportunities. Better technical assistance for prime contractors looking for
subcontractors (in part to avoid pressure to rely on fronts and shams); expand the OFCCP/GSA
pilot program.
· ·
• Reorganization: SBA's 8(a) program and Commerce's MBDA program at Commerce.
• Subcontracting flans: Strengthen ·requirements/incentives for large primes to develop plans for
outreach to SDB subcontractors.
1
This recasts the Labor Surplus Area program to make it far more effective· and aggres?ive, focused on structural distress
rather than countercyclical assistance.
'
draft 4/7:
p.l
WJC LIBRARY PHOTOCOPY
�DRAFT EMPLOYMENT OPTIONS
•
Strengthen Enforcement:
•
More enforcement resources for OFCCP --both for compliance and for r>ae"'-,.,_,..,discrimination.
·
.•
More enforcement resources, and added dispute resolution flexibility, for the EEOC to
eliminate its backlog over three years.
.
•
Update the statistical labor market data base used by OFCCP to· determine the
reasonableness of employment goals.
·
•
Reduce burdens:
• Raise the OFCCP threshold to $100,000 as part of paperwork reduction and procurement
· reform. [DOL strongly opposes.]
.
.
• Eliminate "flowdown" .·of OFCCP requirements to subcontractors on commercial procurements.
[DOL· strongly opposes.]
• · Eliminate the 30-day delay for pre-contracting surveys (since adverse survey result does not, by
court order, result in delay or modification of the procurement action anyway).
• Scale the reporting .and audit "burden" to the size of the enterprise or the magnitude of the
.contract, or both. [DOL questions.]
• Relaxed paperwork and audit burden for good performers. Reduce paperwork burden
otherwise -- form simplification, etc.
•
Clarify rights and responsibilities:
• Revise E.O. 11246 or the regulations to require that plans expressly prohibit hiring unqualified
individuals in order to achieve a plan's goals.
·
• Revise regUlations so that, for the largest employers, plans should provide for EO training of
personnel officers to prevent abuses of reverse discrimination and numerical straight jackets.
• Balanced notice. Ensure that employees receive notice about the legal limitations on
affirmative action plans, and of their right to redress for discrimination and reverse
· discrimination.
•
Research on Diversity and Merit Selection:
• Interagency development of alternative job-related selection devices as alternatives to, or in
addition to, paper-and-pencil tests. The goal would be to develop a variety of mechanisms that
would provide broader criterion on which to base merit selection, without disparate impact.
draft 4 I 7 : . p . 2 .
WJC LIBRARY PHOTOCOPY
�'
H
•
•
,
:
••
• •
;
•
! ·•
I :.. .
·j
•. '
. • ..
.
.•' .
.
~
•
t •. ''
.t
1· .
.
' . . ' ~..
'I
t.; '
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
. . .oo l!!tm:emo_
SUBJECTffiTLE
DATE
Alexis Herman to President Clinton, re: Meeting with Jesse Jackson (1
page)
3/8/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Public Liaison
Alexis Herman/Ruby Moy
OA/Box Number: 5903
FOLDER TITLE:
Memorandum to President- Meetings with Jesse Jackson
Whitney Ross
2008-0308-F
wr915
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl
P2
PJ
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
financial institutjons [(b)(S) of the FOIA]
b(9)-Releasewo·ufddis~;_lose geological or geophysical information
concerning wells f(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(J) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance witb44.;;Y.S.C.~.: .
2201(3).
:
. f i . - _,. . ~.r···
RR. Document will be reviewed upon request.
INTON LIBRARY PHOTOCOPY
COPY
~
�March 8, 1995
MEMORANDUM TO THE PRESIDENT
FROM:
ALEXIS M. HERMAN
.SUBJECT:
SUGGESTED POTUS DROP-BY TO MEETING WITH REV.
JACKSON
Rev. Jesse Jackson and a group of others will be meeting with Leon Panetta, Harold
Ickes, George Stephanopoulos and me on a long-standing request for a White House
meeting to discuss a conference on jobs and Affirmative Action.
We have delayed honoring this request until we were further into our strategy on
Affirmative Action.
Given our overall political strategy, it is important that you do a five - minute drop-by
since this meeting request has been a long-standing request to meet with you
personally. The meeting will be in the Roosevelt Room today between 2:30 and 3:30
p.m .. We would like you to drop-by between 3:00-3:15 if possible.
At the drop-by, you should convey, privately, to Rev. Jackson that you have worked
out a date to meet with him, and that you are interested in having him accompany you
to Haiti (per Tony Lake's suggestion).
COPY
�! .I
:
·~
.
' .' :
''
.·
'
I
I
.
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTtTITLE
RESTRICTION
3/27/1995
Marcia Hale to the POTUS, re: Affirmative Action (1 page)
COLLECTION:
Clinton Presidential Records
WHORM - Su~ject File General
HU012
OA/Box Number: 23338
FOLDER TITLE:
106814SS
Whitney Ross
2008-0308-F
wr853
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a)j
Freedom oflnformation Act- [5 U.S. C. SS2(b)]
Pl National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions ((b)(S) of the FOIA)
b(9) Release would disclose geological or geophysical information
~_1,mcerning,~ells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon ~equest. _.;A[!2 · . _.r-.---:-_;;..,~
;
c£-
"·
•wa
COPY
:
�/OG?!I-j:J~
Ht/t.O!;L
THE WHITE HOUSE
WASHINGTON
THE PRE.siDENT \-\"S SEEN
3\;}~~q5
March 27, 1995
MEMORANDUM TO THE PRESIDENT
HALE\t~~.;IJ~
FROM:
MARCIA L.
ce:-
ERSKINE BOWLES
HAROLD ICKES
ALEXIS HERMAN
RE:
AFFIRMATNE ACTION
\
Harold has told me of your interest in having a meeting while you are in Atlanta
regarding Affirmative Action. I have spoken with both Gordon Giffin and Steve Wrigley
(Zell's Chief of Staff) about the possibilities of doing so Tuesday evening.
It has been suggested that you hold the meeting at the Governor's mansion
immediately following the reception that Zell is hosting for attendees of the economic
conference. The reception is scheduled to end at 8:00pm.
Gordon has suggested that you keep the meeting moderately small so it can be
productive and still leave time for you and Governor Miller to have. dinner at a reasonable
hour. Suggested attendees are: Andy Young, Maynard Jackson, Bill Campbell, John Lewis
(if he's in town}, Jeanette Coles and Herman Russell. Is this okay with you?
You suggested to Harold that Ray McClendon be invited as well. You should know
that McClendon and Mayor Campbell are in the middle of a disagreement which is playing
out in the local press. McClendon is invited to the reception and economic conference, so
you will see him while you are in Atlanta even if he is not part of this meeting - which is the
suggestion of those consulted.
The Governor would like to know if you want to have dinner at the Mansion or go _to
a nearby restaurant. I think he would prefer to take you out - another argument for a smaller
meeting so that you could leave for dinner around 9:00pm. Can I tell Governor Miller that
dinner at a restaurant is fme with you?
Please let me know if you have any questions.
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
Todd Stem to President Clinton, re: Affirmative Action ( 13 pages)
6/30/1995
P5
002. memo
Duplicate -Todd Stem to President Clinton, re: Affirmative Action
(12 pages)
6/30/1995
P5
423tf
D~
COLLECTION:
Clinton Presidential Records
WHORM - Subject File General
HUOI2
OA/Box Number:. 23338
FOLDER TITLE:
118056SS
2008-0308-F
wr857
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
·personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
�THE WHITE HOUSE
/-~~/_/ c·-)l.J-&~(_.
I '~···
,
t
WASHINGTON
June 30, 1995
_MEMORANDUM FOR THE PRESIDENT
FROM:
TODD STE~
SUBJECT:
Affirmative Action
Attached is a Stephanopoulos/Edley decision memo on affirmative
action. There are four principal decision points.
Speech site. George and Chris recommendCentral High School in
Little Rock for a July 19 speech, but present Constitution Hall
and Atlanta as alternatives. They also mention four already
scheduled conventions, none of which seems promising.
The Adarand Directive. This Directive (a draft is at Tab A)
would formally establish the review process led by the Attorney
General and require her to give you a progress report in 90 days.
The issue is whether to issue a Directive at all and, if so,
whether to do it now or defer it, probably until the time of the
speech.
Procurement Setasides. Four options are presented: (1) baseline
anti-abuse reforms only; (2) eliminating current SDB programs
with an instruction to develop a new program meeting the broader
objectives of antidiscrimination, entrepreneurial opportunity,
and economic development; (3) same as option (2), but not
providing as much detail about what the new program should be;
(4) eliminating race-based setasides, creating a sheltered
competition program based on geography only.
Use of Race or Gender in Layoffs -- Piscataway. The options are
to allow diversity to be considered in a flexible manner and in
limited circumstances -- DOJ's current Piscataway position; or to
declare, as a matter of policy, that race or gender shouldn't be
considered in layoff decisions.
We have circulated this memo to all relevant staff in the White
House. Given the scope of the decisions, you may well want to
have a meeting to work these issues through.
COPY
�THE WHITE HOUSE
WASHINGTON
95 JUN 28
June 27, 1995
MEMORANDU~OR THE PRESIDENT
From: George
Re:
-
~C.,_
C; -vv
opoulos and Christopher Edley, Jr.
Affirmative Action -- Speech, Review and Policy Decisions
This memorandum reviews the four pieces of the Affirmative Action rollout:
•
•
•
a major speech on July 19th-- we seek your decision on venue;
release of the Review;
a presidential Directive to agency heads creating a process coordinated by the Attorney
General to ensure compliance with Adarand -- we seek your decision on whether and
when to issue the Directive; and
• two key policy choices for immediate decision and, if you chose, announcement with the
speech: setasides and the Piscataway issue of using race/gender as a factor in layoffs.
I. The Speech: Content and Venue
Content. Don Baer and Carolyn Curiel, with assistance from others, are conducting the broad
outreach you requested. As we discussed, the speech will be a broadly thematic discussion of
discrimination, exclusion, equal opportunity, and healing. It will include a strong defense of
affrrmative action when done the right way, and offer policy principles which will be made
concrete with a few pointed programmatic examples of the good, the uncertain and the
problematic.
Among the possible program examples are:
The good:
Programs you confidently support include: the military; your judicial
appointments; your Cabinet appointments; the OFCCP program of affrrmative action in
employment.
The uncertain: Programs you support but for which you want the Attorney General's
confirmation of compliance with Adarand include: the several grant programs operated by
the Departments of Education and HHS; NSF grant programs. The most common rationale
for these grant programs is dramatic underrepresentation of historically excluded groups, plus
1
A;::.·
·- _,r--=-_\;.. -
-
..
~INTON L~RARY PHOTOCOPY
'
COPY
�some context-specific public interest m inclusion (for example, broade
resource base for research scientists).
The problematic: Programs you believe need revisions include: Contracting se
s·
USDA setaside-like auctions of foreclosed farms. Although post-Adarand empirical studies
_ might establish that these are constitutionally defensible, as a policy matter they in some
instances are unfair.
·
For purposes of the speech and any supporting press materials, we can supplement these with
state, local and private sector examples drawn from litigation and press accounts. We do not
recommend a detailed rollout of how Federal programs sort into these three categories because
most if not all of those judgments should now be deferred until the post-Adarand assignment is
complete, as indicated in the discussion below of the Directive.
Venue. Listed below are venue options for your speech. As with any major address, your
speech is what matters here. The venue's history and symbolism will provide secondary color. .
In this case specifically, the anticipation and coverage of the speech will be significant, and the
location will create context and generate helpful side-bar stories.
•
Little Rock Central High School, Little Rock, Arkansas
Recommended option. This site would allow your speech and the issues surrounding affirmative
action to be framed within the larger context of the civil rights movement and the struggle for
equal justice and opportunity. The media would use the school's history when covering the
speech. When combined with your own experiences and battles against racism, this would make
a powerful statement framing your remarks. Networks would perhaps contrast footage of you
with scenes of Gov. Faubus. You might choose to mention contemporary problems at Central
High to underscore the critical importance of the larger opportunity agenda, specifically quality
education.
•
Constitution Hall, Washington, D. C.
Alternative option. This site allows you to draw on the building's history in the fight against
discrimination (Marian Anderson) as well as the footsteps-away history of events around the
Mall and commemorated there. The Hall seats over 3,500 people-- a crowd we would build- which would inevitably create a serious, Presidential, high-energy environment. The crowd
could be built thematically, for example: a multiracial a3semblage of church congregations;
young people.
•
Atlanta, Georgia--Site TBD
By going to "The City Too Busy To Hate," a city essentially built on affirmative action, you
could both draw on the history of Dr. King and early civil rights efforts while using the city as
an example of the issue in contemporary times. We would locate a venue of historical
2
·.,
(t:~T~NL:RARYPHOTOCOPY
'
COPY
�significance to Dr. King, such as a park where he used to preach, etc.
comparisons with King's speeches, including the "content of their character" portion o
Have a Dream" speech. This is both a plus and a minus.
•
Already-Scheduled Events
There is a surprisingly small selection of events scheduled on or around July 19, none of which
seem very promising:
Presbyterian Church USA, General Assembly, July 15-22, Cincinnati.
Over 3,000
delegates. (No surrogate plans as yet.)
ljational Council of La Raza, July 16-19, Dallas. (Current plan: possibly the First Lady
or Leon Panetta.) Would be complicated by immigration concerns.
-
African-American Chamber of Commerce, July 19, Oakland. Over 1,000 delegates.
(Current plan: Rodney Slater.) Aggressive counter-scheduling; not recommended.
Business and Professional Women, Convention, July 15-18, Tulsa. Expecting 1,500
participants. (No surrogate plans as yet.) Would aggressively position the issue as
broader than a minority concern; relative emphasis on race would be criticized.
Decision
_
Little Rock Central High School
_
Constitution Hall, Washington D.C.:
Audience of church congregations
Other
_ _ Atlanta, (site TBD)
of Presbyterians
of La Raza
of black chamber of commerce
of Business and Professional Women
Convention
ll. Adarand Directive to Agency Heads; the Commission
Directive. The detailed empirical analysis and consideration of program revisions now required
as a consequence of Adarand must be coordinated by the Department of Justice as regards the
legal determination of whether a program is constitutionally defensible. The parameters for that
analysis are detailed in formal guidance to agency general counsels issued today by Walter
Dellinger, Office of Legal Counsel; you received a draft on Monday evening. You must decide
3
;A,:::-
r---::-·,;.__·
r~INTON LIBRARY PHOTOCOPY
"·
COPY
�The process must also include some continuing White House participation to superintend
int~ragency policy judgments about reforms that might be desirable to make certain programs
more defensible or more consistent with your own non-constitutional policy views. The legal
and policy choices are all but impossible to disentangle, and will in any case be attributed to the
White House. Because there will be steady stream of such decisions, quiet White House
participation in the interagency effort will be led by Judge Mikva and George Stephanopoulos.
(The directive does not mention the White House role, lest we recreate pressure for White House
documents and visible White House decisionma.YJng.)
-
.
-What is the relationship of the Review to the Directive? We suggest:
"The Review provided the President with basic factual information concerning
various Federal programs and the background conditions of discrimination and
exclusion. Early drafts provided a preliminary application of his policy principles
to various programs. In light of Adarand, however, these preliminary policy
judgments and the evidence underlying them are now subject to strict scrutiny by
the courts, and must be reviewed by the Justice Department to ensure compliance
with Adarand."
There are three options for the Directive:
OPTION
1: IssUE NO DIRECTIVE; REST ON INFORMAL GUIDANCE BY THE CIDEF OF STAFF
Pro: By not issuing a presidential document we avoid making White House news, and leave this
as a DOJ story about legal matters. Although we have a response to a question about the
relationship to the Review, that response is best delivered at the time of the speech.
Con: Leadership; the speech is relatively far off. Meanwhile, the text of the directive
simultaneously assures skeptics that there is high level concern about good faith compliance with
Adarand, and assures the base that your overall framework is true to your principled support for
affirmatively expanding opportunity:
OPTION
2: ISSUE THE DIRECTIVE NOW
Pro: Issuing a Directive demonstrates leadership; reassures Congress that they need not act
precipitously because the Executive branch is fully engaged. Although House GOP leaders are
reportedly putting affirmative action on a slow track, Senator Dole and Rep. Canady are
shopping broad anti-affirmative action measures.
Con: Will lead to some news stories, though probably minor. Will trigger a question about the
4
#.
,-.-·--:··L·· . .
~~INT~N :~RARY PHOTOCOPY
COPY
�status of the Review -- although that question is being asked anyway, and our
ans~r is
above
solid.
~-r•r
OPTION
•.. •'
3: DEFER DECISION; PERHAPS ISSUING DIRECTIVE AT THE TIME OF THE SPEECH
Pro: There is little practical or political urgency, because agencies will begin their Adarand
assignments, and formal presidential endorsement of the DOJ-led process is unlikely to make
a meaningful difference in this summer's legislative process.
Con: DOJ believes that there will, eventually, be some sticking points in the interagency
process, and that those will be minimized if there is a formal directive. Issuing a directive at
the time of the speech creates an unnecessary distraction from a communications perspective.
Moreover, since_ the Attorney General's process will be well underway, the directive will seem
·a fairly empty gesture rather than a timely exercise of leadership.
Decision:
_
Option 1: Issue no Directive; rest on informal guidance by the Chief of Staff
_
Option 2: Issue the Directive now
_
Option 3: Defer decision; perhaps issuing directive at the time of the speech
Commission. Congressional interest in a bipartisan commission has waned. Your advisers and
the agencies all believe that a fact-finding commission on compliance with Adarand would not
be helpful -- either as a practical matter of getting the empirical and legal work done, or as a
matter of winning greater deference from Federal district court judges. Nor does it appear likely
to create credibility that would cause swing Members of Congress to oppose anti-affirmative
action amendments. Finally, civil rights advocates speak in terms of "presidential leadership,"
andoppose making affirmative action policy a "jump ball" in some unpredictable commission,
with potentially dire consequences.
Your advisers therefore see little to gain and much to lose from going forward with a
Commission concerning Adarand and specific Federal programs. Moreover, a commission with
the alternative charter of framing a national conversation on opportunity seems a far less
attractive strategy in the present environment than it might have been before Adarand and the
more focused legislative risks now looming.
ill. The Review
At a minimum, the Review will include a
de~cription of your policy framework,
an analysis of
5
~;;:.
.. .r:--:-·o;.._' .
..
(~INTON L~RARY PHOTOCOPY
'·
COPY
�~
~~E.SIDftv
1/.
o'
/.:..
aY~~L\
;..;<'
the Adarand case, a review of evidence documenting the continuing problem of dis rimination
te. The
and exclusion, and a description of the range of Federal programs and how they o
draft of the Review prepared prior to Adarand also included a balanced presentation of g d and
bad information collected on program performance, our "findings of fact" based on t a
information, and some policy conclusions and recommendations. In light of Adarand, however,
ang the certainty of both litigation and eventual legislative action, the Department of Justice and
several agency general counsels have raised very serious objections to releasing these factual and
policy matters. (Two suits have been ftled already.) Judge Mikva is among those urging that
even if an abbreviated document is released, it should come some days after the speech in order
to maximize attention to the speech and minimize attention to the document. We are discussing
these difficulties, and will have a recommendation for you next week.
-
.
IV. Decision on Procurement Setasides
Baseline -- Reform of Abuses: The Review has identified a number of areas of abuse or
perceived abuse. As in all the other areas we examined, these abuses are far less common in
reality than is generally assumed by critics. Nevertheless, addressing these is necessary as a
matter of fairness and political circumstance; the reforms will also have a marginally helpful
impact on the Attorney General's constitutional analysis. Some details of needed regulatory and
statutory changes remain to be defined after the general parameters, noted below, are announced.
(It would be impossible to develop sound details while maintaining confidentiality.) The five
key elements and summary prescriptions are:
1. Tighten the Economic Disadvantage Test. Reform the asset test to count the value of
the personal residence and to consider the spouse's assets (now excluded) in a manner
analogous to treatment of a 49 percent owner of the enterprise.
2. Tighten Requirements for Graduation. Apply 8(a)'s 9 year graduation limit to all SDB
programs, but then direct the NBC and SBA to establish objective industry-specific criteria
for determining when any individual firm "develops" beyond need for sheltered competition.
Direct the NBC and SBA to establish caps on the dollar value of contracts, plus a cap on
total dollars a single firm can win through sheltered competition. These measures will also
reduce the concentration of 8(a) awards among a few successful firms.
3. Stringent Safeguards Against Fronts and Pass-Tbroughs. Create a uniform,
privatized certification process for all SDBs. Require certification audits at the time of the
first contract and periodically thereafter to verify continuing eligibility and to monitor for
"fronts" and "pass-through" companies. L'lcrease civil and criminal penalties.
4. Sunsets and Caps to Reduce Regional/Industry Concentrations. Direct the NBC to
formulate industry and regional caps/controls to prevent significant adverse burden on nonSDBs. Direct the NBC to determine industries/areas where sheltered competition programs
may be phased out based upon successful inclusion.
6
. ;A,Y:·
. _.rc---=-.k-. -
(~INTON LIBRARY PHOTOCOPY
"·
COPY
�Key agency officials agree that, unless you announce opposition to the current setasid we must
announce this minimum package, making clear that the details will require careful con tation.
The package would be described not only in terms of combatting abuses, but also ensunng
conformity with your policy test of fairness.
Further Steps -- Options for Broadening Eligibility: In light of your policy tests, and because
of the shadow cast by Adarand, we offer these additional options to make minority status less
of a defining and exclusive condition of eligibility for procurement preferences. The critical
choice is whether you want to move to race/gender-neutral targeting, and whether you want to
do so in your speech, in advance of the post-Adarand study process. The options are:
(1) announce only the baseline anti-abuse reforms described above, leaving further reforms
until_ after the DOJ-led review of Adarand compliance:
(2) eliminate current SDB programs as being excessively rigid and exclusionary (although
in DOJ's view defensible). Instruct agencies to develop a new program, consistent with
Adarand, meeting broader objectives of antidiscrimination, entrepreneurial opportunity, and
economic development;
(3) the same as option 2, but with fewer specifics about the objectives and the type of
mechanism to be developed as a replacement program; and
(4) elimination of all race/gender preferences, with empowerment contracting only.
OPTION
1: ANNOUNCE ONLY THE "BASELINE" ANTI-ABUSE MEASURES DESCRIBED ABOVE
Pro: It would be prudent to complete the detailed empirical and program assessments required
by the Supreme Court before rushing to judgment about broad program changes. If we rush,
Congress will feel emboldened to rush. None of the broader policy options below could at this
stage be accurately described as constitutionally compelled; they would be naked, controversial
policy judgments. The Congressional Black Caucus, civil rights groups, MBE representatives
and Assistant Attorney General Deval Patrick all believe you should defer specific policy
judgments of this radical sort until after the Attorney General's process. The abuses identified
are the seeds of much opposition to setasides, and constitute a meaningful reform step.
Con: The media and many others will not consider this option alone meaningful. The story will
be "President Endorses Setasides, Offers Reforms." Especially after so long a Review, the
public expects at least some significant policy judgment from the President -- in both the
affrrmative and negative -- as a measure of leadership as well as commitment to concrete fairness
principles. Deferring all policy choices means completely collapsing the policy judgment into
the constitutional analysis, and that amounts to ceding policy authority to Justice O'Connor.
Because of the empirical work required by Adarand, and because of your strong basic support
for the education programs, procurement setasides are the one opportunity available now for a
7
;_;t;;:..·-
•, _:::--:-_·~·
.
&INTON LIBRARY PHOTOCOPY
...\
COPY
�clear policy choice, up or down.
OPTION 2: RE.TEcr CURRENT PREFERENCES; CHARGE AGENCIES TO DEVELOP AN
BR.o~ El.JJIBn..nY, TARGETIN3 Scx:lAILY OR Ib:>:NJMI:AILY DNADVANTAIGFil'iN~!;»,!ftl
.& DISTRESSED AREAS
You would announce that the current programs, though constitutionally defensible and addressed
to an important problem of unequal entrepreneurial opportunity, operate in a manner that is too
rigid and, at times, racially exclusionary. The current minority-targeted preferences would be
eliminated. You would direct the agencies to develop, through the NEC, a proposal consistent
with Adarand for a new, single program with broader eligibility, focused on three objectives:
(1) expand equal entrepreneurial opportunity by combatting discrimination and its effects where
evidenc~ (as required by Adarand) indicates the need; (2) support emerging enterprises through
-race/gender-neutral targeting of small firms new to federal contracting; and (3) use small
business "empowerment contracting" to target job creation in severely distressed communities.
Pro: This incorporates the three key policy priorities you have expressed to us. Specificity of
the objectives underscores the commitment to a follow on program, so that your critique of
current programs does not signal abandonment of MBEs and WBEs. DOJ believes the resulting
program design would be substantially more defensible than current programs, including that in
Adarand. A more concrete proposal is impossible in advance of the DOJ post-Adarand analysis.
Promising prospective conformity with Adarand will comfort moderates; hard opponents are
unreachable anyway. Adding women to preferences is a major enhancement.
Con: Even at this level of generality, proposing greater eligibility for preferences (women,
deserving white males) creates a risk being tagged as "hiding" minority preferences behind a raft
of new preferences for other groups -- being all things to all people, instead of making a tough
choice. Even the three objectives will be criticized for using race as a factor -- though in a far
less exclusive way. Retaining the flexible MBE and WBE goals seems essential as a
management and accountability tool, but the loose mischaracterization of the scheme will be that
it perpetuates the old programs and simply adds new preferences on top.
OPTION 3: RElECr CURRENT PREFERENCES; CHARGE AGENCIES TO DEVELOP A NEW PROGRAM WITH
BROADER ELIGIBILITY; LEAVE OBJECTIVES AND DESIGN MORE GENERAL
As in option 2, you would criticize the current programs and direct agencies to develop a
replacement. But the replacement would be de:;cribed in a more open-ended way to avoid
focused legal and policy objections at this stage. You would simply commit to: opening up
opportunities to entrepreneurship more broadly, consistent with Adarand, addressing not only
disadvantages created by discrimination, but also the need to increase entrepreneurship and job
creation in economically distressed areas.
Pro: This option stops short of a concrete proposal in order to avoid criticism for adding new
preferences on top of the current ones, and to avoid proposing something that will immediately
8
. A<,:,. -.. .rc;-."- ·
·
·
(~LINTON L~RARY PHOTOCOPY
~
COPY
�~q
0
·~
Vi
~€:,SID€tv,>:
~(
413
(":
l{ ~
trigger (unjustified) criticism that we are flouting Adarand. However, your charge to
NEC
and agencies would incorporate the three key policy preferences you have articulated: coi\ inuing
to address discrimination, explicitly tied to Adarand's requirement of a factual pr
Je;
broadening preferences on some race-neutral basis; and explicit attention to econom'ic~---- development goals. A detailed proposal should await a full Adarand study of contracting issues.
M~while, you will have endorsed a continuing Federal commitment to Federal-level effort in
this arena.
Con: With only a vague commitment about some future replacement, this option will be
perceived by setaside supporters as an abandonment of minority and women entrepreneurship.
More generally, the vagueness of the planned replacement will be criticized as a "dodge," and
the asserted need to do careful policy study (as opposed to legal study) will raise questions about
what th~ Review accomplished during its 100 days. By announcing dissatisfaction with the
-current programs but "punting" on the replacement, we invite immediate Congressional action
to kill them, and greatly complicate the defense of them in court. If the intention is to kill them,
we should go directly to option 4 below.
OPTION
4:
GEOGRAPIDCAL TARGETING ONLY -ELIMINATE RACIAL AND GENDER PREFERENCES
This option would eliminate the current race-based setasides and create a sheltered competition
program with eligibility based on performance of the contract by a small business in a designated
distressed zone and/or hiring above a threshold level of employees from such a zone.
Aggressive management measures will, we hope, prevent severe erosion of progress we have
made in MBE/WBE participation; you should know, however, that this erosion is likely over
the longer run.
Pro: Eliminates controversial and constitutionally sensitive racial targeting, while elevating and
There will be some
focusing on the message of jobs and economic development.
disproportionate benefit to minority entrepreneurs, though far less effective than at present.
Your discussions with William Julius Wilson reflect this emphasis, as do several major
Administration initiatives in the broader realm of economic opportunity and investment. Some
of our consultations with minority business leaders indicate that focusing on geography is more
acceptable than using economic disadvantage alone, because means-testing (i) will sweep in a
vast number of non minorities and (ii) will aid the cause of those who, like Senator Gramm and
Justices Scalia and Thomas, oppose all race-based measures.
Con:
Will be viewed as abandoning any commitment to address directly the problem of
discrimination-based denial of entrepreneurial opportunity, and doing so before any post-Adarand
studies have indicated that such abandonment is constitutionally compelled. With this policy
declaration, current programs would be easy prey in Congress and the courts.
9
;A--:::·-
- _r~_T....,..
(~INTON L~RARY PHOTOCOPY
--.."'
COPY
~
�Decision:
_Option 1:
Anti-abuse reforms only; defer major program changes
_Option 2:
Out with the old programs; announce specific policy objectives of
expanded opportunity; direct agencies to formulate a proposal consistent
with Adarand.
_Option 3:
Same as option 2, but with less specificity on new program objectives.
_Option 4:
Eliminate race- and gender-based preferences; use geography only.
V ~ Decision on Use of Race or Gender in Layoffs: Piscataway
Background. The central issue in this area concerns race or gender as a consideration in
layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a means
to implement an affirmative action policy by "making room" for new, diverse employees.
Second, race or gender cannot trump a bona fide seniority system.
The reach of this second principle is limited. While seniority systems are common in the public
sector, the decline of unionism has reduced the private sector's reliance on such systems. Thus,
reportedly, many large firms expressly consider diversity in their layoff policies, and with
significant results: lllinois Bell recently cut 930 management jobs, but the proportion of
minority managers rose from 25 to 27%; Baxter cut 20% of its 2000 employees, but the
proportion of minority managers incre.ased from 10 to 12%.
The narrow question of "tie-breakers" is thus most likely to arise in the oontext of a seniority
system where layoff decisions are more structured. In the Piscataway case, the Justice
Department has argued that Title VTI does not prohibit the School Board from using race as a
tie-breal<ing consideration in pursuit of a legitimate interest in diversity. In the context of the
Federal civil service, OPM regulations are silent: the Justice Department's Office of Legal
Counsel believes the Federal statutes and caselaw would, as in Piscataway, peimit narrowly
tailored consideration of race or gender.
More generally, In certain sectors, there is a sense that some job opportunities are limited to
"diversity candidates" and that white males are thereby disadvantaged. Second, there are
concerns that in a continuing era of corporate ree:1gineering, women and minorities are, due to
affirmative action, at less risk of being laid off. On the other hand, as you have noted,
affirmative action is sometimes used cynically to justify decisions made for other reasons,
legitimate and otherwise. Moreover, whatever the constriction of opportunities felt by
nonbeneficiaries, this Occurs against a backdrop of continuing underrepresentation of minorities
and women in those sectors. (Otherwise, the. affirmative action would be illegal.)
10
A;::
..
_r·.,.-_,__
rf..hLINTON
--
·
L~RARY PHOTOCOPY
COPY
�Options. The policy options include:
OPTION 1: As A POUCY MATIER, WHEN NOT INCONSISTENT WITH A BONA FIDE SENIORITY
DIVERSITY MAY BE CONSIDERED IN LAYOFFS, BUT ONLY IN A FI.EXIBLE MANNER
LIMITED CIRCUMSTANCES.
Pro: This option is close to the status quo, but does not lend itself to a simple rule. Instead,
this approach would call for the common-sense balancing of the institution's general diversity
interest and the burden on identifiable majority employees.
Situations are different.
Consideration of race or gender would be permissible only: when necessary for the institution's
operation; when a manifest racial or gender imbalance exists; and when less race-intrusive
considerations are not effective. This option is consistent with the DOJ position in the
Piscataway case_.
Con: Complex. Does not speak clearly to the anxieties of non-beneficiaries. As a plurality of
the Supreme Court said in "Ygant, race-based layoffs may impose a more substantial burden
than race-based hiring and promotion goals, in that "denial of a future employment opportunity
is not as intrusive as loss of an existing job." Layoffs are different.
OPTION 2: As A rollCY MATTER, RACE OR GENDER SHOillD NOT BE CONSIDERED IN lAYOFF DECEIOI"S.
Pro: This option would issue a sharp and clear statement -- layoffs are different -- and would
provide some comfort to whites, males, and their dependents, in a time of insecurity. (There
would be a corresponding reinforcement of minority and women concerns about their
marginality.) In the public employment context, this is likely to have little practical impact
because seniority rules already limit the issue to rare tie-breaker-type situations.
Con: This absolute rule goes too far. It will rekindle the "last hired, first frred" resentment of
minorities and women. It ignores the pressing diversity interests that may be at stake in
particular situations -- especially where diversity is a bona fide consideration for organizational
effectiveness. This option would send a loud signal to the private sector, chilling some diversity
efforts and encouraging affirmative action critics. It would be criticized as a flip-flop from the
Administration's litigation position in Piscataway.
Decision:
_ _ Option 1: As a policy matter, when not inconsistent with a bona fide seniority
system, diversity may be considered in layoffs, but only in limited
circumstances.
_ _ Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
11
COPY
�VI. Rollout Scenario More Generally
We are developing a coordinated communications and outreach effort. Finalizing\he p_oolilicy
options, speech themes, date and venue will help. The goal is to manage expectations ~pe _.
the characterization of the speech before it is given, as well as to amplify it to the greatest exteni/
po~sible
afterwards.
The full rollout will involve members of the Cabinet and sub-Cabinet, and the Legislative
Affairs, Public Liaison, Communications and Press offices and the White House and key
agencies. In addition to the Administration's activities, outside/independent opinion leaders from
the civil rights community, academia/education, women's community, economic/corporate and
religious worlds will be integrated ir..to the validaticn efforts.
12
,,
;,tl!,:
r~·T
"·
_r~-~n.T'TYY"T T
TDD DV PT-InTnrnPY
A
-.
COPY
�.
.
'
.
.
'-
·;~·.-~
·,- ,.,.:·.·_, l-
,lj
.
'
'
:
'
.
''I I
'
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
001. memo
Lynn Cutler to Harold Ickes et al. [partial] (1 page)
03/08/1995
P6/b(6)
002. memo
Betsy Myers to Barbara Woolley, re: Recommended Names for
President's Affirmative Action Event (2 pages)
3/1311995
P5
Betsy Myers to President Clinton, re: Speech to DNC Chairs (1 page)
7/1211995
P5
"' oo3~rme-m.·~
L\?_~S
COLLECTION:
Clinton Presidential Records
Public Liaison
Barbara Woolley
OA/Box Number: 23688
FOLDER TITLE:
Affirmative Action Documents 2 [2]
Whitney Ross
2008-0308-F
wr483
RESTRICTION CODES
Freedom of Information Act- (5 U.S.C. S52(b)]
Presidential Records Act- [44 U.S. C. 2204(a)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance withJt.!!.S.,C:.~·-c-_,;:..-- nn
~:~~~~-• ..,m ~a•na~a.I
ha
nnnn
rMn~ot
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b( 4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial in§!.i_!!I_t~ons.[(b)(8) of the FOIA]
- -- b(9t}feteiise would di'SI4ose geological or geophysical information
!~~ ~T~~" ~~ ~" ~T::::u~n~=:~ls ~~~)(9) of the FOIA]
T
•
COPY
�THE WHITE HOUSE
WASHINGTON
July 12, 1995
INFORMATION
MEMORANDUM TO THE PRESIDENT
FROM:
BETSY MYERS
DEPUTY ASSISTANT TO THE PRESIDENT AND
DIRECTOR FOR WOMEN'S INITIATIVES AND OUTREACH
SUBJECT:
SPEECH TO DNC CHAIRS ON TUESDAY EVENING, JULY 11, 1995,
OPPORTUNITY TO MOVE OUR MESSAGE TO WOMEN
While your speech was enthusiastic and well received, I wanted to pass along to you that seve'"al
women commented that they felt excluded because the speech, like others you have delivered,
failed to address women directly.
I feel that we missed a tremendous opportunity to activate our state leaders about
accomplishments of the Administration for women. This audience, in particular, will be moving
our message.
Although this consistent omission is unintentional, the perception is not. Women are looking to
be included in your speeches and "pi~:ture." Your speeches offer one of the best opportunities
to show women that we not only care about them but we are aware of their concerns and that
their issues and their votes are important to us.
I attach, for your convenience, my memo on "Targeting Women in Your Speeches," dated June
29, 1995.
cc:
Harold Ickes
. -··
-
....
----···-
'".
COPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!TITLE
DATE
RESTRICTION
L\ 3la(Q
001. memo
AlexisHennan to the POTUS and VPOTUS, re: Affmnative Action ·
Procurement Refonn (6 pages)
4/8/1996
PS
002. telefax
Ginger Lew to Kitty Higgins and Alexis Hennan (2 pages)
03/28/1996
PS, P6/b(6)
4/12/1996
PS
4/19/1996 .
PS
003. memo
004. list
. Richard Hayes to Kris Balderston, re: Affirmative Action (1 page)
Status of Affinnative Action Activities (2 pages)
COLLECTION:
Clinton Presidential Records
Cabinet Affairs
Kitty Higgins
CLINTON LIBRARY PHOTOCOPY
OA/Box Number: 8996
FOLDER TITLE:
Box 1, Folder 1: [Affinnative Action- March 20, 1995 to May 22, 1996] [3]
Whitney Ross
2008-0308-F
wr476
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pl National Security Classified Information \(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information ((b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(J) Release would violate a Federal statute [(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for Jaw enforcement
purposes [(b)(7) of the FOJA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.·
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�MEMORANDUM FOR THE PRESIDENT AND VICE-PRESIDENT
FROM:
ALEXIS HERMAN
JACK QUINN
DATE:
APRIL 8, 1996 (Draft)
RE:
AFFIRMATIVE ACTION PROCUREMENT REFORM
Close Hold
Summary
This memorandum forwards for your consideration the Justice Department's proposal
for reforming federal affirmative action procurement to ensure compliance with· the
constitutional standards established in Adarand Constructors, Inc. V. Pena (June 12, 1995).
The proposal will be published in. the Federal Register for a 60-day comment period, after
which its structure would form a model for setting up the affirmative action provisions of the
Federal Acquisition Streamlining Act (F ASA) Regulation and the Defense Federal Acquisition
Regulation Supplement. The proposal is intended to take effect October 1, 1996.
Background of this Issue
On July 19, 1995, you directed the Justice Department to review federal affirmative
action programs to ensure their constitutionality under the Supreme Court's Adarand decision,
also their effectiveness, and fairness. The Court ruled, that federal affirmative action programs
must serve a compelling government interest and must be narrowly tailored, if race and
ethnicity were used as a basis for decision making. Adarand involved government contracting,
but the court's decision also extends to federal employment, and health and education programs.
After a thorough review of legislative history and economic and statistical data, the
Department of Justice concluded, that there still exists a compelling need for federal
procurement programs that benefit disadvantaged minority businesses. Their proposal would
change the administration of a wide range of race-conscious means now used in government
contracting to promote minority participation, but not eliminate them. It doesn't cover
affirmative action in procurement undertaken by states and localities pursuant to programs
funded by federal agencies, e.g., Disadvantage Enterprise Program that the Department of
Transportation administers pursuant to the Intermodal Surface Transportation Act of 1991.
These programs are still under review at Justice. In 1995, only 6.5 percent of the federal
government's purchasing was conducted with disadvantaged businesses even with the use· of
affirmative action programs.
'The Department of Justice's proposal incorporates the following elements into a system
CLINTON LIBRARY PHOTOCOPY
�•
• ·-·-~·
-~<::>·~~-pT ,.._
'·
(i9~
l.!i
.
\~
~~vw
.
'i
-1
.
2
.
.
~
0
'<":
~
.
.
.
~oWl~
.
.
~7
they believe is consistent with your commitment to ensuring equal opportunity in
responds to the courts' narrow tailoring requirements, and is faithful to statutory authority:
• Safeguards against fraud and abuse by firms that should not be certified as socially
disadvantaged businesses and prosecution of those that intentionally abuse the system.
• System of market-sensitive benchmarks to govern the use of provisions that allow
race to be considered in making federal procurement awards.
• Several 'race-conscious means - SBA's 8(a) program, and price and evaluation
credits in subcontracting - would be permitted to promote minority procurement. Various
race-neutral outreach and technical assistance activities are permitted as well to enhan~e
contracting opportunities for SDBs.
• Use of price and evaluation credits· would be governed by the level to which
minority firms are actually receiving federal contracts and dollars in an industry. Where
minority participation is below the benchmarks, race-conscious methods of contracting would
be authorized. Where minority participation exceeds the benchmark, the use of race may be
curtailed.
• Set-asides, such as the· "Rule of Two" - that the Defense Department suspended
last October on the advice of the Justice Department - would not be permitted, until "lesser"
means have been tried for three years - e.g., prices and evaluation credits - and found
unsuccessful in ensuring minority contracting opportunities.
• The 8(a) program is unaffected by the proposal, other than counting 8(a) awards to
SDBs toward the benchmarks- where minority awards exceed the benchmark in an industry,
SBA may cut back on 8(a) awards in that industry. There will be no moratorium on 8(a)
awards or structural changes to the program.
Justice's Proposal and Clinton Administration Support for Affirmative Action
These factors are considerations in your decision to accept Justice's proposal for
mending affirmative action in federal procurement and publishing it for public comment:
Pros:
Justice believes their proposal satisfies the constitutional requirements of Adarand.
Justice's proposal "mends, but does not end" affirmative action in federal
procurement.
-- Justice's proposal provides further evidence of your commitment to affirmative
CLINTON LIBRARY PHOTOCOPY .
~ .
'
.
�~~\IAL l..t.
~
q
i.lj
~
3
~~
'-1.
q1'J(.P
~
.
<IV
action programs that are done right. Currently available evidence overwhelmingly s , '~s the
continued need for affirmative action in federal procurement.
-- Justice's proposal is generally regarded by Civil Rights Groups and the minority
business community· as a reasonable approach to Adarand.
However, they disagree with
Justice's recommendation to wait three-years, before deciding if set-asides are still needed to
eliminate any remaining impediments to the development of minority-owned businesses. If not
changed, this time· frame w:ould cause this issue to be raised in the third year of your second
administration.
-- Justice's proposal makes it easier for individuals who do not benefit from a
presumption of being socially and economically disadvantaged to qualify for the program by
lowering the standard of proof SBA will require ..
-- Justice's proposal provides the basis for an alternative to Dole-Canady, which
Democrats and moderate Republicans can point to, as proof that your Administration is serious
about "mending" affirmative action programs. If enacted, Dole-Canady would effectively
overturn decades of Supreme Court decisions regarding .affirmative action.
Cons:
-- Justice's proposal is being presented at a time of unprecedented and wholesale
attacks on affirmative action· programs in the Congress, at the state level, and in the courts.
Besides Dole-Canady, which will soon be taken up by the House' JudiCiary Committee:
• The self-titled California Civil Rights Initiative, if enacted this fall, would ban race
arid gender preferences for minorities and women.· Similar efforts will appear on the ballot in
several states this fall arid is being considered by several state legislatures.
• The Governor of Louisiana signed an executive order suspending affirmative action
programs. Several states and cities are following suit.
• The Hopewood decision, if it stands, would have a sweeping impact on the ability
· of higher education institutions in this country to achieve the widely-recognized goal of
· diversity. The Attorney General of Texas is seeking a review of the Fifth Circuit's decision,
and it is expected that the Justice Department would take all appropriate action to ensure that
.diversity in education remains a part of the fabric of our nation's law.
• There have been several court cases challenging the use of affirmative action in
contracting and the constitutionality ofthe 8(a) program. While Justice lawyers have prevailed
to date, most recently in the tenth circuit, additional challenges are likely to continue.
-- Justice's proposal focuses on the narrow tailoring requirements of Adarand, but says
nothing about what the government should be to provide additional opportunities for minorities
and women, considering the overwhelming evidence justifying the continued need for such
·CLINTON LIBRARY PHOTOCOPY
~
~
�.·
~~\AL
c9v;
~~
1'JA
4
t~h~~d be done.
~ L,\ ~~VI
prOgram. d r e t a r y Ron Brown, among others, expressed his concer
argued
:~ut
___
this and
I!Q
,_
The Defense Department's decision to suspend .the "Rule of Two" last October, has
caused significant' economic hardship on the minority business community. They are working
hard to create additional opportunities for minority owned businesses, consistent with Adarand,
but the minority business community has been quite critical of their response to date.
-- There will be budget consequences. SBA and Coliunerce will need additional
resources to cover their increased responsibilities and to cover the cost of collecting and
· processing the data needed to support the new benchmarking system.
-- Justice's proposal will represent a significant departure for federal procurement
agencies and will take the full commitment of the Cabinet to oversee its carrying out. Because
ofthe uncertainty generated by Justice's review of affirmative action programs, there has been
a significant drop off in government contracting with minority and SDB firms. Part of this
drop off can probably be traced to problems surroUnding the FY '96 budget and government
shutdowns, but not all. We have heard of several instances that agencies no longer feel that
they have to be as diligent about contracting with minority firms.
Other Affirmative Action Activities at Justice
-- The Justice Department issued detailed guidance in February setting forth how
Adarand will affect the use of race in federal employment. Practically speaking, few changes .
are expected in the use of race in federal employment, as similar Title VII standards have
applied for many years.
-- The Justice Department is working with agencies, primarily Department of
Transportation and EPA, which negotiate annual goals for SDBs under grants to states and·
localities. They expect to have ·new guidance in place for FY 97 funds.
Justice is working to develop means to tie the goals federal agencies set with states
and localities to the availability of minority-owned firms, and a factor to account for the effects
of discrimination, in a manner similar to the procurement reform proposal. They are also
discussing with agencies how much they should be involved in policing state and local use of
federal funds, both to insure that Adarand is satisfied and that minority firms receive the full
range of race-conscious competitive advantages permissible under the law.
-- Justice is reviewing several programs agencies operate that are intended to place
more minorities into academic fields. While these programs are defensible, we will need to
develop more information to show the manner in which discrimination has impeded the ability
of minorities to enter some academic fields to provide a defense to the challenges likely to
come.
CLINTON LIBRARY PHOTOCOPY
�0«;,~'\\ALL_~~
'Y .
0
'Y'.p
l.LJ
5
~ ~~?~(p
..(
v·
-
0
-- · Justice is closely monitoring the Hopewood decision to decide wh i6.~p ederal
7
participation in the case is warranted .. The Federal government is still firmly
notion that diversity in education is an important compelling interest.
Recommendations
commi'tte~to..th
On balance, we believe the pros prevail and recommend that you accept Justice's
. proposal. There has been substantial input from outside groups, in the development of the
current proposal, and the 60-day comment period will allow for ·additional concerns to be
raised by the public before the proposal is completed. One change, which we do encourage
before the proposal is published, is for the trial period to be reduced from the proposed three
to two years. This should be long enough to access the workability of Justice's approach and
to decide if set-asides are needed to eradicate discrimination in federal procurement.
Beyond publishing Justice's proposal, we encourage you to undertake several additional
steps to reaffirm your support-for-affirmative action. A misleading, March 8, New York Times
article; has done considerable damage to the ·good will the Administration ·has enjoyed since
your July 19, 1995 "mend it, don't end it" speech and your University of Texas speech on race,
which was given to general acclaim. Because of this article, which implied that your
Administration was imposing a three-year moratorium on affirmative action programs and was
suspending the 8(a) program, we have been flooded with calls and letters protesting this action
and questioning whether the Administration is backing off its support for affirmative action...
Efforts to contain this criticism by issuing talking points, conducting interviews with women's,
Civil Rights Groups, and representatives of the minority business community, and African
American newspapers and radio stations, have helped but additional steps are still needed to
shore up our base:
-- Issue a formal statement over your signature accepting Justice's proposal and
directing that it be published· for public comment. In accepting the proposal, you should use
this opportunity to reaffirm your support for affirmative action done right and creating legal
opportunities for minority and women to pursue in government contracting. You should also
note your continued support for the 8(a) program, which SBA is working hard to improve its
efficiency.
-- Direct the Department of Justice to issue guidance to the federal departments and
agencies as to their continued responsibilities under existing Executive Orders to provide
contracting opportunities for minorities and women. You should also emphasize to the Cabinet
that you expect them to redouble · their efforts to provide contracting opportunities for·
minorities and women in ali aspects of their agencies procurement activities.
-- Use the occasion of your Saturday radio address to reiterate your support for
affirmative action.
-- Host a half-day White House session with leaders from academia, business and the
Civil_ Rights community ·to discuss how best to preserve and strengthen the commitment to
CLINTON LIBRARY PHOTOCOPY
�6
affirmative action and diversity in higher education. The session should be chaired by Dick
Riley and Janet Reno, and should conclude with a working dinner given by you and/or the
Vice President.
--. Use the occasion of your (or the first lady's) speech to the Leadership Conference
on Civil Rights Dinner May 14, to discuss the continued need for a "national conversation" on
racial and gender justice as a follow-up to your speech last June. Our message might be, the
things that affirmative action seeks to address - widespread discrimination and exclusion
· and their ripple effects continue to exist, and we as a nation must find ways to combat racism
and enforce civil rights.
Affirmative action is not about preferences, but opportunities.
Critics' efforts to denounce minority-targeted scholarships, affirmative action procurement, and
diversity in higher education must not be allowed to stop the progress at eliminating the last
vestiges of America's legacy of discrimination.
CLINTON LIBRARY PHOTOCOP'r
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2008-0308-F - Affirmative Action [Part 3]
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/bdc9c3f3630a016f2383f54ac04d1108.pdf
3a704be66e2503742696238e8747a4e5
PDF Text
Text
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
_oo I a fax
SUBJECTrriTLE
PbeRe ~J6.
(P~trtial)
DATE
RESTRICTION
(I )'ttge)
09/21/1994
P6/b(6)
00 Ib. fax
Pbone No (Partial) (I page)
06/2111994
P6fb(<J)
002. talking points
Meeting with CEOs on Affinnative Action (I page)
7117/1995
P5
IJZ ::r
003. memo
Richard Shiffrin to Andrew Fois, re: HR 1833 Partial Birth Abortions
(4 pages)
7114/1995
P5
}:26
004. memo
Bill Andresen to George Stephanopoulos, re: DLC Affinnative Action
paper (I page)
8/1/1995
P5
lc9 q
COLLECTION:
Clinton Presidential Records ·
Chief of Staff
George Stephanopoulos
ONBox Number: 5682
FOLDER TITLE:
Affinnative Action [2]
2008-0308-F
wr446
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release wouid'disclose internal personnel rules ami practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or conlidential or linancial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(S) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�..--------------------------------~-~
. l
-~~
vr
-~
~ ,,~-==~
~
.""<:':,:~~3! DEl\/;··''''-~
<t<~
,
~~'(
~
·
,1 ..~
>- .
a..
0
(.)
THE WHITE HOUSE
\\ .1:)
\\
WASHINGTON
::0
'\
.
'\''
~~-
~.,.,_~~
0
1-0
::I:
-
.
.
.
.
.
.
July 17, 1995.
a..
>0::::
<(.
0::::
OJ
TALKING POINTS FOR OPENING
MEETING WITH CEO'S ON AFFIRMATIVE ACTION
From time to time, I have met with CEO's from around the country to ffi.scuss a niunber of
challenges facing.the nation today. The very first CEO meeting held here in the Spring of
1993 dealt with the economy and the economic plan before the Congress. We have continued
that effort for the past 2 and 112 years and I have found these meetings to be helpful on
giving me advice and input.
As Alexis may have discussed with many of you, today I would like to talk about affirmative
action, and I would like to frame the discussion in four areas: ,
1. · As you know, I am speaking on the 19th to signal that the review process has
ended and to lay out some. key principles. Discuss speech background and focus of
review: employment, education and contracting ..
. Based on youi own experiences, what have been the- best practices that have worked
for you? What are the key points that you think I should emphasize in my speech?
2. How do you reconcile the perceived and apparent tension between the benefits of a
diverse workforce and the need for a leaner, more efficient workforce? (Downsizing.)
3. Affirmative action is in large part the manifestation of anxieties as a result of the
stagnation of wages in the workforce. What are some of your thoughts/
recommendations of how to begin to discuss. this issue and to address the realities?
G;e;cfr/Lt\·b-
w ~~ 't~
~
kr,_i~ ~--€.- ~ v--- )
SGro-~w· t i1N.s 'bz LJ-.A-~~ /
~
.
.
/ /~CJ)
�07/14/95
12:01
ft202 514 0563'
OLC
Memorandum
Date
. Subjoct
H.R. 1833, Bann_ing "Partial-Birth" Abortions
July 14, 1995
:..J
(.)
"""';)
------------------------------------------------L--------------------· ~
From
'rn
Andrew Fois
~5sistant Attorney
General
OLA
Richard Shiffrin
Deputy As.sistant
Attorney General
OLC
~au have asked fo~ our views on a.R. 1833, a bill to ban socalled "partial-birth" abortions. 1
The bill criminalizes all
perfonnance of the ..procedut"e :in qu~5tion; now used in some second-
···-~R~hS~H~)P~-~~-~-ql¢·~-~·~~ri!~l~~,}~~~-~;~~-~~~-~~,~·h~·::rt1.#~~,~~-~{~~.-~~g$~~~~m~~ .
believe" that the'fb'il·l· is constitutionally 'flawed. - ...
First, as applied to women seeking pre-viability abortions, ! ) ~
the bill is unconstitutional if it imposes an "undue burden .. on the
I · r,
ability to obtain an aborti.on. i~annfd :~;entho~ v. case~, ll2 S. z_ k<.h,u
ct. 2791, 2819-21 (1992). Puts 1ght y 1 teren y, the government
· \)'J..o
may not place "a substantial obstacle ln the path Of a woman '- .__....
seeking an abortion of a nonviable fetus.Id. at 2820. We are k-1.> t.,_,
conce~ned that the bill's prohibition on a safe and effective C!..&.-."-4 L
abortion procedure will operate as an -undue burden" with respect -~ ~
to a significant number ot women, especially when access to
..j...:,
alternative procedures is 11m1 ted.
see Planned Parenthood of ~v-- """'
Missouri v. DAnforth, 428 u.s. 52, 77 (1976) (invalidating state ~~ ·"·
ban on particular aoort1on procedure in part because of Hsevere
· limitations on the ·availability"" of alternative techniques in
state).
PE~ se~~~~~i:~~3¥5~A~fj~?~:k~~:t~n~·:~~;\~£fi~'1 :,:J~ffiiti·:~f~h<i~.?~·.::.;i.t~~~~t-~~1,~·-~~f.~-~
-1n the ~~post -v1a~1ll t,Y per l<;>d;
,~~} wi th·'·con.~t.i ~l,lt 1,ona~···stal_10.a,:r.:C1::3.~f'!<~ven
· · when·· the government's ·· ·1nterest ln ·regulating abort1on 1s at 1ts
weightiest, that interest must yield both to preservation of a
·,yoman· s 11re and to preservation of a 'i.mman' s health. Casey, 112
s. ct .. at 2804, 2821 (restriction or prohibition of abortion in
post-viability period must except cases. in which abortion is
necessary to preserve life or health of woman). This means, first
1 , Tne procec1ure described in. the bill appears to be a fonn ot
"dilation and extract.ion" al:lortion, sometimes abbreviated as "D&:X. n
See Diane M. Gianelli, Shock-Tactic Ads Target Late-Term Abortion
Procedure, American MeO.ica1 News, July 5, 1993, at 3.
�07 /H/95
12:02
ts'202 514 0563
~003
OLC
.>a..
0
C,)
.\f'
s.l~
of all, that ~he government .may not deny access
abortion to a.
woman .whose l1fe. or health ·1s thr_eatened by p~~g~ancy. ~ It
also means that the government may. not regulate· access to abortion
in a. manner that effectively "requ1re[s] the mother to bear an
increased medical risk" in ·order to.· serve a state interest. .
Thornburgh v. Am.er ican College of obstetricians and Gynecologists, __
476 u.s. 747, 769 (1986) (inval1dating requ~rement that doctor use
abortion procedure most protective of. fetal life "unless (that
procedure] would present a significantly greater medical risk to
the life or health ot' the pregnant woman" because would require
some degree of "trade-oft·· between woman· s health and -fetal
sur vi val).. That is, where the government may r1ot prohibit abortion
ou t.:dght, 1 t also may npt enforce regulations that make the·
procedure more dangerous to the woman's health.
Id. ; see .alsQ
I2.anforth, 428 u.s. at 79. (invalidating ban on abortion procedure
after first trimester in part because \ilOuld force "a \ilOman and her
physician to terminate her·pregnancy by methods more dangerous to
her health than the methpd outlawed").
.
.
{o
Again, we are concerned that ,. in a large fraction· of the
cases .. in which the bar in question would be relevant at alL
see
casey, 112 s. Ct. at 2830 (discussing method of constitutional
analysfs of abortion restriction l, its operation would be
inconsistent with this· standard. Our understanding is that the
procedure at issue . was developed specifically · as a .safer
. alternative to other methods of late-term abortion, 2 and tha·t in
fact it often poses fewer· medical risks for women in the late
stages of pregnancy. 3
It is likely, therefore, that in a high
percentage of the very few cases in which the procedure actually is
used, it is the technique rnos.t pc-otective of the woman's health.
Accordingly, .a prohibition on the method, in the absenc~ of an
adeguate exception, would require YIOrnen to "'bear an ·increased
med1cal risk" in order to obtain an abortion. As to women to whom
the government may not deny access to abortion altogether -- that
.is, all women seeking pre-viability abortions and women seeking ·
post-viability abortions in order to preserve their health or lives
-~ this outcome is constitutionally impermissible.
We have one final concern that would implicate the bill's
. constitutionality as applied in all cases, even as to women seeking
post-viability abortions for rea~ons other than praservati6n of
life or health.
The Supreme Court has recog:nh:ed that the
2
Seg
shock-T~c~ic
Ads, supra.
3 ~; see also Karen Hosler, Rare Ahg;tion Method I~ New
Weapgn in Debate, ~altimore Sun, June 17, 1995, at 2A {alternative
procedures may pose dallgrars for women)·; Nationa~ Abortion Rigllts
Acticn League, Third- Trimester .Abortion: The M;;r-th of Abortion on
D~nd, Issue Paper, June 1.4, 1.995 (submitted in connection with
House Hearings) .
- 2 -
0
10
:::c
a..
>-
a::
<(
a::
-
IXl
....J
�07/H/OS
12:02
'5'202 614 0563
[41 004
OLC
>-
a.
0
(.)
0
10
government has leqitimate interests from the outset of a pregnancy
both in protecting the health of th~ woman e.nd in protecttng ''the
life of the fetus that may become a child," or "'potential life,"
and that the interest in fetal .life becomes even greater in the
post-viabilit}' period. Casey, 112 S. Ct. at 2804, 2821. It is-not
clear to us, ho'flever, that the bill represents a permissible means
of advancing either of these interests.
Fo:r the reasons discusse.d above, the bill oovtously cannot_ be.
characterized as a health measure.
Nor is there a self-evident
relationship to the protection of potent1al li!e:
the procedure
barred is: no less protective of fetal 11!e than other abort ion
methods, .and the bil.l does not create a '"Structural mechanism··
designed to persuade women to choose childbirth over abortion. Cf.
Casey, 112 s. Ct~ at 2821, 2818.
.
! t is possible, ~· ~uppose, that the bill might be viewed as
effectively encouraging childbirth by making abo~tion, at least in
some cases, . more do.ngerou:s and nence less at tractive as an
alternative.
· But if protecting fetal life by eilcouraginQ
childbirth were invoked as the interest behind the bill, we-think
a serious question would . be presented as to whether the means
ch·o· sen a.re··· .pe. r.mls. ;;,il:Jhl.~-.•;.F·W:e;;,;,;.~,F~e,._;.:~~ "'··.,h.l.:.§.F)·n. 9.:,::,~g,~t·'-~~~h:·/.::L~;l. ,;.~~h~.;W>~.b.ll.pd,.:t~t+"liqti;
..
.•
. ::"'
conte.Mt .-.-.or~,,.,e.ny .. ·.ot er· · n ~~wh c
e
our -:{,,~~ as;~,:~~approve ':.':\'.~. e.
1
···:·~~~·~·:~;~~~f~1~~~*~~~~~;~~ti~~~~l~~~-i~--;~';yi~;\~~~!~~~-~·~rl~Y~~-~~~~T~~~·~~!·~·::.
-···aoo've·~·
·holding that a woman· s interest ·in preserving her health
takes precedence over the government's interest in prbtectinQ fetal
life, ·suggest strongly that the means available to the. government
in oursuing 1 ts interests do not under any circumstances include
·reqUiring people to incur gratuitous medical risks or dangers.
In fact, our understanding is that the bill's supporters have
not suggested that the measure is intended to protect fetal life by
making abortion a more dangerous alternative for women. Rather,
the bill 1s said to advance a gover!lmental interest in "public
moral! ty'" by banning a procedure that Qenerates na sense . of
particular mor.al outrage." This is not, however, an interest that
the Court has recognized as of sufficient maQnitude to override a
wornan·s right to obtain an abortion. Indeed, we are aware of no
case. in v.·hich the Court ·has recognized .a.m: independent governmental·
interest in regulating or proscribing recognized medical procedures
4
~ Testimony of David . M. Smolin, Pro~assor of La\17, ·
Cwnberland Law School, Samford University., before House Judiciary
Committee, Subcommittee on the Constitution, Juna 15, 1995, at 4.
This· testimony is cons_istent with the statements· made by sponsors
of the bill (and its Senate counterpart), emphasising the
"sic.kening 11 or 0 disgusting" nature ·of the procQdurQ. See, ~~ .
Statement of Senator Smith, Cong .. Rec. S854l (daily ed.
16,
1995).
~~S\DEtvl'~.:
.
- 3 -
i
.)
<2
v
\~'
\
'1(
:I:
a..
>-·
c:::
c:::
.·. <(
-
ca
�07/14/95
12:03
'!!202 514 0563
OLC
[4]005
>-·
a...
0
. {.)
o·
1-
because they are deemed off~nsive or immoral. ·Accordingly, it is
not clear tous that the bill permissibly advances any governmental
interest. . If this is the case, of course, then the bill cannot be
applied constitutionally under any circumstances, even in the post-,.
viability period as to women whose life or health are not
threatened by pregnancy.
- 4
~
·o
. :X:
a..
>0:::
<(
. 0:::
a:J
�FROM 33
TO 94567105
POOl/001
>-'
a..
0
(.)
0
10
:c
a...
>-
f a c .s i m i I e
0::::
<(
c:::
T R A N S M I T T •A L
a:J
George Stephanopolous .
fax #: 456-7105
re:
DLC Affinnative Action paper
date: August 1, 1995
pages: 1, inc1uding cover sheet.
to:
Geurgc-·Ijust wanted to let you know that the Senator and the DLC will be holding a press
·breakfast Thursday morning to unveil the DLC's contribution to the affirmative action debate. Our
hope is that this will be portrayed as our contribution to the President's "mend it" challenge, but it
will also obviously lead to the "end it'; part also. .
.·
·
Although I ·have every expectation that the press there will probe for differences between the
Senator's position and the President's position we plan on being positive and focusing on the need
to develop new policies in this area.
l'f you have any questions about this let me know. Also, if you are interested in seeing a copy of
the paper let me know and I'll get you one as ~oon as I can.
From the desk of...
Bill Andresen
Administrative Assistant
· Senator Joseph Lieberman
Room 316 Hart Senate OITice BuUU1ng
Washington, D.C.
202-224-4041
Fax: 202-224-9750
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrrJTLE
DATE
RESTRICTION
130
001. memo
Michael Waldman to G. Stephanopoulos, re: Draft of AA Paper (4
pages)
5/15/1995
P5
062. lettet
PatJI Kiug to Pt esideut Cliutoll [partial] (I page)
06/0271995
P6/b(6)
David Willtelri1 to Bntee LiRdsey (I page)
05/19/1993
P670(6t--.
004. memo
C. Ed ley to Margie Sullivan, re: Appropriation Amendments on
Affirmative Action (1 page)
6/2/1995
P5
905. letter
George Munoz to Suzanna Valdez (I page)
92/28/1995
P6fo(6)-
006-:-te same
Alex RodrigtJez [partial] (I page)
03/0171995
P676(6)
007. fax
DNC to G. Stephanopoulos, re AA Misinterpretation (2 pages)
6/15/1995
P5
""003. lettet
lsi
I s·~
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
ONBox Number: 5761
FOLDER TITLE:
Affirmative Action [3]
2008-0308-F
wr448
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
National Security Classified Information !(a)( I) of the PRA)
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute J(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy j(a)(6) of the PRAI
b(l) National security classified information J(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2). of the FOIAI
b(J) Release would violate a Federal statute J(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy j(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
· financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAJ
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�>a..
0
c.:>
0
1-
0
:::c
a..
>0::
May 15, 1995
<C
0::
•
OJ
~
.
. .
..
:MEMORANDUM FOR GEORGE STEPHANOPOl)LOS
ALD~ .fJV)
FROM:
MICHAE!:- W
SUBJECT:
DRAFT OF AFFIRMATIVE ACTION PAPER
Here is my first reaction to the paper, which I tried to read with myjadedljournalist
glasses on.
On the plus side, I was impressed by its precision and the intellectual rigor with which
it addressed those areas it covered. I learned a lot, and developed a real sense of the degree
to which myths govern this issue. The obvious sheer .volume of effort that went into it will
go a long way toward meeting the goal of "seriousness" --this wasn't just a procrastination
exercise.
. On the to-be-improved. side, I have a few major concerns:
P
C..
·
.
· - It lacks context -- i.e., it doesn't provide the reader with a sense of what it would
\mean for an affirmative action program to "work" (i.e., what are ·the goals that we
want to achieve, w.hat are the side-effects that we don't want). Therefore, it is less
· helpful than it might otherwise be in helping the reader say, "Aha, that's a good · · ·
program, that's a program that needs fixing, etc." Ultimately, there should be a set of
\,fixed criteria to apply to these programs, that can. be summed up in a conClusory
~section at the tail end of each of the. sections.
.
.
~ It neither gives a compelling-enough rendition of the arguments for affirmative
action, nor the myths/fears/arguments against affirmative action. We cannot rebut the
myths unless they are clearly on the table. For such a hot-blooded debate,' the torte is
curiously bloodless. I recognize that there's a virtue in this, but· it risks looking out-:-oftouch.
r
I think that the paper would be best restructured in the following way:
Introduction
.
.
• In the introductory section, explain what the criteria are for whether a
program "works." Is it necessary to lift up all members of a minority group?
What if it helps only those in that group who are educated? etc.
�>a..
·o
·u
0
r
Historical context
0
:I:
a..
. • Then do a history of affirmative action. If we are going to inc u
Clinton Administration's record, this is the place to do it -- though itis critical
to show whether and how we reformed it/differed from the status quo.
• Then talk about the raging debate, including the charges against it.
Programs. policies & practices
·• Then the taxonomy (ugh!) (I had to look it up), broken out as you have it.
• It may make sense to reorder the sections, either by the one that affects the
mostpeople the first, or by the one we like the first, or whatever .
•
•
•
Here are some section-by-section overall comments (not detailed). ·After we talk, I will delve
into line editing, etc:
1. Introduction/policy to. date
My comments are above. I think that we need to say: what does it mean for an·
affirmative action program to "work''?
Also, the legalistic stuff (dispassionately indicating what the Supreme Court will and
won't allow) is not terribly useful,. except as bar exam cramming material. What have
we done, what are we for/against?
2. Framework
As I indicated, l think this is too bloodless. · The only other thing is that the
"taxonomy" doesn't give the reader enough of a sense of how large the overall
1:.Jlliverse is -- are there hundreds of affirmative action programs~ out of which we have
chosen a handful of representative ones, or are these the programs that affect 80% of
the p'eople affected by affirmative action? A clearer sense of how we chose what we
chose to look at would help.
3. Effects
This is good, and rigorous, but absent the context -- what good effects are we
particularly looking to find? -:. it sort of peters out. We can't discuss the issue of
whether or not AA has had positive effects with a few bullet points. ·I know we don't
want to preempt the speech -- but maybe there should be an equally brief, but more
declarative section here.
>-
0:::
<(
0:::
ca
....J
�>a.
0
(..)
4. Federal procurement practices'
0
10
:I:
a.
>c:::
<(
c:::
There isn't enou~ one way or the other on the sense of pervasive unfairness and
corruption that people have about: minority set-asides -- the sense of front companies,
etc.
5. OFCCP
The rebuttal to criticism relies too heavily on the perspective of the employer or the
government official, and not enough on the nonminority employee's perspective. I
don't get a real sense of jus~ how messed up this all is, though I have a feeling it's
pretty lnessed up!
Here it seems that the point (on p. 33 esp.) is that-- in the past -- this did lead to
quotas, 'but it was then fixed. This is key and should be part of the history section, at
the front.
·
6. Education
This is a bit of a laundry list that doesn't give a sense of how much. $$ is involved, or
how large a piece of the educational· pie we're talking about with all these programs.
Again, what is the problem that these programs are supposed to address, is there a
different set of criteria that one would use on education (the key to opp·ortunity) than
for contractors, etc.? Are there particularly bad side effects here -- e.g., are these
programs helping create the politically~correct segmentation of sttidents in academia
.that everyone bemoans?
.
.· .
Also, I don't quite understand where the disabled stuff fits in -~ that seems to me to be .
a big can of worms to open.
7. Civilian employment
This section has a critical element that is centrru to the affirmative action issue
generally -- the impact of downsizing on the attitudes and anxieties ofnonprotected,
nonminority employees. That needs to be fleshed out a bit, if possible -- otherwise,
it's a bit of a laundry list.
Again, it's hard to judge these programs without knowing what our criteria are.
al
�8. Military
.
.
l . \3G
A bit gooey -- we h~ve to. be careful that it doesn't look as if
cross-examining the military folks the way we can HHS types.
0
are incapabl of
>-
li..
0
(.)
0
1-0
:I:
a..
>0:::
<(
·a:::
I'~ not sure I understand the need for this section, except if the "taxonomy" really
deals with all the major AA programs -- since the most important FCC AA provision
has been junked, and the RTC's AA provisions have basically never been used.
------····
~ --- .... _. __. -~~- -- --.-·-··-.
~,------
.,..
The FCC program seems to me to have a particularly strong .argument ~- it's more
important to have diversity among broadcasters than among Beltway Bandit .
consultants -- yet also is more stigmatized as involving sharri companies.
•
.
o:l
9. FCCIRTC
•
•
A few other thoughts on optics -- if the goal is to appear very thoughtful, thorough, etc., then
the methodology should be worn on the report's sleeve:
'
-.r~
-!
- a huge bibliography/footnote section
_
- a description of the involvement of the agencies in preparation of the report (rather
·than just a list of the personnel)?
�JUN UL-'.::J:::>
GENERAL COUNSEL
>0..
o .
. (.)
0
1-
June 2, 1995
0
::I:
0..
Margie Sullivan
EdDom
Department of Defense
To:
>-
·.Alk ·.
.....
_
C/1'\.. - V
Christopher Edley, Jr
Special Counsel to the President
From:
· Appropriation Amendments on Aftirmatlve Action
Subject:
VIA FAX
Let me apologize in advance, because I realize you have tragic and pressing things on your plate
at the moment.
.
· .
Our underst~ding is that the Republicans plan to submit anti-affirmative action amendments to
!lppropriations bills, beginning with the MilCon Subcommittee markup next week. The focus,
presumably, will be on contracting set asides.
We need two things rather urgently.
Can you help?
1. Any intelligence DOD can gather on precisely what the Republicans have in mind. Is there
draft language?
2. Draft background materials and talking points that could be used to explain the workings of
and rationale for the current programs. These materials should include some general points abput
the background conditions of low levels of business ownership among minorities and ~women.
They should also rebut some common myths abou[the current programs, including: the goals
are quotas; unqualified firms get the work; these; programs cost the taxpayer tons of money; there
is widespread fraud;
·
·
·
The tone of the materials should not be that the program..:; aie perfectly flawless, but they
should offer effective and ample ammunition for those attempting to argue that. sweeping
destruction of the programs is wrong.
Given the timing, we need drafts that George and I can review on Monday. My guess,
however, is that most of what we need can be pieced together from material on the shelf.
.
.
Would someone give me a call to confirm'! Titanks.
cc:
George Stephanopoulos
Alexis Herman
Cas~andra Pulley
0::::
<C
0::::
m
....J
�Donald L. Fowler
.Vational Chair
CAMPAIGN DIVISION
PH 202-863-8000
FAX 202-479-5135
FAX COVER SHEET
TIME: _ _ _ _
DATE:
~EST
TO:
FAX:.
FROM:
lfj~
'). Yf2
.6fReAL
SUBJECT:
#OF PAGES (incl. cover): _ _ __
1)./JU'/I)C
ltn (~ frllrr l vt.
Ar:.;TllJAl
Vte·G~I
IF YOU HAVE TROUBLE WITH THIS TRANSMISSION,
PLEASE CALL._ _ _---.;.__ AT 202-_ _ _ __
COMMENTS:
THIS MESSAGE IS INI"ENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICK IT IS ADDRESSED. nus MESSAGE MAY
CONT.oJN IN]"ORMATION THAT IS PIUVILEGED. CONFIDENTIAl AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE
READER OF THIS MESSAGE IS NOT TH!i INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE
MESSAGETO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIRED THAT ANY DISSEMINATION. DlSTRIBlT110N. OR COPYING OF THIS
COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNlCATTON. IN ERROR. PLEASE NOTIFY US
IMMEDIATELY BY TELEPHONE AND RETURN THE OR.IOINAL MESSAGE TO US 1\T THE ABOVE ADDRESS VIA THE U.S. POSTAL SER'YlCE.
THANK YOU.
.
Democratic Party Headquarters • 430 South Capitol Stner, S.E. • Wa.sbington, D.C. 20003 • 202.863.8000 • FAX: 202.863.8174 ·
Paid for by the .Democratic National Committee. Contributions to lhe Democratic National Committee are not tax deductible.
�---
-----~~-------
- - - - - - - - · - - - - - - - - - ----
>c..
.. 0
.u
0
MEMORANDUM FOR MINYON MOORE
10
:I:
c..
FROM CAREN WILCOX·
>0::
SUBJECT: MISINTERPRETATION OF A TERM IN THE PRESIDENT'S SPEECH
<(
0::
-
Ill
DATE: JUNE 15, 1995
Greg Moore alerted me this afternoon to a terrible misinterpretation or' the President's remarks
at the White House Conference on Small Business. Apparently it is widely believed on the Hill
that he ·relieved the small business community of liability for discrimination.
'
We discussed it with the ACLU which had drafted strong letter to George Stephanopoulos
protesting the misunderstood policy. .Because of my work at Hershey Foods, l knew this
.. interpretation of the use of the words· was incorrect, but could·. see how it easily could be
confused.
a
The facts are:
The CQ Congressional Monitor in its story regarding the President's speech on Monday,
June 12, ran the following paragraph: - ·
Clinton's proposal would exempt companies with 100 or fewer employees from
_anti-discrimination rules if they guarantee employees a certain contribution to an
Individual Retirement Account-based plan.
In the context of pension refonn, the temi "imti-discrimination" refers to a set of
complex fonnulas intended to prevent different pension plans being offered to e_mployees ·
based on financial status and salary status. These rules have nothing whatsoever to do
with discrimination on the basis of race or gender. They are complex and requrre
expensive pension consultants causing many .small businesses to prefer to offer ·no
pension plans to employees.
Unforrunately, the words were used without clarification in the current political climate
concerning affirmative action.
I have called the White House and ·talked with Dorothy Robine, and left messages for Gene
Sperling and Alexis Herman to alert them to the problem. .I recommended to Dorothy that a
short, clear statement should be sent by an appropriate person to the Black Caucus, as well as
the Hispanic Caucus and other appropriate constituencies. She is working on it.
·
cc: ·
Chairman Fowler, Chairman-Dodd, Greg Moore, Andy Hernandez, Maureen Shea
cc:
George Stepbanopolous, Alexis Herman, Laura Tyson, Gene Sperling, Betsy Myers,
Dorothy Robine, Ben Johnson
··
�Withdrawal/Redaction Sheet
. Clinton Library
DOCUMENT NO.
'AND TYPE
SUBJECTffiTLE.
DATE
RESTRICTION
133
001. memo
Sec. ofEducation to President Clinton, re: Options for addressing
relition/school prayer (6 pages)
5/26/1995
P5
002. letter
Amitai Etzioni to George Stephanopoulos, re: Affirmative Action (4
pages)
5/11/1995
P5
13 t./
003. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Afflnnative
Action- Speech, Review and Policy Decisions (12 pages)
6/27/1995
P5
135 DL~p-#-2
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
.QA/Box Number: 5627
FOLDER TITLE:
Affirmative Action- Adarand Constructors Inc vs Pena [I]
2008-0308-F
wr873
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)]
Freedom of Information Act- IS U.S.C. 552(b)J
PI National Security Classified Information J(a)(l) of the PRAI
P2.Relating to the appointment to Federal office l(a)(2) of the PRAI
P3 Release would violate a Federal statute J(a)(3) of the PRAI
P4 Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy·l(a)(6) of the PRAI
b(l) National security classifitOd information l(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA]
b(J) Release would violate a Federal statute l(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or finan~ial
information J(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
·personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
co'ncerning wells l(b)(9) of the FOIAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�05/23/95
10:53
FAX 2029941606
communftariSnNe~
1@002
jflfll,lti~ ~
1? 1.(-t"t:rt>. - b ·w
8/9()
. C,.)
)ti\\ ·~~·· ~
·a..
: >-.
0:::
<(
0:::
UNIVERSITY PROfESSOR
OJ
...J
The.George Washington University Center for
Communitarian Policy Studies
May 11, .1995
Mr. George Stephanopoulos
Executive Assistant: to t:.he. Chief of Staff
The White House
1600 Pennsylvania Avenue, N.W.
Washingt:.on, D.C. 20500
Dear Mr.
St:.ephanopoulo~:
This is to follow our brief exchange at the dinner with the
President: on May 2. I. suggest that t:.he following does provide an
ethically sound and-community-building way to respond the ant:.iaffirmative act:ion California Civil Rights Initiative. It is not
more complicat:ed than the ocher initiative; in effect it closely.
mimics its text.
The current initiative reads:
(A) Neither the state of California nor any of its political
subdivisions or agents shall use race, sex. color, ethnicity
or national origin as a criterion foreither discrimination
against, or granting preferential treatment to any. individual
or· group in the operation of the. state's syst.em of public
contracting.
(B) This section shall apply only to stat:.e action t:ak.en after
the effective daee of this section.
{C) Allowable remedies for violation of this section shall
include normal and customary attorney's fees.
(D). Nothing in ~his section shall be interpreted as
prohibicing classifications based on sex which are reasonably
necessary to ·the normal operation of the State's system on
public employmen~ or public education.
�-
05/23/95
10:53
FAX 2029941606
-commun1tar1ariNet
141003
>c..
0
c.:>
0
1-
May ll,
l~95
Let~er to Mr. Georg~ Stephariopoulo~
Page 2
0
::J:
c..
>0:::
<(
0:::
. a:J
(E)
Nothing . in chis · section shall· ·be interpreted as
invalidacing any court order or consent decree which is in
force as of the effective date of this section.
(F)
Nothing . in this seccion shall be interpreted as
prohibiting state action which is necessary to establish or
. mai:nc.ain
eligibility
for. any
federal· program,
where .
ineligibility would result in a loss of federal funds to che
scate.
(G)
If any part or pares of this section are found to be in
conflict with federal law or the United States consti~ution,
the seccion shall be imolemented to the maximum extent that
federal law and the uniced States Conscitution permit. Any
provision held invalid shall be severable from the remaining
porcions of this section.
· The suggested alternative is as follows:
(A) · Neither the scate of California nor any of its political
subdivisions or agenes shall use race, sex, color, ethnicity
or national origin as the SOLE criterion for either
discrimination against, or granting preferential treatment to
any individual or group in the operat:.ion of the state's syst:.em
of public contraceing.
·
(B)
Where there is specific -documentation of discrimination
against anyone (including discrimination in reverse) remedies
will be inst:.icuted and penalties exac~ed .
. (C)
Nothing in this init:.iative should be· interpreted as
detrimental to equality of opportunity programs such as
training and educational programs based on the need. t:o .be able
to compete on equal · footing.
('rhis addition may not be
needed.)·
(D)
This sect:ion shall apply only to state action taken after
·the effective dace of this section.
(E)
Allowable remedies for violation of this section shall
include normal and cust:.omary· attorney's fees.
·
Nothing in chis section shall be interpret:ed as
(F)
prohibiting classifications based on sex which are reasonably
necessary ~o the normal operation of the State's system on
public employment or public· education.
-
�05/23/95
10:53 . FAX 2029941606
>-
a..
0
(.)
0
I0
:::c
a..
May 11, 1995
Let:t:err:o Mr. George Stephanopoulos·
>a:::: '
a::::
-Page 3
'<(
c:l
(G) ·Nothing in
this section shall. be in):erpreted as
invalidating any court order· or consent decree which is in
force as of the effeccive dace of this section.
(H)
Nothing in this ·section shall be interpret:ed as
prohibiting stace action which is necessary to establish or
maintain
eligibility
for. any
federal. program,
where
ineligibilit:y would result'in a loss
federal funds to the
sr.at:.e.
of
(I)
If any·part or parts of this sec::t:ion are found to be in
conflict wit:h federal law
the United States Constitution,
the section shall be implemented to the maximum extent that
federal law arid the United States Consr:.itUl:.ion permit. Any
provision held invalid shall be severable from t:he remaining
portions of t:his sec::t:ion.
or
An argument could be made .that the text should be furt:her ·
differentiated, to protect it from the charge that it is a gimmick.
I t:esced it on several elect:ed officials from California and
elsewhere- Before one takes it to focus groups, etc., they need to
be exposed to proper discussion as the electorate would~
I would
like t:o discuss with you this mat:cer however briefly_
I truly believe t.his text could make.a difference ~n terms of·
de.fending what should be defended, but not more, in this area.
Naturally, I do not: go into all the other related issues here: the
history of. affirma-tive act:.ion, what various studies have shown, ·
etc.
Ethical Rationale;
If race and gender are used as THE exclusive, sole criteria,
one must: accept signs chat say, even when ·there is no proven
wrong-:-doing, 11 Lat.inos, Asians, and whites need not apply here,"· as
was· the case with t:he University of Maryland's black-only
fellowshiP.
It also follows that a male African-American
billionaire (as in the Viacom case) will be entitled to a benefit.
that: a poor, white Appalachian woman with cancer may not:.
This
allows reverse discrimination whic::h undermines the very drive
against. discrimination by legitimating it. · (One exception is a
situat:ion of .the kind that took place in San Francisco's fire
deparcmenc, but. t.his -is. covered by· "where there is specific
evidence . . - -"l
~hen
. ..J
(.)
J
~·
�05/23/95
10:53
FAX 2029941606
.>a..
0
(.)
.0
1-
_May li, 1995
Lecter t.o Mr. George Stephanopoulos
Page 4
0
:::c
a..
>-
0::
<(
0::
OJ
On the ocher hand, if we use. race and gender as A criteria,
this can be justified readily on the grounds that we use many other
so-called un-meritorious criteria, from tne state you are from tovet.erans status to alumni parents. How can we exclude gender and
race?
_ Rejection slips in this situation would come not. because you
are white or male but: because your total index (taking into account
all your scores) was lower than someone else's, and a white male
from Appalachia may go ahead 'of a black millionaire in the queue,
et:c., etc.
Public· support:. Considerations:·.
Pollst.ers often do not take into account that many people have
complex feelings, which we do not see when they are asked if they
are ·for. or against an . initiative and are not given a new third
alternative. While there may be as many as the estimated third of
Californians who may vote for . the · prohibition . without any
_consideration of social history, I estimat:e that a third or more of
those who would vote for it would be relieved to have a middle,
fair alterative.
It also will allow elected officials a different position than
having to be either for against the current initiative .. ·
If any of ·this requires documentation I would be happy to
provide· it.
Sincerely,
l~ ~~\·
l
Amit:.ai Etzioni
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECT rfiTLE
·
DATE
Deval Patrick to John Schmidt, re Adarand and Alternatives to a
Commission (I page)
6/1411995
RESTRICTION
P5
13&
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
ONBox Number: 5627
FOLDER TITLE:
Affirmative Action - Adarand Constructors Inc vs Pena [2]
2008-0308-F
wr874
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)(
PI
P2
P3
P4
b(l) National security classified information I( b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIAI
.
b(7) Release would disclose information compiied for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(S) of the PRAI '
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRA(
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�U.S. Department of Justice
Civil, Rights Division
Office of the Assistant Attorney General
Hfuhington, D.C. 20035
June 14, 1995
TO:.
John Schmidt
George Stephanopoulos
Christopher Edley
Alexis Herman
FROM:
Deval L. Patrick
SUBJECT:
Response to Adarand and Alternatives to a Commission
In thinking a little deeper about the idea of creating a
commission to examine.federal programs to determine their
compliance with Adarand, I have become convinced that a
commission has substantial drawbacks:
~.
A commission should not determine whether these programs
comply with the legal standard laid down by Adarand. The legal
determination should be made in the Department of Justice. The
Civil Rights Division; as the lawyers charged with defending
challenges in court, and the Office of Legal Counsel would seem
the appropriate centers for that determination.
I am not ·
familiar with any commission that has beeh charged with deciding
legal questions. Moreover, ·I am concerned that turning legal
questions over to a commission sends a message of a lack of
confidence in the Department of Justice.
2. There is really no need ·for a commission to study policy
questions.
Given Adarand, it seems tome that the only question
to be decided is the legal question, since I assume that the
Administration would not decide as a matter of policy to jettison
a program that' was narrowly tailored to accomplish a compelling
government ~nterest.
3 .. Creating a commission to focus exclusively on the
Adarand inquiry sends the wrong message about Adarand.
It sounds
an alarm.
I think we should read Adarand as a setback, but not· a
disaster. The Court (1) made clear that it was not prohibiting
all. consideration of race, (2) left open the door for courts to
give deference to congressional factfinding, and (3) did not
foreclose the production of post~enactment evidence to satisfy
strict scrutiny. While it is clear that Adarand will increase
our litigation burden and that we are likely to suffer some
failtires, it is by no means clear that we wili not be able to
defend many programs successfully.
DF.TER.\1\~ED TO BE A:\ AD\11:\IST~\TI\'E .
\J.\f~Kl~G Per E.O. 12958 as amended, Sec. 3.3 (c
. .
: ,,I.,
Date· ""[ 61 / 11
.
lnitial:s: .wtv-
_ ·- ..... ::..../..:
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTrfiTLE
RESTRICTION
001. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Speech, Review and Policy Decisions (12 pages)
6/2711995
P5
002. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Post-Adarand Steps and Completion of the Review (5 pages)
6/19/1995
13~
P5
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
ONBox Number: 5682
FOLDER TITLE:
Affirmative Action: Affirmative Action
2008-0308-F
wr875
RESTRICTION CODES
Presidential Records Act- )44 U.S.C. 2204(a))
Freedom of Information Act- IS U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules ami practices of
an agency )(b)(2) of the FOIA)
b(3) Release would violate a Federal statute )(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information )(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells )(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information )(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy )(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�THE WHITE HOUSE
WASHINGTON
June 27, 1995
. .--
MEMORANDUM FOR THE PRESIDENT
.
From: George
Re:
~
.
~.
Stephanopou~nd Christopher E~
· Affirmative Action--- Speech, Review and Policy Decisions
,,..·
This memorandum reviews the four pieces of the Affirmative Action rollout:
•
•
•
a major speech .on July 19th --we seek your decision on veriue;
release of the Review;
_
a presidential Directive to agency heads creating a process coordinated by the Attorney
General to ensure compliance with Adarand -- we seek your decision on whether and
when to issue the DireCtive; and
· •- two key policy choices for immediate' decision and, if you chose, announcement with the
speech: setasides and the Piscataway issue of using race/gender as a factor in· layoffs.
I~
The Speech: Content and Venue
Content. Don Baer and Carolyn Curiel, with assistance from others, are conducting the broad.
outreach you requested. As we discussed, the ·s'peech will be a broadly thematic discussion of
discrimination, exclusion~ equal opportunity, and healing. It will include a strong defense of
·affirmative action when done the right way, and offer policy principles which will he m~tde
concrete with a few pointed programmatic e~amples of the good, the uncertain and the
problematic.
Among the possible program examples are:
The good: Programs you confidently support include: the military; your judicial
appointments; your Cabinet appointments; the OFCCP program of affirmative action in
employment.
The uncertain: Programs you support but for which you want the Attorney General's
confirmation of compliance with Adarand include: the several grant programs operated by
the Departments of Education and HHS; NSF grant programs: The most common rationale
for these grant programs is dramatic underrepresenta~ion of historically excluded groups. plus
�>-
a...
0
some context-specific public interest m inclusion (for example, broadening the human
resource base for research scie~tists). ·
(.)
0
r-
0
:::r::
Q_.
The problernatic: Programs you believe need revisions include: Contracting setasides; and
USDA setaside~like auctions of for~closed fanns. Although post-Adarand empirical studie~
. might establish that these are constitutionally defensible, as a policy matter they in some
instances are unfair.
For purposes of the speech and any supporting press materials, we· can supplement these with ·
state, local and private sector examples drawl! from litigation and press accounts. We do not
r~comrnend a detailed rollout of how Federal programs sort into these three categories because
most if not all of those judgments should now be deferred until the post-Adarand assignment is
complete, as indicated in the discussion below of the Directive.
Venue. Listed below are venue options for your speech. As with any major address, your speech
is what matters here. The venue's history and symbolism will provide secondary color. In this
case specifically, the anticipation and coverage of the speech will be significant, and the location
will. create context and. generate helpful side-bar stories.
.
.
.
•
Little Rock Central High School, Little. Rock, Arkansas
Recommended option. This site would allow your speech and the issues surrounding affirmative
action to be framed within the larger context of the civil rights movement and the struggle for
equal justice ·and opportunity. The media would use the school's history when covering the
speech. When combined with your own experiences and battles against racism, this would make
a powerful s·tatement framing your remarks. Networks would perhaps contrast footage of you
with scenes of Gov. Fauhus. You might choose to· mention contemporary p~oblems at Central
High to underscore the critical importance of the larger opportunity agenda, specifically quality
educat16n.
•
Constitution Hall, Washington, D.C.
Alternative option. This site allows you to draw on the building's h1story in the fight against
discrimination (Marian Anderson). as well as the footsteps-away -history of events around the Mall
and commemorated there. The Hall seats over 3,500 people --a crowd we would build,.- which
would inevitably create a serious, Presidential, high-energy environment. The crowd could be
built thematically, for example: a multiracial assemblage of church congregations; young people.
•
Atlanta, Georgia--Site TBD
By going to "The City Too Busy To Hate," a city essentially built on affirmative action, you
could both draw on the history of Dr. King and early civil rights efforts while using the city as
an example of the issue in contemporary times. We would locate a venue of historical
significance to Dr. King, such as a park where he used to preach, etc .
>0::::
<
0::::
co
�>a..
0
C,.)
comparisons with King's speeches, including the "content of .their character'.' portion of the "I
Have a Dream" speech. This is bo~h a plus and a minus.
··o
1.0
:::X:
a..
•
Already-Scheduled Events
>0::::
<(
There is a surprisingly small selection of events scheduled on or around July l9,none of which .
seem very promising: .
Presbyterian Church USA, General Assembly, July 15-22, Cincinnati.
delegates. (No surrogate plans as yet.)'·
0::::
a:l
.....1
Over 3,000
National Council ofLa Raza, July 16-19, Dallas. (Current plan: possibly the First Lady
·
or Leon ,Panetta.) Would be complicated by immigration concerns.
. African-American Chamber of Commerce, July 19, Oakland. Over 1,000 delegates.
(Current plan: Rodney Slater.) Aggressive counter-scheduling; not recommended.
Business and Professional Women, Convention, July 15-18, Tulsa. Expecting 1,500
participants. · (No surrogate plans as yet.) Would aggressively position the issue as
broader than a minority. concern; relative emphasis on race would be criticized.
Decision
_ _ Little Rock Central High School
_ _ Constitution Hall, Washington D.C.:
Atlanta, (site-;t.Bbf _____ ·-·---------·-- · ---_ _ Convention
.
.Audience 6f church congregations
Other
--··-----------···-------. ---------------------
of Presbyterians
of La Raza
_ _ of black chamber of commerce
_ _ of Business and Professional Women
II. Adarand Directive to Agency Heads; the Commission
Directive. The detailed empirical analysis and consideration of program revisions now required
as a consequence of Ada rand must be coordinated by the Department of Justice as regards the
legal determination of whether a program is constitutionally defensible. The parameters for that
analysis are detailed in formal guidance to agency general counsels issued tod~y by Walter
· Dellinger, Office of Legal Counsel; you received a draft ori Monday
~
u must decide
whether and when to issue a directive to agency heads forma ~stablishm~ e Attorney
-~
0
,_.
z
?
u
3
�>a..
0
General-led process, with a progress report from her to you within 90 days. (The directive is at
Tab A.)
(...)
0
10
:c
The process ·must also include some continuing White House participation to superintend
interagency policy judgments about reforms that might be desirable to make certain programs
more defensible or more consistent with your own non-constitutional policy views. The legal.and
policy choices· are all but impossible to disentangle, and will in any case be attributed to the
White House. Because ·there will be steady stream of such decisions, ·quiet White House ·
participation in the interagency effort will be led by Judge Mikvaand George Stephanopoulos.
(The directive does not mention the White House role, lest we recreate pressure for White House
documents and visible White House decisionmaking.)
·What is the relationship of the Review to the Directive? We suggest:
"The Review provided the President with basic factual information concerning
various Federal programs and the background conditions of discrimination and
exclusion. Early drafts provided a preliminary application of his policy principles
to various programs. In light of Adarand, however, these preliminary policy ·
judgments and the evidence i.mderlying them are now subject to strict ~crutiny by
the courts, and must be reviewed by the Justice Department to enst.ire·corhpliance
with Adarand."
There are three options for the Directive:
OPTION 1: ISSUE NO DIRECTIVE; REST ON INFORMAL GUIDANCE BY THE CHIEF OF STAFF
Pro: By not issuing a presidential document we avoid making White House news, and leave ttl-is
as a DOJ story about ·legal matters. Alth6ugh we have a response to a question about the
------- rehii'ionsfiip- to the Review: that res-ponse is best delivered "at the tirrie of the speech: .... --- -- ...
Con: Leadership; the speech is relatively far off. Meanwhile, the text of the directive
simultaneously assures skeptics that there is high level conGern about good faith compliance with
Adarand, and assures the base that your overall framework is true to your principled support for
·
affirmatively expanding opportunity. .
OPTION 2: ISSUE THE DIRECTIVE NOW
Pro: Issuing a Directive demonstrates leadership; reassures Congress that they need not act
precipitously because the Executive branch is fully- engaged. Although House GOP leaders are
reportedly pu'tting affirmative action on a slow track, Senator Dole and Rep. Canady are shopping
broad anti-affirmative action measures.
Con: Will lead to some news stories, though probably minor. Will trigger a uestion about the
.
. status of the Review -- although that question is being asked anyway,
.
~
6
~
~
\)
.
4
~
.
a..
>0:::
<(
0:::
Ctl
.....1
�>-
a..
0
solid.
(.)
0
~
0
:OPTION 3: DEFER DECISION; PERHAPS ISSUING DIRECTIVE AT THE TIME OF THE SPEECH
:I:
a..
>-
.Pro: There is little practical or political urgency, because agencies will begin their Ada rand
assignments, and formal presidential endorsement of the DOJ.·led process is unlikely to make a
·
meaningful difference in this summer's legislative process.
0:::
<(
0:::
-·
co
Con: DOJ believes that there will, eventually, be some sticking pointsin theinteragency process,
· and that those will be minimized if there is a formal directive. Issuing a directive at the tiri1e of
the speech creates an unnecessary distraction· from a communications perspective. Moreover,
since the Attorney General's process will be well underway, the directive will seem a fairly
empty gesture rather .than a timely exercise of leadership.
·
Decision:
_ _ Option 1: Issue no Directive; rest on informal guidance by the Chief of Staff
_ _ Option 2: 'Issue the Directive now
_.__ Option 3: Defer decision; perhaps issuing d.irective at the time of the speech
Commission. Congressional .interest in a bipartisan commission has waned. Yo'ur advisers and
the agencies all believe that a fact-finding commission on compliance withAdarand would not
be helpful -- either as a practical matter of getting the empirical and legal work done, or as a .
matter of winning greater" deference from Federal distriCt court judges. Nor does it appear likely
to create credibility that would callse swing Members of Congre-ss to oppose anti-affirmative ..
action.amendments. Finally, civil rights advocates speak in terms of "presidential leadership."
and oppose making affirmative action policy a "jump ball" in some uppredictable commission.
with potentialiy dire consequences.
Your advisers therefore see little to gain and much to lose from going forward with a
Commission concerning Adarand and specific Federal programs. Moreover, a commission with
the alternative charter of framing a national conversation on opportunity seems a far less
attractive strategy in the present environment than it tnight have been before Adarand and the
more focused legislative risks now looming.
III. The Review
At a minimum, the Review· will include a description of your policy fram~M~l"l
the Ada rand case, a review of evidence. documenting the· continuing pr..tlid~-k'f.
&'
~ \3(}
5.
�>-
a..
and exclusion, and a descriptionof the· range of Federal programs and how they operate. The
draft of the Review prepared prior t!) Ada rand also included a balanced presentation of good and
. bad information· collected on program performance, our "findings of fact" based on that
information, and some policy conclusions and recommendations. In light of Adarand, however,
and the-certainty of both litigation and eventual legislative action, the Department of Justice and
several agency_general counsels have raised very serious objections to releasing these factual.and
. policy matters. (Two suits have been filed already.) Judge Mikva is among· those urging that·
. even if an abbreviated document is released, it should come some days after the speech in order
to maximize attention to the speech and minimize attention to the document. We are discussing
these difficulties, and will have a recommendation for you ·next week.
IV. Decision on Procurement Setasides
Baseline -- Reform of Abuses: The Review has identified a number of areas of abuse or
perceived abuse. As in all the other areas we examined, these abuses are far less common in
reality than is generally assumed by critics. Nevertheless, addressing these is necessary as a
matter of fairness and political circumstance; the reforms will also have ·a marginally helpful
impact on the Attorney General's constitutional analysis. Some details of neeaed regulatory and
statutory changes remain to be defined after the general parameters, noted below, are announced.
(It would be impossible to develop sound details while maintaining confidentiality.) The five k~y
elements and summary prescriptions are:
1. Tighten the Economic Disadvantage Test. Reform the asset test to count the value of
the personal residence and to consider the spouse's assets· (now excluded) in a manrier
analogous to treatment of a 49 percent owner of the enterprise.
2. Tighten Requirements for Graduation. Apply 8(a)'s9 year graduation limit to all SDB
programs, but then direct the NEC and SBA to establish objective industry-specific criteria.
for determining whe~ any individual firm "develops" beyond need for sheltered competition.
Direct the NEC and SBA to establish caps on the dollar value of contracts, plus a cap on
total dollars a single firm can win through sheltered competition. These measures will also
re~uce the concentration of 8(a) awards among a few successful firms.
3. Stringent Safeguards Against Fronts and Pass-Throughs. Create a uniform, privatized
certification process for all SDBs. Require certification audits at the time of the first
contract and periodically thereafter to verify continuing eligibility and to monitor for "fronts"
and "pass-through" companies. Increase civil and criminal penalties.
4. Sunsets and Caps to Reduce Regional/Industry Concentrations. Direct the NEC to
formulate industry and regional caps/controls to prevent significant adverse burden on nonSDBs. Direct the NEC to determine industries/areas where shelteted competition programs
<?~ESI0€'4'
may be phased out based upon successful inclusion.
~
~
f\)*
~
6
0
(.)
0
10
:I:
a..
>0::
<(
0::
co
�>a..
0
Key agency. officials agree that, unless you announce opposition to the current setasides, we must
announce this minimum package; making clear that the details will require careful consultation.
The package would be described not only in terms of combatting abuses, but also ensuring
conformitywith your policy test of fairness.
(.)
0
1-0
:c
a..
>-.
·~
Further Steps -- Options for Broadening Eligibility: In light of your policy tests, and because
of the shadow cast by Adarand, we offer these additional options to make minority status less
of a defining and exclusive condition of eligibility for procurement preferences. The critical
choice is whether you want to move to. race/gender-neut~al targeting, and whether you want to
do so In your speech, in advance of the post-Adarand study. process. The options are:
(1) announce only the baseline anti-abuse reforms described above, leavingfurther reforms
until after the DOJ-led review of Adarand compiiance; ·
(2) ·eliminate current SDB programs as being excessively. rigid and excl!Jsionary (although in·
DOl's view defensible). Instruct agencies to develop a new program, consistent with
. Adarand, meeting broader objectives of antidiscrimination, entrepreneurial opportunity, and
economic development;
(3) the same as option 2, but with fewer specifics about the objectives and the type of
mechanism to be developed as a replacement program; and .
(4) elimination of all race/gender preferences, with empowerment contracting only.
OPTION
1: ANNOUNCE ONLY THE "BASELINE" ANTI-ABUSE MEASURES DESCRIBED ABOVE.
Pro: It would be prudent to complete the detailed empirical and program assessments required
by the Supreme Court before rushing to judgment about broad program changes. If we rush,
Congress will feel emboldem!d to rush. None of the broader policy options below could at this
stage be accurately described as constitutionally compelled; they would be naked, controversial
policy judgments. The Congressional Black Caucus, civil rights groups; MBE representatives anc.l
Assistant Attorney General Deval Patrick all believe you should defer specifiC policy judgments
of this radical sort until after the Attorney General's process. The abuses identified are the seeds
of much opposition to setasides, and constitute a meaningful reform step.
· Con:· The media and many others will not consider this option alone meaningful. The story will
be "President Endorses Setasides, Offers Reforms." Especially after so long a Review, the public
expects at least some significant _policy judgment from the President -- in both the affirmative
and negative-- as a measure of leadership as well as commitment to concrete fairness principles.
Deferring all policy choices means completely collapsing the policy judgment into the
constitutional analysis, and that amounts to ceding policy authority to Justice O'Connor. Because
of the empirical work required by Adarand, and because of your strona asic support for the
education. programs, procurement setasides are the one opportuni ~iiiltilitl\f w for a clear
.
.
. .
.
l
~
Or:
\3
/_
"?-
j
~
r
7
<(
·.~
ca
�>-
0..
0
policy choice, up or down.
(.)
0
1-
OPTION
0
2: REJEcr CURRENT PREFERENCES; CHARGE AGFNCIB TO DEVELOP A NEW PROGRAM wrrn
.BROADER ElJGIBIUIY, TARGETING Scx::rAI.LY OR EcoNCMICAU..Y D!sADVANfAGED INDIVIDUALS
::I:
0..
>-
& DISTRESSED AREAS
0::::
.
<(
you would announce that the current programs, though constitutionally defensible and addressed.
to an important problem of unequal entrepreneurial opportunity, operate in a manner that is too
rigid and, at times, racially exclusionary. The current minority-targeted preferences would be
eliminated. You would direct the agencies to develop, through the NEC, a proposal consistent
with Adarand for-a new, single program with broader eligibility, focused on three objectives: (1)
expand equal entrepreneurial opportunity by combatting discrimination and its effects .where . evidence (as required qy Adarand) indicates the need; (2) support emerging enterprises through
race/gender-neutral targeting of small firms new to federal contracting; and (3) use small business
"empowerment contracting" to target job creation in severely distressed communities.
-
.
.
.
.
Pro: This incorporates the three key policy priorities you have expressed to us.· SpecifiCity of
the objectives underscores the commitment to a follow on program, so that your critique of
current programs does not signal abandonment of MBEs and WBEs. DOJ believes the resulting. ·
program design woul<i be substantially more defensible than current programs, including that ·in
Adarand. A more concrete proposal is impossible in advance of the DOJ post-Adarand analysis.
Prorqising prospective conformity .with Adarai1d will comfort moderates; hard opponents are
.
.
unreachable anyway. Adding women to preferences is a major enhancement.
Con: Even at this level of generality, proposing greater eligibility for preferences (women,
deserving white males) creates a risk being tagged as "hiding" minority preferences.behind a raft
of new preferences for other groups -- being all things to all people, instead of making a ·tough
choice.:. Even the three objectives will be criticized for using race as a factor --though in a fai·
less exclusive ·way. Retaining the flexible MBE and WBE goals seems essential
·a
management and accountability tool, but the loose mischaracterization ofthe scheme will be that
it perpetuates the old programs and simply adds new preferences on top.
as
'
OPTION
3: REJEcr 0JRRENT PREFERENCES; CHARGE AGFNCIES TO DEVELOP A NEW PROGRAM wmr
BROADER ELIGIBILITY; LEAVE OBJECTIVES AND DESIGN MORE GENERAL
As in option 2, you would .criticize the current programs and direct agencies to develop a
replacement. But the replacement would be described in a more open-ended way to avoid
focused legal and policy objections at this stage. You would simply commit to: opening· up
opportunities to entrepreneurship more broadly, consistent with Adarand, addressing not only
disadvantages created by discrimination, but also the need to increase entrepreneurship and Joh
creation in economically distressed areas.
a::::
o::l
....J
�>-
a..
0
trigger (unjustified) criticism that we are flouting Adarand. However, your charge to the NEC
and agencies would incorporate the ~hree key policy preferences you have articulated: continuing
:to ;address discrimination, explicitly tied to Adarand's requirement of a factual predicate;
broadening preferences on some race-neutral basis; and explicit atten~ion to economic
development goals. A detailed proposal should await a full Adarand study of contracting issues.
Meanwhile, you will have endorsed a continuing Federal commitment to Federal-level effort in
this arena.
(.)
0
........
0
::I:
a..
>-
0:::
<(
0:::
al
Con: With only a vague commitment about some future replacement, this option will be
perceived by setaside supporters ~s an abandonment of minority and women entrepreneurship.
More generally, the vagueness of the planned replacement. will be criticized as a "dodge," and
the asserted need to do careful policy study (as opposed to legal study) will raise questions about
what the Review accomplished during its 100 days. By announcing, dissatisfaction with the
current programs-but "punting" on the replacement, we invite immediate Congressional action
to kill them, and greatly complicate the defense of them in court. If the intention is to kill them,
we should go directly to option 4 below.
OPTION 4: GEOGRAPHICAL TARGETING ONLY -- ELIMINATE RACIAL AND GENDER PREFERENCES
This option would eliminate the current race-based setasides and create a sheltered competition
program with eligibility based on performance of the contract by a small business in a designated
distressed zone and/or hiring above a threshold. level of employees from such a zone. Aggressive
management measur~s will, we hope, prevent severe erosion of progress we have made in
MBE/WBE participation; you should know, however, that this erosion is likely over the longer
run.
Pro: Eliminates controversial and constitutionally sensitive racial targeting, while elevating and
focusing on the message of jobs and economic development.
There will be some
disproportionate benefit" minority entrepreneurs~- though far less -e1fectivetl1aii-afpriEs.enC.YoLir___ ·-discuss-ions with William Julius Wilson reflect this emphasis, as do several major Administration
initiatives in the broader realm of economic opportunity and investment. Some of our
consultations with minority business leaders indicate that focusing on geography is more
acceptable than using economic disadvantage alone, because means-testing (i) will sweep in a
yast number of nonrninorities and (ii) will aid the cause of those who, like Senator Gramm and
Justices Scalia and Thomas, oppose all race-based measures.
to
Con:
Will be viewed as abandoning any commitment to address directly the problem of
discrimination-based denial of entrepreneurial opportunity, and doing so before any post-Adarand
studies have indicated that such aband_onment is constitutionally compelled. With this policy
declaration, current programs would be easy prey in Congress and the courts.
0~
§
a-
~~.ES/0€
Itt~
wt\)
.
.
.
c
$!
tt7
~
9
�>a..
0
(.)
0
Decision:
f--
0
_ _Option, l:
:::c
a..
Anti-abuse reforms only; defer major program changes
·>-
0::
_ _Option 2: · Out with the old programs; announce specific policy objectives of
expanded opportunity; direct agencies to formulate a proposal consistent
with Adarand.
.
_ _ Option 3:
0:::
Ill
__.
Same as option 2, but with less specificity on new program objectives.
_ _Option 4:
<(
Eliminate race- and gender-based preferences; use geography_ only .
.·
V..Decision on Use of Race or Gender in Layoffs: fiscataway
Background. The central issue in this area concerns race or gender as a consideration in layoffs.
Under current law, two propositions are clear. First, layoffs cannot be used as a means to
implement an affirmative action policy by "making room" for new, diverse employees. Second,
rae~ or gender cannot trump a bona fide seniority system.
The reach of this second principle is limited. While seniority systems are common in the public
.sector, the decline of unionism has reduced the private sector's reliance on such systems. Thus,
reportedly, many large firms expressly consider diversity in their layoff policies, and with
significant results: Illinois Bell recently cut 930 management jobs, but the proportion of minority
managers rose from 25 to 27%; Baxter cut 20% of its 2000 employees, but the proportion o(
minority managers increased from 10 to 12%.
The narrow_guestion of "tie-breakers" is thus most likely to arise in the context of a seniority
structurecC -fn the Piscataway
the Jlistie£ .
Department has argued that Title VII does not prohibit the School Board from using race as a
tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of the
Federal civil service, OPM regulations are silent: the Justice Department's Office of Legal
Counsel believes the Federal statutes and caselaw would, as in Piscataway, permit narrowly
tailored consideration of race or gender.
----_---~y~t~n{- wherelaydf --ci~cisi~~-s--- are ...more
case,
More generally, In certain sectors, there is a sense that some job opportunities are limited to
"diversity candidates" and that white males are· thereby disadvantaged. Second, there are
concerns that in a continuing era of corporate reengineering, women and minorities are, due to
affirmative action, at less risk of being laid off. On .the other hand, as you have noted,
affirmative action is sometime~ used cynically to justify decisions i:nade for other reasons,
legitimate and otherwise. Moreover, whatever the· constriction of opportunities felt by
nonbeneficiaries, this occurs against a backdrop of continuing underre resentation of minorities
·and women in those sectors. (Otherwise, the affirmative action
5SJ
1.)
.
.
.
.
.
~
~
~
<3
~
:K
\~
~
.
~
~
-~.fl. '
)-:
10
�. >-·
a..
0
(..)
Options. The policy options include:
0
10
· :OPTION 1: As ·A POUCY MATIER, wHEN NOT INCONSISTENT Willi A BONA FIDE SENIORITY SYSTEM, ·
DIVERSITY MAY BE CONSIDERED IN LAYOFFS, BUT ONLY IN A R..EXIBLE MANNER AND IN
::c
a..
>0::::
. LIMITED CIRCUMSTANCES.
.<(
0:::: .
-
a:~'
Pro: This option is close to the status quo, but does not lend itself to a simple rule. Instead, this
<....J
approach would call for the coriunon-sense balancing of the institution's general diversity interest
and the. burden on identifiable majority employees. Situations are different. Consideration of
race or gender would be permissible only: when necessary for the institution's operation; when
a manifest racial or gender imbalance exists; and when less race-intrusive considerations are not
effective. This option is consistent with the DOJ position in the Piscataway case.
'
.
Con: Complex. Does not speak clearly to the anxieties of non-beneficiaries. As a plurality of
the Supreme Court said in Wygant, race-based layoffs may impose a more substantial burden than
race-based hiring and promotion goals, in that "denial of a future employment opportunity is not
as intrusive as l~ss of an existing job." Layoffs are different.
· OPTION
2: As A POUCY MATI"ffi, RACE OR GENDER SHOUlD NOT BE CONSIDERED IN LAYOFF DECISIONS.
Pro: This option would issue a sharp and clear statement -- layoffs are different -- and would·
provide some comfort to whites, males, and their dependents, in a time of insecurity. (There .
would be a corresponding reinforcement of minority and women concenl.s about their
marginality.) In the public employment context, this is likely to have little practical impact
because seniority rules already limit the issue to rare. tie~ breaker-type situations.·
will
Con: This absolute rule goes too far. It
rekindle the "last hired, first fired" resentm~nt of .
minorities and women. It ignores the pressing diversity interests that may·. be at stake in
particular situations ~- especially where diversity is a bona fide. consideration for organizational
effectiveness. This option would send a loud _signal to the private sector, chilling some diversity
efforts and encouraging affirmative action 'critics. It would be critiCized as a flip-flop "fro in the
·- Administration's litigation position in Piscataway.
Decision:
_ _ Option 1: As a policy matter, when not inconsistent with a bona fide seniority
system, diversity may be considered in layoffs, but only in lin-iited ·
circumstances.
_ _ Option 2: As a policy matter, race or gender should not be considered m layoff. ·
decisions.
I1
�>-
~
0
(.)
VI. Rollout Scenai:i!J More Generally
0
10
:::c
We are developing a coordinated communications and outreach effort. Finalizing the policy
· ·options, speech themes, date and venue will help. The goal is to manage expectations and shape
the characterization of the speech before it is given, as well as to amplify it to the greatest extent
.~
>0:::
<(
0:::
possible afterwards.
ca
The full rollout will involve meni.bers of the Cabinet and sub-Cabinet; and the Legislative Affairs,
Public Liaison, Communications and Press offices and the White House and key agencies. In .
addition to the Administration's activities, outside/independent opinion leaders from the civil
·rights community, academia/education, women's community, economic/corponite and religious
·
worlds will be integrated into the validation efforts.
12
...J
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
00 I. note
SUBJECTffiTLE
DATE
G. Stephanopoulos to C. Edley, re: Affirmative Action (I page)
n.d.
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
Affirmative Action Core 6 [I]
2008-0308-F
wr876
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)!
Freedom of Information Act- IS U.S.C. 552(b)!
PI
P2
P3
P4
b(l) National security classified information !(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency !(b)(2) of the FOIAI
b(3) Release would violate a Federal statute j(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted. invasion of
personal privacy j(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes !(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions j(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information !(a)( I) of the PRAI
Relating to the appointment to Federal office !(a)(2) of the PRAI
Release would violate a Federal statute !(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information !(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors !a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy !(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�AdO~OlOH~~H~L~fM
~~- ~. .
Fr:
.
[JLJ·
_,.--<~~~
-
""
\v
/ / ' \;.:.;\-;1-;r·'\
..
r
[.t -'?·
....
,;.:'
,.>
~I
:·co
.
~
~
\'f'J
--~
•
~A
·'
_, --, /if
0~
~~ ~
~ ·~ ~6~ w!R~ +@.
t.v.-
t_ trY'\.
11
I
4 - . /)._
1
a..A-t...
--
·
. ~::;:::~~ci)~J~~~ ~:~~'
(i) ~ . ~~~ ·
~.}
.· ~
K~
/7)\.(..
~ <-v s~ ·J-4-/..iR-.
{'-<_
v.
1:
- ·./3~ s ~a(. 1
It;/_
1. No unqualified person hired
~-o~i-~
4;7
UJ.1-
..Jr,
~·~· ~P· @; w.._k_._·~ ~~
.
(f)
LL.
~.:.Aa<t~~-AI'-+ ~ 1 a. . ;:-~ ~
\ r ~
,
v!J .I
n+U\.
~~-1
/,.
\ d\
~ ~
t.
(J,vJU).,_ r--uz.-k. '.
~--~~
~-k~.·
~~J~l
2.· no layoffs based.on race or 9ender
3 ~ affirmative action where discrimination (stati 1 &tical evidence
·only OK)·
4. color andgender blind after discrimination reuedied, but·
· affirmative action continu•s for poor·ragardless of race or
gender
·
·
~• ·
5. Immediate ·inoluaion 0( poor White men~ in al-l, a1[firmative
actio~ J?rograms.. .·~owever, sucn inclusion .in caaa(l where racial
.. . w . .
- .}o . 'M-R
po....,
_
~~
. · .·
-- ·~
· UJ l ~
~-
l .
. · ..
discr1m1nation· ex1sts must be so .limited as to pal/mit· progz:ess in
abating the ~racial discrim~nation. (i.e.· second P~/•ferenc:e fo
poQr whites men).
·
· ·.
··
·
r .
.
.
.'J~ ~k. ·. ·community basad On1y· o~ raaid8nca, ·owner~bip,. ~BIIIpl~yee• in
set e.eidee
I
·
.·.
.·.disproportion-ate marginal rati~s contrac~.r awards .under ..
. · . r
no
6.
/1~\
~-.
' .
7.
of,
set asides. (i.e. if goal is 20t and current level!. is st. You
.· can't require that more than 50%(?) of the contrac'ts' go to set .
. asides even though tl;la~ means lt will·take a few }·earB l~nge~ to
meet· overall qoal.)
·
a. areas where. permanent raciai and. gender. based. !!,.ftirmative
,action is neces~ary: ~pol~ce, teachers, army, pollgy makers,· etc.··
...,.-.-"-- .·•r•··-•-''-"''<·•~••-""...,...,.."'',;...-:>?O.;;...,:~---~-"""-'·-~"""':"~.,_-,~~--~ ..... kUJ..... """'~:-~~,..-;s:.,,.;.;.,"'••'·''""'•·'•.,,·--•.-·--'''•-~w>- ... '
.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
001. memo
Joseph Stiglitz to Chis Edleym re: Next steps (3 pages)
3/27/1995
P5
002. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Policy Issues (I 0 pages)
4/17/1995
P5
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
Affirmative Action Core 6 [3]
2008-0308-F
wr877
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the ~-OIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�>0..
0
EXECUTIVJ,:: OFFICE OF THE PRESIDENT
COUNCIL OF ECONOMIC ADVISERS
WASHINGTON, D.C. 20500
(.)
0
t-
o
:X: '
:0..
>-
MEMBER
0::
<(
0::
March 27, 1995
co
·-
MEMORANDUM FOR CHRIS EDLEY (.OM~).
.
JOSEPH.STIGLITZ
FROM:
.
SUBJECT:
I
.
•'
.
~
.
Next steps on ,..affirmative action
/
There are several .Principles that could be u·seful . in guiding
reforms to extant affirmative action programs:
1.
Affirmative·action·should focus on expanding opportunities,
not on equalizing outcomes.
·~ 2.
Affirmative action.· should be broad~based:
We should focus·on increasing opportunities for all those for
whom opportunities are foreclosed; these 'include not only women and
minorities, but· low-income Americans in general.
tn some· areas,
equality of opportunity for some groups may already have been
achieved, even though those same groups · remain disadvantaged in
other areas.
Thus, ·at the same time that it is broad-based,
affirmative action should be targeted at rectifying specific
barrie~s to equality of opportunity.
'
.
'
Affirmative action should attempt to identify all barriers. to
equality
of
opportunity,
many
of
which
go
well
beyond
discrimination. These include: ;
(a) .A lack of access to information;
(b) A la~k .6f access to the economic resources required to
invest. in human capital;
.(c) A · lack of mentoring and of guidance ·concerning ·job
pr6motion (e~g., about career lad~ers); and
(d) A lack of perceived ·incentives:
past foreclosure of
. opportunities in some areas may discourage disadvantaged
groups from making the investments necessary for current
advancement.
·
In addressing these barriers, affirmative action should employ
the full panoply of available ;institutions and instruments; but it
should explicitly eschew the use of quotas (which, in any case,
w~re never allowed except as part ·of remedial action a~sociated
with discriminatory behavior) .
. Since so many of the barriers occur outside the workplace,
effectively addressing.them requires a broader set of initiatives
than have traditionally occutred within affiimative action ..
�3.
(a) An. emphasis on performance, with a
ultimate objectives of initiatives~ .
.
.·(b) A recognition that most firms are "good actors. II
They
11 g00d Citizens, II .WhO
are,. and Want to be treated,
belieVe in
American ideals concerning equality of opportunity; and
(d) ~ recognition that some firms are superlative, and that
such exemplary behavior should be publicized.
aS
such precepts suggest that, for most firms, the annual OFCCP. •
compl_iance reporting diverts resources that might be more valuably
used elsewhere.
Possible reforms
Equality of opportunity is a central tenet of the=..American
value system. Any reforms to affirmative action programs should be
consistent with this central principle, as well with the other
principles described . above.
Some ideas for possible reforms
·include:
.1. The Federal Government could award bonus -points in contract .
bidding (sav 5 to 10 percent) ·to firms with good or exemplary
proqrams expanding. equality. of opportunity.
Points could be
a~~rd~d fOr: ·
·
·
·
(a) Aggressive programs for outreach ·in hiring
(b) Model programs for mentoring employees
(c) Demonstrated success, through training,. guidance, and
mentoring, in promotion programs ·
(d) summer intern programs
(e) High school and after-school programs.
.
.
(f) Active participation in the -Business/Community Equality
of Opportunity Programs ·
2. We could. work with businesses and. ·communities throughout
the country to establish Business-Community Equality of Opportunity
Programs .. These would work to ensure that (at~ minimum) every
student in·the top ten percent of.every high school class had the
opportunity to go t6 college .. The Councils would strive to ensure
guidance for ~ccess to publicly available scholarships and loan
programs; would guarantee summer jobs; would provide internships,
summer and. after ·school jobs. ·
·.
.
.
3 .. The White.House, working with private foundations, could
establish a named (Martin Luther King) .prize for· corporations,
business councils, communities, and individuals demonstrating
innovativeness and exemplary conduct in ·exPanding equality of
opportunity.
·
4. The White House could establish a summer internship program
-
�>a..
0
(..)
for disadvantaged high school· and college students.
The White
·House would thus ·"take. the lead". in promoting equality of
opportunity · by establishing·. a program · similar to the· Federal
Reserve Boarq's minority internship program.
Given the broad
variety of' possible tasks within the White House, the program could
be targetted at both.high school and college students.
·
0
10
:::c
a..
>-
·o::
<(·
0::
c:::l
.5. The Goverf1ment could. encourage more· "adoption'' programs
between universities and high schools in disadvantaged areas. Many
corporations haye · ."adopted" . high .schools--the firms provide
computer ·systems, senior executives give talks, etc. Universities,
especially public universities, could be more aggressive in
undertaking similar projects-. Each university could adopt· several
~igb ~chools~ providirig mentoring, information, and encouragement
to disad~~ntaged students..
·
6. Regulatory reforms could ease th~ burden of affirmativ~
action reporting· requirements, especially for firms with good
records~ . For example, annual OFCCP ·compliance reporting, diverts
resources t;hat might be more valuably used elsewhere.
Firms with
good· records could be reviewed once every few years,· rather. than
. once a year, thereby reducing the administrative burden on both the
private sector and the Federal Government.
7. ' There are
relatively quickly:
several
concrete
•
An executive order,
banning
.regulations and compliance.
steps
we
quotas
could
and
implement
reinventing
• An executive . order, establishing a framework for the
creation and encouragement of business~community equality of
opportunity programs and a directive for :relevant agencies
within the Federal Government to take an active role. .
.
.
.
'
c·
.
a
As part of this,
directive could.be issued.to the National
Guard to encourage participation.
these · activities in
appropriate ways (parts . of the Nation·al· Guard have expressed
an interest in a variety of such .programs.)
.
in.
.
• ·Collaboration with private foundations in establishing a
Prize for exemplary behavior~
• Establishment of
internship program.
a
White
House ·Disadvantaged
students
• An executive order re:(orming the reporting requirements for
OFCCP compliance reviews.
....1
�>-
c...
0
(.)
0
DRAFT
10
:I:
c...
April 17, 1995
>-
0::::
<(
0::::
MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
co
_J
From:
George Stephanopoulos,. Christopher Edley,_ Jr. & Peter Yu
(.)
J
;:::
Re:
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy.· Part I outlines
options in three areas: education, employment, and procurement. Part II offers two alternative,
broader perspectives that may be useful in your deliberations. A subsequent memorandum will
discuss the message, communications, and political dimensions of these policy choices.
I.. AFFIRMATIVE ACTION
IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for which race
or gender is a condition of eligibility. This issue has two dimensions: (i) scholarships
administered by universities receiving federal assistance and (ii) federal scholarship programs.
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February 1994, perinits the use of race as a condition of eligibility for
· fmancial aid in order (a) to remedy past discrimination or (b) to promote diversity, provided
the measure is narrowly tailored and does not unduly restrict · access to fmancial aid for
nonminority students. A measure is "narrowly tailored" if (1) race-neutral means would have
been ineffective; (2) a less extensive or mtrusive use of race would have been ineffective; (3)
the measure is of limited extent and duration, arid is applied in a flexible manner; (4) the
institution periodically reviews the continuing need for the measure; and (5) the effect on
nonbeneficiaries is sufficiently small and diffuse so as not to· unduly burden their opportunity
to receive fmancial aid. These restrictions apply to university-administered aid, whether
publicly or privately funded. Approximately 3.5% of all minority students at four-year colleges
This represents less than 1% of all financial aid
receive race-specific scholar~hips.
administered by .these institutions.
· Current policy with regard to gender-specific scholarships provides that institutions may not
discriminate on the basis of gender, but may administer privately-funded gender-specific
scholarships if the overall effect of such scholarships does not discriminate on the basis of
.gender. The majority of gender-specific scholarships are limited to men, rather than women.
�>a..
0
(.)
The federal government also .directly administer~ a number of race- or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or
specialties in which racial or gender group~ have been significantly unde~epresented, either
. because such inclusiveness is deemed critical to the· continued strength of that profess.ion, or
. because inclusion will lead to greater attention for neglected communities and problems.
. S~pporters of these programs emphasize that these schoiarships me. necessary to attract women
and minorities to these areas. Examples .include: NSF's Minority Graduate Fellowship
. Program designed to increase the number of minority scientist and engineers ($ _. million
in FY1995) and NIH's Minority Clinical Associate Physician Program designed to increase the
number of minority physicians ($_million in FY1995).
Options. The policy options include:
Option 1: Maintain current policy, which requires "exhaustion'' of alternatives to
diversity-based use of race- or gend~r-specific scholarships.
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar use of such scholarships except as necessary to remedy. past
discrimination; otherwise, dilute exclusivity through broader eligibility .
. Analysis. Education policies regarding adnllssions and scholarships are central to public
concerns about affirmative action. Some view race- or gender-specific scholarships as a form
of "set-aside" and thus reminiscent of quota-driven admissions policies (such as the dualadmissions system struck down in Bakke). On the other hand, education and training are on
the "opportunity" end of the opportunity-to-results spectrum, and the current policy requires
that any race- or gender-specific programs are narrowly tailored.
Option 3, which focuses·· on race-specific scholarships, was proposed by the Bush
Adfninistration in 1991. This approach would send a clear message that no applicant should
be excluded from a scholarship program on the basis of race or gender. Arguably, this would
be a curious rule, as it would leave intact numerous scholarships limited by. religion, surname,
geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousne~s of the requirement that an iristitution wishing to use .
such scholarships for non-remedial, diversity-related purposes first analyze race- or genderneutral approaches and conclude they would not be effective substitutes for more exclusive
Scholarships. The policy guidance would be amended to require the institution to be prepared,
if challenged, to present the evidence and analysis upon which its conclusion was based. (This
is the formulation used elsewhere in the guidelines, and by the courts, in explaining that when
an institution may invoke its history of discrimination as a remedial justification for racespecific scholarships.) On the one hand, this option amounts to a declaration that race or gender
should only be used as a condition of eligibility when truly necessary. On the other hand, its
minimal practical effect might not justify the anxiety it would likely generate among minority
and women's groups.
0
10
:I:
a.. .
>0:::
<(
0:::
Ill
. ..J
�>-.
0...
0
'(.)
Option ·1 would maintain current policy. As noted in our discussions, race-:· or gender- ~
specific scholarships are small slices of a much larger pie -- much of which is administered on o
::c
the basis of need. As there are. so many different avenues for fmancial aid, it is possible to. c...
argue that race- or gender-specific scP,olarships do not meaningfully limit the opportunity of >any student, or at least no more so than does a scholarship liniited to offspring of the Kilights ~
of Columbus or the Daughters of the American Revolution.
··~
r'
Indeed, current antidiscrimination enforcement guidance from the Department of Education,
promulgated during the Reagan Administration pursuant to Title IX, makes the test for genderspecific scholarships whether the financial aid practices of the institution, taken as a whole,
provide equal opportunity. As a matter of constitutional. doctrine, race-based distinctions· are
subject to stricter scrutiny than sex-based distinctions. But this distinction seems untenable. as .·.
a general matter of policy or politics. · Hence, any toughening of prohibitions on race-based aid
should probably be similarly applied to sex-based· aid.
Finally, we should note the relationship between-these options and the familiar hypothetical:
a college admissions or scholarship policy that favors the African American son of a succesful
neurosurgeon, but not the son of a steelworker. ·Some argue that affmnative action should be
only for economically disadvantaged minorities, because affluent minorities are evidently not
suffering from a lack of opportunity, relative to many less economically advantaged whites.
The rebuttal has .three central points. First, there .should be affmnative efforts to pro~ide
opportunity for economically disadvantaged individuals, both white and non-white; such efforts
need not come at the expense of affmnative action when it is legitimately directed at minorities
on the basis of concerns apart from econonornic disadvantage. Second, apart from economic
disadvantage, but still within the realm of "private fairness," it is often observed that
comparatively advantaged minorities nevertheless continue to face social· and other obstacles
solely because of prejudice and discrimination, and that these disadvantages, while different
from badges of poverty, are a fair basis for attention. Third, in the realm of institutional and
societal benefit, a college might properly conclude that the institution will benefit from
inclusion of the neurosurgeon's son-- even though affluent"'- just ~s they might conclude that
the diversity benefit of including a basoonist is weighty not withstanding the musician's
affluence. In America today, it remains likely that the neurosurgeon's experiences, perspective,
·and aspirations will reflect some aspect of the distinctive reality facing blacks. And the
college may choose to value that.
B.
Employment: Race or Gender in Layoff Decisions
Background. The central issue in this area concerns. race or gender as a consideration in
layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a
means to implement an affirmative action policy by "making room" for new, diverse
.employees. Second, race or gender cannot trump a bona fide seniority system.
The reach of this second principle is limited.
-
�>c..
.o
(.)
public sector, the decline of unionism has reduced the private sector's reliance on such systems. ~
Thus, reportedly, many large firms expre~sly. consider diversity in their layoff policies, and g
with significant results: Illinois Bell cut 930 management jobs, but the ·proportion of minority c..
managers rose from 25. to 27%; Baxter cut 20% of its 2000 employees,. but the proportion of >minority managers increased from 10 to 12%.
~
.a:::
-
CCI
The narrow question of "tie-breakers" is thus most likely to arise in the context of a' seniority ...J
system where _layoff decisions are more ·structUred. ·. In the Piscataway case, the Justice u
Department has argued that Title VII does not prohibit the School Board from using race as ~
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of
the federal civil service, the OPM regulations are silent: the Department of Justice (Office of
Legal Counsel) believes the statutes and caselaw would, as in Piscataway, permit consideration .
of race or sex, while OPM staff counsel believes tie-breakers must be random.
Options. The policy options include:
Option 1: As a policy matter, when not inconsistent with a bona fide seniority system,
diversity may be considered in layoffs, but only in limited circumstances.
Option 2: As a policy matter, race or gender should. not be considered in layoff ·.
decisions.
Analysis. Concerns about employment are two-fold. In certain sectors, there is a sense that
some job opportunities are limited to "diversity candidates" and thus that white males are
excluded. Second, there are concerns that in a continuing era of corporate reengineering,
women and minorities are, due to affirmative action, at less risk of being laid off. (As you
have noted, affirmative action is sometimes used cynically to justify decisions made fof other
reasons, legitimate and otherwise.)
Option 2 would issue a sharp and clear statement and would provide some comfort to
whites, males, and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minority and women concerns about their marginality.) In the public
·employment ·context, this is likely to have little policy impact because of seniority rules, and
· thus will affect only tie-breaker-type· situations. However, this option would send a loud signal
to. the private sector and could have an effect on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity
interest and the burden on identifiable majority employees. Consideration of race or sex would
be penilissible only: when necessary for the institution's operation; when a manifest racial or
gender imba1ance ex!sts; and when the less race~intrusive considerations are not as effective.
If you select this option, announcing a clarification of federal layoff policy could underscore
the very high hurdle you would impose, but might <;tlso serve to focus resentments around the
entire issue. In any case, however, we are likely to face continuing questions regarding the law
~SIDEtvl':
and policy surrounding the Piscataway situation.
~~
4.
<
% \~\
c.)
'(
4
�>-
a..
b
(.)
0
1-
Procurement: Preferences & Set-asides
0
::I:
.
.
.
Background. Federal law establishes several goals for the distribution of federal procurement
opportunities: 20% for small businesses; 5% for small disadvantaged businesses. (SDBs -virtually all of which are minority-owned 1); and· 5% for women-owned businesses. There is
a web of prograrhs designed to reach these goals, some are governmenfwide, other are agencyspecific. These efforts use several tools:
• Sole source procurements: Under SBA's 8(a) prograni, small disadvantaged businesses
(SDBs) can secure smaller sole-source contracts (usually less than $3 million).
• Sheltered competition: Under DOD's "rule of two," a contract is set aside for SDBs ifthe
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered,· there is a similar "rule of two" for. all small businesses.
Failing this, there is open competition.)
• Bid preferences: In open competitions, DOD awards a 10%. bid· preference to SDBs; last
year's procurement reforms authorized government-wide use of this preference ..
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(voluntarily) subcontract with SDBs, including women-owned firms. (The Adarand issue.)
These efforts have been successful in expanding procurement opportunities for women- and
minority-owned furns. Between 1982 ·and 1991, while the dollar volume of ali contracts
increased by 24%, contracts awarded to women-owned firms tripled and contracts awarded to
minority-owned furns doubled. Of late, these increases have been accompanied by actual
decreases for non-SDB and male-owned firms. For example, while DOD's contracting with
SDB's more than doubled, its contracting with non-SDB furns fell by more than 20%.
Several aspects of these efforts have not been successful. Graduation rates from the 8(a)
program remain low and the possibility of abusive practices remain, although recent statutory
and administrative efforts promise SOil?-e .improvements; outside of the limited 8(a) program,
however, there are no graduation requirements at all. In addition, these programs have had a
disparate impact on particular regions and industries -- such as construction and transportation.
Finally, while the 8(a) program permits nonminority furns to participate upon a showing that
a firm's owners are "socially and economically disadvantaged," in practice only about 1.6%
of all 8(a) firms are white-owned, because the 1978 statute links "social disadvantage" to
membership in a group subject to discrimination.
1
In the Department of Transportation's program only,. the SDB definiti
and 8(a) programs, minorities own and control _
percent
5
a..
>0::::
<(
0::::
aJ
....J
�>a..
0
(.)
0
Options. The policy options include:
t-
o
Option 1: Reform the programs·. to · emphasize transition, elimfuate misuses. · This
would involve tighter asset-related eligibility rules, phased graduation for all
SDBs, limits on the concentration of set-asides iri. a single region or industry,
and standards to determine when preferences are no longer necessary ·by
business sector and by region.
·
·
Option 2: Expand eligibility to include more nonminority firms. This would involve
revising the current conjunctive statutory criterion ("socially and economically
disadvantaged") to a disjunctive ("socially or economically disadvantaged"). In
addition, the over goal for SDB procl.rrement could be increased from 5 to 1o%.
Option 3: Sharply· focus on "entryway" to entrepreneurship. In addition to the reforms .
in option 1, tight limits on the number of contracts an individual SDB or
·entrepreneur could win through sole-sorn:ce, ·set-aside or bid preferences.
Strengthen outreach, surety bonding and other pool-building measures ..
Option 4: Phase out these programs. Under this option, less exclusive and less intrusive
assistance to SDBs, such as technical assistance ·and· outreach, would be
expanded.
Analysis. While procur~ment policies do not have wide visibility, they are arguably more
problematic than either education or employment policies. The practical effect of a set-aside
such as the ·rule-of-two is to take a specific contracting opportunity and hang out .a shingle
saying "whites need not apply." Some view this as more problematic than minority-only
· scholarships, suggesting an intuition that providing profitable business opportunities seems
more directed toward rewards or equal results than towards equal opportunity; education is
different. Moreover, some view the procurement set-aside as problematic, even though 97
percent of contracting opportunities continue to go to non-SDBs.
At the same time, preferences may be more necessary in procurement for several reasons. ·
First, anti-discrimination laws are more difficult to enforce in this area, especially in the
subcontracting realm. ·Second, "old-boy" networks are arguably stronger in this area, so that
informal exclusionary pra<;:tices beyond the reach of law can be potent and persistent. And
fmally, procurement decisions often turn on a single factor-- price ~-and thus the multi-factor
mechanisms used in education and employment are less available in this area.
-
Option 4 would issue a clear statement that federal contracts should not be awarded on the .·
basis of race or gender. Under this view, set-asides are much like quotas. If one were to
support race-specific scholarships but embrace this option, 'one could distinguish procurement
as "more related to results than to opportunity." This approach is far more restrictive that
Supreme Court precedents, which permit set-asides based on legislative · fmdings of
6
:I:
a..
>c:::
c:::
<(
co
�>-
c...
0
discri~ation or lingering effects.
(.)
2
Support through Federal procurement for opening up
entrepreneurship opportunities would be limited to pool-enhancing methods, such as technical
assistance, expansion of SBA' s surety bond program, and outreach by procurement officers and
·
prime contractors.
0
t-
o
:I:
c...
>-
0::::
<(
Option 3 would retain a small preference program, but focus it sharply on mechanisms more
unambiguously related to creating opportunity for entrepreneurship, rather than a guarantee of
a::::
co
.....1
entrepreneurial suc.cess. Thus, in addition to technical assistance and other pool-enhancing
(.)
activities described above, this approach would use preferences and sheltered competition on ~.
a limited basis to help "break the ice,"but then quickly push entrepreneurs to compete on terms·
comparable to small businesses generally~ (Recall that small businesses generally have a ruleof-two set-aside available to them. as well, but only if an SDB set-aside is not triggered.) .
Option 2 would render these programs less exclusive' and recharacterize them as for.
"disadvantaged" businesses, with race merely one -- but not the only -- way to demonstrate
disadvantage. Operationally, this is likely to have only a modest effect on minority contracting.
Prior to the codification of the 8(a) program in 1978, SBA employed this approach; at that
time, about 4% of all 8(a) firms were white-owned.
Option 1 would ameliorate some of the most problematic. practices in the program.
Limiting participation, encouraging graduation, and tightening the asset tests emphasizes that
8(a) is an entryway, not an entitlement. Limiting concentrated· use of preferences reduces the
unfairness to white bidders in a particular region or sector. While these changes would be
significant, some would view this as "mere tinkering" that does not address the fundamental.
objection -- namely, the exclusivity of these programs.
In addition to these policy options, we have also begun to develop a complementary option:
procurement preferences that focus less on minority capitalism and more on job-creation for·
minorities and other disadvantaged persons. Some of these strategies are place-based and
others are employee-based. Preliminary alternatives are outlined in Attachment 4.
II. PUTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your policy choices in this area may be most easily defended if they reflect a coherent
_theory or approach. This Part outliiles three such approaches, and describes the policy choices
that seem most easily justified within that approach. (See Exhibit 1.) Each is consistent with
some basic inclinations you expressed in our various "vision'' discussions, including:
The Court has required a somewhat more rigorous demonstration by state and.J.iiM!a+-t~,
by the Congress. The Adarand ruling, expected before July, presents an opportuni ·
more restrictive principles.
·
·
q_~
2
~~ \'\\
7
�>-
a..
.o
•
•
•
(.)
Emphasize antidiscrimination· and opportunity, ·rather than ~aranteeing results.
Stress the remeqial justification, but also embrace the goal of inclusion. .
Respect the interests of bystanders,. by crafting policies carefully and narrowly. ·
'
0
t-
o
:c
a..
'
>a::: .
<(
A.
a:::
The "Calibrated" Approach
tx:l
....J
This approach emphasizes the difference between equal opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outi;each and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, ant
specific affirmative action· tool is less problematic in· education (which expands opportunity)
than similar efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagot;~.al orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices outlined above, this
approach would support:
Education:
Employment:
Procurement:
B.
Option 1 -- Mruntain current policy.
Option 1 -- Permit. race or gender to be considered in layoff decisions ..
Option 4 or 3 --Phase out procurement preferences and set-asides.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that
affirmative action must be. narrowly tailored to minimize exclusivity and the use of race- or
gender-based decisionmaking. Thus, result-driven quotas are always inappropriate (except in·
rare court-ordered remedies), and set-asides may only be used (i) when they are either broadly'
remedial or (ii) when less intrusive alternatives are not effective. In essence, this approach .
would apply the Title VI scholarship policy to all three sectors.
· Of course, "effeCtiveness" will be a matter of degree, and :there is an implied balancing of
the benefits of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the
opportunity-results distinction. So, one might weigh those costs and benefits somewhat.
differently in different contexts: ·it matters if an institution or industry has. a history of
discrimination, in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored mdeed.
This approach leads to support for limited use ofrace-specific programs. In particular (as
illustrated in Attachment 2):
·
Education:
Option· 1 or 2 --Maintain or tighten current policy.
8
�>-
a..
0
C,.)
Employment:
Procurement:
Indeterminate -- Option 1 or 2.
Option 1 or 3 -- Reform or sharply narrow preferences and set-asides.
0
1-
0
:::c
a..
>-
.0::::
The "Anti-Exclusion" Approach
<(
0::::
co
· A third approach emphasizes the moral cost of maintaining prograins that exclude persons
on the basis of race or gender -- even in the name of diversity.· This approach entails
opposition to the rule-of-two SDB set-aside and to race- or gender-specific scholarships; these
are . effectively indistinguishable from quotas. Instead~ such programs would have to be
revamped to rely on multifactor considerations in which race is but one factor, or on race- and
gender-neutral approaches.
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
Option 3 -- Eliminate race- or gender-specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 -- Expand eligibility to include nonminority firms.
9
�ExHmiT 1
Provisional Decisions: Check one box (D ) in each column
)
(#) -- indicates option number in
the memo
"Calibrated,
Opportunity"
Approach
Education
Employment
Procurement
o (3) Narrow preferences;
o (1) Maintain current policy
requiring exhaustion
o (1) P~rmit limited
consideration of race/gender
in layoffs
transitional "entryway"; build pool;
or
o (4) Phase out preferences; just'
build the pool
"Least Intrusive
Alternative"
Approach
o (1) Maintain current policy
requiring exhaustion; or
o (1) Permit limited
consideration of race/gender
in layoffs; or
unfairness; or
o (3) Narrow preferences;
o (2) ·"Tweak" current policy,
requiring added analysis
o (1) Reform to address abuses, limit
o (2) Oppose consideration of
transitional "entryway"; build pool
race/gender in layoffs
"Anti-Exclusion"
Approach
. o (3) Eliminate race/ gender .
aid· by expanding eligibility,
softening exclusion
o (2) Oppose consideration of
race/gender in layoffs
o (2) Expand eligibility to include
disadvantaged
m~ority
firms
.....
c,\..\N I U!t;
'%
I
-----
~
~
·
~
-
A. ''Califit ted Opportunity" Approach: Emphasis on creating opportunity, not guaranteeing results. Therefore, opportunitybuilding
texts (education) and tools (outreach) are strongly favored. Contexts more in the nature of a "reward" (profitable
contra~'f and tools more in· the nature of a guarantee at the expense of others (exclusionary set-asides), are disfavored. . . .
4 ~v~a\"'\
. "Least Intrusive Alternative" Approach: Emphasis on narrowly tailoring the use of preferences, recognizing that the use
of race or sex as a decisionmaking consideration does have some moral cost, arid that the interests of bystanders are entitled to some
weight in carefully constructing affirmative measures.
·
C:
"Anti-Exclusion" Approach: Emphasis on avoiding bald set-asides that announce: No whites W~ ctiJI>&f.fARY PHOTOCOPY
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. letter
SUBJECTrfiTLE
DATE
Deval Patrick to George Stephanopoulos, re: Affirmative Action (4
pages)
7110/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
Affirmative Action Work Plans- "Speech/Rollout" [I]
2008-0308-F
wr878
RESTRICTION CODES
Presidential Records Act -144 U.S.C. 2204(a)(
Freedom of Information Act- 15 U.S.C. 552(b)J
PI
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOIAl
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAJ
b(3) Release would violate a Federal statute J(b)(3) of the FOIAl
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes i(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAl
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAl
National Security Classified Information J(a)(l) of the PRAl
Relating to the appointment to Federal office J(a)(2) of the PRAJ
Release would violate a Federal statute l(a)(3) of the PRAl
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAl
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the PRAJ
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document.will be reviewed upon request.
�.U.S. DeJ?artment of Justice
Civil Rights Division
Washington, D.C 20035
Office of the Assistant Attorney General
>0:::
<(
0:::
....
~
July 10, 1995
BY FAX/ORIGINAL BY HAND
George ~te~hanopoulos
Assistant to the President
The White House
Washington, DC
Dear George:
I think you may not have understood the point I was making
at our "roll out" meeting on Friday. ·Because I feel strongly
about it, I want to set it out here.
Favorable commentary by the news media on the President's
speech is very important and the staff seem to have anticipated
how to help this happen. But we will not win the debate on
Gaffirmative action -- or even have a meaningful impact on it
if we limit our pitch to the media, or if we have one big
flourish and no follow up. The case has to be taken to the
people, over the heads of the media and the professional
.politicians.
This is so because, like it or not, this issue has a
symbolic significance all out of proportion to its practical
impact. Civil rights groups are. hardly the only ones who sense
this. Many, many Americans -- of all races, incomes and
backgrounds, I assure you, people whose lives have never been and
may never be touched by affirmative action, people who have
opinions on the issue and those who have not yet formed one -are watching and listening to see whether this Nation really is
in full blown retre~t fro~ its long struggle to achieve racial,
ethnic and gender justice. And they are wondering, like it or
not, whether we are going to stand by and let it happen.
I am not exaggerating, I assure you. Affirmative action
comes up when I visit everyon~ from banking groups to housing
projects, from college campuses to diplomatic circles and the UN
(yes, the United Nations). You overhear conversation about it in
grocery stores and restaurants and train stations all over
America. Parents talk about it in playgrounds while they watch
their kids play.
I overheard construction workers t~lking about
�>a..
0
C,.)
0
1-
2
0
::I:
a..
their kids play.
I overheard construction workers talking about
it during a lunch break when I walked back to DOJ from a meeting
with you once recently. There is much less bitterness and rancor
in those conversations than you might think. _What there is, a~ I
and others have been saying for months now, is high anxiety.
They are wondering what kind of society we will be, and whether
investing in each others' struggles matters .
>0:::
<(
0:::
m
. The President's speech is important. I know that as well as
you do. He has it in him to be brilliant on this. But the rest
of us have to pitch in here as well if the Administration is to
succeed on this issue~
So, to repeat my point of Friday, I
believe that what is missing from our planning is the tasking. of
specific others in the Administration, in Congress and in private
life, with the President's blessing and backing, to help take the
case the President will make in his speech directly to the
campuses, directly to chambers of commerce, directly to the
American worker, directly to the international community,
directly to Californians, and the Congress and, directly to women
and minoritie~.
·
We have lots of talent to draw on. The.Vice President has .
consistently demonstrated his command of the topic and its
defense. Key Senators and Members, including moderate ·
Republican§, should be recruited now.
S~cretaries ~iley,
Cisneros, Ron Brown and Reich, and the Attorney General, are
naturals among the Cabinet. I would have you consider
Secretaries Rubin, Christopher and Shalala, too.
The subcabinet
is also rich in prospects.
I am certainly expecting to take a
role. A team effort has the added b~nefit of helping to debunk
the view of some that the White House is too.nervous to get too
close-.to civil rights issues generally.
That's what I was trying to say. This is no time to
finesse; this is a time to be clear and blunt (and maybe even ·a
little bit loud) about our stand ..
To that end, I would make two additional suggestions:
(1) Venue - the White House is not the place for this
speech, at least inside.
For one thing, the East Room
is too small. I for one hope this speech is on~
essentially about American citizenship and patriotism,
in which the President feels compelled to speak with
passion; frankly, it seems a little unnatural or
~(-SIDEN~
inappropriate to ~hout inside the White House.
-~
~
~
g
(2) The Policy - before the speech we ought to have
ready a short, plain statement of our policy on
~
affirmative action that we can distribute throughout~
0
the government and point to publicly. Not knowing
specifically what the President decided at Friday .
()
\}
..,<
C.
~~ -~
~\V
~
~
�>-
a....
0
(.)
0
3
10
:::c
morning's meeting, I am enclosing a rough cut at where
I think we are headed .. It needs your or Chris's
refinement.
a..
>-
-0::
<(
0::
aJ
Take care.
.....1.
Deval L. Pa-trick
Assistant Attorney Ge~eral
Enclosure
cc:
Abner Mikva
Alexis Herman
Christopher Edley
Maggie Williams
�>-
a.
a·
(.)
Policy on Affirmative Action
0
t-
o
:J:
This Administration is committed to expanding the economy,
to strengthening programs that support child~en and families and
to vigorous, effective enforcement of laws prohibiting
discrimination. These commitments reflect bedrock values upon
which American society rests: equality, opportunity and fair
play. This country has learned no more important lesson in the
second half of this century than that these bedrock principles
must extend to all Americans, regardless of race, ethnicity or
gender.
'
While this ·Nation has made enormous strides toward
eliminating inequali~y and barriers to opportunity based on race,
ethnicity and gender, the job is not complete. This
Administration, therefore, continues to. support affirmative
measures that promote opportunities in employment, education and
government contracting for Americans historically excluded on the
basis of race, ethnicity or gender. These measures incorporate-a
range of activities, which may include broad recruitment of
qualified applicants, targeted outreach for qualified racial and
ethnic minorities and women and, in some instances, consideration
of race, ethnicity or gender in selecting from among qual~fied
individuals when other factors are comparable.
Quotas are not appropriate affirmative
this Administration will continue to oppose
numerical requirements that disregard merit
.equality and opport~nity~ They will not be
action measures and
their use. Rigid
are inconsistent with
tolerated.
In each instance, the affirmative- program must be flexible,
realistic, subject to review and fair. Such measures must be
conceived as part of an overall effort to mold a more harmonious,
prosperous and inclusive society in which each individual will
have an opportunity to achieve based on merit. The Federal
Government will continue to seek reasonable ways to achieve the
o~jectives of incl~siveness and integration without specific
reliance on race or ethnicity. Meanwhile, where those objectives
cannot be achieved through such means, -the Federal Government
wili continue to support lawful consideration of ra6e and ·
ethnicity.
·
The Supreme Court has held that a federal or state program
that relies explicitly on race or ethnicity in decisionmaking
must be narrowly tailored to accomplish a compelling interest.
The policy of this Administration is thoroughly consistent with
that standard.
a.
>-
0::::
<(
0::::
·co
....I
�Withdrawal/Redaction Sheet
·
DOCUMENT NO.
AND TYPE
Clinton Library
SUBJECTrfiTLE
DATE
RESTRICTION
\43
DLA-f 14;;<
00 I. letter
Deval Patrick to George Stephanopoulos, re: Affirmative Action (3
pages)
7/10/1995
P5
002. letter
Madeleine Kunin to President Clinton, re AA Speech (4 pages)
4/911995
P5
IYY
003. paper
Affirmative Action Rollout strategy (4 pages)
n.d.
P5
\ Y- s
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
Affirmative Action Work Plans "Speech/Rollout" [2]
2008-0308-F
wr879 ·
. RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�t
(: r
i
'-...._;
r . "'.
- 11-- , r::
.
.
I
'==
··-·ffb::::
1\ c::
i
I
,
I
APR 1 I REC'O
>-
(
a..
0
UNITED _STATES DEPARIMENT OF EDUCATION
(.)
0
1-0
:I:
1
a..
>-
0::::
<C
0::::
co
From: Madeleine
Re: Affirmative
April 9, 1995
CONTEXT
I suggest that the affirmative action speech be placed in a
larger context--one that will enable the President to inaugurate a
new chapter in the movement towards equal economic opportunity and
social equality in America.
It is most important· to cast the speech not as a retreat from
affirmative action, nor an affirmation for the status quo, but
rather, a recognition that we live in different times than when
affirmative action was launched--in many ways, the
status of
minorities and women have improved, in other ways, they have not,
and in some areas, even regressed. It is important to acknowledge
that contradictory conditions can exist simultaneously and that is
why, in part, the debate is so heated. Depending on where you look,
affirmative action has done its job, or it has failed.
The President can acknowledge that one can find confirmation
for opposing conclusions, but as long as inequality of opportunity
exists in any form, to any degree in the United States, for any
individual or group, the country is not living up to its promise
and therefore, the President is unalterably committed to rectifying
that inequity with all the tools available to him.
Examples of conflicting results:
-- Schools in ·the south are more integrated than they were; in
the north more segregated, not only by race, but· also by poverty
and ethnicity. And it is impossible to conclude that the education.
received by minorities throughout this coun,try, ·is equal to whites.
--: A strong black middle class has emerged, but at thee same
time, the poverty rate and incarceration rate of African Americans
remains disproportionately high.
Women outnumber men in college and in graduate school, but
there remains an earnings gap, qS well as a gap in women in science
and technology, and 95% of the Fortune 1000 top managers continue
to be white males.
There should also be an acknowledgement that affirmqtive
action·is but one part of a larger dynamic of social and economic
·t·:TEH\li:'IEO TO fiE A:'i AD,11:'\ISTRATI\'·~.
400 MARYlAND AVE.• s.w. WASHINGTON. n.c. 202o2-osoo\t0{1\G Per E.O. 11958 as amended, Sc.c. 3.3:(
.·
·
.
;1iti:tls:
»k<
.
Date~ t:1~=/ll
P'
�2
change in this country-- -and that we must simul taneousi
ourselves to other strategies that increase opportunity, s~~--=
expanding access to quality education at all levels and supporting
strong families.
However, affirmative action remains a vital tool that we will
not discard.
It has proven its effectiveness (and use examples) .
Consider including the largest affirmative action programs--though
this may be . too controversial--veteran's ·preference, and small
business set asides.
It has also proven to be effective for women and minorities
(examples). If Title IX is defined as affirmative action, it's a
good example of the dramatic expansion of women's athletics in .the
last 20 years,. while pointing out the continuing disparity.
TONE.
It is critical that this speech convey a high moral tone,
that it come as close as possible to Lincolnesque, with poetic
language and quotations.
The challenge to the President is to elevate the debate above
. the divisiveness polarizing the country.
The President can
position himself in contrast to those who thrive on fanning the
flames of division.
He must be seen as the healer, as the President who appeals to
the best and highest motives of human nature, who reminds us of our
generosity, our sense of community and tells us that we are
personally diminished when any amongst us is deprived.
Finding.a way to show his courage in this respect by taking
bigotry head on, either though an event or a person, quotation, or
even what . is considerec;l :to be ·. "popular opinion" would be
advantageous. Lincoln did face a nation divided --to the death-although there were no polls to say so.
A combination of careful use of language plus strong inner
passion, drawing on his personal experience (as he began to do this
weekend) in Arkansas, and what forces and experiences shaped him to
become a civil rights minded southern politician.
He can describe what struck him as unfair as a child, and what
remains unfair to him today. He can also draw the contrast between
what the world was like (for example 1 the number 1 if any 1 of
African American politicians he. had known about) and what it is
like today (the number of African American elected officials) .
If comfortable with the idea, he can use his mother's odyssey
to describe how hard it was for women to receive an education and
>-
0:::
<(
a::
ca
�-----------
--------------
3
can boast about
predecessors.
These examples should convey two ideas:
1. the President is a strong supporter of affirmative action
in keeping with his life long commitment to civil rights. And he
will not retreat, and neither can we as a nation until our work is
·.done (most important not to be viewed· as an expedient value
modification) .
2. That opportunities have change~ for minorities and· women,
much to the better, but far from good enough .. So our work must
continue, but not precisely in the same way. (Would be interesting
to find a parallel situation in history where we have stuck to our
principles but changed the means of achieving them.)
The fundamental principles upon which any such strategies are
based, remain unchanged. It .is the means, not the ends, which must
be updated~
POLICY THEME
It would be helpful to have an overarching theme which
indicates a progression (as the chart shows) from expanding
opportunities, increasing the talent pool to enable everyone to
compete fairly, to--as a last step-- direct government intervention
through set asides, etc.
If we do our job right in the first
place, by giving all children an equally . good and demanding
education, we won't need race based scholarships by the time they
apply to college.
·
Example of a theme: Achieve maximum opportunity with minimum
government intervention.
not
Would have to followed by a statement tl:lat ·the President ..would
to intervene, when other remedi~s are ineffective.
hesit~te
The idea of using
achieving equity is very
affirmative action as a
agreed upon goai and end
progressively more stringent means of
attractive, accompanied by the concept of
transition phase. It implies there is an
point.
The difficulty is finding consensus on what that end poipt is
in a manner that meets a legal definition and conforms to public
perception, which·is what the debate is about now.
-
�>a..
0
('_),
4
FAIRNESS
The concept that equal opportunity should be achieve
creating undue burdens on the rest of society should be conveyed
without holding up the white male as a new victim. This resonates
badly with women and blacks whose experience is all to the contrary
and also plays into the idea that the election is the dr~ving force
here, ~nd unnec~ssarily legitifuizes the oppositionjs view.
Keeping that part of the question at a more general level
would be better, and turning it upside down, would be even betteri.e .. , as a society, we are all disadvantaged when we are deprived
o'f the talent and productivity of individuals who are unable to·
achieve thei~ potential as a result of racial and gender barriers.
PRESIDENT AS TEACHER
The . speech is a great opportunity for the President · to
describe how affirmative action works, what it does and does not do
and what it should do.
Also, the President can describe the nature of bias, both
conscious and unconscious, that you don't have to be a bigot to
continue to hire people who act andlook like you do and went to.
the same schools, but that you do have to be prodded, sometimes, to
look beyond your circle, and that too--is affirmative action.
0
10
:I:
a..
>0:::
<(
0:::
Cll
�·
./.p .~
c~ \ 4J .~{\I~:::··-.~-
/6';>...~"
(-;;;, '<
{,:~~
~\ :.;~~
\ -·~•.•)
The President's vision
\9
..
'·1,,~,7~
5
t-.t
)i '
'< '~\.
Y.',.:\
.~z<
"""!')
i
l
~"-/
1
~ ~ J5/.
'd
' '
'
'
. '
The P resJ.. ent ' s VJ..SJ..on o f th e 1nc1 us1ve AmerJ..ca we '"-·
wan·~-~.~;.0' u1 ld
rests on two principles: equality of opportunity and
nondiscrimination. These·principles are mutually reinforcing:
equality of opportunity offers scope for the fullest possible
development of individual talentsJ while nondiscrimination
guarantees the fair treatment of individuals in light of their
talents.
>-
a..
0
(.)
0
t-
o
:I:
a..
>-
0::
<(
0::
co
. ..J
(.)
J
Fleshing out the' vision: some complications
1~
Equality of opportunity. All Americans should have, so
far as is possible, a full and equal chance to develop their
talents and use them for the betterment of themselves, their
families, and t~eir society.
(I say "so far as possible" because
social theorists going all th~ way back to Plato have recognized
that differences among parents can have profound effects on the
life-chances of children.
I don't think we want to advocate the
abolition of the family--as Plato did--in the name of full
equality of opportunity.)
Equality of opportunity is-traditionally, and correctly,
distinguished from·equality of result. We have nb way of knowing
whether equality of opportunity for individuals will produce
equality of results for groups. There are too many intervening ·
variables.
2. Nondiscriminatio.n. Nondiscrimination exists when two
·conditions are satisfied. First, the system of rules must be
fair.
Second, it must be impartially administered--that is, the
treatment of individuals must be determined. by the fair rules
rather than by nongermane factors or the personal whims of
authorities within the system.
When the function of the system of rules is to select individuals
for social -goods such as jobs and educational opportunities,
fairness is determined by (a) a rational relationship between
these goods and the selection criteria, and (b) reasonable tools
for assessing the .extent to which individuals satisfy these'
criteria.
Nondiscrimination can be enforced. Public authorities can assess
the fairness of assignment rule~ and the impartiality of their
administration, and they can take corrective action.
But
arriving at appropriate standards.of judgment is not simple.
A nondiscriminatory system applied to individuals can produce a
wide range of outcomes for groups, depending on the compositirin
of the pool from which the selection is_made. On the one hand,
if there are gross disparities in industries such as
construction, with a very large and diverse pool of eligible
employees, a prima facie case of discrimination can be made out.
But problems can arise when a vision of the world drawn from the
;:.
�construction industry is transferred to very different sp
activity. Consider the following example offered by Step
Carter:
"A good example of the misund~rstanding of statistics
occurred in 1988, when members of the Michigan legislature argued
that they could tell from the numbers that the Detroit Symphony
Orchestra was not doing all it could to attract black classical
musicians. Only discrimination, it seems, was a possible
explanation for the fact that the orchestra employed only.one
full-time black performer. Never mind that an entirely.blind
screening process was used to hire musicians; never mind that out
of 5,000 orchestra-bound musicians at the nation's top twentyfive conservatories, only 100 were black, of whom a normal
distribution would predict that perhaps a fifth-~twenty--were
good enough to play in a major orchestra.
The Detroit. Symphony
'might have been the most racist institution in the world or the
most racially benevolent one, but the stati~tics do.not hold the
answer."
In practice, the relation between the President's two core
principles--equality of opportunity and nondiscrimination--is
complex.
Equality of opportunity can be, and must be, promoted
through social policy--programs directed to infants and children,
education and job training, and economic development, among many
others.
Nondiscrimination can be enforced through a variety of
means, including affirmative action. But remedies for
discrimination in the assignment of individuals to higher
educat~on, jobs, and business opportunities do not for the most
part address underlying inequalities of opportunity to develop
the skills and. talents on the basis of which the assignment
occurs. Affirmative action has modestly contributed to the
growth of the black middle-class; it has played and will play
little if any role in ameliorating the plight of the ghetto poor.
Affirmative action as means
Nondiscrimination is the goal; affirmative action is o~e means to
achieve that goal.
Nondiscrimination is a right; affirmative
action is a policy in pursuit. of that right but. is. not itself· a
right.
To end a particular program'of·affirmative action is not
necessarily to dismantle a right. Rights are not measured by
.standards of success or by the sum of costs and benefits; means
to rights may be so measured. Conversely, some means that may be
effective in the utilitarian sense are nonetheless impermissible
because they violate some deep principle.
(For example, we might
well have more effective law enforcement if we ignored the Fourth
Amendment; but we shouldn't.)
So in considering affirmative action as a means, there are two
kinds of questions: Does it work? And is it consistent with
principles that shouldn't be violated--even in the pursuit of
worthy ends? For particular applications of affirmative action,
one or both of these questions may be answered in the negative.
-
.....J .
�.---~~~~~~~~~~~~~~~~~~~~~------------
>a..
0
(..)
But because affirmative action is a means rather than
skeptidism aboui it in these cases is compatible with
support for nondiscrimination.
0
t-
o
:::c
a..
>0::
The way forward: where we agree
<(
0::
Cll
I suspect we agree on the following:
1. We cannot allow the choice to be framed as one between the
status quo and the abolition of all affirmative action programs~
That is a debate w~ cannot win, and it is a battle that would
divide the country. We need a third option.
2.
For the federal government: a viable third .option will
draw the line between the core of justifiable programs and the
penumbra of excesses. And it will offer a principled
justification for that line.
3. For. California: a v1able third option inust take the form
of a ballot proposition that seizes the middle (high) ground. We
cannot write that option, but·we can and should participate (to
the extent .that we are allowed) in a process that leads to that
result.
4. Absent. very unusual remedial circumstances, we are opposed
to quotas . . We must therefore oppose set-asides that establish
rigid numerical tests.
5. We agree that affirmative action entails practical and
moral costs--burdens imposed on third parties who have not
specifically benefitted in the past from discriminatory
practices.
Even when affirmative action programs are justified,
they must be carefully designed to minimize the burdens on such
third parties.
6. As a general proposition, we agree on the importance of
the merit principle in the distribution of a range of social
goods. Affirmative action is called into question when it
appears to v1olate that principle. Affir~ative action programs
must, so far as possible, be. tailbred to bolster the meiit
principle~-for example, by showing that certain criteria do not
accurately predict job competence or that advertising strategies
do not reach the full pool of pot~ntial employees~
'
.
7. We can make considerable progress over the next few weeks
through internal dialogue and informal outre~ch.
But an issue of
this gravity for the country requires a fuller.and more public
national conversation. We are therefore prepared to recommend a
Presidential Commission.
8. Affirmative action is but one element of a broader attack
on discrimination. Whatever we decide concerning affirmative
action, it is vital to push the broader nondiscrimination agenda ·
forward: Yes, we've made progress, but the problem isn't· gone.
(..)
"J.
~
�9. Suitably tailored affirmative action programs ca
promote nondiscrimination, but they do much less the pr
equal opportunity--especially for the severely disadvant
We
should couple our proposed reforms of affirmative-action,
whatever they turn out.to be, wi~h a staunch defense of an
aggressive equal opportunity agenda~-and, if necessary, with a
stinging attack on the hypocrisy of those who attack affirmative
action while gutting programs that promote equal opportunity.
Where we may not agree
1. I believe that moral and public case for-affirmative
action is strongest in the remedial context--specific responses
to specific practices of discrimination by specific institutions.
I would therefore create a presumption against affirmative action
p~ograms that invoke general "curative" justifications loosely
linke~ to "scicietal discrimination."
And similarly for
affirmative action programs that invoke as their principal
justification the forward-looking criterion of promoting
"diversity."
·
2.
From the beginning, affirmative action was understood as
a temporary means to a desired end. ·I believe
we should be. prepared to explicitly endorse that understanding-that is, to spell out the circumstances under which affirmative
action programs would be terminated.
t~ansitional~-as
3. Certain costs imposed on-third parties should be regarded
as-unacceptable, even in the pursuit of worthy goals. For
example, it is hard to defend race-based firing decisions, and I
don't think we should put ourselves in the position of trying to.
Some hard questions
1. When, _if ever,· can.race legitimately be· a "plus factor"-along the lines of (e.g. ) veterans !.c preference?
2. On what basis do we justify programs that have the effect
of giving middle-class minorities.preferences over economically
disadvantaged nonminorities?
3~ _How.far are.we prepared to take the distinction between
public and private action? For example, are we prepared to
accept programs voluntarily adopted by businesses that we would
not be willing to institute as the policy of the federal
government?
-
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
RESTRICTION
001. memo
George Stephanopoulos and Chris Ed ley to the POTUS, re:
Affirmative Action - Decision on Post-Adarand Steps and Completion
ofthe Review (5 pages)
7/19/1995
P5
002. memo
Christopher Edley to George Stephanopoulos and the Core Group, re:
Affirmative Action: Themes and Hard .Questions ( 14 pages)
4/6/1995
P5
003. memo
James Castello to President Clinton, re: EEOC (2 pages)
5/2311995
P5
004a. memo
George Stephanopoulos to President Clinton, re: Affirmative Action
Follow-Up (4 pages)
8/1711995
P5
004b. memo
Nancy McFadden to George Stephanopoulos, re: Status Report on
Post-Speech AA Issues (4 pages)
9/16/1995
P5
Dl-Cp #-LjIY~
1':) tAf-t} I L/
\ Lj. q
,s
D
COLLECTION:
Clinton Presidential Records
Chief of Staff
Subject Files
OA/Box Number: 6421
"FOLDER TITLE:
Affirmative Action
2008-0308-F
wr880
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)J
Freedom of Information Act- )5 U.S.C. 552(b)J
National Security Classified Information J(a)(l) of the PRAJ
Relating to the appointment to Federal office J(a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAJ
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAJ
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of.
personal privacy l(a)(6) of the PRAI
b(l) National security classified information J(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAI
b(3) Release would"violate a Federal statute J(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAI
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�'n.J »--"_:;
~
J
.Y
rr
.
-;_,
-vO
.
~~-c~~
c..~)
~
r \ .~~v\.ce
/
\. . ~ ./-- vc "r7 ~- T H E_ W~ J.jr E H 0 U.S E
I J VV\.
'v
\_, '.
v
,>-'
(. fY
'\u
r~
"
....._
._)
~. \
./
"'A~AS HI ~;('oN
IY.
~
tr
· .
.
~J-'? ,...-~ ~c;:~pril 6, 1995__
rP c.;-r-_r-o-"Y.~ ~
Christopher Edley, Jr. & Peter Yuh
.
~·-
s
-
~
.-
~
..:.\-
(:J
J
u ~ <(
'I
-'~,.:!! ~
\z... .
· .·-~~) .
/
/f
This memorandum summarizes our evolving thoughts regarding policyaiicf communication
choic~s arising out of the Review. Part I outlines the central issue and Senator Dole's response;
Part II offers an alternative response, building on our earlier conversations and on the Review.
· Also, a discussion of the "hard cases" in the Attachment may facilitate our deliberations.
I.
The Central Issue: Questions about "Preferences"
The central and most difficult questions-:--substantively and politically--:-concern groupbased preferences: what are those preferences and when are they appropriate?
·J:~·J ~ t:·-:u-'"~: t~:,;·: ·.::·.:, \''r')"(~ .:::'""':~·"
J1'
·
In public statements, Senator Dole has expressed support for affirmafive:idiction as a ~
~~I?~?X -~~r '1Rf2x~~;J.a~gfi41S,~!i!li!Ji~l{Qff_;::~g~l[~1J:!q4Hi£dlals" and for expandeqAg~it~g~· and
\r~~(~~fmynt of "qualified minorities and women to give them an opportunity to compete without
'" 'guaranteeing the results of the competition." However, he has. expressed his opposition to
:/'qz~:-q:i'Ci~:'!!:s~?·~~~i(Jes, and /6.iii'fi:P.c.e!~r?./l(;~'s that favor individuals simply because they happen to
:J.:,.'S-;
'
belong ·ra certain groups."
·
A'.':·, .1;.>~'~ ;\•_.~:Jc.~<".!"· .'!,..t,•:;,/,{-::.!.:~;;.'-'•.:':"o,. ,'''·•:;::'/
$,it,..~,t;;!';{~l\':~•' ·',, • ,,,\~~l;_.,_..
~.•:,
:-.J
The most likely construction of Dole's·· opposition to preferences would seem to entail
opposition to several existing policies identified in the Review, for example: .
• · ~:~c~rit;~~firi~!~i&gia:I£§,
including the 8(a) program: shelter~d.~o~petit~p~}l~(}~g small
disadvantaged businesses (SDBs), and the 'fO~pat~ri:f;Bid'.$t~ftfeh'te .loi:O:sba~? (Some
of these could be saved, perhaps, if Dole's phras~ .:'simply because" is satisfied by the
current requirement that SDB's demonstrate ~~~~~)R2Wl.s:i(;~~~.~~¥,ffii~.~~S'y•' this, however,
requires a somewhat tortured construction of Dole's statement.)
•
•
R£l~e·:.::sp~dfi{:)in_(j geij:~e!~s·p~Cificschbl?tspips·
'"'
•. ·.,·'·;·.,·' ....
.. ,•:··{
:,·;-:•··r···"'•· '.\'\,·'·' • r}
and fellowships motivated by inclusion
fafhef'' than'·""re'iileoia't'i6n. --····:Examples'; 'il1e1ude an academic scholarship program for
minorities that Secretary Shalala established at the UniversitY.:i9L.\W:Iscori~1ri?'and an NSF
program designed to support women iri basic research.
.'~j'~!,:,.,,,.,.>,
:t-~-
-·~l \·y·'.·,.··~··_;J.f"f-',·~~,.-
.-.:~_.
·. "'t''"f :·"· ''' .'" .,. \ .• '. ':
~
,';·;},::~
··'•"~'
. "''": • ·.~ ,." ,"!,.~··· ~::.~··,,),J•:;(·' . . . ·.~! ·,.;, ;' !·~,·
1
;. ·,.: ·':. !:···:" : .,. ~..
-Clinton-'stylejyq~si~La.#d.qabiriefappbintments, assuming consideration of race, gender,
.
·
··•·• .n.•. -··
.
or ethnicity amounts to a
•• ·]:•··,.-... .• _;tr.;·l:~~~~r .... ,l•:·Nr."'
",p~~f¢.i't~nce:''
,,,,,. .....
. a:::
.
~ C} \~\_ OA~
,
t::)
Affirmative Action: Themes and Hard Questions\~> .
Re:
o..
8
W-Rifl;§"R'Qlf(l\, ~ :'-'--~..:__ ~
!_;;;.
~~;; \
I(
>-
o
l.v Le-t v.,__,.
.
~
~'-./"--.
.
J
r
~·
.
Q__,\
o
Srt.~S(
,)C C.-.-<?
I
01~ ~J:•A.J ~
\
~-'
MEMORANDUM FOR GEORGE STEPHANOPOULOS & THE
From:
Q,
,
1
c~ l~ c(,r::Uv'-
o
·
·
~.
�>a..
0
(.)
0
10
II. An Alternative Approach
:I:
There is an alternative appro~~:_h to '("• question of preferences, one.....
the
more consistent with the
..
1.?'•"'···-·-:-·-:•·······l·
,
~,r ... ,, ....• .,.....
.. ,..._,,l~:~j.-•'·:.:·.·-·~··
,.,t>
"·:~!~
·.r;·•.- .... :.-.·.'·"···.··~ ......
·~
President'~ fr~~~H~¥ of th~·:~!,~.219~R.ti.~~~B.§~~.':;··a,n~:-IiPt~4r,S~~;r·1~~~!.?~~~:~~!.~ions a~d his embrace of
a broader JUStification that mclud~~l~J:!!.~Q!.?.tiQl}, .oppm;tumty; and.mcliJ~JOn. This approach would
emphasize four points. ·
•
We
,gppg§~~q~qt?~;en~~~~:#l~.ti'~L~!t~!!ili!j~S.~~;fs
(outside of narrow remedial contexts) .
of;.,,s,~~~Ai!~.~§~.~#.e.:~ii!:Pl2Yfu~pf,i;_<ii.fc;!,/.£2,~!t*£t.~fg
•
. We oppose the use
· remedial contexts).
•
We oppo$e giving
affirmative action.
·•
We oppose ;i·g~q!l P~P~~~cl. :Pt~.t~r¢.p.c~s;.- :wh~ll :I.!~-~g:;Ji~$~9 :. pt~f~t~.ri.9.~§ ,,,~ou Id be just as ·
.
effective ai"',cre~ti~g-'g~~~'iii~'· ~pportunity.
(outside of narrow
·
4•gtQ~~~~~s¢.ct:;.·~~¢i~~~~~~~L!(t;~~!i94~tJfi~~:;:p:~,f~QpJ/ in
·. :····:··,,:.-:•···_- .. ,.. ~·.,:::•?·:· ... ,i.'-~·.:, .. ={=-l -· ,.· ...: ;·,·::·,.·
.y.')'
"~·-'
:,:".:.;.;,; ..
>:'\ .. ~:····:,::·;·,:··.q·.·
,· '•!
the hame of
,··. ·~:··;.1{.'
This Part summarizes this approach, proposing definitions and central propositions, and then
· discussing the most significant implications of such a position.
A. Definitions
•
A';,~~.~~~·9:··- ~ is a -~.rr·ia:nufii'~ric ,Or'.;'''r6H. . . . .--.. . . . ~. •\: . . .-.~:, ·~::;;measure that must be attained or that
·}~" ~"'ir·t ~
':ti:.:;.M~ ,~:.~" .l':•.-......"'-"·><.W·,....,..........;: .,~ .. -~,.r!:r.i.: .-.I.H. . . .~.. "'bHioD'ai :.,if..~l".:~·/;-:.~;,:§.if
...
cannot ·be exceeded, without regard to the number of potential applicants who meet
necessary qualifications. Example: Before the Bakke decision, the UC-Davis Medical
School maintain~d a two-track admissions policy reserving a minimum of 16 of 100
spaces for minority students.
•
A tsi1:0·~~'id~? is a if~~fi~1iliR~~i.J~:1i~t~()f£~P.(tQ.HunJ.ties or benefits for a particular
group of potential candidates that effectively excludes .members of other groups.
Example: Under the "rule of two," procurement contracts meeting certain requirements
may be\':!reserv.e.d_,ufQ.f.ll'.§ID9-1L:disadv.antaged.l!'busines$.~-~A§,.DBs ). This· set-aside is not a
quota because it does not involve ·~a numeric or proportional measure that must be
attained or cannot be exceeded II; iii'Aiotliei iwdf'ds;'.•;:yga~asidesT, iii~ol\.ie:/;inin!munf
B~q¥gg§~1!8.li~~.!:~Qfi~g~pf~f§~~~- '#§t;:.~;
•
,•.. _......._.:r·'·;,·.-:
·;.~.~ .
,;:: . ~,
.... ,.•-l--.·····.·:·~~::1
·.~~· .. ····.·~~..
,.·. -;~f'!~o<:..·~- ·::
0
0·,
,~,:~'""''~- .. :,;.c•:;. ·.:,;::;:;L 1:; .: .:·' ,':-1::.•·;, '•"('•··"'''·''''''"';;;,,;,··~··""· ·. ~~·
.
'
·
·
A tii-Herehce is ~h~. .~<fyal:lJ~ge assigned to a c~p,4ic:la~e .s91.t;ly,.Qn the basis 9f hisf.her
en<f~F·'tit~· 'or ~lhii'i~it'"'1''w'hen that fact is ,,'hola'....:bo'~~~~:~r.a~~~8~§'id~tifii6i~-::'·A":'t;o;a
~ ' ...... , '·' ' ..'· ,,:·...: :, '...~ ·i '\"'"''·'" :.:.•. ··:,. ,'." .~'. '
__ . .,._, ,................ ,,,..,,..." ..•
...................... ,.,.,,., ..... ,. ;:•..,,.,.~
fide···con·sideration· 'is a characteristic essential to the effective operation of the
institution or enterpri~e. Example: DOD provides a i'6%''l'b1d pfe'fere'nce;,Jo;SQ~s in
certain situations. Because status as an SDB is not "essential to the effective operation"
of DOD contracting, this advantage is a preference. In the case of the police force of a
racially-diverse city, race may be· a bona fide consideration
ositive
1
<?~
~
~
'$'('
~ \'~.
l'}
~
2
a..
>-
0::::
<(
0::::
OJ
�>-
Cl.
0
(..)
· consideration of race would not constitute a preference. Similarly, race, gender, or
ethnicity may be a bona fide consideration in university admissions if diversity is essential
to the effective functioning of the institution.
0
10
:I:
Cl.
>-
0:::
In sum," •.as illustrated iii Exhibit ·1:
··•'!''·>·,,·;:!;·· ,..: ..... ·' <
... '
""""'"''~.~,.;_:.
~-:-~-:-···:;
<(
:1)
0:::
•
:,~L~~£!~\~:"~~··:~~~~~~~,~lx~-~ ,~:~t not all set~asides are quotas.
.
All..~.~~Z~~,~g~~!.-~f:~;p:t~{~~9,~S~~~(c;but not all preferences are set-asides ..
-
al
All 'pr~.f~r:ence~ jue .advantages; but not all advantages are preferences.
B. Central Propositions
•
Proposition 1: Our paramount aspiration i~':c&ffipfetC:::eqtiality~,__{>_fi:)ppoi-tiifiity. We
.
.
------···... _, .. __ ..
. -·'
,,,.,,_, '·' .. ·'"''''"''""y
do not seek or guarantee equality of results.
Corollary: We must distinguish among affirmative action in different· contexts:
education differs from contracting; minority scholarships differ from procurement setasides.
Corollary: We must distinguish among affirmative action tools: a targeted surety bond
pro grain differs from a procurement set-aside; multi-factor admissions differ from quotas. ·
.. ,. ~·.': .~~·~;-:: . . •.:"c·;-:~~:·~\~d···.-·~,'·.:,:· ;. :•' ·;,,:.-,·;."··:-'~):;
'
•
'
·,.
~:~i~~:N~···,~. ·~,-~'
Pro osition .2: _,".,Affirmative .action remains ';:_6'~~~-~~~-\:,;;:;.~1th'iliY:m:u·~h::i>~~~trail~itia'naY.~(
1 1
as
and severe social and economic inequalities.
.{~l&gJfi~ii1')?Jr':t;p#6rttihity·p6t~'i~i~. illustrated'1;y ''th g'p~~fst~~826£''l;'6th_~'-di~8¥ikiiri~ti8il'
Corollary: Affirmative action :-. --;,·,·r be. transitional for individual participants: these
should .
._f..,
'. m.
r'
-{ J (J.Jv-J:./ _P,~.og;~~~ .sh?u.l? ~~·1n~.r}IF~ys, not 'entitlement's. Each program should have :g{~9-~~t~PI1;l
~~(_c-) ~ .?:J~~urr~J.P:~!iJ~ . and.rel<:\~e9. ~~pp.qtt~-~l
_
'v--'
\-~
.::- ;vv-r-'
}' ' '·"""
.tt,6t-l"
'-1/V\,/? Corolla?: ~firm~tiv~ act~-8~"-~-~~~.~~ _be transitional for soCiety': when each program
if&~D
accomplishes Its obJeCttves/:n.:~hoilld.end~
'""1 \ ·~····~ri:, rtl~r"',-~:~
'
~:, ~
~:
~\'
"),""~•/
$
•
d
•
Proposition 3: We must recognize-.J,!~~:i!Iifhit;i:;£'i'ny::hit"rm that these ·essential
programs cause. We must dotherightthing, but in the right way.
Corollary: Affirm~tive action programs musf.fB~~~s!~;~~g(:JNidilaL-·m~ig! ,q:G'9!~;'--in
virtually all contexts--are unacceptable because they subordinate individual merit to rigid
numerical objectives.
Corollary: Affirmative action programs JiihsE~il§f_,ti~ci~l)/ .C:O,~¢e.n~rcl.te~bti'rdelis. The
burdens that affirmative action imposes on vested interests (such as seniority rights) or
on particular regions or sectors of the economy must be limit<? X:,SIDtJ\1~
"9<'
""" _,..,_,. •• • .,:;,;,,._,,I,. , , " !.~!'j.,,··,~ ••-<·~··~ •·,. , • o'•'·
, .o\- .• ,·· ,.•Jo ' '• • "n•·' •
1
~ "'
o l••
• • :. {,,,
·.~:; ·,, _,, ,'J.'(
(\
~ \~
3
�>c..
0
(..)
0
10
:I:
c..
>0::::
~
tn
Q)
C)
ca
+""
c
cu
>
"C
<(
0::::
a:l
.....J
�----------~-----------------------------------------,
>a..
0
(.)
0
C. Policy Implications
t-
o
:I:
Fully developed, these propositions have significant policy implications, particular as
concerns set-asides and preferences.
•
rrngUsa.~i~n. ~:f
We are..,~?.J?P.~~~-g~:~?",;S~~!:~~:~t~~~~ib
Pf.~£.!1.r~m~IiJ 1J(except in cotirt;;::ofdered remedies).
ehlpiriytil·~~t and.JgQy~r!!m~nt
Implication 2: ,dpf~fefib~~s ~P.d.:~~t-~:~i(4!f~~J~;i·_eHi.l~~t,ion andil6}pJg~ffi~pt are
appropriate to maximize eg~~J..Lqppgff#jllty and,:,L~§.I_H:~~-X~Re,~s'but only if ifi~ey
..
uaHfiea:·
(I) are rievet.·a'#a-~ti~ci-toAifi . ~.:.,;:.·~·"'1.>.1: J.!Y:s '.;.'··~.·;:r '
''e'rsons·
~1 r.:~~··::;: ~:; ··,,~iMi-::"t~~\1;>~ i~~ ·>l!,. . ~;:;i·.~··~. i'~~ ·~,:·,.;~·,~:. ,J.9.
(2) aret~tr:~~~.!,~?,ij~f~fes_tablish objectives and .terminate when those objectives are riiet;
(3) ar~ . flex(IJI~.L-are neither actually or effectively quotas; and
(4) ar:·'li;;~~;lyfm!!2t¢a~Lare the least race-conscious means of maximizing equal
opportunity and inclusiveness.
.•
·•h ...
..
;,:,l.:
';t ;: .•
Example: Race, gender, and ethnicity are often bona fide considerations in education and
employment. For example, scholarships set aside for women, if appropriately designed,
are justified by the values of inclusion and equal opportunity.
•
>a:::
<(
a:::
co
....1
Example: We oppose excluding any person from an employment or contracting
opportunity on the basis of race, gender, or ethnicity. Thus, we oppose procurement set~
asides, including the "rule of two."
.
·
•
a...
Implication 3: Because procurement is less directly related to the creation of
opportunity, :•Jlr~fer~Jj_£.~.~-.-:'l~CPt9.£.ft:t$.~il~!!~::?~~yiS<e:]'al>'PropH3te:;:.Q'~Jy·:~lr the above
conditio11s are met and ,~'ij!fii.wllen'f:nec~S.·s.~fY' to remedy demonstrated, p~i~~-I:!J.::~,:w·
.5:-·:(liscrfmfnMfon· or the lin ~rin effects of iftmiOnsfrafe'd.':''"asf discfiriliilation:···•-L.~~... "'.''w
·;! ·;/;'i·t::;;;cc·'<;·;• ;;.,,.,,,;_,. _..,,, , _ .. ;'
g
g .
·?\l':·•t.i1":'0''''"''n0.\'.<C•i-'""'~'"'":"'·'·' P . . . •.-. :,:-U:i'ii<l.!.>.i)l:~IFi·.'T;':~<';''; >''~V
.,,.
Example: Procurement preferences, such as the §1207 bid preferenc~, must be
. appropriately designed and justified _-by the demonstration of.:~·:p_~~f','4J5!~.iim~n~ligii or
/''::t~jigeJ:ii1g etf~C:t,s. Race- and gender-neutral advantages--·such as competitive advantages
· ·'basec(on···•opp~rtunity creation" as measured by employment_ and entrepreneurship for
disadvantaged groups--need not be justified i~ this way.
.
·
In sum, as illustrated in Exhibit 2, we are opposed to certain practices (the shaded area).
In addition, we believe other practices must be both tailored and justified by past discrimination
or lingering effects (the cross-hatched area).
4
�Selected Affirmative Action Efforts
0 p po rtu n i ty ----------:------------------------------------------------------------------------------------------- Res u Its
Opportunity
Enhancing
Assistance
Advantages &
Flexible Preferences
.€
c:
....
=
,_
0
~:_,
Multifactor aohi.issiohs
policies
Education
0.
0..
0
Quotas
Minority-specific
scholarships
(Iiffiitecfcoihpetition
among qualified
candidates)
Multifactortlliring?
Employment
Contracting
Set-asides
(e.g., judicial seleCtion)
Technical assistance
&
N.tenfhnllg
Procurement
Bonding assistance
{I)
:::
::s
{I)
~
Yu Draft/April 6, 1995 AM
')
( . !'\c.
w-J""V\.
'I
(
,
WJC. LIBRARY PHOTOCOPY
�>-
c...
0
C,)
0
III. Conclusion
t-
o
::I:
The Attachment presents seven "hard cases" and outlines both· a "Dole" and an
"alternative" perspectives on each case. The cases are:
c...
>0:::
<(
1•
0:::·
Chicago Police Department promotions (Rep. Lipinski's example)
a:J
.. .....J
Tbe Piscataway case: race as a consideration in layoffs
Admissions to the University .of California at Berkeley
Remedial education: a black-only community college course ·
Banneker Scholarships: black-only merit scholarships at the University. of Maryland
6•
The Adarand case:· bonus payments for subcontracting with SDBs
7•
SDB set-asides: the "rule-of-two" for reserving contracts exclusively for SDB bidders
5
�>-
a...
o.
(.).
Yu Draft -- 4/6/95
0
1--.
0
:::c
a...
Attachment: Seven Hard Cases
>-
0::::
Case 1. Public Employment: Promotions.
<t
0::::
-
Ill
Scenario:
.....1
ChiCago's population is diverse: 39% African-American, 38%. white, 20% Hispanic.
Its police force is less diverse: 66% white, 34% minority (even in the Department's higher
ranks). These facts have been the subject and source of litigation and court-ordered remedial
hiring and promotion. In addition, the Department has undertaken extensive efforts to redesign
its written tests to reduce disparate impact.
'
Earlier this year,' after administering a promotion test, the Department announced 67
promotions from sergeant to lieutenant. Most of the promotions (54) were awarded to those with
the highest scores on the promotion exam. Only 3 of these 54 new lieutenai:ts are AfricanAmericans. Probably in response this imbalance, the Department also announced 13. "merit" . or
.
·performance-based promotions to persons, none of whom scored in the top 67 on the exam. Of
the 13, 5 are white, 5 are African-American, and 3 are Hispanic. It is widely assumed that race
and ethnicity were considered in the merit promotions. A white sergeant with the 56th-highest
score on the exam has sued the Department.
The "Dole" Perspective:
"I'm concerned that the Department has promoted some sergeants simply because they
belong to certain racial and ethnic groups .. This looks like a quota to me: the 5-5-3 ratio of
'merit' promotions precisely tracks the City's population.
"Clearly, minorities did poorly on the promotion exam. The racial composition of the
group receiving 'merit' promotions indicates to ·me that certain candidates received a preference-they had lower test score than white candidates· but :\.vere nonetheless promoted."
The "Alternative" Perspective:
"This is a_ classic situation in which race is, quite appropriately, a bona fide consideration;
the racial compositi~n of a police force can be essential to its effective performance.
"Even if one were to regard this as a preference, it is an appropriate preference. First,
there is no indication that the 13 candidates were. unqualified; the fact that they had slightly lower
scores on a written test is insignificant. Moreover! the fact that five of the merit promotions were
awarded to white sergeants indicates that this was a flexible preference and not a quota or setaside."
1
�>-
a_
0
u
Yu Draft -- 4/6/95
0
10
::I:
a_
Case 2. Public Employment: Layoffs.
>-
0:::
Scenario:
<(
0:::
to
Although Piscataway's Board of Education had never been found to have discriminated
on· t~e basis of race or ethnicity, the Board has long maintained an aggressive _.:.._ and effective
-- affirmative action policy. Piscataway schools have hired the most qualified candidates, but,
in cases in which candidates were otherwise comparably qualified, have favorably considered
minority status. As a result, by 1985, 9.6% of Piscataway's teachers were minorities, compared
to 7.4% of all New Jersey teachers and 12.1% of the statewide labor pool. However, more than
40% of the school district's students were minorities.
In 1989, budget cuts required Piscataway to dismiss one business education teacher at
·Piscataway High SchooL The two most junior teachers had been hired on the same day and (it
is stipulated) were of equal qualifications. Rather than follow another tie-breaking procedure
. (such as drawing lots), the Board looked to the racial composition of the business education
department and found that one of the most junior teachers (Williams) was the only AfricanAmerican in the department. Based on this fact, the Board decided to layoff the white teacher
(Taxman) .and sent her a letter explaining the use of affirmative action as a tie-breaker.
The Third Circuit is-currently considering whether Title VII permits the Board to act as
it did; the Justice Department has argued that it does. The further issue is whether we would,
as a policy matter, agree with the Board ..
The "Dole" Perspective:
."This is a preference, plain and simple. Except in the remedial context(which this isn't),
I don't think race should be a preference in hiring, and, as the Supreme Court has recognized,
layoffs are even more problematic: the costs of any affirmative consideration of race or ethnicity
in layoffs fall directly and solely on the losing employee."
The ''Alternative" Perspective:
"I'm of two minds. On the one hand, race seems to be a legitimate consideration,
especially in education, and thus I don't think of the Board as assigning a 'preference.' Race
favored Williams in this case, but in another setting, such as in an effort to desegregate a black
school in a dual system, Taxman might well have benefitted from the same consideration.
"On the other hand, a tie-breaker that favors one party feels like a preference. Groupbased preferences can be appropriate in the employment context if they are transitional, flexible,
and narrowly tailored. My concern with this case is that it seems to unduly concentrate the
burden on Ms, Taxman. It's a very close call."
~E.SIO€',
~
~
-
co
~
tV~
\
\~
\'
~
('
2
.....1.
�>a..
o·
(.)
Yu Draft·-- 4/6/95
0
10
:c
a..
Case 3. Public Education: · Admissions.
>0:::
Scenario:
<t:
0:::
co
Admission to the University of California at Berkeleyis extremely competitive; more than
20,000 students apply for 3,500 spaces. To ensure "diversity of cultural, racial, geographic, and
socioeconomic backgrounds, ... Berkeley uses the following method: about 55 percent of the
spaces are assigned strictly on quantitative academic measures (grades and SAT scores); about
5 percent are . reserved for "special admissions" (athletes, older students, and . the
socioeconomically disadvantaged); the remaining 40 percent are admitted based on a number of
factors, including race and ethnicity. The results for a recent year: ·
•
•
e~tering class: 40% white, 20% Hispanic, 28% Asian, and 11% African-American;
compared to
CA high school graduates: 63% white, 20% Hispanic, 9% Asian, and 8% African-American:
By statute, an applicant must have a "B+"average to apply to the UC-system. Because AfricanAmericans have lower high school grade-point averages, one commentator estimated that an
African-American grad~ate with the requisite average had a 70% chance to get into Berkeley;
while a white student with the same average would have less than a 10% chance.
The "Dole" Perspective:
"Berkeley is clearly granting a preference to African-Americans. Competing on the
merits of grades and SAT scores, whites would likely capture half or more of the spaces. It's
. irrelevant that race is 'one of several factors'--it is still the decisive factor in many cases.
"Let me also say that this system al~o disserves African-Amedcans: in the name. of
fairness they are placed in schools where competition is fierce and for which many of them -:...
due to discrimination and other causes -- ~re ill-equipped. As a result, while 71% of white
.Berkeley students graduate in five years, only 37% of African-American students do.''
The "Alternative" Perspective:
"Race can be a bona ~ide consideration in admissions. Moreover, this system does not
award preferences to unqualified candidates. The admitted African-American students are clearly
as qualified (even in numerical terms) as the rejected white students: because the system is so
selective, the students of all races meet strict threshold requirements, such as a B+ average.
"Let me also say that any crowding out of white applicants is· the result of pure 'meritbased' competition with Asian-American candidat~s. Critiques emphasize the 11% of spaces
awarded to African-Americans and ignore the 28% of spaces awarded to Asian-Americans."
3
.
�>-
a..
·o
(._')
Yu Draft
~~
4/6/95
0
·~
0
:I:
a..
.. C~se 4. Public Education: Remedial Education.
>-
0::::
Scenario:
<(
0::::
o:J
· Twenty years ago, San Bernardino Valley College created two special programs. The
Bridge Program is designed to serve African-Americans students who are having academic
problems but wish to attend a four-year college. The Puente Program is designed to serve
Hispanics facing similar difficulties. Both provide specialized classes and curricula targeted at
minority students and offer personal, academic, and eareer advice. The programs have been
successful: 66% of the Puente students go on to attend four-year colleges (compared to 7% of
all Hispanic· students).
Earlier this year, a 25-year old widowed mother of three was denied access to an English
101 class that was part of the Bridge Program--the only class that fit her schedule. The precise
reaso~ for this rejection is disputed: she claims she was not admitted to the class because she
was not African-American, the school suggests otherwise.
The "Dole" Perspective:
"This is simply a case of 'separate but equal.' Schools are, of course, free to design
courses however they wish -- but they cannot exclude a student from a course simply on
account of her race. One possible justification for such classes is a desire to build strong ethnic
communities -- but must such classes be segregated? African-Americans may have distinct
needs, but those could be served through specially trai~ed counselors to provide services outside
of the classroom. Moreover, the programs are based on crude stereotypes: why should a
privileged African-American be allowed in these classes, but not a disadvantaged white?"
The "Alternative" Perspective:
'
"I'm opposed to 'set-aside' programs in employment and procurement--! believe that no
one should ever be barred from applying for a job or bidding on a contract on the basis of race,
gender, or ethnicity. However, education is a different matter.
The Bridge Program is designed to meet the special needs of disadvantaged minority
students. The central question is whether there is a less race-conscious manner to achieve the
same result. I suspect that the theory of the program is to create a non-intimidating environment
by using familiar curricular material and new educational techniques, and by creating an
environment in which minorities can view themselves as in the majority. This sort of
empowerment may require some selectivity and exclusivity; but I very wary of it. I'd say it was
a close call. I'm a little more comfortable with the black-male academies set up in Detroit-there the demonstrated necessity was somewhat greater. By the way, President Bush publicly
supported Detroit's effort."
4
�>c..
0
(..)
Yu Draft -- 4/6/95
0
10
:::z:::
c..
· Case 5. Public Education: Scholarships.
>0::::
Scenario:
<(
0::::
-
1:0 .
The University of Maryland refused to admit African-American students for most of its
existence. In the late 1960s, the federal government found the University in violation of Title
VI and directed the school to develop a remedial plan. In 1978, the University established the
. Banneker Scholarship Program, which offers full scholarships to African-American candidates
who meet certain academic qualifications. The Program represents about 1 percent of the
University's financial aid budget and provides assistance to about 30entering students each year.
Podberesky met the academic criteria for the Banneker Scholarships, but is Hispanic and
· not African-American. He has sued, challenging the legality of the exclusivity of the Banneker
program.
The "Dole" Perspective:
"This is a set-aside--and no different from UC-Davis' two-track system that the
Supreme· Court struck down in Bakke. In today's financial climate, a full scholarship can be the
difference between going to college and not going to college. Moreover, if the justificatiqn is
·to remedy past disadvantage, the race requirement of the scholarship is underinclusive: why
should the son of a wealthy Jamaican doctor get a scholarship and the needy daughter of a West
Virginia coal miner not?"
The "Alternative" Perspective:
.
)
"This case illustrates why I'm opposed to set-asides i.n other sectors, but not in education.
After more than a century of exclusion and intimidation, the University of Maryland is finally
open to African-Americans. There is no more effective way to do this than to. put. out a
'welcome' sign--after all, the fathers and mothers of many potential applicants were themselves
likely turned away simply on the basis of their race.
"Even outside the remedial context, I believe that set-asides--like feliowships for women
in basic research--serve important and legitimate purposes. I'll support them so long as they are
flexible and tailored. In that regard, I would note that the Banner program is not a quota. There
is no requirement that a fixed number of African-Americans irrespective of qualifications be
admitted each year."
5
�~
a..
0
(.)
Yu Draft -- 4/6/95
0
10
:r:
a..
Case 6. Government Contracting & Subcontracting: Incentives.
>c::::·
Scenario:
<(
c::::
-
,CQ
In r~sponse to years of discrimination, the Department of Transportation has established
certain goals with regard to minority contracting and subcontracting. To make progress toward
those goals, the Department has provided its prime contractors with incentives to use minority
subcontractors (typically, these incentives total 1.5-2.0% of the contract price). This incentive
is referred to as a "subcontractor compensation clause" (SCC).
In 1989, an agency within DOT awarded a $1 million prime highway-construction
contract to Mountain Gravel (in most cases, DOT awards are administered through state or local
entities; this project happened to be on federal land). Adarand bid for a subcontract to construct
a guardrail. Although Adarand's bid was the lowest, Mountain Gravel selected a "disadvantaged
business entity" (DBE) with a slightly higher bid. Under the SCC, Mountain Gravel qualified
for a bonus of approximately $10,000.
The "Dole" Perspective:
"The sec is a preference based the race of the owner ~fthe subcontractor. I'm generally
opposed to such preferences. ·Let me just say that race seems truly irrelevant to the business of
road-building. If there is discrimination jn contracting, it should be prosecuted arid eradicated.
But contracting takes place in a market in which the bases of competition are clear: quality and
price. Why should a minority-owned firm get a .special break?"
.·
~
The "Alternative" Perspective:
"This is not a set-aside: Adarand was free to bid on the contract. It is a preference, and
I believe preferences in procurement are appropriate only if they are ·transitional, flexible,
narrowly tailored, and necessary to remedy demonstrated present discrimination or the lingering
effects of past discrimination.
''While I believe the SCC is flexible, I would revise these program to be transitional--to
make clear when SCCs were no longer needed. I would support these programs if there were
a finding of past or ·lingering discrimination. Upon such a finding, I would support bonuses
because they encourage the rethinking of old prejudices and the opening up old-boy networks."
6
....J
�'I,
>-
a..
0
(.)
Yu Draft -- 4/6/95 .
0
10
::I:
a..
Case 7. G.overnment Contracting: Sheltered Competition.
>-
0:::
Scenario:
<·
0:::
ca
As part of a larger effort to reach its Department-wide goal of obtaining 5% of all
procurements from small disadvantaged businesses (SDBs), the Department of Defense has
promulgated regulations that direct that a "contracting officer shall set aside an acquisition for
small disadvantaged businesses when there is a reasonable expectation that -(1) offers will be received from at least two responsible [] SOBs ...
(2) award will be made at not more than ten percent above fair market price ...
II.
Each year about $800 million in procurements (20% of all SOB procurement by DOD) are
awarded under this so-called "rule of two."
Such set-asides are viewed by some majority-owned contractors as exclusive, race:-based
quotas. Moreover, in some regions and industrial sectors, large proportions of the acquisitions
are set aside under this rule. For example, during one period, Barksdale AFB set aside all of its
construction contracts for SDBs under the rule of ·two.
The "Dole" Perspective:
"This is a preference because it limits the competition that minority-owned firms must
face. While I would sup.port · efforts to reach out to minority" contractors, I do not support
preferences.
II
The "Alternative" Perspective:
"While I believe preferences are sometimes appropriate in the contracting arena, setasides only appropriate in court-ordered remedies. Here~s why: a set-aside effectively says:
'No white-owned firms need bid.' That is ·unnecessary. I support assisting dis~dvantaged firms
through preferences, but I don't believe we should ever bar a firm from bidding on a contract
simply because of the race or gender of its owner.
"I have two other concerns about these set-asides. First, they have been implemented in
a way that has had a disparate impact on certain industries and regions. That's unfair. Second,
the program has no graduation requirement and so is not transitional--it encour
dependency
rather than diversification and growth."
..,~€.510€"1\t)':
t
.
't
~
~ \~'\
~
("
7
�Memoranqum_for the President
F~om:
George Stephanopoulos
August 17, 1995
Affirmative Action Follow-Up
Follow-up to your affirmative action speech falls into three
broad baskets, all of which will require significant attention
in September:
1.) Political/Legislative-- Alexis is completing the broad
mailings of your affirmative action speech, and Administration
officials have attended major conventions· to outline your
position. Both the House and Senate Democrats have prepared
amendments to appropriations bills that embody your "mend-it
don't ~nd, . Jt.'.:... ~ppr9,~-~-~::·w+tqii;l:·,t:.Pe·:-·~PP.!.~~-t. _ ()f :Adaranc;t .. ,.jf~~iJ!l~}Y
expect 'floor:<votes.:.:.tin ~september ..to elJ.m,J.nate set'""':asJ.d~s,· and ·
....:tl1¢se-'2iine'ilaffien.ts ·Y~ould·.·be~usect-:to·::·courife£:'"tha.t·a:t:t:a.c1C: In 1
actdifl'Bfi·/::hea."ringEr on''-·b'tb'adef.''afflrmative "'action·:. issues are
likely, and we are preparing to testify.
'
2·.) Policy -- The atta'ched memo f'rom the Justig~ pepartment
.t_outlines the process the'y have established to 'e'risur'Ef7¢9~:P:I.Jance
'wi'tho:\the·.A,darand·decision. ..We. in .the . White. House are
delibeia i::eiy 0:rnaihtain:lng_·.a. .nf9·~_;t:t.~~:t:::~:q!ts~:J~#.g.!~·.::rela'tionship from
that process to help insu)}3.J:e .. yoJi f:ro¢.:·-pol.:i..t1ccil.'""p~essure, 7but
Counsel's office and I are monitoring the proce·ss ··clOsely.
Th~ .Jir,pJ: ,big ciecJsion we' 11 face in this process deals with
pr6C'ufemen'f'. set::Lasides. The "rule of two" has been challenged in
Court, and we believe an alternative will have to be proposed
relatively quickly. We believe that the best approach might be
to announce a. r~:fqr~ pa<;:,5.~g~_,,s<;>gte1;:ime in la~e-September or· earlyOctober~;'<that.·c6!hbih'es"·"e1iminating the rule. of two with ·our "antiffoht·§.'ll'f]''a:-f1ti:::::·fra\id" package and some .. fleshing •out-:•of ···the
'emp5we&ni'en"£: EO'ht'F·a'c"Efng''"p"i'o'pos'al . (Such a package will shOw that
-we're serious about Adarand and should help give cover to
-Democrats in the House and Senate as they oppose Republican
initiatives to eliminate affirmative action~
..........,..,;·•···
3.) California. J)1i..•tiative -- We need to make a decision within 5. . ... .
.
8 weeks on whether to prbpose a ~ount~~-iriitiative to the
California Civil Rights Initiative. Many of::us'·;tcin the White
"'-""
. "~
'•'
.
~o~-~~i~~iA~}Lj6~R~£m·~is'6*~-~~a~·~lli''''f~··Fi~,~ ~ti~ta.:Q~~~~·~ :~a~~~~;~~ r s ·
that"'s 'the best:·course.
John convened a meeting today, andwe
�>-
a..
0
(.)
0
Affirmative Action
Page T,wo
Follow~Up
1-0
::I:
a..
>-
all agreed that we need to put a process in place immediately to
determine our course of action. John Emerson will prepare a
separate memo outlining, the steps that need to be taken over the
next 6 weeks to reach an intelligent decision.
This matter
needs attention at the highest levels.
I've.also attached a short explanation from the Justice
Department on the Hopwood v. Univ. of Texas case. Right now the
Justice Department is not involved in the suit, and in my opinion
we should continue t6 ~tay out of it. It's pretty clear to me
that Texas established a flawed program.
·
0::::
<(
0::::
c:a
....:J
�U.S. Department of Justice
Office of the Associate Attorney General
>-
a..
0
(.')
0
t-
o
:::z:::
Deputy Associate Attorney General
Kbsliington, D.C 20530
>-
0:::
<(
August 10, 1995
c::
OJ
. ...J
(.')
MEMORANDUM
TO:
George Stephanopoulos
Assistant to the President
FROM:.
Nancy E. McFadden
Principal Deputy Associate Attorney General
SUBJECT:
""')
3:
Hopwood v. Texas
nA~.
~/
Attached is a brief description o~ Hopwood v. Texas, the University of Texas Law
·
School affirmative action case. ·. · ·
The case 1s currently pending before the Fifth Circuit. As is noted, the
Administration has played no role in the case nor have we made any public statements.
Please let me know if you need anything else.
Attachment
�>a..·
0
(.)
Hopwood v. Texas
•· The University of Texas Law School Affirmative Action Case
0
1--
o·
::I:
a..
>0:::
Hopwood v. Texas is a case currently on appeal in the United
States Court of Appeals for the Fifth Circuit. It is a suit in.
which several white students.who had been denied admission to the
University of Texas Law School sued to challenge the school's
affirmative action plan. The. Department of Justice is· neither a
party nor an amicus in this case; it has played no role, made no
statements and submit~ed no papers.
In Hopwood v. Texas, 861 F. Supp. 551 (W.O. Tex. 1994), the
trial court struck down a law school affirmative action
admissions program where minority and nonminority applicants were
considered by separate committees and under different
quantitative admissions standards, i.e.", the cutoff for minority
applicants' test scores was lower than that of white applicants'.
The court found that the program served two. compelling state
interests: (1) remedying continuing effects at the law school of•
past discrimination in both the University of Texas apd the state
educational system as a whole, and (2) obtaining an ethnically
diverse student body. The court also found that the program was
narrowly tailored in all respects but one, but held that it was
unconstitutional because the law school failed to compare
applicants on an individual basis as required by Justice Powell's
opinion in Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265
(1978). The court refused, however, to order prospective
injunctive relief, since the law school had subsequently
established a new admissions procedure that appeared ,to eliminate
the defects found by the court.' The court also found that the
white plaintiffs had not established that they would have been
admitted in the absence of the program, and thus declined to
award compensatory damages or order·· that ·they be. admitted. to the
law school.
The plaintiffs have appealed the denial of relief,
asserting, in particular, that the district court erred in not
issuing an injunction barring the law school from considering
race in admissions. The state did not cross-appeal. The
plaintiffs' appeal was argued on August 8, 1995 and is currently
pending in the appellate court.
<
0:::
aJ
�...,
.·i
;
'.)
lL
Washington. D.C 20530
>-
0:::
<(
0:::
August 16, 1995
MEMORANDUM
TO:
George. Stephanopoulos
Senior Adviser to the President
·FROM:
Nancy E. McFadden : : •
.-~
Principal Deputy
Asso~ev~z.Y General
Susan M. Liss __j_
·
Chief of Staff tJl~e· Assistant ·Attorney General
RE:
Status Report on Post-Speech Affirmative Action Issues
This memorandum reviews the status of the affmnative action initiatives now
underivay. It reports on the review of the constitutionality of programs being led by the
Department of Justice, summariz~s pending litigation challenging federal affirmative action
programs, and details the status of reform initiatives. The other pending initiative to arise
from the -President's review, empowerment contracting_, is being handled by the Vice
President's staff.
I. STATUS OF THE POST-ADARAND REVIEW
The Department of Justice is supervising the effort to review affirmative action
progiams to determine whether they comply with Adarand.
o
Task Force. A Task Force chaired by Associate Attorney General John R. Schmidt
has been formed at the Justice Department to. work with agencies in conducting the
post-Adarand review. The Task Force includes representatives from various
Department components, including the Civil Rights Division. The efforts of the Task
Force are being coordinated closely with those of the Department attorneys·handling
litigation challenging affirmative action programs.
·
o
Meetings with General Counsels. In mid-July, meetings were held with the General
Counsels of approximately 25 key agencies to discuss how best to organize and
conduct the review, and to answer any questions regarding the guidance on Adarand
issued by the Office of ~gal Counsel on June 28, 1995.
co
�>)',
0
0...
·o
.
0
0
Workplan. The Task Force has developed an overall workplan and is now actively
.....
0
mo~ing on two fronts: (i) it is collecting factual and statistical information bearing
:I:
c..
on the extent to which Federal· affirmative action programs serve compelling
governmental interests; and (ii) it is working with agencies as they review individual >0::::
~
programs to determine whether they are narrowly tailored to serve demonstrated
. 0::::
government interests. We will continue to work with the agencies to ensure that they co
will take action with respect to their programs consistent with the President's
directive.
·
·
-
0
The Library. The Task Force is collecting and indexing broad-scoped materials that
bear on the need for a wide range of affmnative action programs -- information that it
would-be impractical to have each agency develop individually. These materials are
being organized in a library and include: (i) key legislative history materials; (ii)
disparity studies that have been commissioned by State and local governments to
document the need for their affmriative action programs; and (iii) a collection of
materials from Government research components and private institutions.
0
Agency Inventories.· The agencies have each produced a comprehensive inventory of
all their affirmative action programs. The inventories have been reviewed and are
now being indexed and computerized to allow for the ready identification of programs
with similar features. Task Force members have begun to work with key agencies,
including the Departments of Defense, Transportation, Education, Energy and
Housing and Urban Development, as well as the Small Business Administration and
the Environmental Protection Agency. In this phase of the review, Task Force
members have been focusing on individual federal procurement programs. By August
· 25, 1995, when the analysis of the inventories will be completed, workplans will be
developed for all other niajot:·Federal agencies,
·
.
'
'
0
Timetable. The Task Force is moving as expeditiously as possible. It is -reasonable·
to expect tha~ substantial progress will be made- towards completion by October 1,
1995. However, we are not stating publicly any specific completion date.
II.
PENDING LITIGATION
The Department is engaged in, or closely examining, eight actions in which federal
affirmative action programs are under review after Adarand. In each. case, a federal program
requires some race-conscious action on the part of a recipient of federal funds, and plaintiffs
contend that Adarand establishes that such race-conscious actions violate the Constitution.
None of the.cases has progressed to the point of a decision determining the constitutionality
of a federal program.
· · ·
1.
C.S. McCrossan Construction Company, Inc. v. Sutton (Department of
Defense) <McCrossan D, (D.N.M.) .. The complaint in this action sought to enjoin bidding
for construction contracts at the White Sands Missile Range, New Mexico. These contracts
were to be bid only to small disadvantaged businesses (SDB'
N epartment of
Defense rule which pennits the Department to designate a.
·ect for ~ businesses when
f
{g
i \s
b ~
J
�>-
0...
0
(:.
-3-
OJ
~
::0
(.)
0
10
::X:
0...
There are: two such fmns in the bidding area capable of doing the ark. Before the: ourt
took any action, the Army decided not to apply the rule to this con t; the pl . iff is still ~
seeking a declaration that the Army's SDB program is unconstitutional.
~
ca
-
2. - C.S. McCrossan Construction Co .. Inc. v. Carney (Air Force)(McCrossan II),.-J
(D.N.M.). This case involves an Air Force runway repair contract at Holloman Air Force ~
Base, New Mexico, limited to small disadvantaged businesses. The Air Force is considering;:
delaying the bid openings or, in order to avoid scrutiny under Adarand, opening the bidding
to all businesses.
3.
Converse Construction.Company, Inc. v. Massachusetts Bay Transportation
Authority and Peiia <U.S. Department of Transportation),· (D. Mass.). Plaintiff has
challenged the
several state or local projects in Massachusetts, some of which include U.S. Department of
Transportation funds that require minority contracting goals.
4.
Russian and East European Partnerships (REEP) v. West (Department of
Army and the SBA). This case seeks to enjoin the award of a language services contract for
a special forces unit at Ft. Carson, Colorado that the Army proposed to procure without
competition from a contractor certifie~ by the Small Business Administration as a small
disadvantaged business.
·
5. Morton Manufacturing Co. v. MTA & DOT, (S.D.N.Y.). · The complaint in this
case challenged a Minority/Disadvantaged Business Enterprise program maintained by New
York City. Some of the contracts· were· funded ·by the DOT, arid included minority
contracting provisions. While DOT had been dismissed prior to Adarand, a motion to
reinstate DOT as a party was filed after Adarand was issued, and is still pending.
6.
Michelle Doe v. National Science Foundation & Texas A&M University (S.D.
Texas). This complaint was filed by a 13-year old white girl denied admission to a summer
camp run by Texas 1\&M and funded by the NSF, because the camp was limited to minority
students. The NSF funding limitation was designed to implement a statute that directed the
NSF to encourage minority students to enter scientific fields. Even before Adarand, NSF
agreed to change its policy so that the camps it funds will not be racially exclusive.
7.
Safeco Insurance Co. v. Eatherly Construction Co. and White House,
Tennessee (M.D. Tenn.). An Environmental Protection Agency procurement regulation sets
forth a series of steps that recipients of EPA fmancial assistance must take-to recruit and
consider minority, small and women owned businesses for use on EPA funded construction
projects. A low bidder who was denied a project for refusing to comply with the regulation
claims that Adarand renders the regulation unconstitutional.
8. ·
Adarand Constructors. Inc. v. Peiia, (D. Col.) has been returned to the
.district court for further proceedings regarding the constitutionality of the DOT program.
�>-:
0-
0
0
0
10
- 4-
m.
:I:
0-
DEVELOPMENT OF REFORMS
.
>-
0:::
. ·The Affirmative Action Review proposed a number of regulatory reforms, particularly~
with regard to federal procure~ent reforms, arid directed the Administrator of the Small
~
Business Administration, the Deputy Direct~r for Management of OMB, and .White House
....J
staff to formulate govennnent-wide proposals. for change. We understand that this process
o
....,
has recently begun. The reforms to be addressed include:
:s:
o
tightening the economic disadvantage test to prevent businesses from hiding assets
through a spouse or the value of a personal residence;
o
tightening requirements for graduation from sheltered competition by applying the
8(a) program's graduation requirement to all SDB programs and directing agencies to
establish industry-specific graduation criteria;
·
o
enforcing safeguards against fronts and pass-t:hroughs, including creation of an
effective certification process and periodic audits of contractors; and
o
taking steps to reduce regional and industry-sector concentrations;
In addition, it is clear that one further significant regulatory reform will be necessary .
in the very near future. Spurred by litigation, the Department of Defense is considering
whether to adopt an alternative to the so-called Rule of Two, and what that alternative should
be. That rule requires that DOD award a contract to a minority fll'ril whenever there are two
·
·
qualified minority contractors in the biddirig area~ ·
All of these refonns should be. announced .as a package .. That announcement should ,
come as early in September as possible, ·since it· is possible that Congress will tum its
attention to this area during consideration of appropriations bills and because it is likely that
the Rule of Two, at least, will be. the subject of fast-moving litigation.
Prior to announcing the reform package, it will of course be necessary to touch base
as we have in the past with all interested parties --Members of Congress, civil rights and·
women's groups and. representatives of the minority business community.
�Withdrawal/Redaction Sheet
·
DOCUMENT NO.
AND TYPE
Clinton Library
SUBJECTrfiTLE
DATE
RESTRICTION
001. memo
Meeting with Rainbow Coalition (4 pages)
1/9/1995
P5
Is\
002. memo
Douglas N. Letter to George Stephanopoulos, re: AA Policy (3 pages)
4/13/1995
P5
15~
003. memo
Douglas N. Letter to George Stephanopoulos, re: AA Policy (2 pages)
4/13/1995
P5
IS3
004. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action - Themes and Hard Questions (7 pages)
4/7/1995
P5
\ sL\
J)up tfs
COLLECTION:
Clinton Presidential Records
Counsel Office
OA/Box Number:
18431
FOLDER TITLE:
Counsel 1995 Affirmative Action I [2]
2008-0308-F
wr881
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)(
National Security Classified Information i(a)(l) of the PRA(
Relating to the appointment to Federal office i(a)(2) of the PRA(
Release would violate a Federal statute i(a)(3) of the PRA(
Release would disclose trade secrets or confidential commercial or
financial information i(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRA(
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRA(
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- (5 U.S.C. 552(b)(
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA(
b(3) Release would violate a Federal statute l(b)(3) of the FOIA(
b(4) Release would disclose trade secrets or confidential or financial
information i(b)(4) of the FOIA(
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
·
b(7) Release wo.uld disclose information compiled for law enforcement
purposes i(b)(7) of the FOIA(
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
· "b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
�>-
•
January 9, 1995
a..
0
c.:>
0.
1-·
0
:::c
KEMORANDUH
a..
>-
0:::
<(
SUBJECT:
Brief from meetinq of l/6/95--Natl. Rainbow Coalition
0:::
cx:l
. ....I
Jackson:
6 million !ever people voted in '94 than in '90
"It's not that the Republicans had high water, but that we had
lov valls•
· Propositions:
1.
IncreaH the min. wage
·2.
Provide A11e.ricans a min. package of health care benefits
that controls costs
3•
End corp. welfare
Moderator:·
The low tlirnout (30') vas not a surprise. What was a ·surprise
vas that no incumbent Republican lost nationwide
Was the •year of the woman• followed by the •year of the Anqry.
White Kale•? Fact is that vhite vomen also voted against the
o.a. '•
29 Black
Republicans ran in
'9'·
This is up from 15 in '90.
Black .Rapu:blicana von·. iD ~94 (Congress).
.
Dea.'s have lost evory t.portant state¥14•. race mince '92
2.
Nov. 8 vu al.o bac:t for tha DLC candidate.
Thera vas a shift ill partisan coDtrol of· state legislatures
Nov. 8 vu the culm.ination of a 30-year atrateqy: convert the
solid Dell. South usinq divisive issuu -- race, c:rima, etc ..
Prof. Ron Walters:
62' of White aales voted Rapal:)lican
55' of Whita taaalea votecl Rapublican
The role and conc:tition of tbe White mala: 10 million White
males live in poverty, ancl their situation is tied to Blacks
and other ainorities in stailar circumstances. Republicans
try to steer Whites fro• seei.DCJ thi's and instead work to turn
their anqer a9ainst •inorities, iamiqrants, etc.
ue~•~op a DOtloa of class; look at how the economic system is
developing poverty
Top 20' is earning._ almost 99t of the nation'• wealth--Read
Robert Reich's speech on the aiddle class yesterday (Jan. s-at
the National Press club)
Look at labOr force iDst&bility--the need for an investment
. stratecn
ll&ke War oa fins that have 1aft Ola co.a1mitiea. We naecl to
raise the coat of companies not living up to their communitybased. responsibilities. aespou~ilitJ, wlaic!l up to AOW ba
oalt .,.._ 4U:eoted to tlaa poor, . auat alao ))a 4lracta4 to
coapaaies ·
c.:>
·J
3:
�>a..
•
0
(.)
Prof •. Williau:
0
What's behind the anqry White male? 'l'h• changes are related I-.
0
to econoaic and political changes world-vide and a failure of · :::c
a..
leaderl~ip within the United States
>10' .are White .alea voted than. in '90
0:::
<(
7t 110re White taales voted than in '90.
0:::
Resul ta troa a Voter Research survey on the popular vote
. cc
'90
52' pro-Dea
41t pro-Rep
'94
sot
sot
pro-oa..
pro-Rep
celinc!a Lake:
t>ebatu
1..
2.
3. ·
4.
5.
Should we qo to base or canter?
-nare ia· ao M8a l~t.
A lot of our traditional groups
(liberall, union) vent Rep. or didn't vote
.
·
·
Probla vu anqry White male?
The real probla is a di&C)USted electorate, cynicism is hiqber.
than aver
aa;er . .tin.U4
tua aay ot:Uz aotioa
votar• thou9ht Rep. '• voulc! do better on taxes: AD a party va
have no econoaic aeaaa9a or. •tcitchcan Table• messac;re. only a
third of .bericans thOuqht, iJl '9', that we vera· in recovery.
Due . . . . . .-DOllie . . ....,.. K&ybe tllet Cl~b't aqrae wii:Ja
t.U.&ep . . . .aaqe, but at l ..at tllay offered oDe·
SOcial .iasuu caused our downfall-False, there were cultural
cri•.. tbat no one vas a44reNinq: crillle and family valuu
(youthfulnua. and ranclOJme•• of violence 11 the n\mber one
•r•
concam
Prof. Lichau (Historian) :
Tbe o.a. Party let its grass-root. tall into disarray. Thia ·
ia not 1114, but its not 1946 either. The pieces in place for
a Tr\man c011abaclt are .not there. In '46, t!lera was •till a"'
~la Dea.
Today· there isn't.
The oe..'• have not COlla up vith a new routine. Also, in the
'40s there vu ·a grass-roots base (unions, etc.) Today it's ..
the Rap.'• that have that atronq base (churcha•, Christian ·
Coalition, Talk Radio, etc.). Third, thar•'• no policiea. in
·•••AfJ••
place for ordinary A:H.ricana.
At avery laval, the Dell. Party needs to re-orqani:a
Y011 doa'~ JlaYa to IJO Nck to t!la . . . Deal, Jmt you allou14 M
ju~ · aa c:eatiYa aA4 .Uitiou
·
Thia election sounded a thousand alar. clocks.· for our Party.
we ahoulc1 heed its mesaaqa ·
-
�>a..
•
Anne Lewis:
0
(.)
·. The '94 vote was not so much a vote aqainat a.political party
as much aa aqainst the political establishlrlant in Washington
People t~t were "•coaoaicall! aqueesed" turn•4 out to vote
for cb&Dqe; people evan har4ar aquae1ed 414 not because they
414a't t ..l they could sake a 4iffareAce
This was not necessarily a dec~si va vote--peoplo ·l'e&rJl to
recapture a :a.atioBAl· sua• of co-unity
0
t-
o
::I: .
a..
">0:::
<(
0:::
IXl
.....1.
Mickey Ibarra:
.
Expressed disappointmant in the Dell. Party.
cea. party has lost its meaaaqe an4·voica. ·The NEA will,
however, do evarythinq they can to help the Party reqain a
maasaqe and voice
·
MEA does believe President Clinton haa eabracad an education
agenda that does maka a differance ••• wa cannot turn our backs
steve CObble (Political Consultant):
1.
TWo-party syatea is breakinCJ down·
2.
If this is true, then our task is · not to re})uild the Dea.
Party, but build a new party · ·
Freedoa is just another word for nothing to lose. Southam
3.
8011-WHvils ·are qon•. Don't taka the blaJU for Establishment
waabinCJton. our agenda was never on the tabla during the 1 94
eleCtion ·
We need to be just as serious as the Cbr iatian coalition about
4.
orqanization-l:Nildinq
.
.
.
.
I.et'a not Wt.ate Rep.'s.
Daa.'a have· not done the riqbt
5.
thincJ since LJSJ: since· he passed the 1964 Civil Rights Act
6. ·
Racant Poll:
,
Presidential-_41t
4-•an race
40t
GOP
37t
lit
Perot
3-man race
GOP
0..
Perot·
c..
35t
14t .
Jackson
at
conqresaaan Barney Frank:
Stick vi th, the oe.. Party, they're better than Republicans on
every ia•ue you can naJia .
.
.
. Blaainc;, threateniDCJ to abandon, etc. is not a qocxt atrateqy
We acknovleclqe that nea. '• should do more (reduce military
budqet, etc.)
But, there ill ao 'th~~a'. fteze ia DO one oaa. Party we· caa
~1....
n are the Party.
The Rep.
understand. this
relationship between themselves and·· their Party. We do not.Blaah9 you triucla oaly qivas coatort to your aa-ies.
Don't qive the DLC the satisfaction of thinkinq they are the
majority of our party. •e are·
· --~
1
I.
,
~s\OENr...:
'
'-1(
Q..~
~ \s\
~
v
l
:c
'\
(.)
.J
3!:
�>-
a..
•
~lack COnqresavoaan !rca Pennsylvania:
Dea. Party baa been ric;ht on all matters that affect ordinary
and workinq Aaaricana
'l'he press is. not ·owned by the · Dem. . Party, and .thus you
soaettaea bear only. the bad or half the story. It's easy to
... vby your frustrated with us
While we aay be abort in some ways, do not be without hope--We
are the Party of the people
Ron Ri~
(hotel . union) :
Has a real problea with the conqresswoman's .interpretation:
EVery,time the Party runs into trouble it turn• to Bubba
Ks. DeBerrY:
-
There ·are too uny .oea.'s dressed in rep. clothinq
In '94 many Daa.'s.ran troa Labor arid African-Americana
We have failed to attract younq people to the De.m. Party
IAt ua focus less on Newt and 110re on an agenda: reasons for
people to reqiater and vote
consultant:
~
_
t1w focnaa froa race, citltura, qell4U to the coaoa
~o'IUI48s .
llMltll c&J:e, etc.
re-ea~liall the notioa
tlaat ~»ea. '• repreaoat or4iury Jaaricau (HYT article
j'*••
elal:>Oratu this)
. .
.
.
.
. .
.
.
In 1 94 Rap. '• campai;ne4 on "Give us our 110ney back• (froa
what you proaiaeci in '92) Dell. ' • campaiqned·on "We did better .
tban you thouqht•
·
Taka a page fraa Riqht-WinCJ book:· Build the qrasa roots
Generate energy and ellpOVermant at the local level
Toney Anaya:
A;r••• vithabOUt. his disappointments
Conc)resSD.an Frank ·
He talked
vith the party: tha
refuaift9 bia offers to help, ate. But atill, lila :tnowa t!Jle
· party ia DOt tha wasllbqtoa (D•e) crow4-·the Partt i• aillioa• .·
of· orcli.AaZY, wo:k!Aq Maric&JlS
·
·
Aa a Hispanic, he
concerned about the Party not beinq
serious abOut reachinq out. He challenqea ua to .become more
s.anaitized to the grovinc; 'Hispanic population
I.
Al Sharpton:
·
· · ·
·
·
The oea. Party tried to
a withdrawal fr011 people (voters)
in whoa they had made no investment--the account was eJDpty.
(
•ak•
0
(.)
0
t-
o
:I:
a..
>-
0::::
<(
0::::
CXJ
......1
�>-
c..
0
(.)
0
1-
·0
. :I:
c..
>0:::
E X E C U T I V E
0 F F I C E
0 F
T H E
P R E S I D E N T
13-Apr-1995 12:04pm
TO:
TO:
TO:
TO:
George Stephanopoul6s
Christopher F. Edley, Jr
Pe.ter M. Yu
Abner J. Mikva
FROM:
Douglas N. Letter
Office of the Counsel
CC:
Cheri Sweitzer
SUBJECT:
Affirmative Action policy
Chris, and Peter: .
I had ~anted t~make a point at the meeting y~sterday at 11
regarding Administration strategy in.the Affirmative A~tion
debate, but time ran out.
So,. I will, pass it along in this form.
I want to add another reason to the view expressed primarily
by George, Gene Sperling, and Joel Klein about the importance of
using rhetoric of inclusions in this debat~ and not falling into
trap of having the President tr~ to meas~re pairi felt by different
groups, and thereby judge affirmative action programs on that
basis.
I have gathered from the various se~sions we have had on this
topic that many minorities would identify themselves first or
prim~rily by their minority group status:
black, hispanic, etc.
(I have no idea if this is true for women too; i.e, would they
first identiy themselves as women.
For many, I suspect not, and
assume that they would identify themselves primarily in some other
way.)
However, I don't think it works to contrast these groups
with white males, since I. don't believe that many white males·
identify themselves ·primarily in that sense. Thus, if the
President is comparing interests of minorities, women, and white
males, a large segment of his audience will not be attuned to the
rhetoric he is using.
I can illustrate with a personal example.
I identify
myself first as a Jew.
This raises a.host of ethnic, historical,
religious, and other issues.
It means that I view myself
primarily as part of a very tiny minority group in American
society, alien from a large conglomeration of groups -- white,
black, and hispanic, men and women -- that are Christian, and
therefore very different from me in extremely important ways.
Thus, because of this personal self-perception, lumping me· in a
group with white males in a discussion seems very strange to my
ears since I view myself as quite alien from the overwhelming
majority of them.
George, Ab,
<t
0:::
c:o
�I think that most white males also identify themselves
>-
a..
o·
(.)
0
1-
0
:I:
a..
>0::::
<(
0::::
co
�>c..
0
(.)
0
1-
·o
. :c
c..
primarily in other ways than as white males; they likely think of
themselves first as Catholic, or Baptist, or gay, or Californian,
or Western, or Southern, or New Y6rkers, or Irish,·or Italian,
etc.
Rhetoric that compares minorities and women to white males
thus seems out of place to them because they do not view
themselves as a part of a monolithic group that is opposed to or
by minority groups.
·
Consequently, I think it is essential that the President
avoid this type of talk of comparison between groups, and instead
use a language of inclusion of all groups in the American dream of
equal opport·unity. Otherwise, I think he loses the attention and
understandingof a large segment of his audience at the outset.
For this reason, I would not recommend that the President
speak as Walter Dellinger suggested at the meeting, saying that we
need to recognize that there is still significant discrimination
in the US.
By saying that we need affirmative action because
discrimination still exists, the President merely seems to be
accusing all white males as ~ group of continuing to discriminate.
We have laws against discrimination and it is conduct that should
be punished when encountered. But the President can instead ~ake
clear that because of past very serious discrimination there are
obvious and important lingering effects that prevent certain
groups from getting their fair.charice; affirmative action can be
legitimately di~ected at tryin~.to oyercome this problem because
the practices of.the past continue to cause trouble. And the
point of affirmative action is.not to give groups a leg up in
competition with a single ·group known.as white~males.
Rather, it
is to use the identifications that were wrongly used in .the past
in order to keep certain groups behind now to overcome that
problem and its aftereffects.
Anyway, that is my two cents worth·.
>0::::
<C
. 0::::
OJ
_J
(.)
-::»
;::
�>-
a..
0
(.)
0
t-
E X E C U T I V E
0 F F I C E
0 F
T H E
P R E S I D E N T
o
:I:
a..
>-
13-Apr-1995 12:04pm
0:::
<(
0:::
1:0
TO:
TO:
TO:
TO:
George Stephanopoulos
Christopher F. Edley, Jr
Peter M. Yu
Abner J. Mikva
FROM:
Douglas N. Letter
Office of the Counsel
CC:
~heri
SUBJECT:
Affirmative Action policy
Sweitzer
George, Ab, Chris, and Peter:
I had wanted to.make a pdint at the meeting yesterday at 11
regarding Administration.strategy in the Affirmative Action
debate, but time ran out. So, r will pass it along in this form.
I want to add another reason to the view expressed primarily
by George, Gene Sperling, ·and Joel Klein about the importance of
using rhetoric of inclusions in this debate and not falling into
trap of having the· President try to measure pain felt by different
groups, and· thereby judge affirmative action programs on that
·basis.
I have gathered from the various sessions we have had on this
topic that many minorities would identify themselves first or
primarily by their.minority group status: black, hispanic, etc.
(I have no idea if this is true for women too; i.e, would they
first identiy themselves as women.
For many, I suspect not, and
assume that they would identify themselves primarily in some other
way.)
However, I don't think it works to contrast these groups
with white males, since I don't believe that many white males
identify themselves primarily in that sense. Thus, if the
President is co~paring interests of minorities, women, and white
males, a large segment of his audience will not be attuned to the
rhetoric he is using.
I can illustrate with a personal example.
I identify
myself first as a Jew. This raises a host bf ethnic, historical,
·religious, and other issues.
It means that I view myself
primarily as part of a very tiny minority group in American
society, alien from a large conglomeration of groups -- white,
black, and hispanic, men and women -- that are Christian, and
therefore very different from me in extremely important ways.·
Thus, because of this personal self-perception, lumping me in a
group with white males in a discussion seems very strange to my
ears since I view myself as quite alien from the overwhelming
majority of them.
I think that most white males also idehtify themselves
�>-.
0...
0
(.)
primarily in other ways than as white males; th~y likely think of
themselves first as Catholic 1 or Baptistr or gay 1 or Californian/
or W~sternr or Southern/ or New Yorker~~ or Irish/ or Italian/
etc. Rhetoric that compares minorities and women to white males
·thus seems out o£ place to them because they do not view
themselves as a part of a monolithic group that is opposed to or
by minority groups.
Consequently I think it is essential. that the President
avoid this type of talk of comparison between groups 1 and instead
use a language of inclusion of all groups in the American dream of
equal opportunity.
Otherwise/ I think he loses the attention and
understanding of a large segment of his audience at the outset.
For this reason/ I would not recommend that the President
speak as Walter Dellinger suggested at the meeting/ saying that we
need to recognize that there is still significant discrimination
in the US.
By saying that we need affirmative action because
discrimination still exists 1 the President merely seems to be
accusing all white males as a group of continuing to discriminate.
·we have laws ag~inst disc~imination and it is conduct that sh6uld
be punished when encountered. But the President pan instead make
clear that because of past very serious discrimination there are
obvious and important lingering effects that prevent certain
groups from getting their fair chance; affirmative action can be
legitimately directed at trying to overcome this problem becaus~
the· practices of the past :COntinue to cause trouble~· And the
point of affirmative action is not·to give groups a leg up in
competition with a single group known as white males. Rather 1 it
is to use the identifications that were wrongly used in the past
in order to keep certain ~ro~~s behind now to overcome that
problem and its aftereffects. · ·
·
Anyway/ that is my two cents worth.
I
0
10
:I:
0...
>·c:::
<(
0::::
co
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
DATE
SUBJECTffiTLE
From Deval Patrick, re: Affirmative Action in the Clinton
Administration (3 pages)
2/6/1995
RESTRICTION
P5
!55
COLLECTION:
Clinton Presidential Records
Counsel Office
OA/Box Number: 18431
FOLDER TITLE:
Counsel 1995 Affirmative Action II [I]
2008-0308-F
wr882
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal.privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's' deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�--F-··
JJ : : . -:~c~
.,,,-'·"./;,::?:.~~\:;;._~
~-·<:t ;~:>~.\
MEMORANDUM
RE:
Ui C· i
.'
•i::
~::..·1'.. ~ :-/'":~.
!,
··"' <: ~ \Dd1M ..,-,·
.
. . ~ '-1/
. /,. <{->·'
.·
~ "' ;; L~ c:~:. _; ,_~ .£ ~" ~- ._,_,
AFFIRMATIVE ACTION .IN THE CLINTON ADMINISTRATION
.
l-Q
!<>
.lc)"
"
\55
(~,
(•
\:.n .
.~·
\t)
Iri. light of the· increased attention paid to affirmative\\,.
.
./
action in the current political climate, and our recent meeting.....___..,./ ·
on the subject, I recommend-that the Administration promptlyundertake the .following initiatives: .
. .
.
1. We should affirm our support for proper, lawful·
affirmative action. · We should define what it is we have been
talking about and . explain in non-defens'i've terms wh'at our . law
enforcement program has (and has not) been about. We have
·consistently acted within Supreme Court limits· (see the
accompanying paper), which_is exactly what the Justice Department
is supposed to do.
·
'
'
•
'
I
Apart from the law, we should make the case for affirmative
action tod9-y. Affirmative· action arose in· the ·~irst place. as a
device for expanding the middle. class to include historically
excluded minorities.
It was created when we realized that we
would not actually.change behavior and embrace communities
previously left.· behind wholesale s'imply by pas.sing · strong
legislation and bringing individual lawsuits. :Although
affirmative action has been· responsible for the level of racial,.·
ethnic and gender-diversity we,have in this ·country, the
.
statistical evidence indicates that inclusion of minoritiesand
women in mainstream American· life remains a continuing cha,llenge
for this Nation. Affirmative action is one means to address that
challenge. As a result, it is'widely·accepted and even embrq.~ed
by many American businesses, colleges and universities .
. At the same time, we should publicly renounce the abuses of
affirmative action. our collective rejection of "quotas'·' is a
shorthand way of doing this.
It seems to me that we should be·
more explicit. We must reject affirmative action plans in which
"race overtakes reason," that is, plans which overlook valid,
justifiable qualifications, which are numerical straitjackets,
which are iimitless in time and unreviewable, which do not take
account of a demonstrable available pool.of qualified candidatesr
or which unduly burden the ves~ed interests of the majority. We
need to define what.we mean and, _most importantly, what_ we. don't
mean. And we need to make· ~e opposition show us that the
anecdotes they cite are in fact illustrative.
I don't think they
can maka their case.
I
I
.......
OJ
::::0
)>
::::0
-<
""tJ
:I:
0
~
2 .. We should renounce the use of race for political ·ends .
At a recent briefing on Capitol Hill by the conservative
InstitUte for Justice, Republican strategist William Kristol
publicly _opined ·about the ways R~publ~cans could arid should use
race in the 1996 Presidential campaign. He pointed explicitly to
the California ballot initiative and the debate it provokes on
affirmative action. We have seen from examples as recent a,s_ the
0
n
DETER~U~ED iO BE A:S AD:\11~1STRATIVE
""tJ
.:\tARKl~G
0
-<
Per E.O. 12958 as amended, Sec. 3.3 (c)
1
Initials:. t.NFDate:-::-\\:..j-f..._ct/~...'....- - - ~.o~·l=
�2
Willie Horton campaign in 1988 how devisive and hurtful· tH"
. We should publicly attack that strategy now, refocussing the~_,......,...-
debate on the President's oft-repeated assertion that.this
presidency is_ .committed to bringing communities together across
.our many differences.
The Republicans should not.be permitted to.
use affirmative action in particular or civil rights enforcement
in general .to.divide and belittle the-American people.· This is a
matter of con$cience, with deep roots in a stained but important
history: We should seize the moralhigh ground on it.
.
.
..
3. We should explore the possibility of promoting and
supporting an alternative to initiatives like the California
ballot initiative that may be introduced in Congress. · The
California "Civil Rights Initiative" addresses affirmative action
in the limited sphere of government use. Even.this makes
exceptions for public safety.· Meanwhile, voluntary affirmative
action by private businesses and schools is where most of the '
action is. Thus, the initiative gives, expression to the backlash
against affirmative action without actually addressing much of
substance or reach.
Because I believe the-abuses of af-firmative action, however
isolated, have taken on a life of their own, we should help
develop an alternative to wholesale rejection of affirmative
,action which explicitly rejects the abuses. These abus.es occur:.
(1) where an unqualified personreceives a benefit over a
qualified one; (2) where numeric goals, ·it' any, are so strict·
that the plan lacks .reasonable flexibility; (3) where the numeric
goa_ls bear no relationship to the available pool of qualified ·
candidates; (4) where.the plan is of 'indeterminate length~ such
that it outlasts the achievement of its original goals; or .
(5) where majority personsunfairly or unreasonably lose vested
rights. We should explore a way to let people vote against the
abuses of an otherwise honorable idea without rejecting the idea
completely.
-
·~
c..
("')
r
OJ
:::0
)>
:::0
-<
""0
:::I:
0
-I
0
("')
0
""C.-
-<
4 . . We should create and support a second "Kerner
Commission."
If the _purpose of affirmative action is to expand
the middle·class to include historically excluded citizens, we
ought to take a serious look at the conditions towhich
affirmative action is one rdsponse.
There is no question but
that ~inorities are suffering disproportionately to their.
population in this country.
It may be that, the reasons for this
current state of-- affairs have changed;. it may be that they have
not.
It also may be that the explanation for these condittons is
different as between African Americans, Hispanic Americans and
Asian Americans.· The experienceof women begs other questions as
·well. A scholarly, nonpartisan examination of these issues may
�3
.
help.promote a constructive debate .about the problem we are
trying to address rather than .the irresponsible,· over-politicized
rhetoric with which affirmative action is too often addressed.
Let me know what you think.
Attachment
'\•.
).
OJ
:::0
)>
:::0
-<
""'0
:I:
_,
·o
0
C')
0 .
. ""'0
-<
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
lS'::t-
~
J4CA
001. letter
Deval Patrick to George Stephanop,oulos, re: AA (4 pages)
7/10/1995
P5
002. memo
Attorney General to President Clinton, re: Choices Following
Adarand (5 pages)
6/23/1995
P5
15~
003. letter
Deval Patrick to George Stephanopoulos, re: AA (3 pages)
7/10/1995
P5
159 ~Vf jcJJ_
COLLECTION:
Clinton Presidential Records
Counsel Office
OA/Box Number:
18431
FOLDER TITLE:
Counsel1995 Affirmative Action II [4]
2008-0308-F
wr884
\_
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)]
Freedom of Information Act- ]5 li.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information ](b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIA]
b(3) Release would violate a Federal statute ](b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information ](b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes ](b)(7) ol'the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions ](b)(S) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIA]
National Security Classified Information ](a)( I) of the PRA]
Relating to the appointment to Federal office ](a)(2) of the PRA]
Release would violate a Federal statute ](a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information ](a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ](a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�'.
>-
c...
0
@fficr of t~r !ttornrt! ~rnrral
1\tas ~ingtlln, E. <!I. 20,5,go
(.)
0
1--
0
:X:
c...
>-
0::
<t:
0::
IXl
MEMORANDUM FOR THE PRESIDENT
FROM:
The Attorney General
DATE:
June 23, 1995
SUBJECT:
Choices Following Adarand
By imposing a more stringent constitutional test on federal
programs that use race or ethnicity ~s ~ basis for
decisionmaking, the Supreme Court's ruling in Adarand v. Pena
raises the need for decisions about how the government-will··
respond.
To a large extent, those decisions will be.driven by
three urgent imperatives:
(1) the need to respond to litigation
challenging federal programs, .including expected fast -moving
requests for restraining orders, particularly in the contracting
area, (2) the need to advise federal agencies charged with
administration of such programs, many of whom award contracts on
a regular basis, and (3) the need to respond to anticipated
·
efforts in Congress to amend various appropriations and
authoriza~ion bills to eliminat~ or deny funding for affirmative
action programs.
The purpose of this memorandum is to set forth options and .
to clarify the role of the Department of Justice. First, Adarand
demands that federal programs be subjected to a fact intensive
review to: (a) determine whether they are narrowly tailored to
serve a compelling interest and (b) recommend changes where
desirable or necessary in order to meet that standard. Two draft
presidential directives presenting alternative means of
addre~sing this issue are attached to this memorandum.
In addition, the Department of Justice will be faced wit}?.
the need to make litigation judgments regarding the defense of
specific programs. A central issue will be whether the
Department should undertake to defend all programs for which
there is a good fal.th argument after Adarand or wpether the
Department should exercise some discretion in determining wb.ich
programs warrant a full defense.
PROCEDURAL OPTIONS
In order to evaluate programs pursuant tQ Adarand, it will
be necessary to undertake an intensive effort to gather and
develop facts to determine whether there is compelling need for a
program and whether it is narrowly tailored to meet that need.
�>-
a..
0.
(.)
In addition, judgments
changes in programs in
constitutionally. The
staff nor the detailed
functions alone.
will have to be made about possible
order to render them more defensible
Department of Justice has neither the
programmatic knowledge to perform these
0
10
:J:
a..
>-
c::::
<(
c::::
a:::l
Procedural Option 1
....J
Direct federal agencies to undertake, subject to the
overall direction of the Attorney General,· analysis of programs
that they administer-that use race or ethnicity as a basis for
decisionmaking and to identify whether each program, in the
judgment of the agencies,· {1) appears to satisfy the standard
announced in Adarand, {2) falls short of the standard but can be
brought into compliance through regulatory changes, or {3) does
not appear to satisfy the Court's standard and cannot be made
constitutional through· regulatory modifi~ation ..
Under this option,. you would direct federal agencies to
undertake, subject to the directio~ of the Att6rney General, the
analysis required by Adarand. Each agency would be required to
provide a report to the Attorney General, including
recommendations for any regulatory or legislative. changes that
would make the programs lawful. The Attorney General would then.
provide advice to you regarding these programs. Responsibility
for judgments about the need to modify or abandon programs will
fall largely on the Attorney General or the President. [see Draft
A].
Pros
o
Agencies know their own programs well and are in the best
position to develop a factual record quickly.
o
Many agencies already have in place administrative
factfinding procedures.
o
A number oJ agencies have already begun this process as part
of the review of affirmative action programs.
Cons
o
The findings of agencies may not be viewed as impartial,
since agencies can be expected· to at temp:;: to preserve their
own programs.
o
Some agencies have already demonstr.ated during the review
that they may not be capable of completing this task quickly
and thoroughly.
- 2 -
�>a..
0
(.)
0
0
Agencies are likely to carry out this process in different
and potentially inconsistent manners, which may create
litigation difficulties.
1-
0
:I:
a..
Procedural Option 2
Create an independent commission to lead the inquiry
into whether programs comply with Adarand.
Pursuant to this option, you would appoint a small
independent commission of respected Americans to coordinate and,
where necessary, conduct the fact-gathering effort. The
Commission would have authority to conduct public hearings and
draw on the resources of federal agencies in fulfilling its role.
The Attorney General would advise the Commission on applicable
legal standards and, taking into account such advice, the
Commission-would make recommendations to you regarding which
programs satisfy Adarand, which programs need regulatory
modification and which,programs cannot be made constitutional
through regulatory changes. ·[see Draft, B]
Pros
o
The Commission's independence and stature may give its
findings grea~er credibility.
o
The Commission could centralize and ensure uniformity in the
fact gathering process.
o
The Commission might be viewed as sufficiently credible that
legislative action would be postponed pending its findings.
o
The Commission would have the capacity to make difficult
judgments concerning programs.
Cons
o
The Commission would likely take a minimum of six months to
complete its work. Litigation and congressional action
might overtake it.
o
There is a ri~k that the Commission will stray beyond its
mandate or make findings with which the Administration
disagrees.
o
A Commission finding could conflict with and undermine a
litigation position.
o
A Commission might be viewed as inappropriately directing
the activities of Executive Branch agencies.
- 3 -
-
. _J
�·>a..
0
(.)
0
0
Since the Commission would be subject ,to the disclosure
requirements of the Federal Advisory Committee Act,
submissions to the Commission from the agencies would
generally have to be made available t6 the public. This
might inhibit the candor of the agency evaluations and
recommendations and could affect litigation in defense of
programs.
1-
0
:c
a..
>0:::
,<(
0:::
CXJ
....J
LITIGATION OPTIONS
The Department of Justice expects that challenges to
programs will be filed quickly and that some will seek emergency
relief, including suspension pf p~ograms.
It is, therefore,
necessary to clarify the scope of the response of the Department
of Justice to this litigation.
·
Litigation Op.tion .1
Defend all programs that are determined to be capable
of a good faith defense pursuant to·Adarand.
Pursuant to this approach, ·the possibility of a good faith
defense under the Adarand legal standard would become the primary
measure of whether a particular affirmative action program would
continue. When a program was challenged, the Department of
Justice would determine whether the program could, in good faith,
be defended under the strict scrutiny standard imposed in
Adarand, regardless of the likely outcome of the litigation.
There would be an overriding policy determination that any
program that could be defended in good faith should be defended.
Pros
·o
At least in the short term, this approach gives the broadest
possible protection to affirmative action programs.
Although there will likely be prog~ams that the Department
of Justice will conclude cannot in good faith be defended
applying strict scrutiny, this option ensures that as many
programs as practicable will be defended in court.
o
This. option shifts to courts a part of the ultimate decision
regarding the legitimacy of specific programs.
Cons
0
This option forgoes the opportunity initially to move away
from existing programs on policy grounds.
0
By defending every arguably defensible program, we will
likely lose a number of cases in court, thereby running the
risk of establishing bad caselaw on affirmative acti~~~~
creating additional pressure to dismantle programs ~~~SI
- 4
-
fc<:
,0
~ }-
i:z
')
.0
\
�>-
. a..
0
(.)
·o
Litigation Option 2
t0
:I:
Exercise selective judgment on the basis of overall
objectives regarding which programs should be defended, leaving
the weakest programs undefended.
Pursuant to this option, the Department of Justice would
ex~rcise its discretion to forego defense of some minimally ·
defensible programs.
It would consider the strength of the
evidence bearing on the determination whether the program was
narrowly tailored to achieve a compelling interest and choose, as
a strategic matter, to defend those with the strongest
justifications. Conversely, it would decline to defend those
programs where the chance of success is relatively low.
Pros
o
This option allows the Department of Justice greater ·leeway
to develop a long-term strategy for building caselaw in
support of affirmative action~ By presenting. our strongest
cases to courts, we are fuore likely to obtain some favorable
decisions and lay the basis for futur~ successful legal
defenses of affirmative action.
Cons
o
To some extent, this option may be viewed as a departure
from usual Department of Justice practice, which is to
defend programs that client agericies wish to preserve, so
long as there is a good faith legal argument in support of
the program.
o
.This option will require making difficult judgments up front
that some programs should not be defended and should,
theiefore, be terminated.
Choices:
Procedural Option 1
or
Procedural Option 2
\s~
Litigation Option 1
or
Litigation Option 2
- 5 -
a..
>c:::
<t
c:::
o::::l
..:..J
(.)
""";)
3::
)
�Withdrawal/Redaction Sheet
Clinton Library
SUBJECTffiTLE
DATE
001. memo
Attorney General to President Clinton, re: Choices Following
Adarand (5 pages)
6/23/1995
P5
002. memo
C. Edley to G. Stephanopoulos, re: The Supreme Court Voting Rights
Decision (I page) ·
6/29/1995
P5
003. memo
Attorney General to President Clinton, re: Choices Following
Adarand (5 pages)
6/23/1995
P5
I~
Dup
/5g
004. memo
George Stephanopoulos and Chris Edley to the POTUS, re:
Affirmative Action - Decision on Post-Adarand Steps and Completion
of the Review- Draft (6 pages)
n.d.
P5
l~ 'S 0~
30
005. memo
George Stephanopoulos and Chris Edley to the POTUS, re:
Affirmative Action- Decision on Post-Adarand Steps and Completion
ofthe Review (5 pages)
6/19/1995
P5
)~4
006. memo
Deval Patrick to John Schmidt, re: Response to Adarand and
Alternatives to a Commission (2 pages)
6/14/1995
P5
1~5
007a. memo
George Stephanopoulos and Chris Ed ley to the POTUS, re:
Affirmative Action -The Supreme Court's Adarand Decision (3 pages)
6/12/1995
P5
l i.e~
007b. memo
George Stephanopoulos and Chris Edley to the POTUS, re:
Affirmative Action -The Supreme Court's Adarand Decision - Draft
(I page)
6113/1995
P5
\it 1-
008. memo
George Stephanopoulos and Chris Edley to the POTUS, re:
Affirmative Action -The Supreme Court's Adarand Decision - Draft
(3 pages)
6/12/1995
P5
llo ~
DOCUMENT NO.
AND TYPE
RESTRICTION
I~D
f)~ 15~
IiLl
'R
(JLL(> 3 Le
t~
j/.Q~
COLLECTION:
Clinton Presidential Records
Counsel Office
James Castello
ONBox Number: 6724
FOLDER TITLE:
Adarand [I]
2008-0308-F
wr886
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)l
Freedom of Information Act- ]5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information ](b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA]
b(3) Release would violate a Federal statute ](b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
. information ](b)(4) of the FOIAl
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAJ
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAl·
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIAl
National Security Classified Information ](a)(l) of the PRAI
Relating to the appointment to Federal office ](a)(2) of the PRAl
Release would violate a Federal statute ](a)(3) of the PRAl
Release would disclose trade secrets or confidential commercial or
financial information ](a)(4) of the PRA]
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(5) of the PRAl
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ](a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�>-
a..
0
(.)
June 29, 1995
0
10
:I:
a..
To:
George Stephanopoulos
Senior Adviser to the President
From: Christopher Edley, Jr. ~
Special Counsel to the President
Re:
The Supreme Court Voting Rights Decisions ·
I write before the decisions are announced. I asked the Library to retrieve press conference
and speech remarks by President Lyndon Johnson from the spring of 1965, as Roger Wilkins
suggested. Generally, however:
•
Voting rights has far clearer political and moral resonance than affirmative action.
Therefore,· there is far less downside to a full-~hroated defense of the cause.
•
Elected and other leaders of the African-American and Latino communities will be
extremely focused on this decision and its implications,. out of self preservation. They will
similarly be very attentive to the tone, passion and nuances· of any White House statement.
•
In particular, if minority leaders believe it is a blow to political empowerment, it would be
unforgivably unattractive in their eyes for the President to appear significantly less
concerned. Our temperature must closely track their temperature, lest they feel abandoned.
•
On the other hand, we have an obligation to express an unrelenting determination to carry
on -- to get busy with whatever new burdens the Court imposes.
·
•
Although Alexis' "Wednesday Group" (Anne Wexler, Ann Lewis, and Susan Thomases and
Al From) cautioned against taking an apocalyptic view and "big" response, the civil rights
advocates felt strongly otherwise. Political technicians and political scientists, who
appreciate the imponderables and, complex tradeoffs in redistricting, will necessarily have
a very different take on this than many minority leaders and commentators. The latter will
correctly understand this decision as part of a strong and frightening reality of retrenchment
by legal, political and social forces. The litmus test for the Administration is whether we
communicate that we, too, appreciate that storm clouds are gathering and gains are in
serious_ jeopardy.
•
I hope the President's written statement today will be compelling and forceful.
cc:
I
/Abner Mikva, Alexis Herman, James Castello, Deval Patrick
>0:::
<C
0:::
ca
�U.S. Department of Justice
Civil Rights Division
....I
June 14, 1995
TO:
John Schmidt.
George Stephanopoulos
Christopher Edley
Alexis Herman
FROM:
Deval L. Patrick ·
SUBJECT:
Response to Adarand and Alternatives to a Commission
In ·thinking a little deeper-about the idea of creating a
commission to examine federal programs to determine their
compliance with Adarand, I have become convinced that a
commission has substantial drawbacks:
1. A commission should riot determine whether these programs
comply with the legal standard laid down by Adarand. The legal
determination should be ~a~e in the Department-of Justice. The.
civil Rights Division, as the lawyers charged with defending
challenges in court, and the Office of Legal Counsel would seem.
the appropriate centers for that determination.
I am not
familiar with any commission that has been charged with deciding
legal questions. Moreover, I am concerned that turning legal
question~ over to a commission sends a message of a lack of
confidence in the Department of Justice.
2. There is really no need for a commission to study policy
questions. Given Adarand, it seems to me that the only question
to be decided is the legal question, since I assume that the
Administration would not decide as a matter of policy to jettison
a program that was narrow_ly tailored to accomplish a compelling
government interest.
3. Creating a commission to focus exclusively on the
Adarand inquiry sends the wrong message about Adarand. It sounds
an alarm.
I think we should read Adarand as a setback, but not·a
disaster. The Court {1) made clear that it was not prohibiting
all consideration of race, (2} left open the do6r for courts to
give deference to congressional factfinding, and (3) did not
foreclose the production of post-enactment evidence to satisfy
strict scrutiny. While it is clear that Adarand will increase
our litigation burden and that we are likely to suffer some
failures, it is by no means clear that we will not be able to
defend many programs successfully.
DETER:\tl~ED TO BE A~ AD:\11:'iiSTRATIVE
:\1ARKE\G PerE.O. 12958 as amerided, Sec. 3.3 (c)
Initials:
\\1\2-
Date:_~:.J./..::..Z....J~/t.,..;(:..:..l_ __
�>-
a_
0
(_')
4. As a practical matter, litigation will overtake any
other ef£ort. We expect that in short order requests for
temporary restraining orders and preliminary injunctions wiil be
filed in court. A commission that will take six months will be
virtually irrelevant to the defense of these programs.
5. If we should disagree as a legal matter with the finding
of a·commission, we would have an obligation to defend the
programs and the work of the commission would be used against us.
6.
It will be very hard to find 5 members of stature who do
not bring with them some baggage on affirmative action. Will we
respond to calls for ·the inclusion of opponents of affirmative
action to' provide balance? If not, the Commission will lose
credibility.
7. People may greet with cyn1c1sm a presidential
announcement that after reviewing affirmative action programs for
4 or 5 months, he is now going to. appoint a commission to review
affirmative action programs for another 6 months ..
8. To some extent, the President lqses control of the issue
by launching a commission.
·
'
Proposed Plan of Action
I propose the following alternative plan of action:
o
Announce that we continue to support affirmative action
programs that meet the Adarand standard and make case-bycase decisions as to the validity of the programs as they
are·challenged.
o
Create a task force under the direction of the DOJ, with the
MBDA responsible for coordinating the factfinding, and issue
a presidentiil directive to agency heads to cooperate with
the Department of Justice in defending the programs.
o
(possibly) Have the Attorney General appoint an independent
advisory committee to assist in, analyzing the factual record
developed by the agencies (or perhaps to assist the MBDA in
developing that record).
0
10
:I:
a_
>0:::
<(
0:::
a:J
-
�>a..
0
(.,)
·0
1-
DRAFT
0
::c
June 12, 1995
a..
>0::
<(
0::
co
MEMORANDUM FOR THE PRESIDENT
From: George Stephanopoulos and Christopher Edley, Jr.
Re:
· Affirmative Action: The Supreme Court's Adarand Decision
This memorandum presents a very brief summary of the Supreme Court's decision this morning,
and presents options for our immediate response. Thus far, we have indicated to the media that
(i) the decision is by no means a death 'knell for affirm~tive action, and (ii) we do not have to
go back to the drawing board with our affirmative action review because your instructions to us
asked many of the same questions the Court has focused on in Adarand.
·
After the Supreme Court struck down Richmond's set aside program in the 1989 Croson decision,
.
state and local governments used commissions and consultants to create the factual record needed
to justify their programs under the tougher standard that Adarand now applies to federal action.
The question is whether to indicate that we will now use some analogous form of fact-finding
commission at the federal level -- with details to be defined after consultations. Your basic
policy views would still be announced with release of the Report, in the not too distant future.
.
I.
The Court's Action
The Opinion: In a 5-4 decision, Justice O'Connor's opinion held that any government
action which treats individuals unequally on the basis of race is subject to strict scrutiny. The
Court relies on the. Richmond set aside case, Croson, which applied strict scrutiny to state and
local contracting programs, but reverses a subsequent holding (Afetro Broadcasting, involving ·
broadcast licensing) which ~uggested that federal statutes with benign purposes could be sustained
under a less rigorous, "intermediate" scrutiny standard.
•
"Strict scrutiny" means that (a) the government's must have a "compelling interest," and
(b) the program must be "narrowly tailored."
•
The Adarand decision leaves open what will constitute a "compelling interest," but there
is a suggestion that it need not be limited to purely remedial measures addressing proven
instances or patterns· of discrimination. It is unclear, for example, whether general
concerns about diversity in the education setting would meet the test (probably) or
whether a pattern of massive underrepresentation in certain professions would meet the
t'est (tougher, but unknown). The earlier standard for Congressional measures had been
J
�>a..
0
(.)
0
1-
"substantially related to achieving ari important interest."
0
::I:
The decision has rhetoric about the tightness with which the program must be "tailored,"
but these implications are also unclear. There is probably no change to current strict
scrutiny law; which requires, inter alia, consideration of race-neutral alternatives, and
sunsetting of the measure once its legitimate goals are met.
a..
>0:::
<(
0:::
o:J·
_J
•·
Although Adarand concerns a contracting program, the language is quite clear and
sweeping. · The same constitutional standard will be- applicable to racially targeted
programs in Education, IlliS, and throughout the federal, state and local government.
. Tlte Key Implications: There is no question but that Adarand's move to the Croson
standard of strict scrutiny tightens prior law. The most important fact is that Croson in1posed
a fact-finding burden on state and local legislatures to establish that there had been prior
discrimination of a specific sort, not just broad societal discrimination or underrepresentation
a~ong local government contractors. State· and local governments responded to Croson by hiring
. consultants and appointing commissions to lay the factual piedic.at'e, and then reenacting their set
aside programs,. often with more flexibility and broader eligibility than before. Courts have
generally sustained the revised programs.
Two critical and open questions left by the Adarand opinio~, therefore, are:
1.
Must there be a specific factual demonstration ofracial discrimination (or present effects
clearly traceable to past discrimination), and if so, what kind of evidence is needed to
make the case?
2.
Must ·that factual case, and the other elements of strict scrutiny, be in the
contemporaneous legislative history? That is, must Congress have made specific
legislative findings of discrimination, and with respect to race-neutral alternatives? Or
will it suffice to supply that analysis and justification now, after the fact?
This last 'point is critical. There is good reason to fear that if this new standard of evidence is
applied to the contemporaneous legislative history, many programs may fall because no one at
the timethese programs were enacted would have anticipated such a standard of judicial scrutiny.
Quite obviously, reenactment of many of these programs, even with revisions, would be a
daunting task.
Your advisers agree that we must assume for pre~ent purposes the more favorable answers to the
two questions above: that affirmative action remains permissible in contexts broader than pure
remediation, if done very carefully; that any deficiencies in the legislative history of current
programs can be repaired by evidence developed now.
2
�>a..
0
(.)
0
t-
Options:
We believe it is important to communicate as early as possible a general reaction to the Adarand
case that will provide a measure of reassurance to those who will fear that the opinion sounds
the death knell. of affirmative action, while reemphasizing your continuing ,commitment to
affirmative action "done the right way." At the same time, we want to begin the process of
moving the day-to-day focus on affirmative action away from the White House, recognizing that
· your general policy guidance should suffice as agencies and courts work through the implications
of Adarand.
We see two principal options. The critical question. is whether to say now that we believe s.ome
form of commission is a desirable response . to the Court's decision
.
Option 1: Just compleie the Review:
The President has always believed that affirmative action is valuable and justified when
it is done the right way. The Court's opinion in Adarand is consistent with that view.
Using policy guidance from the President, the Review already asks many of the same
questions the Court has focused on in Adarand -- ensuring that race- and genderconscious programs are carefully justified and fair. ·We will now work with the Justice
Department to confirm that this policy test satisfies the legal test announced in Adarand.
The preliminary work done by the agencies for the Review has been encouraging as
regards their fairness and their legality, even under the new standard. But the review isnot complete.
Even when the Review is submitted to the President, there will be a need for ongoing,
detailed factual investigation to ensure that each of the many programs does meet the
Supreme Court's legal standard.
Option 2: Same as above, but with follow-on fact-finding Commission:
The Review is near completion, etc.;
Because the detailed factual inquiry required by Adarand is beyond the scope of the
Review, you have instructed your staff to consult with Congress and the Cabinet on how
best to structure a blue ribbon fact-finding commission to examine the facts, in
cooperation with the relevant agencies and with the Department of Justice.
DECISION:
Option 1
Option 2
\~
\\Y
3 .
o·
:I:
a..
>-
0:::
<C
0:::
OJ
�.,
·:,
·.~.-·''\
DRAFT
0
3"unc 1 :z. 1 99 5
:rv.I:El'-1:0RAND~
FOR
'T'];1E
>-
a..
(..)
0
10
PRESIDENT
:::c
a..
From;
Geor.~:c
.R.e:
A£firrna.tiVe·:'Ac'ti~n: ~he Supreme Court'~ 'Adarand Decision
Stephanopoulos and Christopher Edley; Jr.
>- .
0:::
<(
0:::
Thi9 mern.ora.n.dum present's a very brief summa..ry- of t..h.e Supreme Court's decision "this morning,
'and presents options for our i.mmediate response. Thus far. we have indicated to the media that
(i). the decision is by no means a death· knell for affirmative ~c:>tion. ·and (ii) we do not have to
go back to the dravvinB board 'Wiih our affirmative action review because your instructions to us
asked many of the same questions the Court has rocused .on in .A.darand.
After 'the Supreme Court s'tru.clc
dovvn.
aJ
Richmond's set aside proararn. in 'the 1989 Croson decision ..
s-ta.:te and looal· governments uSed corn.nl.issions a.nd consul'tan'ts "to create 'the factual record needed
to jusdfy their pro~rarns un.der the tougher standard that .A.darand now ·applies to ·federal action.
The question is whe'ther to indicate 'that: we will now uSJe sorn.e a.:n.alogous f'orrn of' rac't.:..finding'
c::ornn'l.ission. at the federal Je.....,.el -- vvi'th. dc"ta.:ils 'to be defined after corisu.Jta'tions.
Your basic
policy views would st-ill be announced with release of' the Report. in the not too distant f'ut:ure.
I.
The. Court• a Action
a
.·
The Opinion.• In
!5-4 decision. Justice O'Connor's opinion held that any 'government
action which treats individuals unequally on the. basis of race is subject -to strict· scrutiny. 'The
Court relies on. the Richmond set aside case. Croson. which applied strict scrutiny io. state and
local contracting programs. but reverses a. subsequent holding (l'v£erro Br0 adcasring. involving
broadcast licensing). which s:ugaa;ested tha.tfederal statutes vvith bttnnign purposes could be sustained
under a less rigorous.: ".in'termediato" sCru'tiny st:andar~ ..
..
"Stric't scrutiny" means 1:ha.t (a) the government's must have a
(b) the program must be "narrowly tailore_d."
"compellins interest." and
The Jl!!.darand decisio:D. leaves open. what will cOns"ti"tUt:e a "corn.pelliria int<:.res't• ., bu't there
is a su,Sge·s""tion. tha't it need not be limitc:~~d -to purely remedial measures addressing proven
ins'tanc::es- .or patt'erns o f discrimin,el.:tiOn.
·It is unclear·. for ex8.rnple. -vvhether general
concerns about diversity in the education sertin.g would meet the test (probably) or
whe'thcr a pattern of massive underrepresenta'tion i~ certain professions· would .meet the ·
t:est (t:ougher. but un.J.cnown). The earlier sta.ndard·for Congression"!-1 measures had been
TRANSMISSION REPORT
I
THIS DOCUMENT <REDUCED SAMPLE ABOVE)
WAS S-ENT
**
#
COUNT
3
**
*** .SEND ***
NO
1
REMOTE STATION. I. D.
67929
START TIME
6-13-95
DURATION
#PAGES.
15:39
2'05"
3
TOTAL
Q:Q2'05"
3
COMMENT
XEROX TELECOPIER 7020
�I
I
I
!
II
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
George Stephanopou1os and Chris Edley to the POTUS, re:
Affirmative Action -The Supreme Court's Adarand Decision (3 pages)
6/12/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel Office
James Castello
OA/Box Number: 6740
FOLDER TITLE:
Adarand [2]
2008-0308-F
wr887
RESTRICTION CODES
Freedom of Information Act- IS U.S.C. 552(b)l
Presidential Records Act- 144 U.S.C. 2204(a)J
PI
P2
P3
P4
National Security Classified Information J(a)(l) of the PRAI
Relating to the appointment to Federal office J(a)(2) of the PRAI
Release would violate a Federal statute J(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the PRAJ
b(l) National security classified information J(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI ·
. b(3) Release would violate a Federal statute J(b)(3) ofthe FOIAI
b(4) R~lease would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9)Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAJ
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
I
I
I
:
II
�. >a..
0
(.)
0
10
:z::
a..
· June 12, 1995.
>-·
c::::
c::::
<(
a:J
.....
MEMORANDUM FOR THE PRESIDENT
From: George Stephanopoulos and Christopher Edley, Jr.
Re:
Affmnative Action: The Supreme Court's Adarand Decision
This memorandum presents a very brief summary of the Supreme Court's decision this motning,
.
.
and presents options for our immediaterespons~.
I.
The Court's Action
The Opinion: In a 5-4 decision, Justice O'Conn.or's opinion held that any government
action which treats individuals :unequally on the .basis· of race is subject to strict scrutiny. ·The
Court·relies on the Richmond set aside case, Croson, which applied strict scrutiny to state and
local contracting programs, but reverse~ a subsequent holding (Metro Broadcasting, involving
broadcast licensing) which suggested that federal statutes with benign purpo~es could be
·
sustained under a less rigorous, "intermediate" scrutiny standard.
•·
gov~rnment~st have a "compelling interest," and
"Strict scrutiny" means that (a) the
. (b) the program must be "narrowly tailored. oi
·•
TheAdarand decision leaves open what will constitute a "compelling interest," but there
is a suggestion that it need not be limited to purely remedial measures addressing proven
instances or patterns. of discrimination. It is unclear, for example, whether general
concerns about diversity in the education setting would meet ·the test (probably) ot
whether a pattern of massive underrepresentation in certain professions would meet the.
test (tougher, but unknown). The earlier standard for Congressional measures had been
"substantial interest."
•
The decision has rhetoric about the tightness with which the program must be "tailored,"
but these implications are also ~nclear. There is probably no chang'e to current strict
scrutiny law, which requires, inter alia, consideration of race-neutral alternatives, and
sunsetting of the measure once its legitimate goals are met.
•
Although Adarand concerns _a contracting program, the language is quite clear and .
. sweeping. . The same constitutional standard will be applicable to racially targeted
programs in Education, HHS, and throughout the federal, state and local government.
I
.
�>a..
0
(.)
The Key Implications: There .is no question but that Adarand's move to the Croson
·standard of strict scrutiny tightens prio:r law. The most important fact is that Croson imposed
· a fact-fmding burden on state and local legislatures to establish that there had been prior
· discrimination of a specific sort, not just broad sodetal discrimination or underrepresentation
among local government contractors. State and local. governments responded to Croson by
hirilig consultants and appointing commissions to lay the factual predicate, and then reenacting
their set aside programs, often with more flexibility and broader eligibility than before. Courts .
have generally·sustained the revised pr:ograms~
·
.
.
. .
.
.
.
Two critical and open questions l~ft by tpe Adarand opini?n, therefore, are:
1.
Must there be a specific factual de~onstration of ratial discrimination, and if so, what
kind of evidence is needed to make the case?
·
·
2.
Must that factual case, ·and the other- elements of strict scrutiny, be iiJ. the
. contemporaneous legislative history? That is, must Congress have made· specific
legislative ·findingstregarding discrimination, and with respect to race-neutral
alternatives? Or will it suffice to supply that analysis and justification now, after the
fod?
- .
.
.
. .
-
.
.·
-
..
.
This last point is critical. There 'is good reason to fear that if this new standard of evidence is
applied to the contemporaneous-legislative history,.many programs may fall because no one at the time these _programs were enacted would have -anticipated such a standard of judicial
scrutiny. Quite obviously, reenactment of many ·of these programs, even with revisions, would
'
be a daunting task
Your advisers agree that we must assume. fot present purposes the more favorable answers to
the two questions above: that affirmative action remains permissible in contexts broader than
pure remediation, if qone very carefully; that any deficiencies in the legislative history of
curr~nt programs can he repaired by evidence developed now.
Options:
We believe it is important to communicate as early as possible a general reaction to the Adarand
case that will provide a measure of reassurance to those who will fear that the opinion sounds
the death knell of affirmative action, while reemphasizing_ your continuing commitment to
affirmative action "done the right way." . At the same time, we want to begin the process of
moving the day-to-day focus on affirmative action away from the White House, recognizing that
your general policy guidance should suffice as agencies and courts work through the implications
of Adarand.
~SIDE"I\I
r-1~
We see two principal options:
"
~
.,../.
-..:;__
(A '<'
~ 'lt~\ ~
~ l
~
u
~
-
0
t-
o
:::1:
a..
>-
0::
<(
0::
ca
�-·
>-
'a..
0
·'-'
0
10
:I:
a..
Option 1:
>0::
The Review effectively anticipated this: State that the Review is near completion;
that it already incorporates a policy test that requires careful justification of raceand gender-conscious programs; that we will now work with DOJ to confirm that
this policy test satisfies the legal test announced in Adarand. The preliminary
work of the agencies done for the Review suggests that the great bulk of · ·
programs meet the test of legality and fairness; that complete confidence that this
is so will require ongoing, ·detailed investigation and fact-fmding, even after the
Review is submitted to the President. ·
·
i
Option 2:
Same, but with Commission: State that the Review is near completion,' etc.; that
because the detailed factual inquiry required by AdaraTul is beyond the scope· of
the Review, you have instructed your staff to consult with·. Congress and the
· Cabinet on how best to structure a blue ribbon fact-fmding commission to
examine the facts, in cooperation with the· relevant agenci~s and with ,the
Department of Justice.
<(
0::
-
Ill
....I
�Withdrawal/Redaction Sheet
Clinton Library.
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
RESTRICTION
OOia. memo
George Stephanopoulos to President Clinton, re: Affirmative Action Speech, Review and Policy Decisions- Draft 6 (9 pages)
6/27/1995
P5
OOib. memo
George Stephanopoulos to President Clinton, re: Affirmative Action Speech, Review and Policy Decisions - Draft 6 (9 pages)
6/27/1995
P5
lrl
COLLECTION:
Clinton Presidential Records
Counsel Office
James Castello
OA/Box Number: 6724
FOLDER TITLE:
Affirmative Action Vol. 2 [3]
2008-0308-F
wr888
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)]
Freedom of Information Act- ]5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information](b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIAI
b(3) Release would violate a Federal statute ](b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information ](b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes j(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions ](b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIA]
National Security Classified Information ](a)(l) of the PRA]
Relating to the appointment to Federal office ](a)(2) of the PRA]
Release would violate a Federal statute ](a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information ](a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ](a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�>c..
0
(.)
0
I0
Draft 6
:::J:
c..
June 27, 1995
·~
a::
a::
<(
MEMORANDUM FOR THE PRESIDENT
(Q
_J
From: ·George Stephanopoulos
(.)
Re:
Affirmative Action
~:--
.J
3:
Speech, Review and Policy Decisions·
This memorandum reviews the four pieces to the Affirmative Action rollout:
•
•
•
•
a major speech on July 19th -- we seek your decision on venue;
release of the Review;
a Directive to agency heads creating a ·process, coordinated by the Attorney General to
ensure compliance with Adarand and with your policy principles; and
two key policy choices for immediate decision and, if you chose. announcement with
the speech: setasides and the Piscataway issue of using race/gender as a factor in
layoffs.
I. The Speech: Content and Venue
~J
assist~ce
Content. Don Baer and Carolyn Curiel, with
from others, are conducting the broad
As we discussed, the speech will be a broadly. thematic discussion of
{2l
discrimination. exclusion. equal opportunity, and healing. It will include a strong defense of
~ affirmative action when done the right way, and offer policy principles which will be made
~ concrete with a few pointed programmatic examples of the good. the uncertain and the
l ~ outreach you reqt1;ested.
.
F ~~problematic.
if&
~r
~
.
.
Among the possible program examples are:
~
~
1-teuc
~ ~
-fb
~
T'h e goo d : Programs you confid ent1 support me 1u de: the m11tary; your JU d"!Cta1
.
"l"
.
•
1,
1
y
appointments; your Cabinet appointments; the OFCCP program of affirmative action m
employment.
op:-Bo:
wJQ
Programs you support but for which you want the Attorney General's
con!i~~ c~Jiance with Adarand include: severall grant programs operated by the
Departments oftducation and HHS; NSF grant programs. The Il).ost common rationale for
these grant programs is dramatic underrepresentation of historically excluded groups. plus
some context-specific public interest in inclusion (for example. broadening the human
'
resource base for research scientists).
~·
The uncertain:
~~.
~
0::
~
~
I
�>-
c...
0
(.)
The problematic: Programs you believe need revisions include: Contracting setasides: and
USDA setaside-like auctions of· foreclosed farms. · Although post--Adarand empirical
studies might establish that these are constitutionally defensible, as a policy matter they in
some instances are unfair.
0
r-
0
:::c
c...
>e::::
<C
e::::
For purposes of the speech and any supporting press materials, we can supplement these with
state, local and private sector examples drawn from litigation and press accounts. We do not
recommend a detailed rollout of how Federal programs sort irito these three categories because·
most if not all of those judgments should now be deferred until the post-Adarand assignment
is complete~ as indicated in the discussion below of the Directive. ·
-
Ill
Venue.
Listed below are venue options for your speech. As with any major address. your
speech is what matters here .. The venue you deliver· it in will provide secondary color brised
on its historical or symbolic va,lue. In this case specifically, the anticipation and coverage of
the speech will be significant, and the location will merely create context and generate helpful
side-bar stories.
•
Little Rock Central High School, Little Rock, Arkansas
Recommended option. This site would allow your speech and the issues surrounding
affirmative .action to be frained within the larger context of the civil rights movement and the
struggle for equal justice and opportunity. The media would use the school's history when
covering the speech. When combined with plus your own experiences and battles against
racism, this, would i:nake a powerful statement framing your remarks. Networks would perhaps
contrast footage of you with scenes of Gov. Faubus. You might choose to mention·
contemporary problems at Central High to underscore the critical importance of the larger
opportunity agenda, speCifically quality education.
•
Constitution Hall, Washington, D. C.
Recommended alternative. This site allows you to draw on the building's history in the tight
against ·discrimination (Marian Anderson) as well as the footsteps-away history of events
around the Mall and commemorated there. The Hall seats over 3,500 people -- a crowd we
would build -- which would inevitably create a serious, Presidential. and high-energy
environment.. The crowd could be built thematically, for example: a multiracial assemblage
of church congregations: young people ..
•
Atlanta, Georgia--Site TED
By going to "The City Too Busy To Hate", a city essentially built on affirmative action. you
could both draw on the history of Dr. King and early civil rights efforts while using the city
as an example of the issue in modern times. We would locate. a venue·. of historical ·
significance to Dr. King, such as a park where he used to preach, etc. This will invite tnedia
comparisons with King's speeches, including the "content of their chara
Olef!lf
of the "I
.
~<i~
'<I(
<.{>).
~ \ ((0 ~
-;
'
·~
.,
�>-
a..
0
have a Dream" speech. This is both a plus.and a minus.
•
(.)
0
to
·::z:
Already-Scheduled Events
0..
><·
0:::
The two best possibilities are:
0:::
aJ
- _Presbyterian Church (USA), General Assembly, July 15-22, Cincinnati.
delegates, but the starting date is somewhat late.
Over 3.000
'.
Decision
_ _ Little Rock Central High School .
_ _ Constitution Hall, Washington D.C.:
--
Atlanta, (site TBD)
--
Audience of church congregations
Other
Convention
of Presbyterians
II. Adarmzd Directive to Agency Heads; the Commission
Directive. The detailed empirical_analysis and consideration of program re~isions now required\
as a consequence of Adarand must be coordinated by the Department of Justice as regards the
legal determination ,af whether a program is constitutionally defensible. But the process must
also include some continuing White House participation to superintend interagency policy
juqgments about reforms that might be desirable to make programs more defensible or more
consistent with yo-ur own non-constitutional policy views. The legal and policy choices are all
but impossible to disentangle, and will in any ca5e be attributed to the White House. Because
there will be steady stream of such decisions, quiet White House participation in the
interagency effo~11 be led by Judge Mikva and "Qeorge StepbanopQHle#." (The directive will not
mention the White House role, lest we recreate pressure for White House documents and;'
visible White House decisionmaking.)
·
What is the relationship of the Review to the Directive? "The Review provided the President
with basic factual information concerning various. Federal programs and the background
conditions of discrimination and exclusion. Early drafts provided a preliminary application of
his policy principles to various programs. · In light of Adarand, however. these preliminary
policy judgments and the evidence underlying them are now subject to strict scrutiny by the
courts, and must be reviewed by the Justice Department to ensure compliance with Adarand."
..,
.)
�c..\DENr1
A
~";;I
.
'"'(
~·
.
. .
.. . .
.
.
..
.
q
.
~
-
a \Sf(J
~
~
~
~
.
~
"'\
You received on Monday evening the draft legal guidance to agency general ~unsels from
Walter Dellinger, Office of Legal Counsel; it was released today, with low key p
briefi .
at DOJ. We will forward the proposed directive separately, which you may choose to issue
immediately or at .the time of your speech.
>-
0..
0
. (.)
0
10
:I:
0..
>0::::
<(
0::::
o::l
Commission. Congressional interest in a bipartisan commission hc:J.s waned .. Your advisers and
the agencies all believe that a fact-:finding ·commission on compliance with Adarand would not
be helpful -- either as a practical matter of getting the empirical and legal work done. or as a
. matter of winning greater deference from Federal district court judges. Nor does it appear
likely to create credibility that would cause swing Members of Congress to oppose antiaffirmative action amendments. Civil rights advocates ·speak in terms of "presidential
leadership," and oppose making affirmative action policy a "jump ball" in some unpredictable
commission~· with potentially dire consequences.
Your advisers therefore see little to gain and much to lose from going .forward with ·a
Commission concerning Adarand and speCific Federal programs. Moreover, a commission
with the alternative charter of framing a national conversation on opportunity seems a far less
attractive strategy in the present environment than it might have been before Adarand and the
more focused ·legislative risks now looming.
III. The Review
At a minimum, the Review 'will include a description of your policy framework. an analysis
of the Adarand case, a review of evidence documenting the continuing problem of
. discrimination and exclusion, and a description of the range of Federal programs and how they
operate. The draft of the Review prepared prior to Adarand also included a balanced
presentation of good arid bad information collected on program performance, our "findings of
fact" based on that information, and some policy conclusions and recommendations. In light
of Adarand, however, and the certainty of both litigation and legislative action, the Department
of Justice and several agency gen(_::ral counsels have raised very serious objections to releasing
these factual ~d policy ~at~lfts time. We are discussing this difficulty, and will have
a recommendation for you.· in th~ next few days .
. ·[~(J~5
IV. Decision on Procurement Setasides
Baseline -- Reform of Abuses: The Review ha5 identified a number of areas of abuse or
perceived abuse. As in all the other areas we examined, these abuses are far less common in
reality than is generally assumed by critics. Nevertheless, addressing these is necessary as a
matter of fairness and political circumstance; the reforms will also have a marginally helpful
impact on the Attorney General's constitutional analysis. Some details of needed regulatory
4
�>-
c...·
0
and statutory changes remain to be defined after the general parameters, noted below. are
announced.
(It would be impossible to develop . sound details while maintaining
confidentiality.) The five key elements and summary prescriptions are:
(.)
.0
10
:c
c...
>-
1. Tighten the Economic Disadvantage Test. Reform the asset test to count the value
of the personal residence and to consider the spouse's assets (now excluded) in a manner
analogous to treatment of a 49 percent owner of the enterprise.
a::
<(
a::
co
2. Tighten Requirements for Graduation. Apply 8(a)'s 9 year graduation limit to all
.
.
SDB programs,· but then direct the NEC and SBA .to establish objective industry-specific
criteria for determining when any individual firm "develops" beyond need for sheltered
competition. Direct the NEC and SBA to establish caps on the dollar value of contracts,
plus a cap on total dollars a single fihn can win -through sheltered competition. These ·
measures will also reduce the concentration of 8(a) awards among a few successful firms.
3. Stringent Safeguards Against ·Fronts and Pass-Throughs. · Create a uniform.
privatized· certification process for all SDBs. Require certification audits at time of first
· contract and periodically thereafter to verify continuing eligibility and to monitor for
"fronts" and "pass-through" companies. Increase civil and criminal penalties.
4. Sunsets and Caps to Reduce Regional/Industry Concentrations. Direct the NEC to
formulate industry and regional caps/controls to prevent significant adverse burden on nonSDBs. Direct the NEC to determine industries/areas where sheltered competition programs
may be phased out based upon successful inclusion.
Key agency officials agree that, unless you announce opposition to the current setasides. we
must announce this minimum package, making clear that the details will require careful
· consultation. The package would be described not only in terms of combatting abuses. but also
ensuring conformity with your policy test of fairness.
Further Steps -~ Options for Broadening Eligibility: In light of your policy tests,· and because
. of the shadow cast by Adarand~ we offer these additional options to' make minority status less
of a defining and exclusive condition of e,ligibility for procurement preferences. The critical
. choice is whether you want to move to race/gender-neutral targeting, and whether you want
to do so in your speech, in advance of the post-Adarand study process. The options are:
( 1) announce only the baseline anti-abuse reforms described above, leaving further reforms
·until after the DOJ-led review of Adarand compliance;
(2) eliminate current SDB programs as being excessively rigid and exclusionary (although
in DOJ's view defensible). Instruct agencies to develop a new program, consistent with
Adarand, meeting broader purposes of economic development, entrepreneurial opportunity
and antidiscrimination; and
5
�>a..
0
(.)
(3) elimination of all race/gender preferences. with empower'ment contracting only.
0
1-
0
:I:
a..
OPTION
1: ANNOUNCE ONLY THE "BASELINE" ANTI-ABUSE MEASURES DESCRIBED ABOVE.
>-
0:::
~ ~ Pro: It would be prudent to complete the ~etailed empirical and program assessments required
r~"(l by the Supr~J?e Court before rushing to judg~e~~b ut_ broad rogram cha~~~~ If we rush.
\r Q ( ~ongress wtll feel emboldened to rush. N~pohcy . es t Is a oul~ accurately be.
_<(
0:::
CQ
uescribed as constitutionally co_mpelled; they _would :be nak policy judgmen ~- efer specific 7'" ~~
coi'~~llcc~ ?olic~ judgments of this radical sort u?~il after the .Attorney General's process. The. abuses
~
c:.o•/1
tdenttfied are the seeds of much oppositiOn to setastde~.
~ -~
~ 1\el
c«.c. ~- c... ~ ~ r.l> · ~ ~ €~ cJ.9. l.~ "" ~
'(~(.fi\S d~- 'fk ~ ,;;t
Con: The story will be "P;esident Endorses Setasides, Offers Reforms."· Especially after so
~long a: Review, the public expects at least some policy judgment from the President -- in both
()
the affirmative and. negative. -- as a measure of leadership as well as commitment to the
fairness principles. Completely collapsing the policy judgment into the(constitutional analysis
amounts to ceding policy authority to Justice O'Connor.
. Ab ~ S .
.
•;:t-
I'
-i:!'f
51
OPTION 2: REJECT CURRENT PR_EFERENCES; CHARGE AGENCIES TO DEVELOP A NEW PROGRAM WITH
BROADER ELIGIBILITY, TARGETING SociALLY OR EcONOMICALLY DISADVANTAGED INDIVIDUALS
& DISTRESSED AREAS
You would announce that the current programs, though constitutionally defensible and
addressed to an important problem of unequal entrepreneurial opportunity, operate in a manner
~~
that is too rigid and. at times, racially exclusionary. Therefore, current minority-targeted
J.cr . preferences should be eliminated and replaced by a new program designed to open
vfl-'
~ to entepreneurship more broadly, consistent with Adarand. You would direct the
~? agencies. through the NEC, to develop a proposatraddressed not only to remedying
-~ '_ discrimination. but also to increasing entrepreneurship and job creation in economically·
distressed areas.
Pro: This option stops short of a concrete proposal in order to avoid criticism for adding nelv
preferences on top of the current ones. and to avoid proposing something that will immediately
trigger (unjustified) criticism that we are flouting Adarand. However, your charge to the NEC
·and agencies ·would incorporate the three key policy preferences you· have articulated:
continuing to address discrimination, explicitly tied to Adarand 's requirement of a factual
predicate; broadening preferences on some race-neutral basis; and explicit attention to economic
development goals. A detailed proposal should await a full Adarand study of contracting
'""~"\ "'-.......,_ 'l. ~ a.. c..~
issues. 'k~"J...>,.._ ~ \..owEWU" '1 o-v
.
.
"'1'0 .-.~
l=~ .... lU ~ - ~ r~
.
Con: With only a vague commitment about some future replacement. this option will he
perceived by setaside supporters as an abandonment of minority and women entrepreneurship.
More generally, the vagueness of the planned replacement will be criticize
"dodge." and
~f2>\0ENr4_
Q..~
~
n/D
.~ \'1\
~
v
.
<<:
~
~
"'\
.6
�>-
a.
0
(.)
the asserted need to do careful study will raise questions about what the Review accomplished
during its 100 days. By announcing dissatisfaction with the current programs we invite
~~~a:e: C@~:, ~~~ ;e:;~=d
r
:;tly co::e :;e defense of them in
0
:I:
a.
>0::::
.
~·
OPTION
0
<(
1: GEOGRAPHICAL TARGETING ONLY --ELIMINATE RACIAL AND GENDER PREFERENCES.
. This option would elimimite the curr~nt rac.e-based setasides and create a sheltered competition
· program with eligibility determined Based on p~rfoqnance of the·contract. by a small business
in a distressed zone and/or hiring above a threshqld level of employees from)idesignated area.
Aggressive management measures will~ we hope; prevent severe ·erosion of progress we have
made in MBE/WBE participation. (AlLadvisers doubt that this is a re.ftlistthopel especially
B~.
~.~
~ lT " t4 l .. .,\,~ l e~·u<...
over the longer run.)
77 .
1>\Q.
Pro: Eliminates the controversial and constitutionally sensitive racial targeting, while elevating
/and focusing on the message of jobs and economic development. There will be some
· ~~ · dispropo=ate benefit to minority· entrep:eneurs, though far less effective than at· present.
Q.¥1?...9..
.
't~
""":(\,,
~ .~\
\}.J
,\so...
.
-
Con:
Will be viewed as abandoning any commitment to address directly the problem of
discrimination-based denial of entrepreneurial opportunity, and doing sci before any postAdarand studies have indicated that such abandonment is constitutionally compelled. With this
policy declaration, current programs would be easy prey in Congress and the courts.
Decision:
_ _Option 1:
Anti-abuse reforms only; defer major program changes
_ _Option 2:
Out with the old programs; announce policy goals of expanded
opportunity and direct officials to formulate a proposal consistent with
Adarand. ·
_ _Option 3:
Eliminate race- and gender-based preferences; use geography only.
Decision on Use of Race or Gender in· Layoffs: Piscataway
Background. The central issue in this area concerns race or gender as a consideration in
layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a
means to implement an affirmative action· policy by "making room" for new. diverse'
employees. Second, race or gender carinot trump a .bona fide seniority system.
The reach of this second principle is limited.
While seniority systems are common in the
7
0::::
co
�>-
a..
0
(.)
Thus, reportedly, many large firms expressly consider diversity in their layoff policies. and
with significant results: Illinois Bell recently cut 930 management jobs, but the proportion of
minority managers rose from. 25 to 27%; Baxter cut 20% of its 2000 employees. but the
proportion of minority managers increased from 10 to 12%.
0
....
0
::I:
a..
The narrow ·question of "tie-breakers". is thus most likely to arise in the context of a seniority
system where layoff decisions are ·more structured. In the Piscataway case. the Justice
Department has argued that Title VII· does not prohibit the Schooi Board from using race as
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of
the Federal civil service, OPM regulations are 'silent: the Justice Department's Office of Legal
Counsel believes the Federal statutes and casel~w would, as in .fiscataway, permit narrowly
tailored consideration of race or gender.
.
More generally, In certain sectors, there is a sense that some job opportunities are limited to
"diversity candidates" and thus that white males are disadvantaged.. Second, there are concerns
that in a continuing era of· corporate reengineering, women and minorities are. due to
affirmative action, at less risk of being laid· off. On the other hand, as you have noted.
affirmative action is sometimes used cynically to justify decisions. made for other reasons.
legitimate and otherwise. Moreover, whatever the constriction of opportunities felt by
nonbeneficiaries, this occurs against a backdrop of continuing underrepresentation in those
sectors. (Otherwise, the affirmative action would be illegal.)
Options. The policy options
i~clude:
OPTION l: AS A POLICY MATTER, WHEN NOT INCONSISTENT WITH A BONA FIDE SENIORITY SYSTEM.
DIVERSITY MAY BE CONSIDERED IN LAYOFFS, BUf ONLY IN A FLEXIBLE MANNER AND IN. LIMITED
CIRCUMSTANCES.
Pro: This option is close to the status quo, but does not lend itself to a simple rule. Instead.
. this approach would call for the common-sense balanci~g of the institution's general diversity
interest and the burden on. identifiable majority employees. Consideration of race or gender
would be permissible only: when necessary for the institution's operation; when a manifest
racial or gender imbalance exists; and when less race-intrusive considerations are not effective.
Consistent with the DOJ position in the Piscataway· case.
Con: Complex. Does not tpeak to anxieties of non-beneficiaries.
AJ...Q. tlvo~
OPTION
1.6---
'vJ 1 ~ · -
(\;;>
e
~
e~ , l.....ti
2: As A POLICY MATTER, RACE OR GENDER SHOULD NOT BE CONSIDERED IN LAYOFF DECISIONS.
Pro: This option wpuld issue a· sharp and clear statement -- layoffs are different -- and would
provide some comfort to whites, males, and their dependents, in a time of insecurity. (There
would be a corresponding reinforcement of minority and women concerns about their
marginality.) In the public employment context, this is likely to have little ractical impact
4'(
~s\OEN/
~
~
.
1\
(~ \j(\)
\").
. .o
.
('
l
\
8
-
�>-
a..
0
(.)
because seniority rules already limit the issue to rare tie-breaker-type situations.
0
.10
:I:
Con: This absolute rule goes too far. It will rekindle the "last hired, first fired" resentment
of minorities and women. It ignores the pressing diversity interests that may be at stake in
particular situations --especially where diversity is a bona fide consideration for.organizational
effectiveness. This option would send a loud signal to the private sector, chilling some
.. diversity efforts and encouraging affirmative action critics. Would be criticized as a flip-flop
from the Administration's litigation position in Piscataway.
a..
>0:::
<(
0:::
m
. Decision:
·_ _ Option 1: As a policy matter, when not inconsistent with a bona fide semonty
system, diversity · may be .considered in layoffs, but only in limited
circumstances.
_ _ Option
2:
As a policy matter, race or gender should not be considered in layoff
decisions.
VI. Rollout Scenario More Generally
The
A coordinated communications and outreach effort· is . currently in development.
finalization of the policy options, speech thematic, and date will help with this process~ The
goal of this effort will be to effectively manage expectations and shape the characterization of
the speech before it is given, as well as to amplify it to the greatest extent possible afterwards.
The effort will involve members of the Cabinet and sub-Cabinet, and the Legislative Affairs.
Public Liaison, Communications and Press offices. In addition to the Administration efforts.
outside/independent opinion 'leaders from the civil rights community, academia/education.
women's community,_ economic/corporate and religious worlds will be integrated into the
validation efforts.
.
9
�Withdrawal/Redaction· Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTrriTLE
DATE
Michael Small to Dellinger et al., re: US vs Board of Education
Township of Piscataway (6 pages)
10/25/1994
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Counsel Office
Chris Cerf
OA/Box Number: 6732
FOLDER TITLE:
Affirmative Action Cases Overview
2008-0308-F
wr889
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information I( b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIAI
b(J) Release would violate a Federal statute ](b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information ](b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy i(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes i(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions ](b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRA]
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute ](a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information ](a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy i(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�04/1.2/95
@002
. 10:55
eeuinger
Memorandum
Johnsen
Roseborough
S'liffrin
Slall
CLos~
~
Files
R.eadi.ng Files
>c::
c::
Ret.(Sma1Lm)AA/Piscat2
SYtlJCCt
Date
United States v. Board of Educ. Township of
Piscataway
October 25, ·i994
To
From
File
Michael Small
.....J
rf\5.
The above-referenced case is presently on appeal to the
Third Circuit from a district couit ruling that the School Board
of Piscataway New Jersey violated Title VII of the 1964 Civil
Rights Act when, acting pursuant to an affirmative action policy
that was intended to promote faculty diversity, it discharged a
white teacher in order retain a black teacher of equal
qualifications and seniority. £ee. UnitedStates v. Board of
Educ. Township of Piscataway, 832 F. Supp. 836 (D.N.J. 1993).
This memorandum summarizes views on the case that OLC has
conveyed to the Attorney General and other senior Department
·officials in a series of meetings and conversations. The
memorandum also sets for.th additional thoughts of my own on the
case that have been .prompted by a review of an amicus brief that
the United States filed in the Third Circuit on September 6. In
that brief, the United States, which had brought.the case against
the School Board in the district court, switched its positiqn and
defended the School Board's actions.
I.
a:J
Background
The affirmative action policy at issue in this case provided
that in making teacher employment decisions .. between persons of
equal qualifications, the Piscataway School Superintendent was to
recommend to· the School Board for favorable treatment the
candidate that met the criteria of the affirmative action program
-- ~, minorities and females. The purpose of the policy was
to promote the diversity of the faculty in the Township's
schools. ,The policy was not intended to remedy past
discrimination against minority teachers or to correct a racial
imbalance among teachers in the Township.
In 1969, the Board decided that because of a decline in
student enrollment in business courses, it would have to dismiss
one teacher from the ten-teacher business department in the
Piscataway High School. Under applicable New Jersey regulations
that required layoffs to be made in order of reverse seniority,
the Board had to dismiss the ~epartment's most junior teacher.
1
�04/1.2/95
. 10:55
There were two teachers in the department who fit. that
Sharon Taxman, a white teacher, and Debra Williams, the
Department's only black. teacher. Taxman a·nd Williams bot
sfarted teaching in the d'istr~ct on the. same O.ay in 1980; thus,
they had equal. seniority rights~. In addi.t·ion, the two teachers'
qualifications and performance 'iere considered equivalent.
Relying on its affirmative action policy to break the "tieff
between the two teachers, the Board discharged Taxrnan and
retained Williams in order .toensure the racial diversity of the
faculty in the business department. 1
In January 1992, the United States, acting through the Civil
Rights Division of the Justice Department, brought suit on behalf
of Taxman. The United States alleged that the Board's use of its
affirmative action policy in deciding that Taxman would be
dismissed and Williams retained amounted to racial discrimination
against Taxman in violation of Title VII. 2 The.United States
made two arguments: (i) workplace diversity, in and of itself, is
an impermissible predicate for race-based employment decisions;
. and (ii) the Board~s action unnecessarily tranuneled the interests
of Taxman because it resulted in her discharge on account of her
race.
Agreetng with the United States on both points, the
district court held in September 1993 that the Board's dismissal
of Taxman violated Title VII. In a fin~l jupqment entered in
February 1994, the court awarded Taxman backpay in the amount of
Sl23i240.S7, plus Slo,ooo in damages for emotional pain,
suffering,· and humiliation. __
On appeal, the United States reversed its position: it
filed an amicus brief that defends the School Board's actions.
Taxman, who intervened in the case at the district court, is
being represented on appeal by her own counsel.
I!.· Discussion
There are two steps in evaluating the legality of any racebased affirmative action plan under Title VII. First, the plan
must serve a permissible objective.
Second, the means to that
end must not unduly trammel the interests of those disfavored by
the plan. At. the "ends" stage of the inquiry, the Eiscatafway
case poses an important and unsettled ~uestion in the law of
1 Taxman was unemployed during the 1989-90 acad~~c year.
She was rehired at the high school the following year, laid off
again the next year, and then rehired one more· time .. At present,
Taxman is still teaching at the high school.
2 The
United States did not bring a constitutional challenge;
even though the Board's affirmative action·policy was subject to
the constitutional rules governing race-based employment
decisions in the public sector.
- '2
•
>0::::
<(
0::::
a:J
�04/1.2/95 .. 10:56
affirmative action: whether the promotion of racial di
the "Workplace is a permissible predicate for race-based
employment decisions. At the "means;· stage, the question
whether the use of race to determine priority in the discharge of
two otherwise.equally qualified individuals unduly trammels the
interests of the disfavored individual.
·
The resolution of the first question. __ whether workplace
diversity is a valid predicate for -affirmative ~ction -- has
enormous implications for employers in.the private and public
sector alike. Many corporations and governmental entities
(including_the federal government) have made workplace diversity
a staple of their employment practices, even in the absence of
evidence of past racial discrimination or a current racial
imbalance in the workforce that would justify race-based
v affirmative action under the standards of ·steelworkers v. Webeu;,
___ 443 U.S. 193 (1979), and Johnson y. Transportation Agency, 480
·u.s. 616 (1987). 3 Although Weber and Johnson do not necessarily
delineate the parameters of the permissible objectives of
affirmative action under Title VII, race-based employment
measures that are intended to foster workplace diversity
currently are in a legal limbo. The district court decision in
the Piscataway case is probably the most definitive 4 judicial
·
treatment of the workplace diversity issue to date.
3 There is an ever-growing volume of literature on workplace
diversity. A somewhat-dated but still useful. discussion of the
issue and its legal dimensions is found in-Rethinking Weber: The
Business Response to Affirmative Action, 102 Harv. L. Rev. 658
(1989) (student note) .
. 4 Perhaps the closest previous case on point·is.Talhe:rt v.
City of Richmond, 648 F.2d 925 ·{4th Cir. 1981), which involved a
,_ constitutional challenge to a race~based promotion of a black
officer in the Richmond, Virginia police department. The court
held that it was permissible to consider race in the promotion
decision in order to have bothwhite and black officers in the
department's upper ranks~" Id. at 931.. That holding may be of
limited precedential value today, because it was decided fairly
early-on in the development of affirmative action jurisprudence.
That is even more trtie of Detroit Pql.ice Officers Ass'n v. Young
608 F.2d 671 (6th Cir. 1979), which was decided two years before
Talbert y. Cit~ of Richm9nd. The Detroit case involved
constitutional and Title VII challenges to race-based employment
practices in the city's police department. The Sixth Circuit
appeared to give its imprimatur to measures designed to foster
11
workplace diversity, even in the absence of past
discr~ina~ion
the employer. The court said that "improved law enforcement
is. a sufficiently important reason in itself for affirmative
action~"~ at 696.
However, that was only one of the
justifications for· the police-department's practices: the
by
- 3 -
>-
0::
<(
0::
a:l
�04/12./95
. 10:.57
. ~~SID
<?
'6'
s
z
,_
?
u
We believe that the district court adopted an overly
interpretation of Title VII. . In our view, the promotion. of
workplace diversity should be considered a legitimate predicate
for race.;..based affirmative action under: Title VII. . While the ·
is~ue
is not free from doubt,
th~ arg~ment
in favor of workplace
diversity -- at least in the educ~tional setting -- stands a fair
chance of prevailing in the Piscataway case at the court of
appeals and at the Supreme Court (should the case proceed that
far).
·
·
We also. believe, however, that support for workplace
diversity in the Pisc~taway case should not be coupled with a
defense of the discharge of Sharon Taxman as a means of promoting
diversity. Several considerations inform our view on that score.
First, while there is no ·single case exactly on point, the
Supreme Court's affirmative action precedents strongly suggest .
that the Piscataway School Board's race-based dismissal of Sharon
Taxrnan will be held unlawful. The mos·t relevant case is Wygant
v. Jackson· Board of· Education, 476 U.S. 267 (1986), in which the
Court, by a 5-4 vote, invalidated a system of race-based layoffs
of teachers. The Court was badly fractured in wygant, and the
case produced no majority opinion. Furthermore, the race-;-based
teacher layoffs at issue in Wygant are arguably distinguishable
from the ·layoff of Sharon Taxman.
On the other hand, Wygant and
principal justification was to remedy the department's past
discrimination. ~'at 696-91.
A more recent decision that the district court in the
c~se said is relevant to the workplace diversity issue
is Cunico v. Pueblo School Diat;rict No. 60. 917 F.2d 43~ (lOth
Cir. 1990) • That case involved constitutional and Title VII
challenges to a race~based dismissal of a white employee that was
defended as a means of retaining the only black administrator in
the school district. ~at 437. In ruling against the school
district, the Tenth Circuit stated thae under Weber and Johnson,
the asserted interest in _assuring that at least one administrator
would be black could be justified only as a 11 measure to remedy
past discrimination" or to correct a statistical imbalance . . .
that would give rise to an inference of discrimination." I£:L.
The court held that there was insufficient evidence of past·
discrimination, as well as insufficient evidence of a staeistical
imbalance; The school district did not specifically defend its
actions on the need to promote diversity. Indeed, it appears
that the purpose of .the affinnative action plan pursuant to which
the school district made its layoff decision was eo correct
staeistical imbalances that the Tenth Circuit said did not exist.
se~ ~at 437 n.3 (plan was designed to "[a]chieve a balance in
areas of deficiency of . . . minority employees according to
Labor Market Availability") (emphasis added).
Piscata~ay
- 4 -
>a::
<(
a::
-
.o:J
. _J
�04/1~/95
. 10:57
other Supreme Court de cis ions both before and after --~"""'"
clear sign.al that rac:e-based layof.fs are a suspect m~ans
achieving the ends of an affirmative action program.
. Second, it is not necessary to defend race-based layoffs in
order to defend race-based·· employment measures that seek 'to
promote 'iolorkplace diversity. For the most part, efforts to
foster \V'Orkplace diversity are confined to hiring and promotion
decisions. We are unaware of any wide-spread use by public or
private employers of racial criteria in determining priority in
layoffs. Thus, it is unclear to us exactly ~hat stands to be
g~ined ~n the Piscata~Jay. case in terms of equal opportunity for
m1norit1es through a defense by the federal government of a racebased layoff. To be sure, race-based layoffs may·serve important
objectives in some cases. For example, if an employer took
·
affirmative action in hiring in order to remedy blatant
discrimination that had led to the total exclusion of minorities
from certain job categories, race-based layoffs could be
justified as necessary to pr~serve the gains mad~ by minorities
through the employer! s race-based hiring initiative. 5 Ho'W'ever, ·
that does not describe the situation in the Piscatavay case, as
the School Board apparently had an exemplary. record of hiring and
retaining minority teachers.
·
Third, coming as it would in a case in which-the federal.
government had previously defended Taxman·s interests, a switch
of sides to defend her dismissal ~auld spark a backlash that
undermines the cause of affirmative action in the court of public
opinion. Affirmative action is a profoundly sensitive topic, in
large measure because critics tend to brand all race-based action
as ''quotas.H The affirmative action policy at issue in the
.
Piscataway case did not entail the use of quotas: a fixed number
of po~itions wer• not reserved for blacks~ but rather, race was
merely one of many factors that the School Board considered in
making employment decisions, including the decision to dismiss
Sharon Taxrnan. It cannot be denied, however, that race was the
disf>ositive factor in the dismissal of Taxman •. The usual barbs
against affirmative action will thus'take on greater force, and
tend to strike a responsive chord in the nation, precisely
because a white person lost her job on account of her race in
order to make room for a black person, and the federal government
is now lending its support to that result.
SAs part of remedial decrees in school desegregation cases,
lower courts have ordered school districts to give priority to
newly-hired black teachers in maki~g facu1ty layoff decisions.
Faculty Hiring and Layoff Remedies in School
Desegregation ~ases, 104 Harv. L. Rev. 1917 (1991) (student
£gg Race~Based
note) .
• 5 •
>0::::
<(
0::::
CCI
...J
�04/1~/95
1410 0 7
. 10:58
~s\OENr,~.
«~
·
l_'S'(
l
-z.\.
~ ~· (7-
:v
In light of these considerations, t..~e recommend . . . against tli
course eventually chosen by the Justice Oepartm~nt,
ich filed
an amicu~ brief on appeal i~ the Piscatawa~ case defen ·
t
.School Board's dec is ion to dismiss Taxman.
Instead, w·e
advocated the filing of an amicys brief in which·the United
States would take a firm stance in favor of workplace diversity
·as a permissible predicate for affirmative action, and vould
criticize the district court for adopting a cramped construction
of Title VII and the Johnson and Weber decisions. Under our
approach, the United States· brief would not have addressed
whether the particular application of the workplace diversity
plan in question -- the discharge of the white teacher -- was
lawful. · ·
What follows in this memorandum is a more detailed analysis
of the issues of workplace. diversity and race-based layoffs.
A.
Workplace
DiverSi~
and
In Weber
Johnson, the Supreme Court madeclear that an
mployer may adopt race-based employment preferences in order to
urther .the objectives of ( i) remedying the employer• s past .
acial discrimination, or (ii) eliminating a manifest racial
mbalance in a traditionally segregated job category. In neither·
~ nor JQbnson did the Court explicitly foreclose the
possibility that workplace diversity could be a permissible
predicate for affirmative action under Title VII, eveh in the
absence of past discrimination or a manifest racial imbalance.
1.
At issue in we~er was a private sector affirmative action
plan -- the result of a collective bargaining agreement between
the employer and the union -- that reserved for black employees
50\ of the openings in an in-plant craft-training program until
the percentage of black craftworkers in the plan was commensurate
with the percentage of blacks in the local labor force. The plan
was designed to correct the long-standing exclusion of blacks
from craft unions. 443 U.S. at 198. The Court took Hjudicial
noticeq that numerous lower court decisions had fouhd this
exclusion to be discriminatory. 1£L.. at 198 n.l.
In a S-2
decision written by Justice Brennan (two Justices took no part in
the consideration or decision of the case), the Court held that ·
Title VII allowed employers to take race-based affirmative act·ion
measures to •break down old patterns of racial segregation and
hierarchy.• ~at 208. The Court said that it while it was not
necessary. to •define in detail. the line of demarcation between
permissible and impermissible.affirmative aetion plans," the
6we have not considered any ethical issues that may be
raised by the United States• decision to reverse its position on
appeal in. a case in which it represented the real party in
interest in the lower court proceedings.
;;, 6
-
>-
a..
0
(.)
0
t-
o
::J:
a..
>-
0::::
<(
0::::
llJ
....I
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTn'ITLE
DATE
n.d.
Wm k 'feams [partial] (I page)
RESTRICTION
P6/b(6)
OJIQJ/!995
P61b(~
~~etttte~,--------~BreeUth1lN~uo~lamn~t~o~D~o*r~ot~A~y~H~aMr~seclhHb~a~rg~e*r~(~l~p~a~g~e)~------------------~~~~L__j~~
003. memo
Jeff Connaughton to Judge Mikva, re: Race-Conscious Remedies (I
page)
12/19/1994
P5
lr::t-3
COLLECTION:
Clinton Presidential Records
Counsel's Office
Jeff Connaughton
ONBox Number: 7442
FOLDER TITLE:
Affirmative Action [I]
2008-0308-F
wr437
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)]
Freedom of Information Act- IS U.S.C. 552(b)J
PI
P2
P3
P4
b(l) National security classified information ](b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIA]
b(3) Release would violate a Federal statute J(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information ](b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes ](b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions ](b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIA]
National Security Classified Information ](a)( I) of the PRA]
Relating to the appointment to Federal office ](a)(2) of the PRA]
Release would violate a Federal statute ](a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information ](a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ](a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�>-
0...
0
(.)
December 19, 1994
0
',> .
.. )
MEMORANDUM TO JUDGE MIKVA
\
'
CC:
JOEL KLEIN
FROM:
JEFF CONNAUGHTON
SUBJECT:
Race-Conscious Remedies
It's very difficult to develop general principles applicable
to the gamut of race-conscious remedies. This is a very contextspecific area of the law with a ·complex history, including
executive orders~ federal legislation, federal court orders, the
policies of states and local entities, the programs of other
public or noh-profit entities, and private programs -- in the
form of affirmative action in employment, minority set-asides,
racial preference in admission and scholarships, .and voting
rights.
Certain of the non-federal programs are mandated by
federal law, su6h as Title VII; certain of the public-entity and
private programs are mandated by state law; other public-entity
and private programs are voluntary.
When assessing this complex area in an effort to define .
future Administration policy, these initiatives might be divided
into three areas:
(1) federal programs subject to executive
branch control; (2) federal and non-federal programs mandated by
federal statute; and (3) purely non-federal programs (not subject
to executive branch influence), but the constitutionality of
which the United states has either supported or opposed when
challenged in the federal courts. Principles the executive
branch should adhere to in this area (in its own programs and
policies), might not equate to the principles it should defend in
a constitutional forum.
In other words, the effort to devine
· general principles in this area is further domplicated bY the
fact that the President's .views of the Constitution may require
the United States to defend the constitutionality of raceconscious remedies non-federal entities employ, even though the
executive branch itself might not view that particular policy as
one it seeks to proliferate.
·
Given this complexity, any rethinking by the Administration
in this area, I believe, can only take place on the margin of its
past policies after these policies have been assiduously.catalogued and assessed. Accordingly, I recommend that you
divide your civil rights working group into thirds:
one-third to
review federal programs subject to executive~branch control; onethird to review the federal and non~federal programs mandated by·
federal statute; and one-third to review the United States'
·
history in defending the constitutibnality of purely non~federal
programs. You might ask each sub-group to provide you with a
history of the United States' positions on race~conscious
remedies, a summary of current legal and policy issues, and
recommendations on future Administration policy.
10
:I:
0...
>-
c:::
<(
c:::
ca
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2008-0308-F - Affirmative Action [Part 2]
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/00833699e5c1df7567e3501754ee195a.pdf
baa75161876e8c37c118b7f2d7d6ac5d
PDF Text
Text
I
'
"'
I
:
'
I
I
I
'
'
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. notes
SUBJECTffiTLE
DATE
Meeting notes, re: Affirmative Action (3 pages)
RESTRICTION
P5
6/5/1995
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
ONBox Number: 9162
FOLDER TITLE:
Affirmative Action - 1995 -General [Folder I] [I]
2008-0308-F
wr864
RESTRICTION CODES
!'residential Records Act· 144 U.S.C. 2204(a}]
Freedom of Information Act· )5 U.S.C. 552(b)l
National Security Classified Information ](a)(l) of the PRAI
Relating to the appointment to Federal office f(a)(2) of the PRAI
Release would violate a Federal statute ](a)(J) of the I' RAJ
Release would disclose trade secrets or confidential commercial or
financial information )(a)(4) of the PRAl
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors fa)(5) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRAJ
b(l) National security classified information )(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIA)
b(J) Release would violate a Federal statute )(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information )(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy )(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions )(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) or the FOIAI
PI
1'2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
I
', 1
I
I
: I
I
I I
i
'
I
�. Po/,~
. (}w_ (f
-7
~~
.. . .. .
••
,1
--~-~ -~
o c1
/,
/fdM--a~
-- . . . .
.
.
~ ,L ~ cf-10 ~ ~' H~ ilve
.c/.Mrr. .
. .. . .
·.· .· · ·.
-~~~ ~~)
~~---~~L~'
·u:-: ··· · o ~--
fu aog ac...~-.
:;1/r::::z:· ~ ~ ~~ /J
·--~~~··········
·_ _ ·.
~~-ra~
···.· . .
II/ ·-
fi/If
s
,
�.
. . ..
- ....................... ------· ........ ··-·--- ... ·-------;-·-- ............ _·-·---·-···-
Gvn 1{_
....... ·-··---
---~:
......... -
.. '-
.
..
-
-··.-
-·
·-.
.
·-··
..
..
.
.
.
.
-
Ct1~~ m~ / w / '6tl,Gt.A ~--~ ~c'-~, ..
. . .. Jv J)Lf: ~· dwCM4~.MYI . ~- .. .. J-~ . ~f .
b~~~~ ~~n~~·
··· . .
~-~-~_-w;_ ~a_J__ flld~~~1
fr}-tc_h~
..
- _J.
-
-
OA [
-
..
-~~- ~
_____ -
.
--
·-- . -- -- -
-
~
'
.--
... -- ··-.
-
... ~ . .
..Jv. 6~
·- -·
----- ..
-
-----:-
-
_,- .
. - --
-
--
-
.
-
--
-
0L~C~ __ f,~----~~ ~-
--
Gu
~
_tt-l-. _()1vt_ -~- ~~M _
_
.
•.... - M.cJ~~. '!£<.. tf'.·-~·.f: ~
.
-
-
··---
...
•
----
•
.
t,.
IL
(~
•
-·
_. . . . .
�...
~-
-·-·-·-·····"''.-
~----·~-------~--
--. ------··--
-· ·"··----·· " ' -
··-·-·--·---~--------------..
-----.' --------
'-~----
'--·-···-·. -·
.-~-· ·-=~~-~:~~=-~~=:
.
.
._ ::£:f!::_i:~l?;!f_~~=M!~M_~~~=~-:-~::~:~.:__~l----L~-;- ~L: le -~--- . ___ _
.,. ..
----~-- ........ _...
__.. __ ---~------------···---·-----~- ---.. ----~
. ----·····-------· .. --·--------------·~ ·---·--·---· ... -~ . -~"··---~ . -- ·--·. -~-- ···-·
_______ [)_\)_5_ ___~---~--{b___~__:__
. ···---·--·--· ---
-·
·--~""--
-.
-
"----·
'
. .
...
''
········-···-·········· ······-----·-······--·--
. ... -··
... -----·-- ....
'
····--··--· ·-----------•"'"·-
15J P-CVL _·LM -~__=-:-_ ------ -.- -·- ----- -·--- -.- -- --- --- -- -
~ r~'I -- ---- - ---- . _3 --~--~-1- --r4-~-------·--··
·- . .
-~
·2
(7 .z
..... ----·
.
··--· ---····
sJ~L4:2
.·
Sh~ ..
...
....
----··-·-·:
tJ£
.
IJ~~rdL'-~--~-h~=-3!/!bl ~c-
·-· .
_ _ ___
L
.-
.
.
_vj
· ···· · · · ·
. .
····· .
- -· ~ -~~~-~--~--P~--~-8~-t!~ ~ _.
f{()Lv(
- -- :- ---
.
.... _ _ . . . _ _
___
........ ~-h~~~4~.
;_(j2-tub-ll-~-- _ cJ!uo__/!ALf-a~ . __
_ .. - . . . . . . o:.. ___l?o J(MS ____ C~-----L-~.IZ___ ~- tr. -~- __
.... -
· ·---a
. .. ·
·.
.
.......
-
_.. . _
~±--1J -~----
---~--
____
__
_____ _ ..
·--------·
_ . _ ___ _
-e~: ()_~JLuQ __ ~-6~-0-~- _ k~ F(::, R
--i;~~~CMJb~~ l0._fno~ "? )
.·
........
�!I
I
I
I
I
1'1
I
!
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTrfiTLE
4/23/1996
Jack Quinn to President Clinton, re: DOJ Brief in Hopwood
Affirmative Action Case (2 pages)
001. memo
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
OA/Box Number: 9162
FOLDER TITLE:
Affirmative Action - 1995 - General [Folder I] [3]
2008-0308-F
wr865
RESTRICTION CODES
Presidential Records Act- ]44 U.S.C. 2204(a)]
Freedom of Information Act- ]5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information !(b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIAI
b(3) Release would violate a Federal statute ](b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information ](b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes ](b)(7) of ihe FOJA]
b(S) Release would disclose information concerning the regulation of
financial institutions ](b)(S) of the FOIAI
b(9) Release would. disclose geological or geophysical information
concerning wells ](b)(9) of the FOIAI
National Security Classified Information ](a)( I) of the PRA]
Relating to the appointment to Federal office ](a)(2) of the PRA]
Release would violate a Federal statute ](a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information ](a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ]a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ](a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile define·d in accordance with 44 U$.C.
2201(3).
RR. Document will be reviewed upon request.
II
I
I
I
I
1.1
:
I
I
�THE WHITE HOUSE
.
WASHINGTON
April 23, 1996
MEMORANDUM FOR THE PRESIDENT
FROM:
~
JACK QUINN
lS(
COUNSEL TO THE PRESIDENT
'
)
KATHYWAL~
DEPUTY COUNSEL TO THE PRESIDENT
CC:
LEON PANETTA
GEORGE STEPHANOPOULOS
ALEXIS HERMAN
RONKLAIN
SUBJECT:
DEPARTMENT OF JUSTICE BRIEF IN HOPWOOD
AFFIRMATIVE ACTION CASE
As you know, on March 18, the Fifth Circuit struck down the affirmative action
admissions plan of the University of Texas Law School in a case called Hopwood v. Texas.
· The program was predicated, in part, on the law school's asserted interest in promoting the
racial diversity of its student body. As a means of achieving that objective, the law school
employed a two-track admissions $YStem: one standard for Blacks and Hispanics, and
another for Whites. The Fifth Circuit did not address the constitutionality of the dual track
system. Rather, in a sweeping ruling, .the court held that promoting diversity can never be a
permissible objective of affirmative action in higher education, no matter how a university
implements that objective. In reaching that conclusion, the Fifth Circuit declared that the
Supreme Court's 1978 decision in the Bakke case-- which upheld the consideration of race
as a factor in higher education admissions to promote campus diversity -- was no longer the
law of the land, in the wake of more recent Supreme Court decisions.
The State of Texas has announced that it will petition the Supreme Court for a writ of
certiorari. To date, the United States has not been a party to this case. The Department of
Justice considered filing an amicus brief in the Fifth Circuit, but decided not to do so in
large part because of reservations about the lawfulness of the two-track admissions program.
However,· given that the Fifth Circuit's decision struck_ so broadly at the very use of diversity
as a factor-in admissions decisions, the Department now anticipates fllinga brief in support·
of Texas' certiorari petition.
�· d'C,SIUEN~
qv
.
..
~
6
,_
:z
2
'
.
':)
'
.
0
The position that the Department of Justice anticipates taking seems to u consistent
_to-~
with your views on affirmative action, and it is consistent with what you have so
accomplish in the post-Adarand review of federal affirmative actionprograms. The brief
would not support the two-track prognim itself, which, like the outright federal set-aside
programs based solely on race that have been regarded as vulnerable after Adarand,
essentially established a separate "minorities-only" admission pool. It would strongly defend,·
however, the principle that the law allows diversity to be taken into account, which is a
critical underpinning of the Administration's post-Adarand review .
.RECOMMENDATION
We recommend that you authorize the Department of Justice to ftle a brief in support
of Texas' petition for certiorari, and on the merits if certiorari is granted.
·
AGREE
DISAGREE
DISCUSS
'(
�::
I
I
I
I
II
:
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
RESTRICTION
DATE
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
001. memo
SUBJECTrrJTLE
-5/27/1995
P5
96,1:;! Ul99q
P6fat6}
Action - Speech, Review and Policy Decisions ( 12 pages)
Phone No. tPat"tial~
~002:-fax----
El
13age~
3
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
ONBox Number: 9162
FOLDER TITLE:
Affirmative Action - 1995 General [Folder 2] [I]
2008-0308-F
wr449
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom oflnformation Act- 15 lJ.S.C. 552(b)l
National Security Classified Information l(a)(l) of the PRA I
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or·confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice betWeen the President
and his advisors, or between such advisors la)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 lJ.S.C.
2201(3).
RR. Document will be reviewed upon request.
!1
I
I
I
I
II
I
I
I
I
�>a.;
.·o
(.)
. THE WHITE HOUSE
WA 5 H I N U I. UN
95 JUN 28 . P 7 : I I
June 27, 199.5
· MEMORAND~R THE PRESIDENT
From: George
.
Re:
\\80:Sko
4·4-v
opoulos and Christopher EdQ;, Jr.
.
Affirmative Action
Speech, Review and Poticy Decisions
This memorandum reviews the four. pieces of the Aftinnative Action rollout:
•
•
•
a major speech on July 19th-- we seek your decision on
release of the Review;
venu~;
a presidential Directive to agency heads creating a process coordinated by the Attorney
General to ensure compliance with Adarand -- we seek your decision on whether and
when to issue the Directive; and
• two key policy choices for immediate decision and, if you chose, announcement with Lhe ·
· speech: setasides and the Piscataway issue of using race/gender as a factor in layoffs.
1. The Speech: Content aod Venue
Content. Don Baer and Carolyn Curiel, with assistance from others, are conducting the broad
outre..ach you reques£cd. As we discussed, the speech will be a broadly thematic <;liscussion of
discrimination, exclusion, equal opportunity, and healing. It will include a strong defense of
affirmative action when done the right way, and offer policy principles \Vhich will be made
concrete with a few pointed programmatic examples of the good, th~;: uncertain and. the
problematic.
Among the possible progratil
cxamph.:~ an~:
nu! good: Programs you confidently support include: U1e military; your judicial
appointments; your Cabinet appointments; the OfCCP program of aft1rmative action in . .
employment
Jhe uncertain: Programs you suppon but ror which you want the Attorney General's
confirmation of compliance with Adarand include: lhe several grant programs operated by
·the Departments of Education and HHS; NSF grant programs. The. most common rationale
for these gram programs is dramatic underrepresentation of historically excluded groups, plus
�~------------~--------~--------------------------------
some ,context-specific public interest in mclusion (for example,
resource base tor fesearch. scientists).
U1e problematic: Programs you believe need revfsions include: contracting ser.asides; and
USDA setaside-like auctions of foreclosed farms. Although post-AdaraJld empirical ~tutlies
might establish that these are constitutionally defensible, as a policy malter they in some
instances i:IH~ unfair.
For purposes of the si>eech and any supporting press materials, we can supplement these witll.
state, local a.nd private sector exampJes drawn from litigation and press accounts. '1Ve do not
recommend a detailed rollout of how Federal programs sort into these three categories because
. most if not all of those judgments should now be deferred until the post-Adarand assignment is
complete, as indicated in the discussion below of the Directive.
Venue. Listed below are venue options for your speech. As with any major addres1:i, your
speech is what matters here. The venue's history and symbolism will provide secondary color.
In this case specifically, the anticipation and coverage of the speech wiJI be significant, and the
location will create context and generate helpful side-bar stories.
•
· Liule H.ock Central Higlt School, Little Rock, Arkansas
Recommended option, This site would allow your speech and the issues surrounding affirmative
actk)n to be framed within the larger context of the civil rights movement and the struggle for
equal justice and opportunity. The media would use the school's hismry when coYering Lhe
speech. When combined with your own experiences and battles against racism, this would make
a powerful statement framing your remarks. Networks would perhaps contrast footage of you
with scenes of Gt)v, Faubus. You might choose to mention contemporary problems at Central
High to underscore the critical importance of the larger opportunity agenda, specifically quality
education.
•
Conslilution Hall,
Washington,
D. C.
Alternative option. This site allows you to draw on the building's history in the fight against
di$crimination (Marian Anderson) as well as the footsteps-away history of events around the
J\1all and commemorated there. The Hall seats over J,5UO people-- a crowd we would build- ·
· - which would inevitably create a serious; Presidential, high-energy environment. The crowd
could be built themalically, for example: a multiracial assemblage Of Church congregation::;;
young people.
Atlanw,
(jeorgta--SJtt~
llJV
By going to "The City Too Busy To Hate," a city essentially buill on affirmative action; you
could both draw on the history of Dr. King and early civil rights efforts while using the. city as
an example of the issue in contemporary times.
We would locate a venue of historical
2
�Already-Scheduled Events ·.
•
There is a surprisingly smaU selection of events scheduled on or around
J~ly
19, none of which
seem very promising:
PreslJ_Yterian Church USA, General Assembly, July ·15-22, Cincinnati,
delegates. (No surrogate plans as yet.)
Over
3~000
Natiorull Council ofLaRaza, July 16-19, Dallas. (Current plan: possibly the First Lady
or Leon Panetta.) Would be complicated by immigration concerns.
t.'"hamber of (.,()mmerce, July 19, Oakland. Over 1,000 delegates ..
(Current plan: Rodney Slater.) Aggressive counter-.sc.heduling; not recomme.nded.
African~ American.
-
~usines.'i
and Professional Women, Convention, July 15-18, Tulsa. Expecting 1,500
participants. (No surrogate plans .as yet.) Would aggressively position the issue as
broader than a minority concern; relative emphasis on race would be. criticized. .
Decision·
_ _ Lillie Rock. Central High School
_ _ Constitution Hall, Washington D.C.:
_
Audience of church congregations
Other
Atlanta, (siteTRD)
Convention
of Presbywrians
of La Raza
of black chamber of commerce
of Busin~ss and Professional Women
II. Adan:md TJirec.tive to Agency lieads; the Commission ·
lJirective. The detailed empirical analysis and consideration of program revisions now required
as a consequence of Adarand must be coordinated by the Department ot'J ustice as regards the
tt~gal determination of whether a program is constitutionally defensible. The parameters for that
analysis are detailed in formal guidance to agency general counsels issued Loday by Waller
Dellinger, Office of Legal Counsel; you received a draft on Monday evening. You must decide
3
�The process must also include. some conlinuing White House participation to superintend
interagency policy judgments ahout reforms that might be desirable to make certain programs
more defensible or more consistent with your own non-constitutional p<Jlicy views. The legal
and policy choices are all but impossible to disentangle, and will in any case be attributed to the
White House. &cause there will be steady stream of such decisions, quiet White House
participation 'in the interagency effort will be led by Judge Mikva and George Stephanopoulos.
(The directive does not mention the White. House role, lest we recreate pressure for \Vh.ite. House
documents and visible White House decisionmaking.) ·
What is the relationship of the Review to the Directive"? We
sugges~:
"The Review provided the President with basic factual information ·concerning
· various Federal programs and the background conditions of discrimination and
.7
exclusion. Early drafts provided
reliminary application of his policy princ1 e
• ~to various programs. In light of Aclarand, however, these pre tmmary policy
j ud. gmenls and the evidence under! ying them are now subject to strict scrutiny by
the courts, and must be reviewed by the Justice Department to ensure compliance
with Adararzd."
·
· .
There are .three options for rile Directive: _
OPTION
1: lSSUE NO DIRECTIVHj KBST ON INFORMAL' GUIDANCE BY· THE CHIEF OF STAFF
Pro: By nor issuing a presidential document we avoid making White House news; and leave this
as a DOJ story about legal matters. Although we have a resp<Jnse to a question about the
relarionsiJip to the Review, that response is best delivered at the time of the speech.
con:
Leadership; the speech is relatively rar off. Meanwhile, the text of the directive
simultaneously assures skeptics that there is high level concern about good faith compliance with
Adarand, and assures.the base. that your overall framework is true to your principled support for
affirmatively expt:mtling opporlunily:
·
OPTION 2: lSSUB THE DIRECTIVE NOW
Pr!): . Issuing a Directive demonstrates leadership; reassures Congress that they need not act
predpitously because rhe Executive branch is fully engage-d. Although House GOP leaders are
reportedly putting aft1rmatlve action on a slow track, Senator Dole and Rep. Canady are
shopping broad anti-aftlrmative aclion measures.
Con: Will lead to some news stories, though probably minor. Will lrigger a question about the.
4
�OPTION 3: DEFER OECISIONj PERHAPS ISSUlNU VlKECTlV.b AT THE TIME OF THE SPEECH
. Pro: There is little practical or political urgency, because agencies will begin their Aduraru/
assignments, and formal presidential endorsement of the DOJ-led process is unlikely to make
a meaningful difference in this summer's legislative process.
DOJ believes that there will, eventually, be some sticking points in the interagency
process, and that those will be minimized if there is a formal directive. Issuing a directive at
the time of the speech creates an unnecessary distraction from a communications perspective.
Moreover, since the Attorney General's process will be well undern•ay, the directive will seem
a fairly empty gesture rather than a time!yexercise of leadership.
Con:
Decision:
Option 1: Issue no Directive; rest on informal guidance by the Chier of Starf
_ _ Option 2: Issue the Directive now
___ Option 3: Oefer decision; perhaps issuing directive at the time of the speech
·
Commissiott. Congressional interest in a bipartisan commission has waned. Your advisers and
the agencies· all believe that a fact-finding commission on compliance with Atlarand would not
be helpful-- either as a practical matter of getting the empirical and legal work done, or as a
matter of winning great.er deference from PederaJ. district court judges. Nor does it appear likely
to create credibility that would cause swing Members of Congress to oppose anti-aft1rmative
action amendments. Finally, civil rights advocates speak in terms of "presidential leadership,"
and oppose making affirmative action policy a "jump ball" in some unpredictable commission,
wilh potentially djre consequences.
Your advisers therefore see little to gain and much to lose from going forward with a
·Commission concerning Adanuul and specific Federal programs. Moreover, a commission with
the alternative charter of framing a national conversation on opportunity seems a far less
attractive strategy in the present environment than it might have been belbre Adararu.i and the·~
more f<.x:used legislative risks now looming.
II I_ The Review
t\t a minimum, the
Review will include a de~criptipn of your policy framework, an analysis of
�-
the Adarand case, a review of evidence documenting the continuing problem of · crimination
and exclu:;ion~ and a description or the range of Federal programs and how they
rate. The
draft of the Review pre-pared _prior to Adarand also included a balanced presentation
ood and
bad information collected on program performance, our "findings of fact" based
information~ and some policy conclusions and recommendations. In light of Ad.arand, however,
and the certainty of both litigation and eventual legislative action, the Department of Justice and
several agency general counsels have raised very serious objections to releasing these factual and.
policy matters. (Two suits have been filedalready.) Jud&e Mik"Va is among those urgfng that
even if an abbreviated document is released, it should come some days after the speech in order
to maximi~e attention to the speech and minimize attention to the document. We are discussing
these diftlculties, and will nave a recommendation for you next week.
IV. Decision on Procurement Setasides
1Jaseline -- Refonn ()/ Abuses: The Review has identified a number of areas of abuse or
.
.
perceived abuse. As in aU the other areas we examined, these abuses are far less common in
. reality than is generally assumed by critics. Nevertheless, addressing these is necessary as a
matter or fairness and political circumstance; the reforms will also have a marginally helpful
impact on the Attorney General's constitutional analysis. Some details of needed regulatory and
statutory changes remain to be det1ned after the general parameters, noted below, are announced.
(lt would be impossible to develop sound details while maintaining confidentiality.) The five
key elements and summary prescriptions are:
l.. Tighten the Economic Disadvantage Test. Reform the asset test to count the value of
Lhe pe-rsonal residence and to consider lhe spouse's assets (now excluded) in a manner
analogous to treatment of a 49 percent owner of the enterprise.
2. Tighten Requirements for Graduation. Apply 8(a)'s 9 year graduation limit to aH SDB
programs, but then direet the NEC and SBA to establish objective industry-specific criteria
for determining when any individualfirm "develops" beyond need for sheltered competition.
Direct the NEG and SBA to estabHsh caps on the dollar value of contracts, plus a cap on
total dollars a single firm can win through sheltered competition. These measures wiJI also
reduce the concentration of 8(a) awards among a few successful firms.
3. Stringent Safeguards Against Fronts and Pass-Tbrougbs. Create a uniform,
privatized certification process for all SUBs. Require certification audits at the time of the
first contract and periodical)y thereafter to verify continuing eligibility and to monitor for . .
"fronts" and "pass-through'' companies. Increase civil and criminal penalties.
4. Sunsets and Caps t.o Reduce Keg£onai/Industry Concentrations. Direct the NEC to
formulate industry and regional 'caps/controJs Lo prevent significant adverse burden on non~
SDBs. Direct the NEC to determine industries/areas where sheltered competition programs
may l.le phased out base-d upon successful inclusion.
�~~€-SID€'1\1~
~
E
z
~
.
.<'2...
"1('
/
to
Key agency offkials agree that, unless you announce opposition tu lhe current
·ides, we musr/
. announce this minimum package, making clear that the details wHI require care· 1 c.onsultation'r
The package would be described not only in terms of combatting abuses, but
ens · g
conformity with your policy test of fairness .
. Fwtller Steps -- Options for Broadening Eligibility: ln light of your policy tests, and because
. of the shadow cast by Ad.aran4, we otTer these ·additional options to make minority status less
of a detining and exclusive condition of eligibility for procurement preferences. The ctitlcal
choice is whether you want to move to race/gender-neutral targeting, and w11ether you want to
do so in your speech, in advance of the post-Adarand study process. The options are:
(1) announce only the baseline anti-abuse reforms deScribed above, leaving further reforms
· until after the nqJ-led review of Adarand con1pliance;
·
(2} eliminate ·current SDB programs as being excessively rigid and exclusionary (although
in DOJ's view defensible). Instruct agencies to develop a new program, consistent with
Adarand, meeting broader objectives of antidiscrimination, entrepreneurial opportuniry. and
economic development;
specifics about
mechanism to be developed as a replacement program; and
(3) the same as option 2, but with fewer
t11e objectives and the
type of
(4) elimination of all race/gender preferences, with empowerment contracting only.
OPTION 1: ANNOUNCE ONLY THE "BASELINE" ANTI-ABUSE MEAS.URES DBSCRlBEiD ABOVe
}~r.g;
It would be prudent to complete the detililed empirical and program assessments required
by the Supreme Court before rushing to judgment abou(broad program changes. If we msh,
Congress will fe.el emboldened to rush. None of the broader policy options below could at this
stage be accurately described as constitutionally compelled; they would be naked, controversial
policy judgments. 'The Congressional Black Caucus, civi1 rights groups, MBE representatives
and Assistant· Attorney General Deval Patrick all believe you should defer: specific policy.
judgments of this radical sort until after the Attorney General's process. The abuses identified
are the seeds of much opposition to setasides, and constitute a meaningful reform· step.
Con: The media and many others will not consider this option alone meaningful. The story will
be ·• President Endorses Setasides, Offers Reforms." Especially atler so long a Review, the ...
public expects at least some signit1cant policy judgment from the President ~- in both the
affirmative and negative --as a measure of leadership as well as commitment to concrete fairness
principles. Deferring all policy choices means completely collapsing the policy judgment into
the constitutional analysis, and that amounts to ceding policy authority to Justice O'Connor.
Because of the empirical work required by Adaraiul, and because ()f your slrong basic suppon.
for the education programs, procurement setasides are the one opportunity available now for a
7
>~
(..)
�>0..
0
0
deaf policy chukc, up or down.
OPTION 2: Rf:JECT CURRENT PREFERENcES; OiARGB AGENCIES 10 DEVELOP A ........,.....-..
HROAIER H.L""'.IB1lliY1 TARU!:!Ili'U So:lAu.Y OR ~.A.ll..Y D&.DVANTAGED~-,_~:;_
& DISTRESSEU AKEAS
..
You would announce that the current programs, though constitutionally defensible and addressed
to an important problem of unequal entrepreneurial opportunity, operate in a manner that is too
rigid and, at times, racially exclusionary. The current minority-targeted preferences would be
eliminated. You would direct the agencie& to develop, through the NEC, a proposal consistent
with Adarand for a new, single program with broader eligibility, focused on three obje.cti.ves:
. (1) expand equal entrepreneurial opportunity by combalting discrimination and its effects where
evidence (as required by"Adarand) indicates the need; (2) support emerging eruerprises tltrough
race/gender-neutral targeting of small firms new to federal contracting; and (3) use small
business· "empowennem comracclng" to targetjob creation in severely distressed communities.
Pro: This incorpormes the three key policy priorities you have expressed to us. SJ)eC~ficity of
tlle objectives underscores the commitment to a follow on program, so that your critique of
current programs does not signal abandonment of MBEs and WBEs. DOJ believes the resulting
program design would be substantiaJty more defensible than current programs, including that in
Adararut . . A more concrete proposal js impossible in advance of the DOJ post-Adarand analysis.
Promising prospective conformity with Adara1ui wilt comfort moderates; hard opponents are
unreachable anyway. Adding women to preferences is a major enhancement.
<:;pn: Even at this level ofgenerality, proposing greater eligibility for preferences (women, ·
deserving white males) creates a risk being tagged as "hjding" minority preferences behind a raft
of new preferences for other groups -- being an things to all people, instea9 of making a tough .
choice. Even the three objectives will be criticized for using race as a factor -- though in a far
less exclusive way.
Retaining the flexible MBE and WBE goals seems essential as a
management and accountability tool, but the loose mischaracteri:r.ation of the scheme will be that
it perpetuates the old programs and sirnpl y adds new preferences on top .
. OPTION
3: REJECT CURRENT .PREFERENc.':F.j (..tiAROE AGEI'JCJe,) TO DEVELOP A NEW PROGRAM WITH'
liROADER ELIGIDILITY; LEAVE OBJECTIVES AND DESIGN MORE GENERAL
As in option 2, you would critic.ize the current programs and direct agencies to develop a
rep1acement. But the replacement would be· de:>cribcd in a more open-ended way to avoid
focused legal and policy objectiong at this stage. You would simply commit to: opening up-opportunities ro entrepreneurs/Up more broadly, consiste!U with Adarand, addressing nm only
. disadvantage.ri crf~au~d by discrimination, iJur. also the nc.ed to increase en.Lreprnuwrship and job
ct<'ulion in economically distressed areas. ·
Pro: This option stops short of a concrete proposal in onlt!r to avoid criticism for adding new
preferences on top of the current ones, and to avoid proposing something that will imrnediately
�~?--e_SIDc:-1\1~
E~
~.
'5
>-
~
a..
0
(.)
tD
trigger (tmjust.ified) criticism that we are flouting Adarand. However, yo dharge lo lhe N
and agencies would incorporate the three key policy preferences you have a ·cuiated: contin g
to address discriinination, explicitly tied to Ad.arand 's requirement of a · ctual pred' te;
broadening preferences on .some race-t\eutral . basis; and explicit. attention
anomie
development goals. A derailed proposal should await a full Adararul study of contracting issues.
Meanwhile, you will have endorsed a continuing Federal commitment to l'ederal-Jevel effort in
this arena.
!:&Jl: With· only a vague commitment about some future replacement, this option will be.
perceived by setaside supporters as an abandonment of minority and women entrepreneurship.
More generally, the. vagueness of the planned replacement will be criticized as a "dodge," and
the asserted nee-d to do careful policy study (as opposed to legal study) will raise questions about
what the Review accorr~plished duting its 100 dayS. By announcing dissatisfaction with the
current progmms but ''punting" on the replacement, we invite imme<hate Congressional action
to kill them, and greatly complicate the defense of them in court. If the intention is to kill them,
we should go directly to option 4 below.
OPTION .4: GEOORAPHICAL TARGETING ONLY- ELIMINATE RACIAL AN1J GBNDtiR PREFERENCES
eliminate the current race-based setasides and create a -sheltered competition
program with eligibility based on performance of the contract by a small business in a· designated
distressed zone and/or hiring ·above a threshold level of employees from such a zone .
.Aggressive management measures will, we hope, prevent severe erosion of progress we have
made in MBE/WBE participation; you should know. however, that this erosion is likely over
the longer run.
This option would
Pro: Eliminates controversial and constitutionally sensitive radal targeting~ while elevating and
focusing on the message of jobs and · econom~c development. There will be some
disproportionate benefit to minority entrepreneurs, though far less effective than at present.
Yottr discussions with Wimam Julius Wilson reflect this emphasis, as do several major
Administration initiatives in the broader realm ofeconomic opportunity an(l investment. Some
of our consultations with minority business leaders indicate that focusing on geography is more
acceptable than using economic disadvantage alone, because means-testing (i) will sweep in a
vast number of nonminoritiesand (ii) will aid the cause of those who~ like Senator Gramm and
Justices .Scalia and Thomas; oppose an race-based measures.
Con: . Will be viewed as abandoning any commitment to address dircctJy the problem of
discrimination-based denial of entrepreneurial opportunity, and do1ng so bel'oreaoy post-Adarand ·~
studies have indicfited that such abandonment
constitutionally compelled. With this policy
declaration, <.:urrent programs would be easy prey ,in Congress and the cc.iurts.
is
9
�Decision;
_Option 1:
Anti ·abuse reforms only; deter major program changes
_ _ Option 2:
out wHh the old progra111s; announce specific policy objectives of
expanded opportunity; direct agencies to formulate a proposal consistent
with Adarmui.
_ _Option 3: · San1e as opllon 2, but with less specificity on new program objectives.
_ _ Option 4:
Eliminate race- and gender-based preferences; use geography only.
V. Decl~ion on Use of Race or Gender in Layoffs: Piscataway
Background. The central issue in this area concerns race or gender as a consideration in
layoffs. Under current law, two propositions are clear. First, layoffs cannot be used as a means
to implement an affirmative action policy by "making room" for new; diverse employees.
Second, race or gender cannot trump a bona jlde seniority system.
The reach of this se.cond principle is limited. While seniority systems are common in the public
sector, the decline of unionism has reduced the private sector·s reliance on such systems. Thus,
reportedly, many large t1rms expressly consider diversity in their layoff policies 1 and with
significant results: Illinois Hell recently cut 930 management jobs, but the· proportion of
minority managers rose from 25 to 27%; Baxter cut 20% of its 200J employees 7 but the
.
. .
proporlion of m1nori.ty managers increased from 10 to 12%.
The narrow question of "tie-breakers" is thus most likely to arise in the <.:ontext of a seniority
system where layoff decisions are more stnJCtured. In the· Piscataway case, the Justice
Department has argued that Title Vll does not prohibit the School Board from using race as a
tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of the
Federal civil service, OPM regulations are silent: the Justice Department's Office of Legal
Counsel believes the Federal statutes and caselaw would, as in Piscatawll)', permit narrowly
tailored consideration of race or gender.
More generany, In .certain sectors, there is a sense tllat some job opportunities are limited to
"diversity candidates" and that white males are thereby disadvantaged. Second, there are
concerns that in a continuing era of corporate reeagineering, women and minorities are, due t.o·~
aft1rmalive action, at less risk of being laid off. On the other hand, as you have. rioted,
affirmative action is sometimes used cynically to justify decisions made for other reasons,
legitimate and otherwise. ·Moreover, whatever the constriction of opportunitie.s felt by
nonbeneficiaries, this occurs against a backdrop of continuing underrepresentation of minorities
and women in those sectors. (Otherwise, the affirmative action would be iHegal.)
10
�>-
0...
0
(..,)
Opti.ons. The policy options include:
OPTION ~:
WHEN NOT lNCONSISTl:Nl' WIfH A UONA J'IUt: ~I::',N
~TEM,
DIVERSITY MAY BE (.'QNSIDHRED IN LA. YOFFS, HUr UNLY 11'1 A rU!XU:Jl.E MANNEI<. AND lN
AS A POUCY MATIBR,
LIMITED CIRCUMSTANCES,
Pro: This option is close to the status quo, but does not lend itself to a simple rule. Instead,
this approach would call for the common.,.sense balancing of the institution's general diversity
Situations are different.
interest and the burden on identifiable majority employees.
Consideration of tace or gender would be permissible only: when necessary for the institution's
operation; when a manifest racial or gender imbalance exists; .and when less· race-intiusive
considerations are not effective. This option is consiste~t with the DOJ position in the
Pi.n:UJ.away case.
Con: Complex. Does not speak clearly to the anxieties of non-beneficiaries .. As a plurality of
the Supreme Court said in Hjlgatll; race-based layoffs may impose a more substantial burden
than race-based hiring and promotion goals, in that "denial of a future employment opportunity
is not as intrusive as loss of an existing job." Layoffs are different.
OPTION 2: As A PQLL"Y MAlTER, R.-\CE OR GENDER SHOULD !'VI' Jlli
.
'.
.
LU.N'5IL.iERED
IN
LAYOFF DB:l'SDNS.
.
Pro: This option would issue a sharp and clear statement --layoffs are different -- and would
provide some comfort to whites, males, and their dependents, in a time of in5ecurity. (There
would be a corresponding reinforcement of minority and women concerns about their
marginality.) In the pubUc employment context, this is likely to have little practical impact
because seniority rules already limit the issue to rare tiewbreaker-type situations.
·
.Qm: This absolute mle goes too far; It will rekindle the "last hired;. first fired" resentment or
minorities and women. It ignores the pressing diversity interests that may be at stake in
particular situations -:-especially where diversity is a bonafide consideration for organizational
effectiveness. This option would send a loud signal to the private sector, chilling some diversity
efforts and encouraging affirmative action critics. It would be criticized as a tlip-t1op from the
. Adr'f'!imstration 's litigation pos.ition in Piscataway.
L>edsion;
_ _ Option 1: As a policy matter, when not inconsistent with a bona .fide seniority~
system, diversity may be considered in layoffs, but only in limited
cii·cumstanccs.
·. ___ Option 2: As .a policy matter, race or gender should not be considered
decisions.
jn
layoff
11
�>a..
0
u
VI. Rollout Scenario More Gcncrauy
We are developing a coordinated communications and outreach effort. Finalizing the policy
options, speech· themes, date and venue will help. The goal is to manage expectations and shape
the characterizatipn of the speech before it is given, as well as to amplify it to the greatest extem
possible afterwards.
The full rollout wiJI involve members of the Cabinet and. sub-Cab.inet, and the Legislative
Affairs, Public Liaison, Communications .and Press offices and the White House and key
agencies. In addition to the Administration's activities, outside/mdependent opinion. leaders from
the civil rights community 7 academia/education, women's community, economic/corporate and
.
.
religious worlds will be integrated il!lo the validation efforts.
12
�II
I
I
I
I
I
Ill
I
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
'-1
001. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Decision on Post-Adarand Steps and Completion of the
Review (5 pages)
6/19/1995
P5
002a. Jetter
G. Stephanopoulos to President Clinton, re: AA Strategy (I page)
4/21/1995
P5
5
002b. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action - Policy Issues (I 0 pages)
4/20/1995
P5
(_()
002c. paper
Message with three different policy approaches (8 pages)
n.d.
P5
~
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
OA/Box Number: 9162
FOLDER TITLE:
Affirmative Action- 1995- General [Folder 3] [I]
2008-0308-F
wr866
RESTRICTION CODES
Presidential Records Act -144 U.S.C. 2204(a))
Freedom of Information Act- 15 U.S.C. 552(b))
PI
P2
PJ
P4
b(l) National security classified information I( b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or conlidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy j(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes j(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information [(a)( I) of the PRAI
Relating to the appointment to Federal office j(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release w.ould disclose confidential advice between the President
and his advisors, or between such advisors ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy j(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C. ··
2201(3).
RR. Document will be reviewed upon request.
II
I
I
I
:
II
I
I
I
�>a..
0
(.)
THE WHITE HOUSE.
WASHINGTON
June 19, 1995
. MEMORANDUM FO~~HE PRESIDENT .
r}ft-v
From: George Steph®os and Christopher Edley, Jr.
Re:
Affirmative Action: Decision on Post-:Ada~and Steps and Completion of the Review
Your advisers all re,commend a broad, thematic speech, as soon as practicable, on equal
opportunity, tolerance and cominunity/economic strength.· In conjunction with 'the speech, as
.
.
a practical matter Adarand requires that we latinch a Justice Department-led, detailed empirical
and legal study to ensure compliance with the new standards. The remaining issues are what.
to do with the White House Review, and whether to have a commission.
-
BACKGROUND: THE COURT, THE REVIEW AND THE HILL .
The Supreme Court's 5-4 Adarand decision applies strict scrutiny to Federal race-conscious
programs. The Court's 1989 Croson decision, on Richmond's setaside program, established
the same heightened standard for state ·and local measures. All race-conscious government
programs must be narr:owly tailored to serve a compelling interest. A darand's constitutional
test, at least with respect to. "narrow tailoring," poses many of the same questions we have
asked agencies as a matter of policy. But, the Court raised the hurdle in two key respects.
•
Justification: First, the Court now requires a compelling interest, while we previously
assumed that you (and the Congress) have broader policy flexibility to judge whether each
program's purposes justify race- and gender-conscious decisionmaking. We must now take
greater care demonstrating. the justification for setasides, targeted graduate fellowships, etc .
. (Caselaw is unsettled· about whether and when nonremedial purposes, such as diversity,
meet the compelling interest test outside of the education context.)
•
Factual Predicate: Second, in making policy judgments, you and the Congress were
relatively free to accept whatever quantity of evidence and tightness of logic seemed, on
balance, reasonably. convincing. But now, courts applying strict scrutiny will insist on an
unknown but. surely much more substantial factual showing. They will probe for the
factual predicate· establishing prior discrimination (or other compelling interest), and for the
facts related to narrow tailoring.
·
In sum, while the Review has asked many of the same questions, Adarand requires far more
. rigor. In this hght, can we state policy conclusions at this time? Your policy judgment must
�<?~€.510£1\f~
·&
f-
'\[
L-t
conform with the constitutional requirements; but that in turn means 'that most ~ your policy
judgments on these programs must be preliminary or provisional, pendin <.?he detailed
empirical work that is necessary to reach and defend a conclusion about constitu 'oriality.
Meanwhile, we expect some GOP members of Congress to move legislatively as early as this
week, but no later than early July. For example, Rep. Istook may offer an "anti-preference"
appropriations amendment· modeled after the California ballot proposition, and the Senate may
face an anti-setaside amendment to the highway bill now on the floor.
''
House Democrats are divided on how best to counter a GOP anti-preference measure. Most
tactical discussions focus on a commission of some· kind to conduct a 'fact-based review of
whether current programs satisfy Adarand. Under this theory, moderate members would be
able to vote to table or otherwise suspend a GOP move .pending the commission's report. The
. Democratic leadership favors this approach, while the Black Caucus is generally opposed to
a commission.
The consensus of your advisers, however, is 'that a tabling strategy is more likely to succeed
in the Senate. There, Democratic leaders are interested in a commission, but may accept an
Administration-led process with a date-cert.ain for reporting.
· FIRST ISSUE:
THE ~VIEW AND A DIRECTIVE TO THE ATTORNEY GENERAL
To satisfy strict scrutiny after the 1989 Richmond setaside case, over 80 state and local
jurisdictions have conducted contracting "disparity studies" to establish the factual predicate
of discrimination and to analyze alternative program designs. In virtually all cases, officials
used consultants and commissions to gather and analyze data, and. each telephone-book-like
report took months to complete. While much of the methodology is settled, the work takes
time. Comparable Federal studies will be needed for litigation, and not only for procurement
setasides. Such studies will likely be demanded by Congress as well, and indeed they will be
necessary before the Attorney General can confidently advise you concerning the
constitutionality of a specific program.
Your advisers agree that, with the speech, you should issue a Directive instructing the Attorney
General to conduct an expanded and more detailed study, as required now by Adarand, to
address the issues raised preliminarily by the White House Review and by Adarand. Working
· with the relevant agencies, and with consultants as needed, the Justice Department would
coordinate preparation of the kind of empirical work likely to be required by federal courts and
by the Congress.
There are three options for linking the speech and Directive with the White House Review:
' p.2
i1<'
�Option 1: Finish the Review Now, With Policy Principles and Preliminary
The Review could be released containing:
a detailed policy framework, as sketched in your framework speech;
descriptions of key programs, providing helpful explanatory material;
for a · few programs -- with substantial .evidence already available -- preliminary
conclusions using your policy test (which includes conformity with Adarand); and
for most programs --those where evidence is too meager for a confident constitutional
estimate :.._ a reservation of judgment pending further analysis in light of Adarand.
The materials and preliminary conclusions from the Review would be turned over to the
Attorney General's process for further work.
Option 2: Issue Abr'idged Review, Reserving Judgments on Facts and Policies.
Alternatively, the Review document would be substantially shortened to:
.·..;..
Eliminate the recitations of positive ~d negative facts concerning sp;cific programs,
and factual conclusions based on those facts.
Eliminate preliminary policy conclusions about fairness or. the. need for program
reforms, on the theory that such judgments should not be offered in a preliminary way;
in light of Adarand, judgments should await the results of the Attorney General's work.
The abridged Review document would be an elaboration of the speech's framework,
background materta~ ~n discrimination, plus descriptions of several programs.
Option: 3: Issue no Review; Rely on Directive to the Attorney General. Finally, we could
announce t4at in light of the more stringent standard of evidence and documentation now
constitutionally required by Adarand, the workof the Review has been suspended and turned
over to the Attorney General to continue in a manner consistent with what will be required in
litigation. The Presidential Directive to the Attorney General would include any needed
elaboration of the policy framework. In conjunction with the speech, and as a service to
Members of the Congress and journalists, we would repackage sections from the draft Review ·
into a short document siJmmarizing the key programs, the evidence on continuing
·
discrimination, and the law of affirmative action.
Analysis:
Favoring Option I: Complete the Review. We promised that the. review would answer the
tough questions you asked, and some observers will equate reserving judgment with "punt."
· Even if the constitutional test now makes definitive answers impossible, critics will say that
surely something can be said by now.. In particular, disparity studies may establish a strong
factual predicate of prior discrimination in contracting, sufficient to justify the current, modest,
raCially-targeted goals 'and sheltered competition. Recall that the Justice Department argued
p.3
�>a..
0
(.)
forcefully to the Supreme Court that the setaside in Adarand would in
scrutiny; that argument will be joined on remand. Still, this option allows
demonstrate leadership ,by stating your policy judgments, and may help fill
would otherwise be filled by hostile legislative initiatives.
Favoring Option 2: Abridged Review, Reserving Judgments: Stripping out the facts and
conclusions bearing on "what works and what doesn't" avoids a formal document containing
statements that might compromise the government's position in later litigation. More detailed
study is now constitutionally required; reserving policy judgments avoids controversial
. pronouncements that may, in the end, not be constitutionally compelled. (On the other hand,
there may be some policy changes you would embrace regardless of any "disparity study," and
whether or not constitutionally compelled.)
Favoring Option 3: Defer Decisions: Preliminary or tentative decisions about particular
programs, without the kind of careful empirical scrutiny required under the new constitutional
standard, will only confuse the debate and invite ,.second-g11,essing by members of Congress
eager to score political points by rushing to action. Moreov~r, a policy choice-:to abandon or
reform programs without being able to indicate whether such changes are constitutionally
required· will draw substantial fire. If you speak before .the new. homework assignment is .
complete, all you can do is either surmise that certain programs are acceptable (when the full
facts may eventually show otherwise) or volunteer that you want to reform them even though
.a full development of the facts might ultimately prove the changes constitutionally unnecessary.
SECOND ISSUE:
CHARTER OF THE COMMISSION
A commission seems necessary. The question is how broad to make its mandate. Your
advisers are agreed that if there is to be a commission its membership should not require
Senate confirmation; its fact-fmding would supplement rather than supplant the work to be
done within the Administration under the overall leadership·. of the Attorney General; the
Commission's charter would in no way compromise the authority of the President and the
Attorney General to set policy for the Executive branch and defme the position of the United
States in litigation. We also believe that, given the views of Democratic leaders in Congress,
a commission of some sort is the best option for holding marginal. Democrats off of a GOP
amendment Even still, a tabling strategy is more likely to succeed in the Senate than in the
House.
Option 1: Narrow mandate .--review and supplement agency fact-finding. This approach
poses the least risk to Presidential and agency prerogatives. Agencies, led by Justice, will do
most of the work. . The Commission would comment on methodology, act generally as
interlocutor, review agency findings of fact, and conduct hearings· to supplement the "record."
Although a commission with the inevitable independence will stray into policy territory,
starting with a narrow mandate will help. Moreover, it is the fact-finding role that is of most
p.4
�·-
------------------
>-
0..
0
(.)
practical value in completing the empirical work required after Adarand.
Option 2: Broader mandate to develop evidence and· findings indepe
skeptical about agency objectivity may argue that the commission needs a full
consultants and other methods to develop. evidence on its own.
.
ently.
cap'a.l:HI~""'!:Q
Option 3: Broadest mandate -- facts and general policy debate. This approach, analogous·
to the consensus-building model you employed as Governor to tackle education reform, would
create the greatest threat to traditional Executive prerogatives, but would also create a vehicle
to sustain a national conversation. Civil rights activists now believe that such a broad
discussion will be perceived as a poor and unpredictable substitute for Presidential leadership
on the issue. Moreover, protracted policy debate by a commission would interfere with
effective and timely completion of the factual inquiry needed to defend programs in litigation
or on the Hill.
DECISIONS
Review:
-
- ___Finish now, offering policy views; issue directive for DOJ-led process
· _ _Issue abridged review, reserve judgment; issue directive
_ _No review; issue directive
Commission: . _ _Narrow fact-supplementing mandate
_ _Broader fact-fmding mandate
_ _Broadest facts-and-policy mandate
,'.::::-:'··
p.S
�I)
v 'JV Q_, .·; L·~.. .
TJ v'-r~~ f;:l
·. .
.~rj#:... {'~ r [1~~,' .)~;·.::·~··<~
,~ "\::.-,;:11 .• '--!~ " ·~
./ r;J.'\'-·
;:/
~~
\ ,._.~1
'·, ..,
\ ,.,,
I
·s·
J'
,,,
Mr. President:
,::S..;. '\
.
I
,?)'):]~l
~
:f>
··!7;
'\" .
0 7 :l ~
•
.
~
.
Here is the options memo on the major choice~rn affirmative
action. .To put this in context, this memo assumes ~~i.Jile,;~are
not making any changes in the ·b~sic strUctures of a~~~eP
action -- that we would affirm the basic principles where it
works best: in·the military, in college admissions and in
employment (E.O. 11246). At the·same time we would strongly
reassert that when we do affirmative action we should never
resort to quotas,. that we should never give preferences to
unqualified people, and that reverse discrimination is wrong.
I • S.S
,
We also ·assume that you want to maintain minority scholarship
programs. Even though they may look like quotas, they can be
justified because they "expand the pool of quali~ied applicants."
We would also say that these ~cholarships should not come at the
expense of financial aid for other.disadvantaged students.
Two tough decisions require most of your attention:
1.) Hiring/Firing -- You know the arguments, and there
is obvious political benefit in drawing a bright
~ine here.
on the other hand, drawing that line
would beg the question: If you believe firing is
different, why did you reverse course in the
Piscataway case? Also the civil rights community
will surely protest this bright line.
2.) Set-Asides --Set-asides are the only remaining
program for you to eliminate. You could' call for
eliminating set-asides based solely on race on the·
grounds that they are, in effect, quotas. Moving
toward economic di-sadvantage could be comb;ined with
program reforms, expanding the overall set-aside,
and developing empowerment zone-type initiatives.
Still, we would expect significant protest from the
Black Caucus, minority businesses and other civil ·
rights groups. On the other hand, if you fail to
move away from set-asides,.you will face criticism
for buckling to your base and failing to eliminate
a single program after going through a top-tobottom review. Keeping set-asides also conflicts
with your anti-quota principles, despite the fact .
that these programs have been effective.
Attached is the policy memo along with a message memo prepared by
Gene which fleshes out the communications and political arguments
in greater detail. A much smaller group. than normal should meet
after you review these to finalize decisions. Let me know what ·
else you need.
..
a
.
.
(..(
~
I'U
�>a..
0
c.:>
THE WHITE HOUSE
WASHINGTON
April 20, 1995
MEMORANDUM FOR THE PRESiDENT & TilE VICE PRESIDENT
Christop~y. Jr~ PeterY~
From: ·
George®nopoulos,
Re: ·
Affirmative Action: Policy Issues
&
This memorandum presents options regarding federal affirmative action policy. Part I outline~
options in four areas: education, employment, procurement, and broadcast licenses. Part II offers
three alternative, broader perspectives that may be useful in your deliberations. A subseque1it
memorandum will discuss the message, communications, and political dimensions of these policy
choices.
I. AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race- or Gender-Specific Scholarships .·
Background. The central issue in the area of education concerns scholarships for which race or
gender is a condition of eligibility. This issue has two dimensions: (i) scholarships administered
by universities receiving federal assistance and (ii) federal scholarship program·s.
With regard to (i), the current Administration policy for enforcement of Title VI, announced
by Secretary Riley in February l994, permits the use of race as condition of eligibility for
financial aid in order (a) to remedy past discriminatiol1((}fXb) to promote diversity ,_provided the
measure is narrowly tailored and does not unduly restrict access to financial aid for nonminority
students. A measure is "narrowly tailored" if (1) race-neutral means would have been
ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3) the
measure is of limited extent and duration, and is applied in a flexible manner; (4) the institution
periodically reviews the continuing need for the measure; ~ (5) the effect on nonbeneficiarics
is suffiCiently small and diffuse s(> as not to unduly burden their opportunity to receive financial
aid. These restrictions apply to university-administered aid, whether publicly or privately funded .
Approximately 3.3% of all undergraduate financial aid, 4.3% of all graduate financial aid, and
12% of all professional-school financial aid is administered through such scholarships.
a
Current policy with regard to gender-specific .§..Cholarships provides that _institutions may not
discriminate on the basis of gender, but may administer privately-funded gender-specific
�The federal government also directly administers a number of race- or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or specialties
in which racial or gender groups have been significantly underrepresented, either because such
inclusiveness is deemed' critical to the continued strength of that profession, or because inclusion ·
· will lead to greater .attention for neglected communities and problems. Supporters of these
programs emphasize that these scholarships are necessary to attract women and minorities to
these area5. Examples ·include: NSFs Minority Graduate .fellowship frogram designed to
increase the number of minority scientist and engineers and Nlli's Minority Clinical Associate
Physician Program designed to increase the number of minority physicians.
Options. The policy options include:
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity-based .:.Se of race- or gender-specific scholarships.
·
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option 3: Bar use of such scholarships except as necessary to remedy past
discrimination; otherwise~ dilute exclusivity through broader eligibility:
·I#
Analysis. Education policies regarding admissions and scholarships are central to public concerns,
about affinnative action. Some view race- or gender-specific scholarships as a form of "setaside" and thus reminiscent of quota-driven admissions policies (such as the dual-admissions
system struck down in Bakke). On the other hand, education and training are on the
. "opportunity" end of the opportunity-to-results spectrum, and the current policy requires that any
race- or gender-specific programs be narrowly tailored. .
Option 3~ which ·focuses on race-specific scholarships, was proposed by the Bush
Administration in 1991. · This approach would send a clear message that no applicant should be
excluded from a scholarship prograin on the basis of race ·or gender. Arguably~ this. would be · ·
a curious rule, as it would leave intact numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria.
.
.
.
Option 2 would clarify the seriousness of the requiretnent·that an institution wishing to use
such scholarships (outside of a remedial context) first analyze race- or gender-neutral aj,proaches
and conclude they would not be effective substitutes for more exclusive scholarships. The poli~
guidance would be amended to require the institution to be prepared, if challenged, to present the
evidence and analysis upon which its conclusion was based. (This is the ·formulation used
elsewhere in the guidelines, and by the courts, in explaining that wheQ. an institution may invoke
its history of discrimination as a remedial justification for race~specific scholarships.) On the one
.. hand, this option amounts to a declaration that race or gender should only be used as a condition
·of eligibility when truly necessary. On the other hand, its minimal. practical effect might not
justify the anxiety it would likely generate among minority and women's groups.
2
�>-
Le-
?;
- or gender-~
specific scholarships are small slices of a much larger pie -- much of which is ministered
the basis of need. As there are so many different avenues for financial aid, it is poss1
gue
that iace- ·or gender:.:.specific scholarships do not meaningfully limit the opportunity of any
student, or at least no more so than does a scholarship· limited to offspring of the Knights of
Columbus or the Daughters of the American Revolution.
Option 1 would maintain current policy. As noted in our discussions,
Indeed, current antidiscrimination enforcement guidance from the Department of Education,
promulgated during the Reagan Administration pursuant to Title IX, makes the test for gender. specific scholarships whethe~ the financial aid pr~ctices of the institution, taken as a whole,
provide ~qual opportunity. As a matter of constitutional dOctrine, race-baSed distinctions· are
subject to stricter sciutin than
· d' f · :ons. But this distinction seems untenable
·as a:g~nera matter of policy or pOlitics.. Hen~, any toughening of prohibitions on race-based
a~r:hQuld probably be similarly applied to geriiier-based aid. ~
.
.
--?
Finally, we should note the relationship between these options and the familiar hypothetical:
a college aditiissions or scholarship policy that favors the .Afclcan-American son of a successful
neurosurgeon, but not the son of a steelworker. Some argue that affirmative action should be
on.~Y for economically disadvanta ed . ·r
because affluent mil,torities are evidently not
suffenng om a lack of opportunity, relative to many less economically advantaged whites. The
rebuttal has three central points. First; t.here should be affirmative eff<?rtS to proviae opportunit~
for economically disadvantaged individuals, both white and non-white; such efforts need not•
come at the expense of affirmative action when it is legitimately.directed at minorities· on the
basis of concerns apart from economic disadvantage. Second, apart from economic disadv.antage,
but still within the realm of "private fairness," it is often observed that comparatively advantaged
minorities nevertheless continue to face social and other obstacles solely because of prejudice and
discrimination, and that these disadvantages, while different from badges of poverty; are a fair
basis for attention. Third, in the realm .of institutional and societal benefit, a college might
properly conclude that the institution will benefit from inclusion of the neurosurgeon's son -even though affluent -- just as they might conclude that the diversitt benefit of including a
bassoonist is weighty not withstanding the musician's affluence. In America today, it remains
likely that the neurosurgeon's experiences, perspective, and aspirations will reflect some aspect
of the distinctive reality facing blacks. And· the college may choose to value that.
B...
Empi()J'ment; Race or Gender in Layoff Decisions
Background. The central issue in this area concerns race or gender as a consideration· in layoffs.
!!nder current law, two ·propositions are cleru:_. ~. layoffs cannot. be used as ·a ~eans to
implement an affirmative action policy by "making room" for new, diverse employees,_:_Second,
race or gender caimot trump a bona fide seniority system.
·
.
-
.·
.
The reach of this second principle is limited. While seniority systems are common in the
public sector, the decline of unionism has reduced the private sector's reliance on such systems.
3
g
�vthus, reportedly, man
.
consider diver-Sit iri t
Qies arid with
significant results:·~ illinois Bell cut recently 9.30 management jobs, but the proporh of minority
managers rose from 25 to 27%; Baxter cut 20% of its 2000 employees, but the prOO'O'It'MtliTTl
minority managers increased from 10 to 12%.
The narrow question of"tie-breakers" is thus most likely to arise in the' context of a seniority
system where layoff decisions are more structured. In the Piscataway case,·. the JustiCe:
Department has argued that Title VII does not prohibit the School. Board from using race as a
tie-:-breaking consideration in pursuit of legitimate interest in diversity. In the context of the
federal civil service, the OPM regulations are silent: the Department of Justice (Office of Legal
Counsel) believes the statutes aild easelaw would, as in Piscataway, permit narrowly. tailored
.
consideration of race or gender.
a
_Options. The policy options include:
Option 1: As a policy matter, when not inconsistent with a bona fide seniority system,
·. diversity may be considered in layoffs, but only in limited circumstances.
· Option ~: As a policy matter, race or gender should not be considered in layofr
decisions.
Analysis. Conce~s about employment are two-fold. In certain sectors, there is a sense that
. some job opportunities are limited to "diversity candidates" and thus that white males are•
· excluded. SecondJhere are concerns that in a continuing era of corporate reengineering, women
and minorities are, due to affirmative action, at less risk of being laid off. (As you have noted,
affirmative action. is sometimes used cynically to justify decisions made for other reasons,
legitimate and otherwise.)
Option 2 would issue a sharp and clear statement and would provide some comfort to whites,
males, .and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minority and women concerns about their marginality.) In the public
employment context, this is likely to. have little policy impact because of seniority rules, and thus
will affect only tie.,;,breaker-type situations. However, this option would send a loud signal to
the private sector and could have an effect· on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this ·
approach would call for the common-sense balancing of the institution's general diversity interest
and the burden on identifiable majority employees. Consideration of race or gender would be
permissible only: when necessary for the institution's operation; when a manifest racial or gender
imbalance exists; and when less race-intrusive considerations are not effective. If you select this
option, announcing a clarification of federal layoff policy could underscore the very high hurdle
you would impose, but might also serve to focus resentments around the entireissue. In any
case, however, we are likely to face continuing questions regarding the law and policy
surrounding the Piscataway situation.
4
�>a..
0
(.)
Procurement: Prefe'rences & Set-asides
. Background. Federal law establishes several goals for the distribution o
deral proc ment
. opportunities: 20% for small businesses; 5%. for small disadvantaged busine .
SDBs -virtually all of which are minority-owned 1); and 5% for women-owned businesses. There is
a web of programs designed to reach these goals; some are government-wide, others are agencyspecific. These efforts use several tools:
·
• Sole source procurements: Under SBA's § 8(a) program, small disadvantaged businesses
(SDBs) can secure smaller sole-source contracts (usually less than $3 million).
.
.
e Sheltered. competition: Under DOD's "rule of two," a contract is set aSide for SDBs if the
offieer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses. ·Failing
this, there is open competition.)
., Bid preferences: In operi competitions, DOD awards a 10% bid price preference to SOBs;
last year's procurement reforms authorized government-wide use of this preference. The RTC
program uses· a 10% "bonus" preference on contract price and a 15% point bonus on
"technical merit," provided the SDB is within the qualified range; the preferences are also
provided to joint ventures where the SDB has 40% or more o( the transaction.
•
•
o Subcontracting incentives: DOT provides an incentive payment to prime contractors who
·(voluntarily) subcontract with SDBs. (The Adarand issue.)
These efforts have been successful in expanding procurement opportunities for. women- and .
minority-owned finns. Between 1982 and 1991, while the dollar volume of all Contracts
increased by 24%, contracts awarded to women-owned firms tripled and contracts awarded to
minority:..owned firms doubled. Of late, these i~creases have been accompanied by actual
decreases for non-disadvantaged small firms. For exarriple, while DOD's contracting with SDB's ·
more than doubled, its contraCting with other small businesses fell by nearly 20%.
Notwithstanding these gains, 97 percent of contracting opportunities continue to be awarded to
·non SOBs. ·
Some aspects of these efforts have been problematic. Rates of successful graduation from the
8(a) program remain low and the possibility of abusive practices remains, although recent
statutory and ·administrative efforts promise some improvements. Outside of the limited 8(a)
program, however, there ar
·
·
·
usmess is no longer "small" or an entrepreneur accumulatessub~tantial wealth. In addition,
these programs have in some instances had a disparate impact on particular regions and industries
·-- such as smaller construction projects and certain transportation sub-in~ustries. Finally, while
1
In the Department of Transportation's program only, the SD.B definition includes women.
5
�Options. The policy options are:
Option 1: Eliminate misuses; e~pand ·pre-bid assistance. In particular: establish· tighter
asset-related eligibility rules to prevent the "disadvantaged millionaire"
· phenomenon; limit the concentration of set-asides in a single region or industry;
and set· ·Standards (by business sector and by region) to determine when
preferences are no longer necessary. With regard to pre-bid assistance: invest·
in new, vigorous outreach, technical assistance, and sure.ty bonding programs to
help level the contracting playing field; continue efforts to "mainstreari:l" minority .
and women-owned. businesses in SBA's programs.
Option 2: Broaden eligibility, but retain race- and gender-based preferences;
emphasize the transitional character of program. In addition to the measures
in option 1, take the following steps:
-
Social QL. Economic Disadvantage: ·Eliminate the requirement that owners be
"socially disadvantaged," thus opening up eligibility to white owners whO..
demonstrate "economic disadvantage." Maintain a less string~nt e,conomic
disadvantage test for minorities and (for the first time outside D01) for women;
this separate standard would preserve some differential benefit for minorities and
women, but without excluding disadvantaged whites from the program altogether.
· To minimize any harm to current participants, increase the goal for total SDB
procurement from 5% to 10%.
-
Strict transition requirements: Require graduation from the program for all SOBs ·.
after, sa:y, four years or four contract awards. This limits the moral cost of
maintaining preferential treatment for women and minorities.
Option 3: Convert to race-neutral programs. Phase out race- and gender-based
eligibility, relying instead mi race- and gender....,neutral criteria of economic
disadvantage only ..
Analysis. Whife procurement policies do not have wide visibility, they are arguably more
problematic than either education or employment policies for two reasons. First, the policies rely
heavily on racially exclusive sehasides: the practical effect of a set-aside is to. take a contract
and hang out a shingle say.ing "whi.tes need not apply." Second, some view procurement set..:..
asides as more problematic than, say, minority-specific scholarships, believing that providing
profitable business opportunities seems more directed toward equal results than towards equal
. opportunity. These observers emphasize that "education is differenV'
6
�.
.
. •
.
same
.
.
. .
.·
.
. ..
.
.
.
·.
~~ESID€'4t~
. ~ct ~ .
..
z
~
.
~
At the
time, preferences may be· more necessary in procurement fo ~everal reasons. f
· First anti~discrimination laws are more difficult to enforce in this area, e ecially in th~
.
'
. subcontracting realm.· Secondt "old-boy" netWorks are arguably stronger in tht
ea, so
informal exclusionary practices beyond the reach of law enforcement can be potent and persistent.
And finally, 'procurement decisions often tum on a single factor-- price-- and thus the multifactor mechanisms used in education and employment are less available in this area.
Option 3 would issue a clear statement. that federal contracts should not be awarded on the
basis of race or gender.· Current preference programs would be converted to focus on economic
disadvantage (albeit with a tighter asset test than current policy)~ This option represents a
judgment that whatever the group-based discrimination or disadvant~ges faced by .minority or·
women entrepreneurs, ·~o special policy· measures are appropriate beyond "pool-development
strategies" such as aggressive outreach and technical assistance.
As noted above, one can support race-specific scholarships but reject race-specific contracting
set-asides by distinguishing procurement as "more related to results than to opportunity." This
approach is far more restrictive than Supreme Court precedents, which permit set-asides based
on legislative findings of discrimination or lingering effects.2
·
Option 2 would retain a minority- and gender-specific preference program, but reform it in
three critical respects. First, it would ameliorate several of the most problematic aspects of thp
current programs. Tightening the asset test emphasizes that the goal is to create opportunity, not..
endow millionaires. Limiting the concentration of preferences reduces the unfairness to. white
bidders in a particular region or business sector. Capping the number· of contracts awarded
through sheltered competition ensures that opportunities are spread over more SDBs.
.
'
0
<' (.)
!:
m
.
Second, the program would emphasize cre~ting opportunity for entrepreneurship, rather than
ensuring entrepreneurial success. Thus, in addition to pool-development measures, this approach
would requite prompt graduation, emphaSizing that preferences help "break the ice," but that
entrepreneurs should quickly be ready to compete with small businesses generally. Limiting the
"bites at the apple 11 serves to emphasize that the program is an entryway, not an entitlement. It
also un~erscores that benefits from the program should not be unduly concentrated.
Third~
the racial exclusivity of current preferences would be reduced by opening eligibility to
non-minority fmns based on economic disadvantage~ Operationally, this is likely to have only .
a modest effect on minority contracting. Prior to the codification of its minority entrepreneurship
focus in 1978; the8(a) program used this "minority QL need'' approach; at that time, only about
4% of all 8(a) firms were white-owned, compared with 1.6% today. Increasing the SDB goal
to 10% should help address concerns about diluting benefits to minority-owned firms.
The Court has required a s~mewhat more rigorous dem~nstration by state and local governments than
by the Congress. The Adarand ruling, expected before July, presents an opportunity for the Court to announce more
restrictive principles. ·
2
7
�>-
a..
0
(.)
niSiressed Areas: In. addition to these policy options, . we have begun to develop a
complementary option: procurement preferences that focus less directly on minority capitalism
and more on job-creation for disadvantaged persons and distressed communities. Some of these
alternatives would be place-based and others employee-based; we are currently examining issues
of adininistrability. Example of such initiatives include:
•
•
•
•
Provide set-asides or other preferences for fiims whose workforce (on the contract) would
. be draWn more than X%. from ·chronically distressed areas, using measures based. on
ce~sus and BIS data. (There are two especially well-regarded alternative indices of
.distress in the social science literature. ) Or
Provide preferences to firms whose· workforce would be drawn more than X% from
targeted population groups, such as recent AFDC or. food stamp recipients. Or ·
Provide pr~ferences as above, but based also on the employment of underrepresented .
groups. Or.
.
Employ any of these approaches, but scale the magnitude or duration of the preference
according to the firm's workforce "score."
Bearing in mind that such . an initiative speaks .to somewhat sepaiable ·poli~y and politicaL
objectives, .you may decide that such an empowerment contracting scheme should be a (i)
substitute for, (i'i) complem'ent to, or (iii) condition of the reformed entrepreneurship preferences.
FCC Auctions:
Your decision on· procurement set-asides will also govern the
Administration's position regarding the FCcs· auction of "personal communication systems"
(PCS) licenses. Phases of the PCS auction have been stayed pending resolution of a
constitutional challenge to .bid preferences afforded minority- and women-owned firms by
Commission regulations. Because PCS licenses are for cellular and other wireless communication
rather than for broadcasting, a programming-diversity rationale will not justify group-based
preferences. lnstead, the motivation is to create inclusive entrepreneurial opportunity, where there
otherwise would be none, in a critical emerging industry. Preferences in the PCS auction should
be handled like procurement preferences.
ll. PuTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your policy choices in this area may be most easily defended if they reflect a coherent theory
or approac;:h. This Part outlines three such approaches, and describes the policy choices that seem
most easily justified within that approach. (See Exhibit 1.) Each is consistent with some basic
inclinations you expressed
our various "vision" discussions, including:
in
8
�11
II
II
A..
The "Calibrated" Approach
This approach emphasizes the difference between equal opportunity and equal results in two
dimensions~ In terms of the policy tools one uses, outreach and training are less result-driven
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, a specific
affirmative action tool is less problematic in education (which expands opportunity) than similar
efforts in procurep]ent (which more directly affects the distnbution of wealth).
·
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagonal orientation of the· "border area" in Attachment 1.
·Thus, certain. kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focu5ed in procurement. With regard to the policy choiCes outlined above, this approach
would support:
.
· Education:
Employment:
· Procurement:
· · B..
Option 1 ..:_ Maintain current policy.
.
Option 1 -- Permit race or gender to be considered in layoff decisions.
Option 2 or 3 -- Reform and sharply narrow procurement preferences, or.
phase them out.
·
·
·
·
The "l&ast Intrusive Alternative" Approach
.
-
.
.
.
A second approach expresses more overt solicitude for bystanders by stressing that affirmative
action must be narrowly tailored to minimize exclusivity and the use of race- or gender-based
decisionmaking. Thus, result-driven quotas are always inappropriate (except in rare courtordered remedies), and set-asides Jllay only be used (i) when they are either broadly remedial
or (ii) when less intrusive alternatives are not effective. In essence, this approach would apply
the Title VI scholarship policy to all. three sectors.
Of course, "effectiveness" will be a matter of degree, and there is an implied .~alancing of the
benefits of inclusion with the. costs .. of exclusion. Prior discrimination is· relevant, as is the
qpportunity-re8ults distinction. So, _one might weigh those costs and benefits somewhat
differently in different contexts: it matters if an institution or industry has a history of
discrimination, in which case the narrowness need not be too scientific; and it matters if· the
context is procurement,· where the distribution of largesse ought to be narrow.ly tailored indeed.
This approach leadS to support for limited use of race-specific programs. In particular (a.S
9
�>-
0..
8
illustrated in Attachment 2):
Education:
Option 1 or 2 -- Maintain or tighten current policy.
Employment:
Indeterminate --Either option on consideration of race/gen
Procurement: · Option 2 --Reform and sharply narrow preferences.
Ca
The. "Anti-Exclusion" Approach
A third approach emphasizes the moral cost of maintaining pro~s that exclude persOns on
the basis of race or gender _...; even in the name of diversity. · This approach entails oppositi9n
to the {ule-of-two SDB set-aside and to race- or gender...:specific scholarships; these are
effectively indistinguishal?le from quotas. Instead, such programs would have to be revamped
to rely on multifactor considerations in which race is but one factor, or on race- and gender.neutral appr~hes.
·
·
This approach leads one to support elimination of set-asides in all areas. In parti9Ular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
.
Op~ion 3 -- Eliminate race- or gender-specific scholarshipS,
.
Option 2 -- Oppose consideration. of race or gencler in layoff decisions. ·
.
Option 2 or 3 -- Reform and sharply narrow procurement preferences, or•
phase them out.
·
10
�~--.~[s!o'£:);1
'";.,.
/I' •?'""'
.,
-_.;'
.. \r./ .,\>-
~r~!t
~~~;~)~
·"')7,..,.
q·
'li:,
·;,t...
j~ .:•• ~.,
..... ' ( . )
!.-~ · ..::..
__..
t'. ..
·;11
il
•
THE MESSAGE WITH THREE DIFFERENT POLICY APPROAGHES
.
.
·,.·
'\...
.
.
52J
.:;yf
·\~/
"--.._./
GENERIC MESSAGES: Regardless of which of the three approaches we call for, we will
want to stresS the positive theme of opportunity, anti-discrimination and inclusion while.
making clear that we are anti-quota (results), against rewarding unqualified people, and
·against unfair burdens on innocent third parties. Yet, each of the different approaches tilts at
a somewhat different angle,. with somewhat different strengths and different vulnerabilities.
The following seeks to play out those differences.
!.CALIBRATED OPPORTUNITY THEME:
ANALYSIS: The main paradigm that this approach sets up is opportUnity versus results.
Indeed it sets up a framework where. we can have a hard line for opportunity and a hard
offensive against results. Because we still allow "minority scholarships" the attacking results
may be a better emphasis that attacking set-asides since we will have an easier time
defending minority scholarship as pro-opportunity than we will be able to· argue that it is not
a set-aside. We-also could make a decision to go hard on the anti-quota, anti- set-aside .
argument and simply insis~ that scholarships must be viewed from a "school-wide" approach
and are not set-asides.
[We should recognize that despite the message of opportunity versus results, the message that.,
comes out may be as simple as Clinton came out for affirmative action in education and
employment and against it in contracting.]
'
STRENGTH OF MESSAGE: The strength of this message is four-fold: One, we go hard at
a strong American value, opportunity, and use education as our tool --something most
Americans understand and agree with. Two, we are clearly throwing out set-asides, therefore,
we have a clear message that we are not just defending the status quo. Three, more minorities
are likely to be concerned with education and employment generally than cOntracting
specifically. Four, we can play into the "empowering people to compete" message. We .are
against set:..asides because they determine the result of a competition or limit it, while
education and other help in contracting is about giving people the ability to compete, not
determining the outcome.
MESSAGE lANGUAGE:
The vision of America is a vision of providing equal opportunity to all Americans so
that each Americans has the chance to succeed -- or fail -- but do so on the basis of
·their ability. Government can play a role .in removing barriers that allow opportunity, ..
but we go too.far when we seek to guarant~e results as opposed to increase
opportunity. We want to give every American the tools to compete-- but government
should not be determining the outcomes of the marketplace.
1
\.,a.. .
1"''\0
�s
~~SIDEtv~
q
0
These same. principles must be applied to affirmative action.
~
When affirmative action is flexible, when it focuses on merit~ when it a ~ds
unfairness to innocent non-minorities, and when it promotes opportunity d
results, we should support it. When affirmative action, is rigid, when it pro
unqualified people, and when it focuses on results as opposed to opportunity,
should be willing to strike it down.
.
'9(
(l/·
.
<;.(.)
~
-1" ·
.:0
not
tes
~"""'""...we
The best way to stress opportunity is to oppose quotas, but promote affirmative steps
in education, because education has always been the ultimate means in our society in
which we say to people, we will give you the means to compete -- not a guarantee of
how you will do. 1bat is why when we can do so fairly, flexibly and without
unfairriess to innocent parties, we support reasonable consideration of race in education
where we can increase the:pool of people with the opportunity to compete.
0
Yet, affirmative action in set-asides has strayed. from that principle. Rather than
offering firms help in competing -- like we· offer young people education to help
them compete for jobs -- too many affirmative action program for contracting seek to
ensure results through set-asides, or even some contracts where we essentially say, no
whites should even apply. We must recognize here tha~ while the intention is right,
the means are wrong. We can still help build opportunity without guaranteeing results
through efforts ·to provide minority contractors assistance,· technical help, and even
one-time advantages to ensure that new contractors have a chance to get· on their feet. •
WEAKNESSES AND POTENTIAL POINTS OF ATIACK:
• This is a hypocritical position because if the Administration is really opposed to
quotas and exclusion, how to they justify minority scholarships that say that only
blacks need apply -- and that even the poorest white, who has overcome the most
disadvantages, is told that they can not even compete with the son of a black
neurosurgeon, because the scholarship says only blacks need apply.
• Try telling a struggling working family who has been denied the opportunity to
compete With a scholarship that the tens of thousands of dollars they were excluded
from competing for is not a real result, it is only.an opportunity.
• Stress~g education in a results vs. opportunity theme does not necessarily provide
the best context to defend affirmative action in employment which may be seen as
falling more on the "result" side of the equation.
• Minority contractors will suggest that minority capitalism is the best way to give
excluded minorities opportunity.
2
0
"
�a~SIDEtv~
~~
~
.
~ ~
.
,Q
Iz .
'(
.
• This will not be perceived as addressing affirmative action in educatio :a,r
employment the two areas where whites are most likely to be concerned.
we may wish to consider an employment)
REPLY TO POTENTIAL ATIACK: When we are attacked on scholarship, we should not
only stress opportunity, but turn to the notion that we are not hurting innocent non-minorities
because privately funded scholarships are about making special efforts to increase the pool of
people with opportunity-- not about taking something away from somebody. vie have
always allowed special scholarships for all sorts of groups -- men only, .women only,
specific religions -- and it would be absurd to S<ly that we only can't do special scholarships
when we are trying to include outcast groups. The key is to ensure that every school ·offers
fair opportunity to all applicants from ·a school-wide perspective·.
POUTICAL: We will have a strong middle ground strategy. We will have strongly
defended ·affirmative action in the areas most important to minority opportunity, yet the
throwing out of set-asides will be major, controversial step that will show that the President
was truly re-thinkiiig this issue, and even willing to throw out a major affirmative action area
that has strong support within the President's base, and even has its origins through
Republican Administrations. The downsides risk is that the benefit with the majority of
Arilerica who has doubts on affirmative action is unclear, yet the fact that this will draw huge
criticism from minority supporters is far more certain. It should be noted, however, that the
greater the perceived heat taken for throwing out set-asides the greater this plan will be seen •
as truly a strong middle ground effort.
3
�II. ANTI-EXCLUSION APPROACH:
ANALYSIS: This strategy takes a similar line as the calibrated opportunity theme, ut ·there
would be a harder edge on being anti-quota, anti-set aside, .with a strong anti-exclusio
message that we should never allow in our society the equivalent of signs to be put up that ·
someone because of their race need not apply. While we would take a strong pro.;.
·opportunity, pro-merit and well-qualified affirmative action, this approach would allow us to
·
take a harder anti-quota edge.
.
.
STRENGTH OF MESSAGE: Strong opposition to quotas is a strong and fundamental
message. Democrats, however,· while always saying they are against quotas are probably not
taken seriously because they are not seen as ever opposing any specific affiimative action
progratn. This anti-quota,.anti.;..exclusion message however would have real power tmdet this·
context, because it would be matched with real tangible and controversial stands: throwiDg out
minority-only scholarships (education), set-asides· (contracting), and· minority only
remedial programs.
..
·
training
Because this would be extremely controversial with Democratic groups, the President
· would more likely to be seen as having taken a strong middle ground position, while still
allowing mOst types of affirmative action -- although in a more flexible form. . For example,
. in the calibrated opportunity approach, most affirm~tive action for contracting would be
throWii. out, while under the anti-exclusionary approach, affirmative action in contracting
•
would simply have to be more flexible and allow some room for non-minorities. Race could
still be considered to support minority scholarships, but would simply have to allow some
alteration so that_ the scholarships were not only for minorities-- even if predominantly so.
Thus, the strength of the issue would be that it could give a strong middle ground message
while still preserving most affirmative action efforts -- albeit under a more flexible forril.
MESSAGE lANGUAGE: .
a
The vision of America" is vision of·providing equal opportunity to all Americans so
that each Americans has the chance to succeed -- or fail -- but do so on the basis of
their ability. Government can play a role in removing barriers that allow opportunity,
but we must be vigilant in opposing quotas in all forms -- no matter how well
intentioned.
While ~me oppose all forms of affirmative action and others support nearly any
advance in this area, most American do not oppose affirmative action when it is
flexible, focuses on merit, ·avoids unfairness to innocent. non...:..minorities. What
Americans have no tolerance- for is quotas and exclusionary set-asides, that put a rigid
emphasis on numbers ahead of concern wit1i merit and fairness, while also saying tQ
many Americans -- there is no need to apply because of yol.ir race.
' Both sides of the political debate have failed the American public for ~oo long in this
areas. Ori.e side, we· have politicians who support any affirmative action -""': even in
4
�~~E.SI0€'/11
~
~
g rt
..J
./{
extreme cas~ where decade·s of discrimination have excluded minorities ~tirely from
important jobs and positions. On the other side are those. who mouth the
rds that
they are opposed to quotas, _but are never willing to stand up and call a quota:~WOita-"""'
and be willing to throw it out. We need to move beyond these two extremes. My
· policy protects affirmative action that is flexible ·and fair, but there are several areas
when~ we are using quotas by sometimes another name, and it is t1me we ask the
people who represent the l?ubli~ to go back to the drawing board and find another
way.
That is why we must be willing to look at every area of affirmative action and be
protect what is good and weed-out what functions as a quota or a race-only
. preference. In education, race is supposed to be orie -- and only one factor that can
. be taken into account among _reasonably qualified people to promote opportunity and
ensure that our schools include all Americans. Yet, when we take some scholarships
and put a sign on them that says one-race only, we are using quotas and we must be
willing to ask those who have instituted them to go b~ck to the drawing board. When .
set-asides shelter some contracts and say only minorities can apply, that is wrong and .
we must send people back to the drawjng board to find ways to include all people the
ability to compete. And when remedial programs designed to help African Americans
not even allow a deserving Hispanic a chance to
become so exclusive· that they
apply, because there is a sign that says one race only need apply, that is wrong and we
•
should tell that such programs must change.
will
POTENTIAL WEAKNESS:
• Ointon sounds a good game, but he would still allow racial preferences in every walk of
life. Pr~ident Clinton's message is that as long as something is not a technical quota, you can
give racial preferences at will.
• Clinton took a major step backwards -- indeed, we would be better off with the end of the
Bush Administration when it comes to minority scholarships. These are the most
unobjectionable type of affirmative action that hardly hurts.anyone. Indeed, now every white
ethnic group in the nation can have special scholarships· -- except the most persecuted group
·in our history. What sense does that make.
·
REPLY TO POTENTIAL WEAKNESS:
The President took a principled case for fair and flexible affirmative action and against
quotas. He knew this would lead to strong attacks from those who feel strongly on both sides,
but he has taken a principled position that appeals to the fairness of the Americail people.
The President is not taking step backwards, he realizes that if we want to go forward we have
to be honest about the strengths and weaknesses of all of the programs.
5
~
�..J
POUTI CAL ANALYSIS: A key issue is whether the benefits of having a har, <f middle
.ground poSition and somewhat more consistent anti-quota position is worth the wnside
costs on the other side of throwing out minority scholarships. How much could the s____
message be made while just distinguishing minority scholarships.
6
�>0..
0
(..)
ill. LFAST INTRUSIVE:
ANALYSIS: This proposal would be seen as the most status quo since there wo
not· be
any single area of affirmative action that a newspaper headline could say the President ·
rejected. Thus, it is mostly likely to be the most popular among Democratic base groups and
most unlikely to convince most Americans that the Administration had really take a middle
ground approach. They key here would be to stress not areas -- like education, employment
· and contracting-- but show that in all areas he is willing to crack down 01.1 affirmative
action proposals that offend his notions of fairness and flexibility.
STRENGTH OF MESSAGE: The message would ·have to allows the President to ~peak
directly to the concerns of innocent bystanders -- concerned non-minorities --:- without
dropping a bombshell on supportive groups. This approach would assume that the main
benefits the President can from opposing the status quo can be achieved with less dramatic
policy changes by speaking honestly to the concerns of American non-minorities, throwing
out specific cases (as opposed to whole areas) and stressing clear principles on limiting the
burdens on innocent bystanders. Therefore, this may be the ·way of getting the most benefits
·
.
with the least costs:
·POTENTIAL WEAKNESSES:
• After the expectations that ha~e been created -- and in the context of "the main
Republican proposal -- the lack of any major policy alteration and the lack of any
perceived outcry from Democratic base groups -- could make the President the
defender of the status quo.
•
• From a policy perspective, without ~ controversial position in which the President
takes on an entire policy area, the Administration may have less credibility and a
· weaker foundation to defend affirmative action in general.
REPLY TO WEAKNESSES:
• This is the first time a President haS spoken honestly to both groups on the sensitive
. issue, and he laid out standards by which we should all judge these proposals.
• He made clear that he is willmg to oppose affirmative action plans that aoss one of ·
several lines.
POUTICAL ANALYSIS:
It is possible that there is no middle ground approach that will please those who
oppose affirmative action. The first two could end in the worst of all worlds: few
points with opponents of affirmative action and real damage in our base.
7
�l
_1
(.)
On the other hand, the expectations are so high, that this could result .
criticism for ducking a tough issue, and could help fuel opponents with
that the Administration has no iritention of <;:hanging the status quo.
8
<(~ESID£'1\1
(1 __
~
~
y
>0...
0
0
'
�-----------------------------------------,
'
II
'
,
I
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!TITLE
001. memo
DATE
RESTRICTION
q
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action: Policy Issues (I 0 pages)
4/19/1995
P5
Phol'le Ne. (Partial) (I f) age)
{)9/21/1994
Pelb(e)
003. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Speech, Review and Policy Decisions' (12 pages)
6/27/1995
P5
~ C Du_e)
004. notes
Affirmative Action Meeting with CEOs (4 pages)
7/20/1995
P5
JO
005. notes
Affirmative Action Meeting (I page)
7/4/1995
P5
lt
006. notes
Affirmative Action Meeting (2 pages)
7/1411995
P5
\2
007. notes
Affirmative Action Meeting (I page) ·
7/7/1995
P5
13
008. memo
James Castello to President Clinton, re: EEOC (2 pages)
5/23/1995
P5
)Y
'"()02. fax
*3
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
OA/Box Number: 9162
FOLDER TITLE:
Affirmative Action- 1995 General [Folder 3] [2)
2008-0308-F
wr450
RESTRICTION CODES
Presidential Records Act 144 U.S.C. 2204(a)J
Freedom of Information Act- 15 U.S.C. 552(b)l
PI
P2
PJ
P4
b(l) National security classified information l(b)(J) of the FOI,\1
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIAI
b(J) Release would violate a Federal statute J(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAI
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute J(a)(J)_ of the PRAI
Release would disclose trade secrets or confidential com mercia I or
financial information l(a)(4) of the PRA)
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(5) of the PRAI
P6 Release would constitnte clearly nnwarranted invasion of
personal privacy l(a)(6) of the PRAI
a
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
II
:
I
I
'
I
:
I
�>-
a..
0
0
*
April 19, 1995
MEMORANDUM FOR THE PRESIDENT & THE VICE PRESIDENT
From:
George Stephanopoulos, Christopher Edley, Jr. & Peter Yu
Re:
Affirmative Action: Policy Issues
This memorandum presents options regarding federal affirmative action policy. Part I outlines
options· in four areas: education, employment, procurement, and broadcast licenses. Part II
offers three alternative, broader perspectives that may be useful in your deliberations. A
subsequent memorandum will discuss the message, communications, and political dimensions
of these policy choices. .
I. AFFIRMATIVE ACTION IN
EDUCATION, EMPLOYMENT, AND PROCUREMENT
A.
Education: Race- or Gender-Specific Scholarships
Background. The central issue in the area of education concerns scholarships for whlch race
or gender is .a condition of eligibility. This issue has two dimensions: . (i) scholarships
administered by universities receiving federal assistance and (ii) federal scholarship programs.
With regard to (i), the current Administration· policy for enforcement of Title VI, announced
by Secretary Riley in February .1994, permits the use of race as a condition of eligibility for
financial aid in order (a) to remedy past discrimination or (b) to promote diversity, provided ·
the measure is narrowly tailored and does not u.nduly restrict access to financial aid for
nonminority' students. A measure is "narrowly tailored" if (1) race-neutral means would have
been ineffective; (2) a less extensive or intrusive use of race would have been ineffective; (3)
the measure is of limited extent and duration, and is applied in. a flexible manner; (4) the
institution periodically reviews the continuing need for the measure; and (5) the effect on
nonbeneficiaries is sufficiently small and diffuse so as not to unduly burden their opp9rtunity
to. receive financial aid. These restrictions apply to university-administered aid, whether
publicly or privately funded. Approximately 3.3% of all undergraduate ·financial aid, 4.3% of
.
all graduate financial aid, and 12% of all professional-school financial aid. is administered
.
through such scholarships.
.
�The ·federal g~vernment also directly administers a number of race- or gender-specific
scholarship programs. All of these are designed to increase diversity in professions or
specialties in which racial or gender groups have been significantly underrepresented, either
because such inclusiveness is deemed critical to the continued strength of that profession, or
because inclusion will lead to greater attention for neglected comniunities and problems.
Supporters of these programs emphasize that these scholarships are necessary to attract women
and minorities to these areas. Examples include: NSF's Minority Graduate Fellowship
Program designed to increase the number of minority scientist and engineers and NIH's
Minority Clinical Associate Physician Program designed to increase the number of minority
physicians ..
Options.. The policy options include:
Option 1: Maintain current policy, which requires "exhaustion" of alternatives to
diversity-based use of race- or gender-specific scholarships.
Option 2: "Tweak" current policy to require added analysis of alternatives.
Option .3: Bar use of such scholarships except as necessary to remedy past
discrimination; otherwise, dilute exclusivity through broader eligibility.
Analysis. Education policies regarding admissions and scholarships are central to public
concerns about affirmative action. Some view race- or gender-specific scholarships as a form
·of "set-aside" and thus reminiscent of quota-driven admissions policies (such as the dualadmissions system struck down in Bakke). On the other hand, education and training are on
the "opportunity" end of the opportunity-to-results spectrum, and the current policy requires
that any race- or gender-specific programs be narrowly tailored.
Option 3, which focuses on race-specific scholarships, was proposed by the Bush
Administration in 1991. This approach would send a clear message that no applicant should
be excluded from a scholarship program on the basis of race or gender. Arguably, this would
.be a curious rule, as it would leave intact numerous scholarships limited by religion, surname,
geography, and other, more arbitrary criteria.
Option 2 would clarify the seriousness of the requirement that an institution wishing to use
such scholarships (outside of a remedial context) first analyze race- or gender-neutral
approaches and conclude they would · not be effective substitutes . for more exclusive
scholarships. The policy guidance would be ame~ded to require the institution to be prepared,
if challenged, to present the evidence and analysis upon which its conclusion was based. (This
is the· formuhttion used elsewhere in the guidelines, and by the courts, in explaining that when
an institution may invoke its history of discrimination as a remedial justification for race2
�------------------------------------------------
---
-
Option 1 would maintain current policy.
As noted in oilr discussions, race-·· or genderspecific scholarships are small slices of a much larger pie -- much of which is administered on
the basis of need. As there are so many different avenues for financial aid, it is possible to
argue that tace- or gender-specific scholarships do. not meaningfully limit the opportunity of
any student, or at least no more so than does a scholarship limited to offspring of the Knights
of Columbus or the Daughters of the American Revolution.
Indeed, current antidiscrimination enforcement guidance from the Department of Education, ·
promulgated during the Reagan Administration pursuant to Title IX, makes the test for genderspecific scholarships whether the financial aid practices of the institution, taken as a whole,
provid~ equal opportunity. As a matter of constitutional doctrine, race-:-based distinctions are
subject to stricte'r scrutiny than gender-based distinctions. ·But this distinction seems untenable
as a general matter of policy or politics. Hence, any toughening of prohibitions on race-: based
aid should probably be similarly applied to gender-based aid .
. Finally, we should note the relationship betw~en these options and the familiar hypothetical:
a college admissions or scholarship policy that favors the African American son of a successful
neurosurgeon, but not the son of a steelworker. Some argue that affirmative action should be
only for economically disadvantaged minorities; because affluent minorities are evidently not
suffering from a lack of opportUnity, relative to many less economically advantaged whites.
The rebuttal has three central points. First, there should be affirmative .efforts to provide
t
opportunity for economically disadvantaged individuals, both white and non-white; such efforts
need not come at the expense of affirmative action when it is legitimately directed at minorities
on the basis of concerns apart from economic disadvantage. Second, apart from economic
disadvantage, but still within the realm of "private fairness," it is often observed that
comparatively advantaged minorities nevertheless continue to face social and other obstacles
solely because of prejudice and discrimination, and. that these disadvantages, while different
from badges of poverty, are a fair basis for attention. Third, in the realm of institutional and
societal benefit, a college might properly co·nclude that the institution will benefit from
inclusion of the neurosurgeon's son -- even though affluent --just as they might conclude that
the diversity benefit of including a bassoonist is weighty not withstanding the musician's
affluence. In America today, it remains likely that the neurosurgeon's experiences, perspective,
and aspirations will reflect some aspect of the distinctive reality facing blacks. And the
college may choose to value that.
B.
Employment: Race or Gender in Layoff Decisions
Background.
The central issue in this area concerns race or gender as a consideration m
3
�layoffs. Under current law, two propositions are clear. First, layoffs c
means to implement an ·affirmative action policy by "making room"
employees. Second, race or gender cannot trump a bona fide seniority syste
new,.
The reach of this second principle is limited. While seniority systems are common m the
public sector, the decline ofuniot:Psm has reduced the private sector's reliance on such systems.
Thus, reportedly, many large firms expressly consider diversity in their layoff policies, and
with significant results: ·Illinois Bell cut 930 management jobs, but the proportion ofminority
managers rose from 25 to 27%; Baxter cut 20% of its 2000 employees, but the proportion of
·
minority managers increased from 10 to 12%.
The narrow question of "tie-breakersn is thus most likely to arise in the context of a seniority
system where layoff decisions are more structured. In the Piscataway case, the Justice
Department has argued that Title VII does not prohibit the School Board from using nice as
a tie-breaking consideration in pursuit of a legitimate interest in diversity. In the context of
the federal civil service, the OPM regulations are silent: the Department of Justice (Office of
Legal Counsel) belieyes the statutes and caselaw would, as in Piscataway, permit narrowly
· · tailored consideration of race or gender.
Options. The policy options include:
Option 1: As a policy matter, when not inc«msistent with a bona fide seniority system,
diversity may be considered in layoffs; but only in limited circumstances.
.· Option 2: As a policy matter, race or gender should not be considered in layoff
decisions.
Analysis. Concerns about employment are two-fold. In certain sectors, there is a sense that
some job opportunities are limited to "diversity candidates" and thus that white .males are
excluded . · Second, •there are concerns that in a continuing era, of corporate reengineering,
women and minorities are, due to affirmative action, at less risk .of being laid off.· (As you
have noted, affirmative action is sometimes used cynically to justify decisions made for other
reasons, legitimate and otherwise;)
Option 2 would issue a sharp and clear statement and would provide some comfort to
whites, males, and their dependents, in a time of insecurity. (There would be a corresponding
reinforcement of minority and women concerns about their marginality.) In the public
· employment context, this is likely to have little policy impact because of seniority rules, and ·
thus will affect only tie-breaker-type situations. However, this option would send a loud signal
to the private sector and could have an effect on private practices.
Option 1 is closer to the status quo, but does not lend itself to a simple rule. Instead, this
approach would call for the common-sense balancing of the institution's general diversity
interest and the burden on identifiable majority employees. Consideration of race or gender
would be permissible only: when necessary for the institution's operation; when a manifest
4
�>0....
a·
(.)
· racial or gender imbalance exists; and when less race-intrusive considerations are not effective.
If you select this option, announcing a clarification of federal layoff policy could underscore
the very high hurdle you would impose, but might also serve to focus resentments around the
entire issue. In any case, however, we are likely to face continuing questions regarding the law
and policy surrounding the Piscataway situation.
C.
Procurement: Preferences & Set-asides
Backgrou~d.
Federal law establishes several goals for the distribution of federal procurement
opportunities: · 20% for small businesses; 5% for small disadvantaged businesses (SDBs -virtually all of which are minority-owned 1); and 5% for women-owned businesses. There is
a web ofprograms designed to reach these goals; some are government-wide, other are agencyspecific. These efforts use several tools:
Under SBA's 8(a) program, small disadvantaged businesses
(SDBs) can secure smaller sole-source contraCts (usu~lly less than. $3 million) .. ·
• Sole source procurements:
• Sheltered competition: Under DOD's "rule oftwo," a contract is set aside for SDBs ifthe
officer believes two or more SDBs are likely to make competitive bids on the contract. (If
this set-aside is not triggered, there is a similar "rule of two" for all small businesses.
Failing this, th~re is open competition.)
• Bid preferences: Iri open competitions, DOD awards a 10% bid preference to SDBs; last'
year's procurement reforms authorized government~wide use ofthis preference.
• Subcontracting incentives: DOT provides an incentive payment to prime contractors who
(voluntarily) subcontract with SDBs, including women..:owned firms. (The Adarand issue.)
These ·efforts have been successful in expanding procurement opportunities for women- and
minority-owned fmns. Between 1982 and 1991,~ while the dollar, volume of all contracts
increased by 24%, contracts awarded to women-owned firms tripled and contracts awarded to
minority-owned fmns doubled. Of late, these increases have been accompanied by actual
decreases for non-disadvantaged small firms. For example, while DOD's contracting with
SDB's more than doubled, its contracting with other small businesses fell by nearly 20%.
Several aspects o! these efforts have not been successful. Graduation rates from the 8(a)
program remain low and the possibility of abusive practices remain, although recent statutory
and administrative efforts promise some improvements. Outside of the limited 8(a) progra~,
however, there are no graduation requirements apart from what happens naturally if a business
is no longer "small" or an entrepreneur accumulates substantial wealth. In addition, these
5
�--------------------------- ------------------------
>0...
0
programs have had a disparate impact on particular regions and industries -- such as smaller
construction projects and certain transportation sub-industries. Finally, while the 8(a) program
permits nonminority firms to participate upon a showing that a firm's owners are "socially and
economically disadvantaged," in practice only about L6% of all 8(a) firms are white-'owned
(and those mostly disabled), because the 1978 statute links "soCial disadvantage" to
membership in a group subject to discrimination. ·
.
<:..::1
Options. The policy options include:
Option 1: Reform the programs to emphasize their transitional character; eliminate
misuses. This would involve tighter asset-related eligibility rules, phased .
graduation . for .all SDBs, limits ·on the concentration of set-asides in a· single
region or industry, and standards to determine when preferences are no longer
necessary by business sector and by region.
Option 2: Expand eligibility to include more nonminority firms. This would involve .
revising the current conjunctive statutory criterion ("socially and economically
. disadvantaged") to a disjunctive ("socially or economically disadvantaged"). In
addition, the goal for total SDB procurement could be increased from 5 to 10% ..
Option 3: Sharply focus on "entryway" to entrepreneurship for both .minorities and
disadvantaged. In addition to the anti;. misuse reforms in option 1, and the
broader class- or need-based eligibility of option· 2, impose very tight limits on
the number of contracts an individual SDB or entrepreneur could win through
sole-source, set-aside or bid preferences.
·
Option 4: Convert to race-neutral · programs. Phase out race-. and gender-based
eligibility, relying instead on race- and gender-neutral criteria of economic
disadvantage. Limit race or gender-specific assistance to less exclusive and less
intrusive assistance tools -- i.e., technical assistance, surety bonding and
outreach.
Analysis. While procurement policies do not have wide visibility, they are arguably more
problematic than either education or employment policies. The practical effect of a set-aside
such as the rule-of-two is to take a specific contracting opportunity and hang out a shingle
saying "whites need not apply." Some view this as more problematic than minority-only
scholarships, suggesting an intuition that providing profitable business opportunities seems
more directed toward rewards or equal results than towards equal opportunity; education is
different.. Moreover, some view the procurement set-aside ·as problematic, even though 97
percent of contracting opportunities continue to go to non-SDBs.
At the same ·time, preferences may be more necessary in procurement for several reasons.
·First, anti-discrimination laws are more difficult to enforce in this area, especially in the
subcontracting realm. Second, ''old-boy" networks are arguably stronger in this area, so that
informal exclusionary practices beyond the reach of law enforcement can be potent and
persistent. And finally, .procurement decisions often turn on a single factor --price -- and thus
the multi-factor mechanisms used in education and employment are less
·
·n this area.
•
.
<(~
&
~<6
€""')':
~
6
�>-
a..
0
(..)
Option 4 would issue a clear statement that federal contracts should not be awarded on the
basis of race or gender. Under this view, set-asides are much like quotas. Current preference
programs would be converted to focus on economic disadvantage. · This option repre.sents a
judgment that whatever the group-based discrimination or disadvantages faced by minority
entrepreneurs, no special policy measures are appropriate beyond pool-development strategies
and race-neutral preferences. If one were to support race-specific scholarships but embrace this .
· option, one could distinguish procurement as "more related to results than to opportunity."
This approach is far more restrictive that Supreme Court precedents, which permit set-asides
based on legislative fmdings of discrimination or lingering effects. 2
.
.
.
Option 3 would retain a reduced preference program, but focus it sharply on mechanisms
more unambiguously related to creating opportunity for entrepreneurship, rather .than a
guarantee of entrepreneurial success. Thus, in addition to technical assistance and other poolenhancing activities described above, this approach would use preferences and sheltered
competition on a limited basis to help "break the ice," but then quickly push entrepreneurs to
compete on terms comparable to small businesses generally. (Recall that all small businesses
. have a rule-of-two set-aside available to them as well, but only if an SDB. set-aside is not
triggered.) The racial exclusivity of the preferences would be alleviated by opening eligibility
to non-minority firms based on economic disadvantage.
Option 2 would similarly render .these programs less exclusive and recharacterize them as
for ''disadvantaged" businesses, with race merely one-- but not the only-- way to demonstrate
disadvantage. It would not narrow the overall ambition of the program to the extent of option
3. Operationally, this is likely to have only a modest effect on minority contracting.· Prior to
the codification of its minority entrepreneurship focus in 1978, the 8(a) program used this
approach; at that time, about 4% of all 8(a) (urns were white-owned. In sum, race becomes
irrelevant in option 4; in this option· its exclusionary effect is diluted.
Option 1 would ameliorate several. of the most. problematic practices in the program.
Limiting participation, encouraging graduation, and tightening the asset tests. emphasizes that
8(a) is an entiyway, not an entitlement. Limiting concentrated use of preferences reduces the
unfairness to white. bidders in a particular region or sector. While these changes would be
significant, some would view this as •imere tinkering" that does not address the fundamental
objection -- namely, the exclusivity of these programs.
Distressed Areas: In addition to these policy options, we have also begun to develop a
complementary option: procurement preferences that focus less directly on minority capitalism
and more on job-creation for disadvantaged persons and distressed communities. Some of
these alternatives would be place-based and others employee-based; we are currently examining
issues of adrninistrability. Example of such initiatives include:
2
The Court has required a somewhat more rigorous demonstration by state and local governments than
by the Congress. The Adarand ruling, expected before July, presents an opportunity U;wo~..L'n
. more restrictive principles.
~~€,81
t
,_
z
:J
·(.)
1
�I
I
>-
a..
0
(.)
•
•
·•
•
Provide set-asides or other preferences for firms ·whose workforce (on the contract)
would be drawn more than X% from chronically distressed areas, using measures based
on Census and BLS data. (There are two especially well-regarded alternative indices ·
of distress in the social science literature. ) Or
Provide preferences to firms whose workforce would be drawn more than X% from ·
·targeted population groups, such as recent AFDC or food stamp recipients. Or
Provide preferences as above, but based atso on the employment of underrepresented
.groups. Or
Employ any .of these approaches, but scale the magnitude or duration of the preference
according to the firm's workforce "score."
Bearing in mind that such an initiative speaks somewhat separable policy. and political
. objectives, you may decide that such an empowerment contracting .scheme should be a (i)
substitute for, (ii) complement to, or· (iii) condition of the reformed entrepreneurship
preferences.
FCC Auctions:
Your decision on procurement set-asides will also govern the
Administration's position regarding the FCC's auction of "personal communication systems"
(PCS) licenses. Phases of the PCS .auction have been ·stayed pending resolution of a
constitutional challenge to bid preferences afforded minority- and women-owned fmns by
Commission regulations.
Because PCS licenses are for cellular and . other wireless
communication rather than for broadcasting, a programming-diversity· rationale will not justify
group-based preferences. Instead, the motivation is to create inclusive entrepreneurial
opportunity, where. there otherwise would. be none, in a critical emerging industry. Preferences
in the PCS auction should be handled like procurement preferences.
D.
FCC Preferences in Broadcast Licenses
Background. Programs administered by the FCC concerning broadcast licenses are sui generis
. because of the linkage between diversity of ownership and diversity of programming. Of the
FCC's three "affirmative action" efforts, one is not significant (a preference for minority
purchasers in distress sales which is rarely used), a second is not controversial (consideration
of race as one of many factors in comparative licensing decisions), and the third -- the "§
1071" tax certificate at issue in the Viacom transaction --has just been repealed. The primary
issue here is whether we should attempt to revive the .tax certificate program in a more limited
form.
Options. The policy options include:
Option 1:
Option 2:
�>c...
0
(.)
from one to several (possibly five) years; and (iii) ensurmg that minorities
actually control the licensed company.
Analysis. The tax certificate program has been highly successful. In 1978, minorities owned
0.5% of all broadcast licenses; today, 17 years later, that proportion has increased five-fold to
2.9%. FCC officials, including the Chairman, believe that, but for § · 1071, most of these
transactions would not have occurred. Option 2 would propose to reinstitute this program, but
in a manner that would prevent Viacom-like transactions by capping the amount of the tax
benefit in any one transaction, increasing the holding period for the minority purchaser to
prevent quick resales, and ensuring that no individual entrepreneur or firm benefitted repeatedly
from the preference .. (We have·not identified PAYGO offset for this option.) Option 1
would avoid reopening the battle over these issues.
a
IT. PUTTING THE PIECES TOGETHER:
BROADER PERSPECTIVES
Your. policy choices in this area may be most easily defended if they reflect a coherent
theory or approach. This Part outlines three such approaches, and describes the policy choices
that seem most easily justified within that approach.. (See Exhibit 1.) Each is consistent with
·some basic inclinations you expressed in our various "vision" discussions, including:
•
•
•
A.
Emphasize antidiscrimination and opportunity, rather than guaranteeing results.
Stress the remedial justification, but also embrace the goal of inclusion.
Respect the interests of bystanders, by crafting policies carefully and narrowly.
The "Calibrated" Approach
>
This approach emphasizes the difference between equal opportunity and equal results in two
dimensions. In terms of the policy tools one uses, outreach and training are less result-driven·
and thus less problematic than set-asides or quotas. Similarly, in terms of the context, ant
specific affirmative action tool is less problematic in education (which expands opportunity)
than similar efforts in procurement (which more directly affects the distribution of wealth).
This approach supports a broader range of affirmative action policies in education than in
procurement, as illustrated by the diagonal orientation of the "border area" in Attachment 1.
Thus, certain kinds of set-asides are acceptable for scholarships, but should be eliminated or
sharply focused in procurement. With regard to the policy choices outlined above, this
approach would support:
Education:
Employment:
9
�>-
a..
0
(.)
Procurement:
B.
Option 4 or 3 -- Phase out or sharply narrow procurement preferences and
set-asides.
The "Least Intrusive Alternative" Approach
A second approach expresses more overt solicitude for bystanders by stressing that
affirmative action must be narrowly tailored to minimize exclusivity and the use of race- or
gender-based decisionmaking. Thus, result-driven quotas are always inappropriate (except in
rare court-ordered remedies), and set-asides may only be used (i) when they are either broadly
remedial or (ii) when less intrusive alternatives are not effective. In essence, this approach
would apply the Title VI scholarship policy Ito all three sectors.
·
.
Of course, "effectiveness" will be a matter of degree, and there is an implied balancing of
the benefits of inclusion with the costs of exclusion. Prior discrimination is relevant, as is the
. opportunity-results distinction. So, one might weigh those costs and benefits somewhat
differently in different contexts: it .matters if an institution or industry has a history of
discrimination, in which case the narrowness need not be too scientific; and it matters if the
context is procurement, where the distribution of largesse ought to be narrowly tailored indeed.
This approach leads to support for limited use ofrace-specific programs. In particular (as
illustrated in Attachment 2):
Education:
Employment:
Procurement:
C.
Option 1 or 2 -- Maintain or tighten current policy.
Indeterminate -- Either option on consideration of race/gender in layoffs.
Option 1 or 3 --Reform or sharply narrow preferences and set-asides.
The "Anti-Exclusion" Approach
A third approach emphasizes the moral cost of maintaining programs that exclude pers.ons
on the basis of race or gender -- even in the name of diversity. This approach entails
opposition to the rule-of-:two SDB set-aside and to race- or gender-specific scholarships; these
are effectively indistinguishable from quotas. Instead, such programs would have to be
revamped to rely on multifactor considerations in which race is but one factor, or on race- and
gender-neutral approaches.
This approach leads one to support elimination of set-asides in all areas. In particular (as
illustrated in Attachment 3):
Education:
Employment:
Procurement:
Option 3 -- Eliminate race- or gender-:specific scholarships.
Option 2 -- Oppose consideration of race or gender in layoff decisions.
Option 2 or 3 -- Expand eligibility to include nonminori
.
·
·<(l.t:,SI DEJ\1~
·
.
.
~~
~ <()
~~
10
�>a..
0
(.)
- ---~ ......--~---....__----....------
-~ ~---·----~
__'f'._
~~
0-..f ~ . --- ---- . \ [_ C.._~o S'
f'c.......A nc.t....Jy
·-·~
•-'§"~r~
.
-~------~-~- .. ---·-···
·~
···-----~-;L-~~
~ ..,·
..
v----;-::::::::
.... - tP-·----
'\1-~
r3
~~-
-~ ~~--~-~~-- --~--~ -~~--~-n;-~~-d--~~-;~ t~~- ~~ ~j-~---_ _0 ...~~--~·-·
- ... --
G :J c...lvv ..L_tW-t.-- -------
----··---- ---
____ .. _____
.. .
.
--~---
, .3~
..... --·
-···-·- -
..
'?----.:.._
- ···--- --------- -------------- .
'···-
_{!.) ()~--~ -~----.&Y--~~
· ·- . ·----=~-~-~----~-- --·
---~ _______ :____:__~---ct-- ---~ --· -------- ---- -
.. --:- - - ------=----~---~~ ft~- --~ -~
···------------- ---------- :_d:'? ______~ __ 'ft.~-~- -~- -~---~-- ~
.-.~-~
~
~-~
. .. ··-· . ·-· ------·-··-·-··----- .------ --- .... ····--·-··-·:·· --- _____ . _ ·------· ---------··· ·····------------------!.~-~------ ... ···----- ·-------------~ ----. ---- ------· ··------ ------ - --·
-----d-------------------~--------~-----:!.-'__• -~---~----·~--- -~------
··-- -------
---------·-- ----·----------- _______________-:-._ p ~----~-- ~- -------~-~--~ -.. ~- __ :~~---.
. .
-
. . -:·
~JL._O· • .
---
~
~--~
~
.......!.:.~ -·--- -· -·-· .. -- _. __ ----·--·--.--·
·- ·---··--· -···-·--·--·-·--·-----------··------·---·--·-·-·--·-----····------------,--------·-0t.!-----·-·-··-·-·=- r--:-:-:-::-:....... ---·--- ·-···--·- ---. ·-···-·-
---------------------·----·--------·----------------~-----~---~--~-~- ~- -
. -----·-- - -·- -
. ····--·--·-·---·
-.-.. - - -- .- - - - --~ ~ -· ------ _:~------· ------- ----------~ -~'- ----~-trJ- _
G-, ---- ---.
_____ _______. ________ JIL . ~ ~
~ ~~_'!- _
~-
---~---~-- ~---- -~--)-~-- -~--
·------- ---·····--------------
-------
--
- -···--
-~-- ~-. ~
-=-----___ _ _ _ _ _ _ _ __ _ _ _ _
_
. ·--·---------------- __ ,_________________________________ _:::___ ~-----~ ~--·--.A6---~- .
r.
~--
·-·-
----------·---------------·-----·------··--- ____ _:_________ d------·-·------~--P~----~-- ... ----- -- --··--· ---·· -···········-· -
'
...........
-----------·-·------~-----·-· ...!______________, ________________ _::- ~~~~--=1.-. ----~--~g_- ~--- - -~ ·····-~ __ _c__~ -------.
.
··------------------·--:--~-----~------·.-------·----·------~ -- --!c~- --··---~--- ----~ . ~_43_- -_______ __:__ _______________ ;..,....
.. __
..
....
____ _________ _______________________ ~--- -~--------~:- ---~-----·--- -,
,
---------·:---- ___,................__... _ .... _· _____________ •m•m------·--·-·-·------·------..
····----·-·--··----------·-··· --------·----- ---···-- ..............
.. -··-····--·-·· ..... . .....
I
............. -------··- .
-
----· ··---·
···-··· -----
-------------
--~-~
··-·· ····- ··------------------··
...
- ·- ----
.
.. --..
,..,...,., ... ,. ... _ •• '""""'"'n••·-- .. '
--------
'"" ---- ,_, .. __,, ........
H
----
·--
·-
"'""'
�>-
a..
0
C,.)
-~-·------~---------
.. --.
--------- ---
--~
-:s•··~~. c~ .
----
_-
-~-r ~--<f=-.-~ ~-
-~--~~.~---· .~~
q -uw
-
tV:l
-~·-
Y:..-r b -
- -Q
~ -----~
/0 __ ~ -
_;vdlo
~·
cc:;:::o._
-
····--~-~····3·····-· -~·-···· ~
--~.,.._......,---.
..
-- .... -·
~·---~-- -··~·- ~-·-·-
-
-~--~----··--·-
·--
----
- ······--·-
- .··-
_.
_________
._
___ ..
..... -···---- -
--·-···
-·
.................·....... ··---- .. -
--------·--------:----~--- --~-~--..
·-·
---_
~~
.....
.... -------
·--- ------·······
--~~~-----------_-----·-·-~·- ......... ---·---------------- ..................... --- ----/·-· ~ -- ·-~·-
.
...........
---
·-·
·- --
~
. . ---------- --- -- ______________ ,9}_ __ :~---~--~------1-------~-----~~--- ~. --,- -.
.
~
.
--------------------------------···--·
--··
. --------
-······
----------- ··------ ·--
--·- ·-
-----
--
·----
...
·- ---·-·---------------- --·····-------... -.. -.. --
-
-· ------------------------ ------··--·····-··---- ---------- ..
~
-
... - ..... ···--·
---
-
----·---·
..
r:z:r=- ~
cc
------~----
--------------------------;---~---~------~-~---- -~----
---·-··------ ---·
--
~
---------------c;··----('-j.:;J---~----~-
(!)'~-
.
--.. ------·----- ..----------- -~--·--·----------- .. -... ------ _____ ___'(\{"___ __ ----- ............. ··-·-·-· -------·- __ ._. __ ,.- _______ .. _________
,,..
,
.,
_._
......... - --
.
-- -------
.
- ---- .......... ·-- ................... ·-
__ ... _ . __________________ :____ ,__________ EL __1-.1__ ~---:-~-------0.14 ___ ~----- ------~------~---·- __ ~---
------~ -~-,------
....
-------------
------------ -
-
---
---------
----
--
·o____~~-----~---t-~~
----~--______ . _::?__
-----·-··---····--···-····--·-------··-·-··--· ------,--- ·----·· ... - -·'-··-·-------·-
.
~--~-
. ---- ···:- -··
·-
--
--···-··--·----;-·····--·--
-·:·
-- -------··------
···--·· ·----- -·-- --·-------····.
...
-- -· ·- --·------···
·-··-·----- ·- --
:·-----
----
-·
--
·--·-·-
.
- ....
··-
----- -- --_
~
..
---·
......
.
·-- ---·- ---- -- -- -----·----- --· --- -·
__. ._ , ...... --..--.- --·--·-:t?.l!Y. --~· ~----------- . . ----·-·---- ·- - ------------- - · -·-- ----------- --·-- . . -----------· - . . .
. ________
·-·--.-------- . ---· -----··--- --- ......... -
.
'i.JJ~
-
·- ----·------·--.----------- ------ ...........-·-·-----· .......
.
4
.~
~
.............. ____
~
. . -- ······-·· ·--·----- ----·-·· ··------·---"-.----· ·----------------- -~6'"'............................... ---·-- -
.....
---- ·-· ...
------··
------ --- . ----· ---------
......
-- --·-·····---·--- -----
~ pc_·-~
. -·--·-------·--···---- .. ---·
'
------------
.... _ ·'·-------·
--- ...
·----------·- -.----
-·
~ ~
--)- --- ........
--- .........
----·- ............
-
--·--
--
·-------.----- ........... --·-· ----.h .
--·~-·---
........... ---···-
'""
.,2-,_1~/:'1- --~- . . ~·----··~--~··-'/ --·- ·-- ---·
-:
-
~
----- ~(~ ~
- " ":" __- --------·~-- _........
......•
-·----~ ~~-·
-_ .... ·..
·-·-·
./~-~--Y-----.
~ ~~.~
..
�.---------------------------
>-
0...
0
0
·-··--·----~
_C0:D~ _ -~~..,-~-~
_--
. -~---J""".~f- -· - - . ----
.......... .
~- -- -~-~ _- ___ \? ~ ··-·· ~---:~~---····
'"S~ ~------· . . -:~ -~
.... - tJ y...}
- ...
·~·
·--- ------------
~-~---··c1· ~
~
-~- ~-~
j:Xii:J
·-
- ·-- ..
-·---~-·-·
.... -·····
;,
,.
.
_L_
- ---------- ..~. . ~ ~2- 1- ---------r---=v-:-- -----------~-·· . . . .
·------~--- -;_---------~-------~-~ ...
0--L.
-~
'.
-----------
'-~
---------'------------:--·
-~----- ,...
·- .. _________________/Y~----
.
,'
~~--- -~----
=
...... -· . . -~- --~J}:-~___ 1'-'_u~--- ~-- ----~--~-- . -z:;;;/ -----~-- --------------
------------------
- ~---~ ---- - ;;;.:?~~
< .
......
- - - --- - . . .
..'?--
______________k_ --------~--~ --·
........
------ ------------------------------·------------------------ ------------
l
___ ,, . .L~
-------------- -----~---'(~--~--:-~.::.
. __:_______ ,_ -- ------ ---------'-------
~
- ;. . . .rJ--
0
.
~-
.............. ·-------·~-~---·- ------------------· ------~---------------_--l---vII> --~
4V-'- 01
-~---------~~-----h
--
No
.
VI 0
__________
~
·· · ..
Jt-A~-
--~.::. .....:.:..--:::-::- ----
...
-----------
~ ----- ~
··------~----~ ~-- -~~--
__ ::- _____ t::l_(f\
~--
~
---
----------;--- ----- -------
/
---------
___,____________ - ;----------------------------------.
.
-------------------------------
. ----
rJ
--~----
··---~-~~--------
-- -------------lr---..
~
-------
-
k
.-(~cro ~
----a-=--:...-~------
-~
--------------- - --- ---------- --------- --
~~
~
-
----··
------------------
~
.
-------------------------
�>-
a..
0
(..)
cc.n-:J.'c).)
:~
·.,··
�>a..
0
(.)
. . . ~-~-~ . 5!3A.:__C!!~.
s tp,~~
'l
~
···-·--•r1· - - -.. -···-·-------- .. - - ·· ·•· -·- ·----·-· --·--···------------·----- --------· --------·---------------· · ·---·-· · ···· •·
ii~
!I
..... --------- ----------· ------------l·:---- --------. ..
·
--·· ··--- --- .-·- .-·---..
~-
-- ---
-
-- --
... ---------····-··
····----~
. ·----·-··----------·--····--······-·--· -·-·······----· ···-------- .. ····-· --------·-·--- ______________ . _______________ _
.
-----------------~---·-···--····---------------
-~-.l~
!i·~~zr----·-·-"·"--···--·· ... ---·--·····-·---·-------------------·-··---.. --·---··--------·-··------...-.--..·-c .. -·-------··-·
li
!i
·
-~ ~~~ J--fv ~
!;!
- ~ '\)(.):f ~ .
--------- ------·· -····-----------·--·--····-···-- ------ ________ . ________________ ------------ ---···--· ··--·· ----···· . _, ----------------- ---- . . - ·-·-----
--~·1
--- ...
. ·------·--·•·'" --···----- ···- ···-----
~
i"i""""""""""""-- ----.- -
--1-~-------
--
- --- --- - - - - - - - -
- ----
- - - - - - - - - - - - - ---- --
------
- -
-
-
--
--·--
·-· - - ..
---·
--
-
~
.. -- - - - - -
--
---- --- ··- -- -----
----·-- ---
---------------
'l:
::
--------------·· _____________..
' I
'
'
·········--T·:--·------·---·----------------------~------------;-------------------------
';
.!i t(;t
--------------~--------1-r·
~~-
~~---------
t'~
------------------------------- -------------··
.·
- - ·- - - - - -------- ·- -- --- ·-- ·--------------_------------------------- ----
_________. ___ ---- . . . . . -------------------
· · ---·---~------~l-----·:'--··-~-----~-~~---~-~---~----·-'1:-~."!': ....... ,. ____ _
i:
- ..Q...u...v.A"'-<. . . ' - L ~ 1....... \\ ---·- ~
. . . . . . ----·-- ·--r-· ----·-------<---- __ y::-. __-:-,:-_. ____/'::":'~~~-··---·--···-···---·-·~ . ···- -------·--··- -··--' :- --------=--·:_c~----"":L_---·-~·---~~- __ C ___ ~~ .~
····-·------;-; -~--- -------------------------------·-···
'i:
~f.\ ~
~ -
----------------·--------------------------- .. -----····-·--- -----------~ . ~ C-
:.
··- ..
....
........... ·-··-- -·--·-- . - ... -··---- -
Cx;;v;;31
--- ________., _____________ ----------------- ----···-
~
-~---···
-· -----·········-·
---- ··- ·-·-·-- ------- ------·-- --·--·-- -..
....JL..---:1::;--,
.
-
. . -.- ......... +,-·--··-·-·--- ·-·--..·-·-·---·······-·-··-----·. -·----·--..-·--·----·-........ _. . . ._______ ....._ -.{~_':"_::-_-.:~.::.,~V-------~............. _________ _
.......
····---- ..
-····-l"·~·:-=-~--~ ----0~-----~~--~-. :-iAJ .....---t~---:.z_::::·--..
-
\
·-·--.-~---------
- · · . . ·-·- - - - -·- · ·- · -·-· · - - - - - - - - - -·- - - - -· ·- - - - - - - - - ,___ _ _ ·.- _ _ _ _ _ _
/-
~
- - - - - - - - - - - - - . --- - - - - - - - - - - - - - - - - -~~- - - -------·· · · -------------------·-·-·-- -
~
-
~.~~·-····--~-
- - - - - - - - - - ·-· · · . . . . . - - - · ·- · - - - - - - -·- · ·-·- ·-· ·-· ·-
~n.... ~~'*\=-~-=
._ .
~
~
- · - - - - - - - - -.- · .- -. - - - - - - - - -· - - - - - - -
_Lj..a_
·-· ~___ . _ _ -.-r. -~~=-.
. . . -· . -.. ·- - · - -
.~--~--~- ---~--~---- -~ ~--~ ~-. ---··-- ;. . -··--=-- '"£-~--~-~-----~·····-~. --~--~ . .
---· --·-
.
--- ........ -· ............
...
~- ~· ~
··--·--· ---·····-~·-:···-· ---·· --------· ·-- -·····--------------------······-···---··- -~- -----~
·-·· -- -,-----·-· ,
--
.
- ··-----·· -
·- -------------·-·· ...
·-·----·-···
·--·-----·---· .......
·-- -- ·---- ------·--·-··· ··----· ------- ............ ---- .. ··--
--~- ~-----~- .-::?.•. . ·- -~~------~~--------·----·
~
.
.. .. ........ -----·-- ------r-:--·---·---·--- - - - - - - - - -----···--· ----· --------...,-·-·····--------···- -----·-·- . ---------· -------------- --------------------··--·-···· ·-------- .. ·------ ----···-· -·-· ......... .
·---·-····----
�>a..
0
(.)
-~
~#
··-:i+---------·-----·-----------------·------------------------'--·-------------------------------·--------·---·-···-
·--,-··---------+i--------·--·------·-·-··-.J'---·-··--·-···f---··-.1---·--~----~---·-·-·---··----: _____., ....._. ___________________ _;_
~~-tn~I'\~A,.......
~
................... ····-·-----·----+i------------- -----------------------·---l+---·---·--
--~----~---
.
~
~
·-· . -------- --------···----------------- --- -··
~------------- ·----·---·-··:_:____________ _
"'
t-J,AJ
.............--.----·--·-··--·--1+------------·-··-·-··--=--.::...___ ~::'~"..C~...:::=-- ...te~=-------------------··:.. __________ ·
________________ -·-------·------------··-----
-
--~------~----~-------~----~--- -~- ~--------------··
f
-----------.-----------h--··- -----------------------------••• ----••·•-------··•,M
--~-~--~L--~--- ~-~ '1. --"1-- -~---- ~- ---------- - ~
-
,A 0......
'o.J -
O<;>
11'.-
~··• -••••••··--·-------·~··----~---•-·•••·-·-----··---•'"•~--~-~------·-:.·\---···--·~-----
\..J ~
·--·- . ._, ___ .. _____ ,, ___ ,,'"" •
--------------------.,..·<~------w ... ~------~ ·--~------~--'-l.!.e --~.
__
•' -- •- ••··--•·••-•
------ ----------- .. ------· -------- -----
~. ---~
-· ________ _
~*'-
~
+
""''-
~
"'"'_"_
;:;r;f::;;y___ ~--~
__:-'~---~----~-~-
···-·-··--~--
0..
--~- ~ *"---~-
.G.,
------
-~-~--.)-·· ~--· ~-~
.... '
~--····
~
•~ti:.~-~ ~=--~,
-
•>•
, L-~. ~
·---~__:::_ c.......
________
-·
----·
.
.....
···---
>
m
,P.-=:-c::---l(p;=7=_ -.,. ,. . . . .".. __ _~=...!-- ..
-=--. ""'4--r-= -~:._
...
_
:...!c_
-
.
-~~---
.
·~ -,...........:;.. ~---~-- --- ·---- ·u··-.. -~-- .. -· ----·- ------------ ---·-- ----- .
-~ -- ·- -·-·-.:
�>a..
0
<:..)
!'
'
;
~ ~ ~ c_l.., t ~
::~·.: Jc-~- ~~~:E;;::~:~~---~- ~-t<_~< __-.. ..... .....
· · ·- _
11
-
()UI'V.L{)-:-
b:J=
J.
··-------· -11-··--· ---·····---~~
ii!
·;
-~-~.~--~ ~
~--·----~---~~-
-~~-
a.U
~;au,~
~--~--·
'N~ ~). ~--1 ('~---~-l.y,-
:
·T;-·
i
~:
":>~
4 f.:.~
--·-~;:.::;
~-
:····-~---~
r--~---
-~-~-·-·····-&---~---
-----
····-~ --~--- ~
~~:-~--~----~
I.
i I
c-..- 1\\.1
�0
(.)
.'\b
=
• '-P
' c..s
•1-l£'
1'"
I·-
l..t~
(, ~'
..
~~~
<-
'
--
--·••••«-••- ....... ,_
---
~~ -~-~--~~ -~- ~
0
i
··-----·-1---
·-
0
.
-~
~.\)G- .-~ .. ~~W~
·"-- . ... -· '"'
. ,.... ··-i
-to
--~.
~~-~--·.. ·
: o rJ ~ ~ +
•····--··-·--,.--
.
~ ~
~
-""'\ . :d-.
'C>iJ(.;.Z;;>L ..
. ---·-· ----
~--~-.··
·--~--
'f".-1
·-r
• ..
~ /1~
J..J __ -~:.·
~ . .fr'~--
:~--~ ·_-tfr·M.v .:iv ·-~l
~-~~--
~
~
. \)c.
~~-..F
! . ~-'---·~----~---
...
---··-~-----------
..
.
..
--~-- ~
~
~
�>a..
0
(.)
THE WHITE HOUSE
WASHINGTON
PRIVILEGED AND eonFIDEN'fiAD
May 23, .1995
~EMORANDUM
FROM:
FOR THE PRESIDENT
k {. (. ' .
JAMES CASTELLO
DEPUTY COUNSELVTO THE PRESIDENT
MARVIN KRISLOV:~
ASSOCIATE COUNSEL TO THE PRESIDENT
THROUGH:
LEON E. PANETTA
CHIEF OF STAFF
RE:
Wall Street Journal Article Regarding EEOC
You asked for information regarding the April 27, 1995
article in which James Bovard attacked the EEOC's Chicago
district office for suing businesses to impose what he terms
"quotas" of minority employees •. Hebases his analysis on five
"pattern and practice" cases, all filed before the start of this
Administration. As the published response from Chairman Casellas
indicates (see attached), these cases represent a small fraction
·Of the thousands filed by the Chicago office during this period.
Moreover, Bovard's comments do not reflect accurately the
litigation in question.
1;
Role of Statistics. Bovard contends that the EEOC used
a statistical model to predict the number of minorities that
should have been employed by a company, and then charged
discrimination ifthose "quotas" were not met. This argument is
not an accurate statement·. The EEOC used statistics as one type
of evidence of discrimination, which is consistent with longstanding precedent in the Title VII area.
Statistical disparities have long been considered valid
evidence of discrimination in.Title VII claims. Statistics
generally do not stand alone, and they may be attacked or
supported with witness testimony and documentary evidence. In·
the three cases Bovard cites that were decided on the merits by
the appellate court, the EEOC presented anecdotal witnesses as
well as statistical evidence. The appellate courts determined
·that the total evidence was unpersuasive in two cases, and was
persuasive in one. In the remaining two cases described in the
article, numerous minority witnesses had complained to the EEOC.
2.
Statistical Evidence and Burden of Proof. The·
statistical evidence used in these cases was particularly
significant, given the nature ofthe alleged discrimination. In
OETEH:\HNEDTO BE:\:"' AD.\11:\ISTI' '.
\1:\I{Kl:\G PerE.O. 129.58 as aw.e,nded ..'>·.
Initials:
W}.L
.........
Date: ..~Jl1lt1 ·-·
?AI>"llC".i'l'YJ"i<-17
.
�>-
a...
0
(.J
the three cases decided by.the appellate courts, the EEOC was
contesting the use of word-of-mouth recruiting (or waik-in
hiring).· The EEOC argued that these policies operated to exclude
the non-favored racial group(s). In 1991, the Seventh Circuit
determined, in a departure from previous case law, that word-ofmouth recruitment did not constitute an employment practice that
would be prohibited under a discriminatory impact theory
(although it would violate the law if intent was shown). As
allowed by Title VII, the employers could rebut this evidence by
showing, for instance, that minority workers were not interested
or qualified, or that business necessity justified the challenged
hiring practices.
·
3.
Monetary,Relief for Applicants. Bovard criticizes
efforts to obtain monetary relief for those who were rejected for
employment with the businesses. Title VII recognizes that
applicants and would-be applicants should be made whole if they
·have suffered discrimination. Thus, advertising to find victims
often is part of the remedy in class action lawsuits (e.g., the
airlines lawsuit) and may represent the only practical way to
identify victims of discrimination and to deter wrongdoing.
However, Bovard is simply wrong when he implies that the EEOC
typically grants all such claims for relief that are elicited by
advertisements. For example, contrary to Bovard's claim, the
EEOC actually rejected two thirds of the claims it received in
the 0 & G Spring Wire case.
· Moreover, the .litigating stance of the EEOC regarding
settlement demands has softened recently. Under Clarence Thomas'
leadership, the agency instituted a "full relief" policy,
demanding that all victims be made whole. The EEOC informs us
that this prior policy.even applied to .early settlement
discussions, thus discouraging employers from compromise.
Last month, as part of a reform package initiated by Chairman
Casellas, the EEOC adopted a policy wherein the Commission may
accept "substantial" relief after a finding of probable cause, or
"appropriate" relief at an earlier stage in the investigation.
In addition, the EEOC has changed its policy to identify priority
matters (instead of relying ·on the date a claim was filed to
·
determine its priorities). The EEOC hopes that these policies
will encourage early settlement and allow it to concentrate its
resources productively.
4.
EEOC Enforcement Policies. Bovard finally claims that
a "mere shortage of properly pigmented job applicants is enough
to turn a business into a criminal enterprise." This statement
is inaccurate. As discussed, the necessary evidence requires
more than a statistical showing, which may be.rebutted by
contrary evidence. Additionally, the EEOC only brings civ~i~--~
lawsuits and cannot file criminal charges.
·
~€,.SIDE'tvl':
<?
~
Attachment
2
~
z
~
u
~
<'
�,
II
'
:
I
I
I
I
Withdrawal/Redaction Sheet
Clinton Library
RESTRICTION
DATE
SUBJECTffiTLE
DOCUMENT NO.
AND TYPE
IS
001. memo
Weldon Latham to Harold Ickes, re: Presidential Solution to
Republican Attacks on Minority and Female Business Set-Aside
Programs (5 pages)
6/7/1995
P5
002. fax
Weldon Latham to Harold Ickes, re: Proposed Participants in Meetings
with President Clinton ( 4 pages)
5/12/1995
P5
05/11/1995
P6/b(6)
4/20/1995
P5
I 1-
I?
-OOJ. letter
Phone No.
(flm tial) ( 1 page)
President Clinton's notes on WSJ Article from- 4/19/1995, "The
004. note
/Le
Democrats' Quota System" (I page)
005. notes
Affinnative Action Meeting Notes (2 pages)
4/10/1995
P5
006. notes
Affinnative Action Meeting Notes (4 pages)
3/20/1995
P5
Ii
Joan Logoe-Kiudei to llawld Ickes, 1e. Aftinnative Action (I page)
3/2/1995
P5, b(6)-
2Jr
i)()7. memo
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
OA/Box Number: 9162
FOLDER TITLE:
Affinnative Action- 1995 General [Folder 3] [3]
2008-0308-F
wr451
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- 15 U.S.C. 552(b)l
National Security Classified Information j(a)(l) of the PRAI
Relating to the appointment to Federal office j(a)(2) of the PRAI
Release would violate a Federal statute j(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors ja)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
b(l) National security classified information j(b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency j(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy j(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions j(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells j(b)(9) of the FOIAI
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
I
II
I
i
I
I
I'
I
I
I
�SHAW, 'PITTMAN, POTTS & TROWBRIDGE
A PARTNERSHIP lNCt..UOtNG PROFESSIONAL. CORPORATiONS
2300 N STREET, N.W.
WASHINGTON, D.C. 20037-1128
(202) 663-8000
900 THIRD AVENUE
NEW YORK. NEW YORK 10022-4728
FACSIMILE
1501 FARM CREDIT DRIVE
McLEAN, VIRGINIA 22102·5000
(202) .663-8007
115 SOUTH UNION STREET
ALEXANDRIA, VIRGINIA 22314--3361
June 7, 1995
WELDON H. LATHAM
(202) 863-9228
201 LIBERTY STREET, S.W.
LEESBURG, VIRGINIA 22075·2721
VIA HAND DELIVERY
Honorable Harold Ickes
Deputy Chief of Staff for Politics
and
Honorable Erskine Bowles
Deputy Chief of Staff for Openitions
·The White House, West Wing
Washington, D.C. 20500
Re:
-€0NFIDJ8NTIAL
Presidential Solution to Republican Attacks on Minority
and Female Business Set-Aside Programs
Dear Harold and Erskine:
As a follow-up to both the May 23rd meeting with President Clinton and the
June 2nd meeting with Alexis Herman, Chris Edley, George Stephanopoulos and
others on the White House staff, it is becoming clear that thePresident·needs both a
long-term and short-term strategy on affirmative action generally,' and on minority and
female business programs, in particular.
Enclosed is the Meeting Agenda we prepared for the June 2nd meeting as well
as a copy of the MBE magazine Special Report entitled "Voices of Reason -- The
Case for Affrrmative Action", which were provided to each of the meeting
participants. The Special Report includes support for affrrmative action and minority
and female proctirement programs voiced by some 53 prominent members of the
business and government communities, including just to name a few, the CEOs of
NationsBank, J.C. Penny's, Pacific Gas and Electric, Marriott International,
Ameritech, AT&T, Texaco, Washington Gas, Eastman Kodak, Hewlett Packard,
Coors Brewing Company, Chevron, Time Warner and Lockheed Martin, not to
mention members of Congress, and members of professional and minority trade
associations.
DETERl\11NED TO BE AN ADMINISTR.\TIVE
1\tARKI~G Per E.O.l2958 as amended, Sec. 3.3 (c)
Initials: WL..
Date:-"'..:.~./.:..;l"~,~-/•_,.- - - -
Fo \ ~ "Udii·03t.IS * p-
�>-
SHAW, PITTMAN, POTTS & TROWBRIDGE
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
Honorable Harold Ickes .
.
'
Honorable Erskine Bowles
June 7, 1995
Page2
I propose for your consideration the following recommendation: there is ·
probably a political need to have the President appoint a Commission, composed of
white male CEOs of the Nation's iargest companies, a few key Republican [e.g.,
. Senator WilliamS. Cohen (R-Maine)] and Democratic members of Congress, as well
as members of the minority business community to 11 further study the minority
business programs,uparticularly given the apparent divergent views and
recommendations on the White House staff.
.
As you well know, there continue to be daily rumors that 11 the President 11 has
decided to support continued affirmative action programs for employment and
education, but dismantling ofF edeial niinority business procurement programs.
While the President, both of you, and other key staffers have assured us this is not the
case, both our discussions with members of the White House staff and the persistent
rumors make clear that there is a group within the White House that appears to ·
support this approach. While politically this would be a disaster for the President, by
gravely undermining his support from two of his core constituencies (i.e., minorities
and women), 2erhaps the safest political action for the President, after he presents his
· stron est unequivocal support for affirmative action generally, is to buttress that
. unequivocal support with the appomtment o a ue Ribbon Business Commission to
study the viability of continuing or modifying minority and female business programs
within the Federal Government. The Voices ofReason Special Report provides an
excellent list of possible appointees to such a Commission.
Our ad hoc group has begun working with the White House to support the
short-term efforts to overcome any House Republican back door attacks on these
programs via the appropriations process, and we would be· pleased to continue
assisting in this effort in any reasonable manner .
. What is clear, however, is that the longer the President waits to declare support
for these programs, the weaker he is viewed by both his friends and enemies, alike,
and for those of us who strenuously support him, the more difficult it is to secure
support in his behalf from both the minority and female communities.
0....
0
c.:>
�~
a..
SHAW, PITTMAN, POTTS
&
0
TROWBRIDGE
(.)
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CONFIDENTIAI:i
· Honorable Harold Ickes
Honorable Erskine Bowles
June 7, 1995
Page3
I hope the President will give serious consideration to my suggestion regarum~
a "Blue Ribbon" Commission and I am certain that the other members of our ad hoc
group have other equally constructive ideas on how to assist the President in "selling"
a program that supports affirmative action and minority and female set-aside because
they represent an expansion of opportunity and are good for America.
I trust that this recommendation will be helpful and that you will continue to
call on our assistance.
Best regards,
AJcL
Weldon H. Latham
WHL:jl
Enclosures
cc: Honorable Donald E. Fowler
Honorable Alexis Herman
Honorable George R. Stephanopoulos
Mr. Melvin E. Clark
A: J. Cooper, Esq.
Mr. Ernest G. Green
Mr. Robert E. Johnson
:rv;t:s. Marianne Spraggins
�>a..
SHAW, PITTMAN, POTTS & TROWBRIDGE
0
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
Honorable Harold Ickes
Honorable Erskine Bowles
June 7, 1995
Page 4
bee:
Honorable Robert Nash
178670-01/ DOCSDC1
(._)
-€0NFIDENTLA...L
�>c..
0·
(_)
MEETING WITH WHITE HOUSE STAFF
June 2, 1995
3:00 p.ni. '
SUBJECT:
I.
Expanding Opportunities for All Americans/Affmnative Action/Minority
and Women Owned "Fair Access" Issues.
Background:
As a follow-up to the May 23rd meeting with President Clinton
· regarding the above-captioned subject and in order for us to provide
President Clinton with useful policy and political input, it is crucial
that we receive an accurate report on the status and copies of
documents on which Messrs. Edley and Stephanoulous are relying
for their preliminary opinions on these subjects. Our reliance to date
on rumors and unsubstantiated media accounts is counterproductive
to making this a useful process.
IT. Issues for Preliminary Consideration:
· Copies ofDepartment and Agency analyses regarding SBA Section 8(a), DoD/SDB,
and Government-wide specific statutory SDB and Federal Acquisition Streamlining
Act mandated SDB programs-- status of recommendations.
· White House Strategy while Presidential Decisions are pending: Avoidance of New
York Times Article ''Trial Balloons"
ID. Next Steps:
· Process for Our Useful Input
.
.
· Consideration of Creation of Presidential Commission (see Voice ofReason)
�5-12-55 ; 5:23PM
SENT B'i' :SHAW PI'I''I'MAN
202 456 6737;# 21 3
SHAW PI TT~lAN-~
SHAW, PITTMAN, POTTS& TROWBRIDGE
MEMORANDUM
VIA FACSIMILE .
·To:
Honorable Harold Ickes
Assistant to the President and Deputy Chief of Staff
The White House·
From:
Weldon H. Latham
Date:
May 12, 1995 ·
Re:
Proposed Participants in Meetings with President Clinton
=,
Thank you for your telephone call of yesterday and the follow~up call from John
Sutton of your staff responding to my letter of May 5th, 1995 to Democratic National
Committee (DNC) Chairman Don Fowler, requesting a meeting for a representative group
of African American supporters of the President and the DNC.
Given the obvious constraints on the President's time and the desire to have the •
most meaningful interchange, I,.confcrred with DNC Trustees Mel Clark and Ernie Green
.. and developed the following list of six proposed invitees:
("'::".~==-~ <-·~·"-
.
Mr. Melvin E. Clark
President, Metroplex Corporation
A. J. Cooper, Esq.
Partn~r,
Mr. Ernest G. Green
,
Managirig Director, Lehman Brothers
~.,.-~,.,Mr. Robert E. Johnson
l.• . ·.
Ginsburg, Feldman & Bress .
PresidentJCEO, BET Holdings, Inc.
:I
i I,
~
~•.·:on H. Lath~, Esq.
Senior.Partn.er, Shaw, Pittman, Potts & Trowbridge
.. · · Mary Arm Spraggms. Esq. Phoemx, Arizona
·
-~""··lll;a~ition
·
to these individuals' demonstrated support of the DNC and the .
President, and beyond the businesses in which they hold significant positions -- each .
'{:2~~~~;~, .· .~:-
Z300N
STREET,
N.W., WASHINGTON. D.C. 20037
.
TELJ;:Pl-IONE:
(202) 668-8000
FACSIMILE:
(202) 663-8007
�SENT 8Y:SHAW PI'ITMAN ·
5-12-9~
Honorable Harold Ickes
Memorandum.
Page2
5:23PM
2
0
~
::,....
proposed invitee represents a broad sphere of influence in various diverse s~ctors oft ).
minority community -- across the country as well as represent various business groups
and interests, with ties to the religious community, government contractors, tin8J1cial
community, high technology companies, automobile dealers, and various minority,
female and other elected officials nationwide, not to mention their "mainstream''
relationships.
We look forward to a constructive meeting and appreciate your a"'sistance in this
matter of concern to our nation.
cc: Honorable Donald L. Fowler
1•9651.01/ DOC SIX I
2300 N STREET, N. w., WASHINGTON, D.C. 2.0037 TELEPHONE: (202) 663-8000 FACSIMILE: (202) 663-S007
�·:::
>• a... .
0
(.)
SHAW, PITTMAN, POTTS & TROWBRIOGE
4 "'Al"MCJ\8!11111"' ll1:Q\Aol(lolfil41 •-.&JIICO~AI. ~o-~
_
2SOD N S~ N.W.
·WA8l"'INCITI:)N, C.C. :za:ts?•1'12e
(202) -~8000
~ ...U!
t202l
IIOD 'lli"'O -Qe.IE
eaa-eoor
,. • .., "''CP!IC. Nlii¥ot "'QilllC 1.......,.""'77:0
- H & SCII..ITPI VNIO,. I!ITR.-::T
~. '1>1AGINIA 2 Z J l - 1
May 5, 1995
Wl!l..DO,. "'· """'"'""'
liCit uemnv aTPGI::T. "·""-
~-~-·
L.e1!98Uaa, VIRCilNtA a:ED7t5•J!:'JS1
VIA EACSrMTLE
. Honorable DonaldL. Fowler
Chainnan.
Democratic: National Commi~c
430 South Capitol Street, SE
Washington, D.C. 20003
Re: Presidential Meeting witb African American Democrntic National
Corgptjttee Q;lNC) Tru;sto;s and BI.E Membm
Deer~irmap.~
·
.
·.
i~ a pleasure to spend time with you in Pittsburgh on Monday at
Bishop Clark's 35th Aonivasary 'clcbration. On the return flight to Washington. I
spent time with Congres5man Mfume. He and I continue to share the concern mat
President Clinton must turn his ultimate position en Affirmative Action policies into
an election year positive! AdditionaUy, based on dis.;u.ssions with numerous other .
national African American politic:alleaders, from California Speaker Willie: Brown to
Senator Carol Mosley Braum et al., this view i:t broodly shared in tho minority and
White Female commUnities.· It is cru"ially important to the Presidcnt':s re-elec::tion 1hat
he very soon adopt a forceful consistent positioo·in favor of "Pro-Opportunity" for
Afric;an Ammeans, other minorities and Females, which will energize and·
r~invigorate these potential voters.
hir.Jt,
Thi:~
le&r is to formalize a rccommeDdation I made to you. Erk:sine Bowles
and Harold Iclces some months ago {prior to Pmlident Clinton announcing the Internal
Review of Affirmative A.dion policies), that tilt Ptuident meet with a small group of
loyal African Amtrican suppartem [e.g., dntwn from A.frican American DNC Trustees
and DNC Business Leadership Forum (BLf) members] who arc knowledgeable about
Federal ufflrm.ative action und m..inority business programs. The mcd.ing. to be
valuable to the President and the DNC,JDust ~r hefo,.e a final decision on
affirmative action issues is made and the group must be muitl enougll to perrrut real
dialogue with the President and his key aides. I understand that Trustee Mel 'lin Clark:
�•
·...1
,
~J
t.,J>..J
t
I • •...J:.:;;rl·m--.-:--:------,------~~~-------
>-
• c...
SHAW. ?ITTM.t.N, POTTS t!t TROWBRIDGE
~o
MaTlUOQ:IIIIIIi, tWiLL! biNG
0
<:..,)
~AOJE89101'tAL COAP<UtATI6itB
Honorable Donald'L. Fowler
May 5, 1995
Page 2
made simi Jar recommendations to the P~sidcnt, at a recent Trustee meeting at the
White House.
·
.
.While rumors in Washington are the rule, you should be aware rhat rumors
abound that the'President 11 has decided" to "gut" the Section &(i)Progm.m. Elimi1i'" ·
ation or significant weakening of this minoricy business development program, which
has clear]y been the basis for cresting
strengthening asound minority business .
infra3tructurc in thi:! Nation (3ee anached Washingtr111 Bl.sinsss J"""'"'
Commentary), would tlearly undermine minority sU.pport for this President. It is~
therefore;, impcrative.that those of u.s who are dedlcaled to President Clinton's
·re-election. have an appommity to voice om .c:onsidcn::d rctommcndJltions directly to
him. ·
and
As a fcnner Carter appointee. I personaJly. recall similar circumstances in
which President Carter moved away from his base of support, and we aU know the ·
result. Three obvious people to assist in selecting the panicipants in such a meeting
are Ernie Green, Mel Clark and me.
·
I look: forward to hearing from you concemina the proposed mee[ing.
Weldon H. Latham
WHL:jl
cc:
Hon. Harold Ickes. Deputy Chief of Staff
Hon. Brksinc Bowles, Deputy Chief of Staff
Hon. Robert Nash, Assistant to the President
Hon. Alex.is M. Herman, Assistant to the President
Hon. Terry McAuliffe. National Fintmce Chairman
Hon. Min yon Moore, DNC Politi~al Directcr
Mt. Ernest Cree~ DNC Trust=
Mr. Melvin E. Clark. DNC Trustee
�>a..
0
(...)
all of its Democratic counierpaf1s, in status as. members of defined groups,
By PHILIP S. FRIEDMAN
In dealing with. affirmative action, counting the number of women, African· rather than as individuals with unique idePresident Clinton has apparently seized on Americans, Asians, Hispanics and other . ological principles, .commitments and ·be·
·
liefs.
the slogan "reflect, don't retreat" while he party-sanCtioned minority groups.
Consider a typical example: A state is
And there is no limit to those who qual·
awaits the findings of a. bipartisan com·
mission. But before he embarks on yet an· allotted 100 convention delegates. Seventy· ifY. for "minority" status. The New. York
other timid assertion of presidential lead· five of these delegates must be elected at Democratic Party's 1992 affirmative ac·
ership, President Clinton would be wise to the district or-caucus level. The remaining tion plan, for example, guaranteed ruches
reflect. on the presidential nominating 25 "at-large" delegates are held in reserve for, among others, African-Americans,
rules of his own party. There, the full ex· peridlng a final examination of the gender, . · Latinos, Asian/Pacific Americans, Native
tent of the Democratic Party's institu- · ethnic and racial characteristics of the 75 · Americans, women, people under 30, peotional .comniitment to. race and gender : delegates elected at the district level. AI· · pie· ove~ 65, people oflow and moderate in·
preferences underscores the likely failure · though any Democrat is eligible to rim for come, workers, people with a high school
.
.of any affirmative action commission that these delegate positions, the rules man· education or less, the physically handi·
the president might appoipt.
date that tile district delegates be evenly · capped, and lesbians and gays.
..
Delegate selection rules for the 1996 De· · divided between men and women. Conse-:
These Q\lOtas can't simply be. dis·
mocratic National Convention provide that quentiy, in a district with 10 delegates, if missed as the work. of a voluntary orga·
the national and state Democratic parties the voters. elect eight male and two female· nization. The Democratic PartY, like the
must "adopt and implement affirmative · delegates, the party rules dictate that Republican, receives millions of dollars
action programs with specific goals and three_ male delegates be replaced wtth in taxpayer funds.'.Were there any dele·· · · · gates with the courage-and standing-to
timetables" for five minority groups: . three female delegates~ ·
African-Americans, .Hispanics, Native
',1.'he state party must then. t!Jlly the eth· challenge the system, the federal courts ·
Americans, Asian/Pacific Americans amr . nic, gender and racial characteristics of ·might well ·find the Democratic Party's
women. While the rules profess to prohibit .· all the district delegates. If the 'tally shows · use of federal dollars to promote racial
·quotas, each state delegation, and the con· that the makeup does not match the state's and .gender set·asides to be in violation of.
vention as a· whole, must be divided representation· "goals," then ~e sta,te's · both Title VI and Title vn of the civil
equally between male and female partici· "at-large~ delegates are "cherry-plcke4" . · rigbts laws.
·
. pants. Moreover, aHarge seats are "re· from among those individuals possessing
Even more important, however, the Deserved" for members of the above named the group attributes necessary to bring the mocratic . Party's. nominating rules· em·
minority groups to meet the represenf4· . entire delegation into compliance with af· · body the ideologJcal commitment of. the
tion. "goals" typically established by a de- firmative action criteria.·
party and presumably its leader, Bill Clin·
mographic study of the Democratic elec· · .. Ostensibly, the purpose of these rules is. ton, to race and gender set-asides. Until
torate in each state.
·
· •
to encourage. those groups who have hiS· President Clinton revamps these rules, not
· While these· rules started· as a com· .toriclilly been· underrepresented in ·the .much credence can ·be given to his promise
. mendable ef(ort to ensure n'linority partie· . party. But rather than provide for equal · for an honest review of this country's af·
ipation, in practice they are enforced with . opportunities; the Democratic Party's firmative action policies. '
the rigidity of quotas. In!ieed;· during the . rules-as my own experience reve3.Jed...;..
1992 Clinton campaign, l found myself fu · dictate equal outcomes based on race ahd
Mr. Friedman r was the deputy general
the unemnfortable position of assisting sex. In short, convention delegatts are: in· counsel to the 1992 Clinton campaign. He is
Mr.·Clintori's delegate selection t(1m,like ·. creasingly selected on the basi\ of their an attorney in Washington. .i
.
-
-~
--
.........
- \,- ·-
THE WALL STREET joURNAL WEDNESDAY, APRIL19, 1995 ·
-----....,;...-"- ,-. ---·-·· -
. ···--
--- ·-~. -··- --··
.
\'
,'
I.
lfl•
I
�>-
CL............-
0
C,.)
~
~ ;;;t::;;:J
~·~--------· v r
...
t L \l
; 1~1:.
11
___ "_?_~-------------
' 1"'~
·*c..s
• ~
·-·· -,-----· ·-·
-----~-·-·-··~-
: ..--~--(_":~. _Q ~-""J .. _ .
--· .
~
4
•
F.e;.- --- . ------ ....... ---"-- L--i-~--------- -__ !._
.. "'/9AN
'
... ---- --------
• ;-4,
y
i'''
c~ 6~
..
--
~&£0
-- ··- .. _ --..------- ......
·'· ---~------ --- - --- • - · ------ - -----("\.t.
~
•--Tc;:....:)-·\c~----------c;..·:.~j-. ~----·
.
(::1)----
-
-
l1_uo/u
.... -··"'
. :...~---
--~
-~------,
vf
--··-·----.----·[··
""'~~Gv--J
~~
- <1;1.... ~- ___,_________ _
__P~~
Gc- _ ~-
~·~---~----~ ~- -~
----~-- ~
~-
~
l .... ~~
~
-~
~-----······
j! ":
. -· . . - u__-' :- . . .~ - - --------- -------- --}
........ ····--···· ···- . .
---'-------- ~--~,---
----- '=>~_SM .·
..
----
..............
�>-
a..
0
(.)
'-1/ Jo}9,r: ··-
....
~------------·--:--·
•c.. e~
I
_·.
®---0...--..~.
..
.
~ ~ ~-
----------~--------~
..
___ ,
____ ····-·---····-·-·-·· "---. ····----- ..
---~---·--·-----·-
---·
---------~----------
-·--···- ··--·-···-··-------------- ------ -···--····-·-··--·· . ···-··---- . -- ......... ____ ,, ____ ·- ....... --·-···· ····-
~x~)·-----··-·-···-- ---------------- ..... - ----- -· "'"
-f>~
.
-
-
"-------
.... ----------·-····-·-····----- .. ·--·-··--·-----· ------- .......... .
....... ~ .. - ·-
tv/)~
---·-;;;:;;;;;·
~
t--lcJ
--------------~-- -~-- ~- -~----~-----~
--- ---- ---
~-
-
------;:_---------- -r --- - - - - - ---:--~
.&:] ...... ~
~- --~
r~~
~
----------------
--~-----
:.:,;:~~----
7:P:b
---------;:;;--~~" ·-·--:~--------~:~~-- --~---~------~---------.
····- -------- -..
·-·
......... ·v
..
·.~-~-
.......
• --·-.- .
...
·---
---··---------······-··-
(
--··········· -·-···-
····--···-------------------·
........
·-----·····-··----- ···--···--
-----·
----·-···--- .... ·------.-
----- ---
·-··-···-----·-··· .....
~----
11-&+.·:
..
:
~
•.
..·.~-
..
--- ---------------------------
.. - ···-···--·--------- -----·---·---··
-----
···-·-···--------- .. ···--.
····----·-····----
·······-····--------------- :._
-----------
...
__ .. ---·
·-·-··
�-~~--- ·Pj~' -····
... -49
.
iI
-----------Jfi-- ----
-------~--
11
.,..
---~-->--· --~-----:--·
....... I'.~ ........ .
\lJ' ~"'"1
.,
·t.
-.
0.--o ~
r--:-~-
--.-: j ---·-- -- -.-- ----. . .. --.
l.s:u..·'e~
~~
- _____ ... ·-···-·---·
-·- ·-----··--·--· ---·-·. ··----·-··--------·-·---··
.
'·
-----·-----
~
~-···~
--·····---~------ ...
.
!
.________________ . _ _ _ L _
_______
------------··- .Jl ~~~:-:
--~---~---- ...~--~--------
· ... ----·-- _____ :::____ ~----~-----~~-
---~-
------·-·-·····-
--~. !:J'L~- .
. - - - - --=----~-~ --~- . ~-~ ~--- --------~~
.-"-
----------------------~----------
c.J-.-. ~
.... ~--· ~.-- ~··~·
~--~--
~ ~ -:oA.U ~ -~-~=------.---------.. ~- . ·-- --------------·~--l:J~d~c---~~ -----~- ~--··--··---~~ -··-----~----·-·
-
------------
1---------------------~-::f-----'~=---....:·~~~2:----------·-~~~
~---~-~--~-~--------
-~~--·~,-~--~--.
.
---------.------------------~----h~~-----~------~-----:;;:;_;z;----.
~
ol'- .
----------111---------__;_·------------------- ·-------------..-------------.. --............. ___ ·------·-------......... -------
-
------------------··---~~--~----
~ ---:;{;-v
~~
------~--- .-:·~··-·-·· --~-----------"----~-------·
.r.7'.
·-·--,---·------~----·
~
~-./-f~
-----·------·-'
,
,
-------~--
........... "
~~-·-··-·--·
\L-~ Cl·~~
't.
~~------~--~---------·--
_p-)
.
.
~~
____ ______ ;_ __ -------------~.................... -- ......... .. _______ .. ____
~
01 •
--~-.
--····-·--·~-·-····----~ --~----
~
·-
~
..
~---..·-----·
�>ll..
~-~ ~ ~· ~ ~ . . ~ ~ -o ~ ...
(.)
CJ3,
I
I
I
~-
II
·-·-·-··-·-·· ---l----· - '
I
.
\- -· &]·
-
. '
~-
~~
-~
--~-----------------------····----------------
J;.e-J-~
.
.·
. ---·····-· ----· --------------·- ·-- ----c-----------------
.
.
~-:~--~-~-.• :[ll--=-:~-~~~l4~~~~:~····~·--:·· ~---. ~:··~=-~
l
-.--·· -- -· ·li· --.. -·---- _·_--·- · -:---·--·-------............. -·· __-_1[_ -- =p-:;:;,-~~-~ -;;;;;_-=·-~-~~~_;;;;z__._-_ --·
~
~
·--· .. --- ·-· - - t--- -------------·--· --··---------------·-·-~----------- --~£[;::;::J.
\1
.
.
1
.
•
I
---:------------_:_=----------- ·---- --- - ..
..'
-- -
I!S~-
'i
,..,n ___ J.n_
'
~
r- '1"-v-v-,..... -·--- .................._.1_ ··-·········-··-----·-----------..--.
1
I
---------------------------------~------..:.
..______--·
.
________ : ___
-·-·-······-···-·---
. .
'
I
~
'
Cl--1
~
,
,
,
-----·· .. -----·---·· __ ,__________ , -·-·· ' ' .. __ . __., ____ -- ....... ____ ,................... ··-···-_
'
A-A".__._~'
~ /\.A.o-IJ~·_:._: _______________________________________________ _
' ' ,'
'
__ _.
-----------U-~-~-------":----:-·-----------------------:----~-------U:-if.----.=.
~~--~ ·~~ ~----~-~~---~-------.1'> S' ~
Cvt wv
.··
-
-~---:-~~-~~~~=-~~ ---,-- ~ ~--~-~2~~~~~~T~-~~~~:--~~~~
.
=----- -------···· ------------
!I
.
~
--
-hl~ ~N-J-;
.
I
.
I
~/ ~
I
.
~
('\G._
!. ----------------·- - - - - - - - - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · · · - - - - - - - - - - - - - · · - - - ----···---·------------·---:----·--·---·-
.
'
~~
-~--
~
.xv ·------·-··-··--·-··-··"·""_________ ·-----········----·-·-··
e.l-- ~
.
···----·-:-----~!----------,--·-·-·-·------·---/------..--..,.-·-·----~--·
---·--·····------·--·-f----------·----·-···-·-.. ·-------------·-···--··-'-······--·-------···-·--·--·---·-··-------·---··--·-------·-;·--·-·····. ·-··----··1
I
'
------.. -------- r
.
'\)~
,
~
•
~
~
•
·-r--
I
~
~
~
.
~
.
---------------··--..--------------·------- ·-·--· -···--·---- --····--------·--..-----
______. ___. _ ~-
CA•
~-----~==-~-~----.
___.___ ----·------~·--····-·-:-.-_ _,__.___:_ __
.
;t;:::::i:J
/'S'(Z>, . ~ e-U :· ·-·-----·
. ~-·-·----·---···-·
------ ~. -~ '~---·------·-·-----.. . -.. . . ._. ____.£t::u -· -·-·.· ·----.. . .
. '
- -·· --· --------1 ----·~--------~-~-·-------·--·
·---·--·-·····-··---·---···--I
.
-~------,-------- '--·--r·~
!
. CD ....
0~·
- - - - + ----·--·----- -------
.... -----····-·-···- j______________
.-J,..,...
~-
----
----·
~~
~
~
---·---------------
~--~ ---rt---.:~-----~__________
_:
_
i .
@ ,_ -~ ..,...;:;::;;~: ,.-D~ .L- · ~ ~
--·-------------- l __·--·---·-·---·
.
___:::__-_=.__ __:__,.r---=----J------·'--· -·--·-··------ --··· -:··- ........_. __ . ______ ··-- ..... "" -·--· -· --···----·
I
.
,
=~-~-1~~--~-- ~~-~ ~~
-----------~----~--~-~-=------~-----~--------·•
I
.
-·-----------------1-------------------------
•
.
-······ --···-----
~-~-~~-~·:):;=v;·•=-=· ~ --~~~~~~-=-~==-~=--=--~--:-_---..
-f~ ~
'~c.~ ~ -~
.
•
---=
1::•·
I
i
==~=--==~[=~~--~~~=~===----=-=---=·· =~==-
=
�')-
0..
·- v
~ ~- .0~---(.)
~ lwJ'~)
'-~~
~
~
-------·----·---- ·-'·1-fi----------- ·····------··-··--·- --~--- ........ -------------- _, _____;_
j'
~~-
[__.L
1
u~
L.
JA___.
---------~-H-1----------.---,----- ----------------------Lv~-~-
'
.
(fJJ~
....,------·---------1-1-1-. - - - - - - - - - - - -
____________
~ .::M-
----~-----~
--------------.-------,--·-·--
0
·
. ----..---------------·-------------- .. -- ---·--------
---------------~----
..----" ----- ----------·----
.
N--~-:llJ
~ ~
___ .. ___ ., ________ ----!+1~-----------_;~-----------------------'----·---'·---·---------'----·
"7'
~ ~ ~..::::..::~=-·='==~~~~-__:_-~:..::::..=~---="-=~~
................ ____ --
--·· ..
·--·---~-----···-·-
---- _,
'
-------·--·-~---
~- -----:-------~·~-~--~-----
-
-- - ·------- ... -- ·--
.
----··· -----·------
~---·-~---------·-·-~---,.---
�>a..
. -- -··00
~--~
-~----~;--~-~=--~--~----~~~1
.
·····"
--····-·--·-·- ··-·--·--·--·--·-····, ·--·-
-------
------·----·-···---------···-------···-···- ---···-----····--·--
··------·--·--------····----·---··-·-···- ---···- -··-··--·--·-·-·- -···--·····----·--····---·-·
··--·----·---- ---·-·---- ·-·---·---··--·-··--·--·- ... ---
·-··-···--- ····-·· ··--·----------
----------·-----·---····----·
'-····------·---···-·-·-----------···--------------------··-----·----···--·--···--···--·-----····-· ·---·-·-······-·--·
-. ------------···-··· ....
-·
.-
--
·-· -··---·-·-·-···•· -----···------·-·-·-·--- -·-·----·
····----···------ ---··-··---··--·--·--·-
. ····-·-···--·-·-----·
�--------------------
li
'
,.
I
__
I
I
:
'
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
001. memo
DATE
Bob Mullholland to George Stephanopoulos (3 pages)
RESTRICTION
04/04/1995
P5, P6/b(6)
o2f
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
OA/Box Number: 9162
FOLDER TITLE:
Affirmative Action- 1995 General [Folder 3] [4]
2008-0308-F
wr452
RESTRICTION CODES
Presidential Records Act-(44 U.S.C. 2204(a}l
Freedom of Information Act-(5 U.S.C. 552(b)J
PI
P2
P3
P4
b(l) National security classified information I( b)( I} of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
·
b(3} Release would violate a Federal statute l(b)(3) of the FOIAI
b(4} Release would disclose. trade secrets or confidential or financial
·
information J(b}(4} of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8} of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIA(
National Security Classified Information ((a)( I} of the PRAI
Relating to the appointment to Federal office J(a}(2} of the PRAI
Release would violate a Federal statute l(a)(3} of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a}(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy j(a}(6} of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
I '
I.
I
'
I
I
'
l
I
i
I
�AP~ 03 '9S
11=30PM
>a..
0
{.)
ME
TO:
FROM:
DATE:·
RE:
· George Stepanopoulos
Bob MUlholland. Campai
California Democratic P
April 4, 1995
Affirmative Action
11
.....
.....
. ,. ·
1. •
1 · . :.
;
r::. ·
.
1 ••
1..·' · ·I ••. :
In case· you were looking for some mor input on the issue of Affinnative Action (A.A.),
here's mine -different from many other emocrats.
· ·
I usually tend to be with. the voters on . sues. President Clinton should have positions on
his issues in 1996, and avoid taking po "tions on the Republican issues. A.f:fumative Action
effects very few voters. Using the rec nt LA Times poll (3/30/95) and our projections of
the 11/5/96 California voters you see th s:
1.
About 442,580 minorities believ that they have benefitted from Affirmative Action.
2.
White men who believe they ha e been victims of reverse discrimination "'"
1,219,680.
3.
· Three times as IIUlllY white men elieve Affirmative Action has hurt them as the
nwnber · of minorities who believ A.A. has helped them.
The same poll states that only
scro of vi
men say it has helped them.
The Los Angeles Times poll also show : ·
·
" Civi Rights Initiative"
No
.21%
Yes
'Whites (non Latino)
Latinos
Asian-American
African-American
71 o/c
52o/c
54~
48%
45o/c
Yes, the poll shows people support Affi
·ve Action without quotas but no electoral
campaign will ever win the debate that uotas are not or won't be used.
On Proposition 187, I advocated in earl 1994 that we should not try to defeat it and just
let a ·Reagan Federal Judge throw it out after it passed, but some in the Democratic
Coalition (outside of the Party) thought it could be defeated with a $3 million budget
(maybe) and they hired the Woodward cDowell :fum (specializes in initiatives, especially
defeating them).
Of course the big money never materi ed and when Prop 187 appeared (falsely) not to be
doing as well, the Wilson campaign sp t over .S1 million in TV advertisements using it as
a wedge against Kathleen Brown.
April 4, 1995
Page 1
Updated 04!04!95
�>·a_
0
<:...:)
.The Brown campaign, that couldn't fi
weeks became the No on Prop 187 c
Kathleen Brown stood for something" {
58.9%. Even though 47% of the Afric
77% for Kathleen Brown. They didn't
e .out how to run a campaign, then in the last few
aign, so "at least the voters would know that
es it w~s that sad). Prop 187 passed state\Vide ·
-Americans voted for Prop 187, they still voted
old it against her for opposing Prop 187.
q~~s\DEtv.,.4<
Summary of .Prop l87 vote (LA Times exit poll)
yes
(81 %) 'White
.
·(5%) African-American
(8%) Latino
· (4 o/o) Asian- American
Statewide
No.
63%
47%
23%
47%
58.9%
37%
53%'
77%
53%
41.1%
6 .
~
c.)
JI
Some. Democrats were happy that we st od our ground, just like they were still happy after
McGovem lost.
Dontt expect a Legislative solution. Le islative bodies are rarely capable of a solution to a
major problem. They were designed b the Founding Fathers to move no faster than a
sttail.
·
The California Legislature couldn't sol e the property ta.X problem in 1978. Proposition
13 passed with 64.8% of the vote (06/ 8).
.
·
. ·
.
Iri 1990 Pete Wilson looked at Dianne einstein in their debate and said he supported ·Prop
140 (term limits for state elected offici s) ..
Feinstein knew her legislative supporte were against it, and she was against it. Wilson
won the election (49.3% to 45.8%) and rop 140 won 'o/ith 52.2% (despite millions of
dollars spent against it)
On the issue of Civil Rights and Afflim tiv~ Action, for those of us over 40 we can
remember in the 60's seeing on our TV & newspaper images. of the following:
• .
1.
2;
3.
4.
5.
6.
7.
8. .
·'White Democ~atic Governors blo king schoolhouse doors.
Firehoses and clubs being used o African-Americans.
. Gennan Shepherds foaming at th mouth.
NatiQnal Guards being called in.
KKK in their 'white sheets.
Homes and churches being· bum to the ground.
People being murdered.
.
11
\llhites only" signs in store and ·estaurant windows.
America was shocked, embarrass d. and feeling guilty.
That's not the case today and that's wh Republicans can call for the end of Affirmative
Action without fear. Afterall, it was De ocrats who controlled the south and who were the
advocates of segregation.
· Activists miss the point when they sere
April 4, 1995
about the glass ceiling - where 95% of the top
Pa;e 2
Updared 04/04/95
�APR 03 "::1::>
ll; .::!11""'1'1
·
~\
jobs in America are occupied by white
Probably 95% of the white males in
95% of the voters will never be in the
There are more white male voters in C ifomia making less than $50,000 than all the
minorities combined.
In fact on Nov 5, 1996 there ·will be 4.3 6 million white males voting and only 2. 783
million minorities· (males & females) vo · g. Of course, we will not win a majority of the
white male voters.
In 1996 Democrats should focus on our issues (economic and possibly abortion) - ones that
the Republicans can't support.
Of our base voters, the largest group is
hite ·Democratic women.
Of our swing voters, the largest group i white Democratic women..
These women want:
security
security
security
security
in the
in the
in the
in the
home
streets
schools
job
Some people ·want us to drop everything and fight the Republicans and their "Civil Rights
Initiative". If we do, 1996 in California or Democrats will be like the last scene in Thelma
and Louise.
\\{hatever happened to raising the minim m wage. giving tax credits for families with
· ·
children in college, etc.?
Hopefully we•n decide soon what if any · 'tiatives we want on our Nov, 96 ballot
·. P.S.
Some Latino community leaders ave been on TV saying Affirmative Action to·
Latinos means African-Americans
Last year the former State Republ can Chair (a Cuban-American) charged that
Hispanics were being neglected i Affirmative Action especially in the U.S. postal
system..
·
So the Los Angeles Times did a g story, breaking down Los Angeles county
shoWing about 60% of the mail c iers in the Los Angeles city area were AfricanAmericans.
·
In Vietnam, Affirmative Action g als were met. About 13% of the 58,000+
Americans killed in Vietnam were African-Americans. At the time, the U.S.
population was about 11% A.fric Americans.
*+*
~prH '• 1995
Page 3
·. AM/AFFACTME
·;
�---.,.:
II
:
'
I
I
'
I
I
I
'
Withdrawal/Redaction Sheet·
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrJULE
~t
h:lVitees fur
DATE
MQRday Dinner with POTUS [partial] (2 (:)ages)
RESTRICTION
93tQ9/1995
P6tb(6)
o2~
002. notes
BC - Affinnative Action Meeting (3 pages)
3/10/1995
P5
003. notes
Affinnative Action Meeting (3 pages)
2/24/1995
P5
004. notes
Affinnative Action Meeting
2/23/1995
P5
52'!
005. notes
Affinnative Action JYleeting (2 pages)
2/1511995
P5
'c?Z $'
006. notes
Affinnative Action Meeting (I page)
2/12/1995
P5
c2_{p
(I page)
c23
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
OA/Box Number: 9162
FOLDER TITLE:
Affinnative Action- 1995 General [Folder 3] [5]
2008-0308-F
wr453
RESTRICTION CODES
Presidential Records Act 144 U.S.C. 2204(a)l
Freedom of Information Act -IS U.S.C. 552(b)l
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute l(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA[
b(8) Release' would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIA[
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOIAI
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3),
RR. Document will be reviewed upon request.
I
'
I'
I
I
;
I
I
.
I
�>a..
0
(.)
.. --c;....
-
...
s ...
~~.
""-"-"'
~~
·~-
=- ~----~-----·······----~---------~--0>--~
·¥?··
-~---
~----
--~ ~
-- J1
-
~c-
'~· --Y~~-~~--
rl.~
- ·--·-~--'---~=+-- · · ----lr-u-,
····-
~
....
~
A
I.
~
--~-~---····~---~~-~···
~
----~------~------
.----------- ---- --'--~-------~-----~s_--~-----------·
--- 1.~ ---~- --~--------. ----------------------------- -'~~ -:=t:J _<'--':'-~ ~~.c:: -~ -------~- -~-~-~--~~-)2________ <
,.c;;:=t=>
------
.. ------- .. ----------- ----------------------:
--·
-
,.~A~- - ;;;(:--7--- -4:c,
vu . - r. ..
~
~-
�>-
a..
0
<:..:>.
-·-----···--~~-~·------. ··~-. ··~·-··~--·---·
~---~-~---~.:.:- '?··--~-~ ~
··---- - ~--I---·_§ __ ~!:_~->- ~- ~
-·---
-~- -~---~--~ -~---~-~--
rv-!:_
~
-
J-~/
··- ---- --'-· ·--~----~-~ ~ ~--··1··
~
.
NW;
,.
..
"---·[
(Q_ -~~-- --~------~-_:::______ ,__~----~: ....~----- -~ ...... --------·· -------···'·~
--- --··- -----·. --·- -----··-------· . ··---- --
..... --- .
�>a..
0
- - - - - - . . . . , . , . - - - - - - - - - - - · · - · · -----...- - - - ' - - - . c _ __ _ _ _ _ _ _ _ .... -
-:tu
.
(.)
--~---·····-~-~
~
·····-·········-·-------~=~--
1'.~
. . :iu-Jc-..)... (,~'*········----u=~-----·-~-\. . . . . . . . . ~." ..
~
/.- ... ~-·
-~- ... ···-----·-·· __ 'U-~. 7 __ _
.?-
!~
\)
~---~~ __ (//__ -~-I---~
~~
:;
fl'
-~·&·-----~-~-----~----~------~----: ~ --~-~----------·······. ·- -------.....
....
A-----··· ..
-----·-------------------------:_ _~~---ZJ~-~- -------~-------
i:
···l·h·-· ··-··-···--···---- --·-·-···-----------------------------· ··----------------------------------- ·-----------------------·····-··-··--·-····· --- . . -----------ii ~c__- N~ ~ ~ ~ ~ -;fb ,JI:;::J ~.'
········-·-· - ······:l---
--- - - - - - - -
·--·,·-:·
.......................
l---~----=----~-----------~--=··-···--··
---r!·--------------------------~-~----·;;·-------=-~·-···-
· · ·- - - -· -· - - - - - - -· · ·- - ·- . - · - - - -·
ti·\-------------·----.......... --- ·-----------· ----------------------------------------------·-· ---------·· ...................... ---·------------·--.. . ·--· . . . . --·-....................................... .
,, '
ll;
I:
.. "'"""1"]"' .. ------ ·--.................... ________ . __________ -------------·--------------------------· ....... -------- ........................................ -- ----··- ................................ __ . ---· ---- -----· ----
-·- · · - · · · -· · ·lir- ·- -
z..-~--~~-~- -----~----------~---~---______:__. _ _ __
···-------···--···--····----·--··-·····1·11·-------------------,
!::
'?. ().,- ~
~-~
·-·····---------------------------·-c---------------·---------·-------------------------·-··-----------------------..·---- ........_________________
--·rr:------~
-------j·l~ ------------------- -~---L-~------- -------- ...
------- --------- ..
11:
... - - --- ... -- .... ·--1 i-1-----· - - - - - - - - - - - - - - - - - - - - - - -
:II
----- ..... -- . -i!-i--------------------1
I
•I
II
TJr- ------------ -------------------------------- ---- -- -----------------·--·------------------------ . --------·-----
--------------------- ill
--:Ill ),.... --- ---- ---- .. -- . ---- -- ----- -..... -..·---------- -·---·------- ----------- ·- _____________...... -- ·--------·. --- ...................... ···--. ____ ______________________________ ---------------------,
~ ~~-~--. ,_:[ij~~~·~~~---~-~~~·~~--~~c-~~~~~-·~~~~~·~~~~-:~
, II
··
.
II
.
·-· ··1·ri··-- ···· ··-----·-·····-·----------- ---·------
I i1
.
---------~---------
.
---------·:---------- ------------------------ ___________________________ _
.
·--------··----··--·------·--·· -----------------
'li
-----..·-HI-----------------------·----------.-----------------------------------------------·----------------·--------------------'----··---------·-··----·-··-----.. -- ..-·-------------
.
: 1·:
.
i
-:i[\_______ ------------------------. ------------· ------------------ ------------------- -···-- ------------- --. ---------- -------- ------- --··-
- --- - - - - -n-1----------------------------------------- - - - - - - - --- - - - - -----------------------------
....----. · ·--·~-·~-·-··-··· · .-fl]~:·--=~=--.-:~=~=-=--=-===~~--~~~:=·==-:~-·:-=_-_·:__:::=
'11
'
---~---lj~---.-----.C..~-------,--------·-~-------------·--------·--------~--------------------- ....... -------------------··:_______________________·
-
'II
·- ------- ----nr--------------
i '
'
,1~
.
---- ---------------L 1---------------------------------------------------·---
ljl
.
--- ·-- ---· -------------- -·- ..................................................
---- . . . . . . . --. -4/-------·------------------------------------ .. ------ ---- . --· . _._____________ ·------ . . . . . . ________
!II
�>a..
.o
(.)
!'! .
X\l~/rl .
._____:~:- ~\:1 -~;~£~----~---~-~~:-~~I:IO'_-r--- -----····--------·
.
.
-··-·-·----·----·--··~----------------··----~-----·-·~-·--·---·-·
'
.......... - ...
\);>
T
~
·~·-·-------------------~----------------------------·--·----
~~
<Jv-
"<•·-----·-···-·~·····-~---
..·-·---· --··--··-~~·-
-.------------- ·--·-·----
................
.~fl. ;V)
-----------------·--~________ _
___
,
_
~
. . _ - , rr-v-.
-~""'
t::;;t;:J
~~-
-----------..::,.....:. ........
....... ,,,,, -------~-·~j_;-~~)---~~--~~-: ... --~---~-
,
~---···-·----------------------
�>a..
0
C,.)
.. I
...
~
.
~----- -·-------·--.-------- ____,.,., ... ·--.-------------·---··-----·-·----·-··---·-·"-"'
(
Ci:v;)
}J.J.O- . ~
-~
9~
- -------·- ···---··-·· --------
· _· ~----~ -~~~--~----~~--- ---~----~- . *
lll-p--"?1'1_ ~ ~ ~ .
....
·-· ..
- .. ··-
-
-
,.
.......
.
..........
"-
..
-. ·-·· ··--.·
···-
-
/-~-
~•• ••-·-·1r··· · · .· · · _-_- ---~~~~~;-~~f" -~•••-•~···· ~--······-P._
~
-~·-~--~-----~ --~-~-~-J ~:·:_1~---····
--·· ----
t=J ~ ---------------------------- . . .... --
......
-------·········---- -----------··----···· ------------ ...
........ ·------ -·- . -- . . . ··-·
~--~ ----~~\--=-~ ----~c:·---~·-··--~ ·----~
. ·-·-·- - -=· ·-·--··8..·-·------~------·--·-·-------·-·--···--·------- ................- .... ·.
.
G$ --
--~
,.~
.M
~
~
~
p
.......
······
~ . ~./;::;
-- ··-·
_f ___
..
'"
·······-
-------· ........
~~·
:-_ ~---·--~-----~- ·-·~----~-
_____
.
-f':>.~
_;_
--:-···--·--···-----.:..--------~----------------------=----------~.. -----·--·--, -------- --··········--·-··-····· ·--------·· -····- ..... -------··· ···--·
-·····-.. ·- ----·
.
...
-------------
······
---~
...
.9<. . 7 ~
------~---·····-···· ------------------········---··----·-·-··.--······
e-_.~-- . ·~~-----~---~----~. _=z;c:v. ~
"---~- . 'Y{.....~~=---c:!.... -~~- -~--§BJ -., ·-
. . ..
. . . . . --
.
-.
4
- .... -
..
-
...
-
-
·~·
....
~.:J;)
MJ-SL
~ *-~
........... - .............................................. _,_., ..............
~
..
................. -............
(c.~ \'-1~
·--·--
.
.
~-------·--·
~ ~
::eo
~-
....
~
.
.... .
: ~-·····
.
...... ..
~ ~
~ ~
~-
!.
f?c_'
~ ~---~:-~~~:~-~
~
~
k
\D..::t-1
"')
{\:>
f'v':-)
f~
~
~ ~-~ ~- ~----
l·b
lJ"...--'
---· .....•.
- ----
~ I
.
..
"'-~-~ ~-~- -~ ~--- ~
....
.,~
~--~· ~.~~.
~~0
.... ·
�>-
a_
0
--------·-----,--------
(.)
:1\I
I ~
i\1'
II
i
i
1
1
'
I
\ I.
!jl
.
-
\·I
·
.. ~-'1_
-ci:W ~ ~
·~ x-- ~ ·
-·-· ., ~-~ ---- ··-· -- ----- --- ---------------------------------- ---------------------------:··--- ------------------------·-:··--- ----·--------------r~---- ------·· ----· ---------------------L•
-;~---···=;~~=-~~--~--
.... ----lfj·------------ ----------------------------- ------------------------------------------ -------- ... ------------------------"1'1
1'1
~-
,_
I ,_
}
o ·
~..
;tv ~ .)..A./ ~
- - ------ ----------·- - r ----------------------. ---------------------~-------~----------~--------- --~---- ---------: . . -------------- ----- ----~===·------------: ______________~ ~-----.
~~~~~
1: 1
17~.
-:~1-------~------------------------------·---- ----------·-·--·- -.--·;-···--··---'-·-·------··-·········· ··-·-······-·~------·---~--:::::y- ...- ···-·····-----··-····-
----:,\·-------~-----~~- -~~~- ~
--------!:·1'' ··-·······----------------------------------------------------------
-~~--------~·-··--;··------···------------·--·-··--
----
----·-·--····-------- ·--·-·------------·--·--:-·-··--··,-------
1:1
....L;.j ··---. -·-·--·---------- ··----·-···· ----·------- -------------- -------·--·------------ -···------------·-- -------- - --·····-- ---·-·-·-···------------- --- ..... -----·------ ·-----------------------------
I
1
.
]·I~~-
.
~ -~
cJJ-v-J.
...... - ---------- --. -----:-1.1~---- . .. . . .-···-···-· ~ --- -······---·-------·-'
------------- .
.
A-a&..___~-
.
·
···---···-------·········----·---·----·---------·----·--·--··--·-c- .. -----------------·
i•i,
I
........................ ···------·-· i"'l ---------- --·--------------·-··-···--·-- ---·-----------------------------------·-···--·---·-·-····--·--·----------··------------·-·--·········-···--------··--·
!~~~
-
~~~~
[7-~~----~+-----·---------~------------·------------ _____:_ _______~·--------------~·-··------------··--·-·---···---·--····-·--·····-··· ···-···----·-····-·---····----·-···-·-
rs~
l·l
\o=t-1
~
.-01_
O"v-/
~
------- ------------------! ~~-----.- - - - - - - - - - - - - - - - - - - - !!
--
~_______!/)~~- .v<_ --=-----------------------·-·--·-__::..__ _ ______________________________
_\
- -····------------ :l ----------~~-------------------------······---··--·------~---·····-···----·-------------------····
Iii
.
···---···--· ········-··-----.----j-,.--------··---------------.- ·------------·--·--·-·---·----·------------··---~-----·--·--····-·-·--------····--------··--·-·
~!~ :=i"~- ~ ~
-------···----·-·
.
fio~s ~
····-···- ····---·--··------··-h-1
!ii
~oy:k·.~.
·---·----------·---·--··---- ···---------------- -----····--·-·------.
----------···· ------·-···-·1·!-~------·-·--·-·-·-·--·--·---·'
·-·-·--·-----------···-·
----------------------·------··· ····----·-···--·-·---
I
------~-~~---------------------------·' .
-------------···-------·--·-----····----,----·-·-·----------·----·-------·-··········-----·-·----
i''
I !
··--···--·- --- --- --·-----1--l--····-----------------··
Ii ·
... -- .. -1-t·----' -.-------~--------------:
,,.
Iii
-----1.;.~-------- --------·-·-----------·-------------------·
1:1
ji_j
.................
-·······-----···-·
l'i
·-:·'·(··-··· ···-------·------····- ·------------·---------·---------·-----------------·------------····· --------- ------- .. --------------- ----------1 I
.--- - -· ----- · -· - -
1 I
I
I
'
I
r·--~----
------------..-· --------------------------------------------------------------------------------------- ------ ---------------------------------------·- .-----· -----------------------------------
'
.LL __ . ------·· _____________________________________________________________________________ · ·---· - -· - __________________ -· · ·- _
-·-···
i:
..... -.. ---· --· . . -- li!
~-----r;-;---·----·
i;l
li;
... - .................. -- ! :-:--···
----------·--------------------------------------------------- ------------------·· ----------·--·- . ··----------·-·--' ..
~-- ~---·--'--------~-------------------.- -----,-----
------ ---·-·------- ---- -----------·----- ---- --·-·------------------
1!1
······--------··--··-----,+:---···-------------·--·-------·
!:!
i
---------------·------,"i"i~ _________ _
!
II:
·-···----------·--,-Jl"!--:·----------.
---'----------·----·------------··--·------------·--------····---···--·-----····-------···--·-··
II!
1;1
.
'il
.-···-·-----------·. ···---·----pT------····--- -------
----·----------·------------· .....-----·-·-- ------···· -----···--· ------------------------·-·····-----···-··-------···-----·-
:11
li:
··
----- 7---~--------·····-------·i·ir·------------·-----·---------.--------·
.
ill
'
············- --- ...... --f(i ·---------····--:····-------------·----· --Ill
.. ·
·
.
.
. ·!·[·; ..-- --·----··- -------·-····-----------·-··----·------------------------------··--··-- .... ----·---------·--·---~---·------·----·
i:!
�--------,------------------------------------------------------.
----------------- . -------- -·-·. -----------------·
_______ _______
.:,
:-····
----- -------------- --------'--------------~- -----···-:-·-· ----------------
- - ----------------------------------------------------------------------------------- --- -------------------------
----------------------------
--~--~--~-----'::::- - ~
---·-----··----·-·
·--C-~-------~--- ~---~-~-- ----~-------~~-~- ~--·-----~-~
-·- ----------· --· ···-·-· --
··--------·····-··--··-~------------------------------···-····
,
F~
- --------· -------····-········-·-.
v-
------. ·--
----- ---
..
~
--·
-··
-
--- -·-· ·-··- ---·- -··-- -----·-·· ··--· ··-----·- --·---·· ---·-- ·-· -----·-· -····· --·--c--···---
h...__._ ~
--{<)
--·-····--- ·------------------· ·--
·-·--·-·-· • ---·-·------·-
~
CJ(;:;::X;:>'....
--------- ------------··- -------
--
-·-- ---·--·- --··
---···-
·--··-------···-----··
~-·-······
-------·--·--·------
~-
------------ -------------·-r·--------- ----------- -· ------------------- ----------------------- --------------------- ----·-·· ------------------------------- ---------- -- ·--- --------------- ----------
--------------- ----------------·-------------------------
-----~----~---····· ~----~---··
--------------·-----
------------------
--------
..
-
--·····--·-···-- ----·-.-
- ...
--------·-· ·----- ---·---------------------·--···------·-
~ (_ L- l.l
---~-,
-·
~---------
~L~
~__:- ·. -~ --· ... ··---- --_ ------ . ··- ----------·--·----------- .. -·-·- -------------------------·····-.
~-··
--
-------;·~--~----
----~--
--- ·-··· - · .
-- ----·- --· - - - -
---------- ·---·-----
-~~ ~ ~
·-
·-
....
----
·--········ .. ·-· ....
··--
··-··· ·-··
-· ..
-------·-·--
--- ··- --------·
.,,~~
-rrJ,;;;!!~:~-~~---~ ~~ ~ - ~·~· · · ·- ~ · · ~.~· · · ·.· · ~~-• :~~ -~ _-_.- ~-~· -~-·~=~
________ :: ?~~-~----------- ---------- ----------~----- ~- - ~--B_____________
-~---- ~--~------~-~-- ->~ -------------
-------
=~ :~~~:t~-=- ·~~:~;; = --~~~---~--~- ····-···· ·····------- ~--~
, \?ev-A
v1
( J - - - - -- ... --
I
I
---- --- ----------I
1
.
-- -------- -~ ---- -- -- -- - --7---.--------------------------------- .. ---------------'?'~
\->~ l. .
------- ------------······--- -···-·t- -------------------
_I
-------------------
---------~---
---- .. -------------- . . --------. ------- .. ------ .. ------- ---
~ --~~-----~ ------~---~
~~
~-- - ---- ---- - - --Ilii -- ------------ - - --- ---------- - - - ------------------ ---------------------------------------------:----------------------------------------- -------------------------~ ~.
-------------------
/-A..!£0
~ ~...
---
---~--
.
-· .. ··- - ____
,.,_,_
.. ---- ---·· ··-····
.... -···
---------------- ----11
-~----~-~~-~--~------··c
--
---------
--·
-----------------
,
---- .. --······--
..
...
---·-- ---
-----
---
-- ·------------·-· -·
- ---------- ---- ----·- ..
----------------------
--- ---------- --- --·· --------1- ----------- ·--- -------------- . ---------------------------- ·---------------------------.- --------- ---,---------------------------- --------------- .... --------------
. ·t! --- -- - - ----- --- - .. --- -----
--w- - --------------------- -------ti
~~
�.
. .
..
;;·~l(;_biUt:/V;%,
. Y(('\
.......... -~.
. .
-
r-Mc?'?
1
II
G---<rz- s
'
-~;~
.
hD
~ .') o-J
.
.
·~ -
a~-
~
.--------------------·1---~-~~-- _ s_______
.
J
p
, · -s~ Gl~
,
.
<
\~
..
·;_5 .. --~---· 8·.
a..
.c..~-
r.l~
: :
_4-g-:---r-~-:-·-·--
- - ----·--------- ..
.
>-
'
~~-
.
.
.
c. . '£ ~
······------··-·-----·---·----··-·---------·--·- ·---- ·'---- ---·-··· ·-·--··--·--·-··-- · -
s p/J~
11 · ~ f· fr4r- ·
f'C-r"~----------~-------~-:c~ ----~----··-------V:J. u~
.
-----·-------·-- -------··---~\.i
-------·-----------~------~--~--~-----~-----·-~----~L~--~~~----··-----------------··------·-···---·-··
---- - - - - -----~,-----
-- ----
\:\'\T~j
. \
------------------------------ -------- --- --------·--------- ------·-- -------· ----·-----· ------
-:~-:~~~-==~'-~- ~~~=~=-;-;_ ~~-~~t~·-; ~ ;-~:_::·_-:~= ~~
.
l..'..~ -::20
~~. ;tt:v
~
·1·\l---·-----···--------·---- -------··------- ···-··----·---.-·--- - · ----·- --·-······--· ·- ···---·-----·· -- ---··- ---··-~--- . ·-·------·· ·- . . . . ·-· . .... . . . ~---- ·--
@
- - .......... - - - - - - - - - - - - 2
(@) \~~
.
--=-=~·===-,=~-~=~::h-;;,_~~~-=~-···-~·~··········-~~---~-- --••._ ···-=
=··~-··
···- -····-·-·- -··
....................
~
I
. . -··-- ---------·· -1--~
·
-···---- ..
~
--·--
c-
.
·-·--···--- -
;t;G:::vy
----
.......... ---·--·
-· ...
~---·--······--
---· ..
1
-
····--- ·---~-- -·-·-·- ·-·--··--····
. .
-
..
--
~- -=----.-··----·- ·-- ·------·---·---·--··· ·-····- ·----- --· --······--- --· .--· - ............. -·
(4r.,...._
·-
~
............. --·--··-··---
'Po=
{,....
~ -ru
--·--··.·-·:·
···-···-· -- ·--·-·· - ---
-
~- ~
·-·--·----
.... ·-- -· - ----
~ ~-~
- ·-·- ··-· ... ···--·--···-·-·········--··I· --····· ----- --·- ---· ............ ---··-·--·- --···-··--···--··· .. ····-·····--,·-·· ...... ---··· -· ·-·-····-···- ····---·--· ··-·
·······-···· ....
'"·-··
.. ..
·····---·1-----·--·---~-~----~--~--~--------···--·-·---·-····--·····--····1
-·-·-··· ··--·-
~
(,_._
----~- -------------- --····-·-··-·····- ·---:··--.-·········-~·--·· -------·.---·-··-··
----
···--:·-
·---· ·-- ··--·-·- ...... ··-··- -·
.
- .. ··-- ... ---· ----···-········.. ... .
-· ... ·- ............... ···- ....... -
········· :·
--. --
--····-----
..................... --· .. --··· -·-·- ·-· --
·- --· --·
.
.......
·------····- -.------- .. .
.... ---- ·- .. ---· --- .. ·--- --· ·-- ---
~~,---·:-·~::::-~~~~~~
f., ____
·---.
· · -· · ~--~~·-······-~~-·~-·-~-·-·····-~=··~---~~ _····--·~···--·~---··-~··~ --···-·=. . . . . ----··-···t·-·--:~-·-:-·· . -·--- ----·---·-·····- ------ ...... -- . . . . . . -- ·- -·····--·- · · - ·------····
~~~~
1
......
· ···
-···---~-- ...
------
--- -----\----·
L
_____ ., _________________ ·-···-------------·-··
l
-------- ------·-----------
~ ~-x;;:;;:J ~
----------- ··-· -··--
---
i'~ ~
---- ..........jt·--·---·---. - --·-------.·-
--1···-~
-"";
-~
.<.,
:• -- __- _
----·- --
=-- - ·· · · · · · · · -·· · · · · · -
-'-:--"~/ ~-- -~.
---.,·---·----_ ---··-- . . . . . . . . . . --·-· -- ------------- =:. . ;_._
--------...
~
----~--
----------- -·-··
.
_:_~ ______rl:_ ~- -~-·· :. :: :::.: _-_••.•._.- - ~· -· ::·:
-· -- _j
. -·-··--
-~ -~-- ~
.
-
............ .
.. ---.. ------·------- _.._____ T-- ............... ----.. . :·· ....... ·--- -- .......... --- . . . ____________. ______ ----·--·---·---· ..... -·------ --·--------------- ----- ---· -- ............. _. ---.. . - .... _. ---·--· . _
---·----··-----·-\------~=- . ~------~--- ~. ·--~---····---~- _. . . . . .,. . . . . . . .-.. . . . . . __ _
... .
.
-- ~ ·.-·------ -----..
-·-- -----··-- . . ---------- 'iI -- ......... - . . ---------- ----· ·--- ·--·---.~-- ~
-~
----~--
.
--- .. - ~ _ ~
.......... .......... -·-------·- ---- .. ·- .... ------.-----· ------·-'-·---·
_ ::: -
=-~u~---=~=r=~~~~~~~ -~~}-~ ~=~-~-
~~
~
~
~ k_._ . . . . . . . -.. . . . . . . . .
. . . . . _____________ ,__ ........ l·------·--- :-. _____,________'1------·- . . ------- --------- ------ ·---.. . ---·- -- ........... ---·-----:-----·.--·-· --------- . . . . . ~~. . . . . _ . . _________
1
.
I
. II . .
I
ii
I'I
-~c,_
~
~
~
�-- ---------~-1-------~~--~ -~
-
-=-~~-----~ ---~---:--~------~---~-~------------~--~~-
- ---------
- _ -
_-
~--~------ ------------------ ---------------------
__________________
-- ----
·-------------··- ---- - -·-
·-
-----·· ----------- --------.------ -- -----·---- -· -------;-------- ----- -------·-
__ -------. ____,_
------- ----- - ___ :__ _________ ------------------ --- -------- ------ ------ ------
------ _[
------ - - --- -------- -~-------------------- --------------------------------------------------------------- -----------------------------------------------------------------
-~--------- --- -------------
----------
-----------------------------
-- ----- -------------1------------------------------------------------------
-- ---------------- 1- -----1
- -- ·r
I
1
I!,
----- ----------------------
_.
. ,, _____ ·--- .
.,
-----------
_______________
-
-------
�>-o
a..
(.)
l9--v---
-~) 1-L-t "\ 2 '
'P
----------------- --:=b====
------------~-~-~--~ ---~-----~--- -~--~-~------ -~----------- _, ________
_______ _:__ _ _ _
·
----
~-- --~---~=-----~ -~
----
--------~------------·-----------------------------------------""7
-------~-------~ ---~ ----~--~-----Pf-----~--_!:___ ~--~-----~-~(
~
~
~-
...(}.A.
,..("---""'-
______________________________________ ~--------- ----------U-~ ----- ---~-- ---------- ---- -------
~- ~-~- ~ -~-----~---~--~r.-~
, \_- ------- -----~------ ~ -~
----~---------------
~
<r----~--~---·····
~----~-
Clr.
-- -- - - _
..
-----------------------
-4'
--------------
--~---
----------~---------0
(J-'1-L
.
.
-?
~
~
--------------- - - --------- ----
·. ·. -· ·- - ---··
--
__ __
--~-----~--- -_:·---~ ~--------
~
-------- - - -~- - - - - ----- - - --~----~--------.------==----- --~.:-----=---- )----=------------------------:---------------------- ----- --------------------------- ----------------------~-- -----
---------------
-~-
1
-~1-
-------·
.
-------,-----------
-- -------------------- ---- r--- ---------- ------------------- ----------- ---------------------------------- -------- --- --,
-------- -------------1- ---------------------- -------------------------------- ------- ----- ------------- ----- ------ --- ------- ------ ___ I___ :_______ _
1
.-------------+ -------------------I
-1
--1
- --- -t
------------· --------- ---------1--------------------- --------- ---------------------------------------- ----------------------- -------------!
------ i
...... ·--~ --
----.- ---- ------- -
-------· -------- --
---··-
.. ----- - -· ----- ---------- --.
I
----1,
i
---- ----------' ------------- i'i ------------ ---------------------- _, ___________ ------------ -1
------ ------- ------------ i ----~---L~------I
---------------- -------- ·r------ ________. ______ _ ________________ ,_____________
.. ---··-
-----·--· --- -·
--------·---- -------- r- ------ -------- -------- ------------------------- .---------- --------------------1
------------ --- _, _____ ·!------------ --------------------------------- ... ------------------------------------- ----------------------------- ·-·
'!
I
------------ - ----- . ---. ----------1-
i
I
I
I
!
-~
---- - - - - - -
---~-- ------
�II
,
,
,
,
I
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
001. memo
DATE
From Mark Mellman, re: Affirmative Action (2 pages)
RESTRICTION
3/16/1995
P5
COLLECTION:
Clinton Presidential Records
Chief of Staff
Harold Ickes
OA/Box Number: 9163
FOLDER TITLE:
Affirmative Action- White House
2008-0308-F
wr867
RESTRICTION CODES
Presidential Records Act -144 U.S.C. 2204(a))
Freedom of Information Act- 15 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information I( b)( I) of the f<'OIAI
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the I<'OIA)
b(J) Release would violate a Federal statute )(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy )(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOIA)
National Security Classified Information ((a)(l) of the PRAI
Relating to the appointment to Federal office )(a)(2) of the PRAI
Release would violate a Federal statute J(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. D,ocument will be reviewed upon request.
'
II
,
,
I
I
I
I
I
�>-
c..
0
Q
. J:UNI£19FiNTIAL:-NOT FOR DISTRIBUTION
MEMORANDUJM
FROM:
..
RE •.
DATE:
Mark Mellman
I
. Affirmative Action·.
March 16, .1 995
Th~ affirmative action issue th•·~~ti':ns 1n rln t:_:rcmter IMig term damage to our party. both
ln~ernally and externally, than any other issue in recent men1o1y. It is a classic wedge issue that
splits our base vot~rs from uu1 ~wiag vut~1:>. It also splits our activist cor~ from the majority
of our rank and file voters;
Thl': i~~11e i" hit:hly emotional
and likely 1o become much higher profile.
Note the cover
headline in U.S. News and W9rld Report a couple of weeks ago: "'White Males Need Not
Apply" Pulling l.htli.l. r((IIH Calit~':lrilia. indicates that tw(~-thirds_ (66%) pf v,:,tcrs support the o.ntiaffimutive action imtiative that stimulated the national debate. (The initiative w1Ulikely be or:
the ballot in 1996). Nearly three-qu~ters
Whites (71 %) support th1S Mti-.affirmadve acton
initiative. Yet, our historic commitments. together vvith our base constituency and ac~ivist core,
do not allow us to just giv~ up.
-
or
In the end, of course, tllis is a fundamental polit.y decision. However, belo·....· I h:1ve
outlmed some pc!itical/communication strategies that could be employed in dealing vn.th
affirmative action. This msmo is nor meant to be exhaustive. Rather it is designed to stimulare
further thought. Very little research has been done on this delicate issue, so I cannot say vvith
a."l.y .real confidence now w0ll :my of these smttegies might work.
·
Defend -- To have r..ny hope of defending affirmative action, I
Stliting unequivocal opposition to qucitas and
rever~e
belie"~rl;.! (Jilt: mu:sl :;4a• t
by
discrimination of any k1nd. Only ilien is
DETER)1J:\ED TO BE A:\A0)1!:'\J.STRHIV~
.\lA RJ<l:'\G Per E.O, 12958 as amended, S!!c, 3.~~ (c)
lnitial$: - ~.
Date: . "~1\lo/U
f'\1\P.. ~.()~- F...
· ', .
�---
Chancre the Terms of Debate -M This c.~n he done in law· or in communications e rts.
.
Changing the criterion for affirmative action froni race and gender to economic disadvantage 1s
the most commonly discussed chw1gt:: iu law that ~night alter the terms of the dcbat". There are
three potential problems with this. First (as with most of these points), we have no research to
indicate that this kind of affirmative "'iction is any more acceptable than current law. Second, the
acrivis.1s adam::~ntly opf!ose such ·a change because they say it will not do enough to help
-
'
'
minorities. Numerically, they say, there are a lot more poor ·whites than poor blacks. F~ally
tt
is not clt!ar whul iL would mean to give preferences to busino::;se::. o\v.ned by poor people or
provide a tax deduction to people who sell radio stations to' the poor..
~
·
From a message/communications point of view, the clearest way to change the terms of
debate is 'to talk about affirmative action in gender rather than race terms. Preliminary data
suggests that voters nrc 10-15 points more supportive of affirmative action .whefl wom::~n, m;
opposed to racial minorities, get the extra help,
.
.
. ..
.
l:r11-de -- One may be able to trade ·the elimination of some programs for the preservation
of others. For example one might be able to de-velop a compelling message around ending
minority set addos (or other programs that smack of quotas), whilf! preserving programs that
"require ·efforts to exptid the' availability of opportunity." Again the activists will find this
probleniatic, but they ay find part of a loaf is bett~r than uom~.
·
.
~?
. .
'
.
.
Sub~ii.tute -- It may be possible to develop a message around eliminating affirmative
action, but instead significantly increasing tlH'I pEmalties for discrimination~ along with an increase
in enforcement. Perhaps, even tum discrimination into a felony. The same caveat and rejoinder
applies tO the activists as abuvt:.
·
·
Agair., we do not have clear evidence that any of these strategies are suftic1ent .or even
W ~ "l"n cin not know from. a political view. which would be best We do have
enough evidence to know that some coherent stralegy is necessary.
workable.
�'
II
:
:
I
I
I
·
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action -Speech, Review and Policy Decisions- Draft (6 pages)
6/23/1995
P5
002.' memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Decision on Post-Adarand Steps and Completion of the
Review (5 pages)
6/19/1995
P5~
003a. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action- Decision on Post-Adarand Steps and Completion of the
Review (5 pages)
6/19/1995
P5
003b. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Decision on Post-Adarand Steps and Completion of the
Review (5 pages)
6/19/1995
P5
3'-1
003c. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Decision on Post-Adarand Steps and Completion of the
Review (5 pages)
6/1911995
P5
35 0~-#
004a. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action- Decision on Post-Adarand Steps and Completion of the
Review- Draft (6 pages)
6/16/1995
P5
:?Le
004b. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action- Decision on Post-Adarand Steps and Completion of the
Review- Draft (6 pages)
6/16/1995
P5
005a. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action- The. Supreme Court's Adarand Decision- Draft (3 pages)
6/12/1995
P5
005b. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action- The Supreme Court's Adarand Decision- Draft (3 pages)
6/12/1995
P5
31
33
DlA_p
:ll-'-1
0u.p #Y
39
Df-#-cf
or s~
3g
31
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
AA [Affirmative Action] POUTS Memos (Chron) (Chronological] [2]
2008-0308-F
wr870
RESTRICTION CODES
Freedom of Information Act -15 U.S.C. 552(b)J
Presidential Records Act- 144 U.S.C. 2204(a)J
b(l) National security classified information l(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAJ
b(3) Release would violate a Federal statute J(b)(3) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the I;'OIAI
b(6) Release would constitute a clearly unwarranted invasion ol'
personal privacy J(b)(6) of the I<'OIAJ
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAJ
PI National Security Classified Information l(a)(l) of the PRAJ
P2 Relating to the 11ppointment to Federal office ((a)(2) of the PRAJ
P3 Release would violate a Federal statute f(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAJ
P5 Release would disclose confidential advice between the President
and his advisors, or between such advisors fa)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAJ
Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
C.
ll
:
I
I
I
I
I
I
4
�II
I
;
I
I
i
I
:
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
006. note
G. Stephanopoulos to C. Edley, re: Affinnative Action (I page)
G. Stephanopoulos and C. Edley to President Clinton, re: Affinnative
Action- Policy Issues (I 0 pages)
P5
n.d.
007. memo
RESTRICTION
4/20/1995
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
AA [Affinnative Action] POUTS Memos (Chron) [Chronological] [2]
2008~0308-F
wr870
RESTRICTION CODES
15 U.S.C. 552(b)l
Presidential Records Act- 144 U.S.C. 2204(a)J
Freedom oflnformation Act-
PI
P2
P3
P4
b(l) National security classified information J(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIAI
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIAl
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
National Security Classified Information J(a)(l) of the PRAJ
Relating to the appointment to Federal office J(a)(2) of the PRAJ
Release would violate a Federal statute J(a)(3) of the PRAJ
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAJ
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the PRAJ
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
II
,
,
i
:
I
I
I
�--------------------------------------~--~----------------~-------,
>-
0...
0
u
Draft 1
0
10
:I:
0...
. June 23, 1995
>-
0::::
MEMORANDUM FOR THE PRESIDENT
<C
0:::
CQ
From: George Stephanopou1os and Christopher Edley, Jr.
. Re:
. Affirmative Action :-- Speech, Review and Policy Decisions
This memoranClum reviews the four pieces to the Affirmative Action rollout:'
•
•
a ·
•
A major speech
Release of the Review
The Directive the Attorney General . creating .an interagency process to· ensure
compliance with Adarand and with your policy principles
Key policy choices -- the "triage" you requested -.:. __only one element of which
(setasides) we present for immediate. decision ·and for announcement with .the speech
..
. .
.
You will receive a draft of the Review next Wednesday, June 28; and a draft of the speech on
·Friday,· June 30. Staff are considering dates for the speech begiilliing July 10.
D.· The Speech
As we discussed, the speech will be a broadly thematic discussion of discrimination, exclusion~
. equal opportunity, and healing. ·It will include a strong defense of affirmative action when
done the right way, and offer defining policy principles which will be made concrete with a
few pointed programmatic examples of the gooi::l, the uncertain and the problematic. Among
possible speech venues we are reviewing are: Little Rock Central High ; Atlanta; a company
with an outstanding EEO performance; ·and a combined congregation of black and white mega~
churches.
· Don Baer and Carolyn Curiel, with assistance from others, are .conducting the broad· outreach
you requested.
·
ill. The Directive to the Attorney General and Agency Heads
The detailed empirical analysis and consideration of program revisions that is now required as
a consequence of A dar and must be coordinated by the Department of Justice as ·regards the
legal determination of whether a program is constitutionally defensible. But the process must
also include some continuing White House participation to ensure that defensible programs
.1
�>a.:.
0
(.)
meet your policy test, or are reformed. The legal and policy choices· are all but impossible to · o·
disentangle, and will in any case be attributed to the White House. . Our recommendation· is · 10
::I:
that the formal White House participation in the interagency effort be lead by Judge Mikva.
a..
George Stephanopoulos will participate as ~eeded. A draft of the Directive to the Attorney >0::: .
General is in Attachment B. ·
<C
0:::
·m
What is the relationship of the Review to the Directive? "The Review provided the President . ...J
with .basic factual information concerning various Federal programs an~ the background
. conditions of discrimination and exclusion, and provided .an preliminary application of his
policy principles to various programs. In light of Adarand, however, these policy judgments
are now subject to strict scrutiny· by the courts, and must be reconsidered by the Justice
Department to ensure compliance with A darand."
·
·IV. The Review
At a minimtim, the Review will include a description ofyou policy framework,. an analysis of ..
the Adarand case, a review of evidence documenting the continuing problem of discrimination
and exclusion, and a description of the range of Federal programs and how they operate. The
draft of the. Review prepared prior to Adarand also included a balanced presentation of good
and bad information collected ·on program performance, our ~'fmdings of fact" based on that
information, and . some policy conclusions and. recommendations. Iri light of Adarand,
however, and tile certainty'of both litigation and legislative;_· action, however, the Departln.ent
of Justice has raised serious concerns about whether these factual.and policy matters shoUld
be released at this time. We are discussing this difficulty, and will have a recommendation for
you when you receive the dr~ft'Review next Wednesday,· JUne 28'.
· . Meanwhile, Attachment A has the table of contents and the opening "policy framework"·
section of the draft Review.
V. Decision on Procurement Setasides
.
.
.
.
.
Baseline -- Reform of Abuses: The Review has identified a number of areas of abuse or
perceived abuse. As in all the other areas we examined, these abuses are 'far 1ess common in
reality than is commonly assumed by critics. Nevei'thele:;;s, addressing these is necessary as
a matter of fairness and· political circumstanc~s; the reforms will also have a marginal helpful
impact on the constitutional analysis. The details· of needed ·regulatory and statutory changes
remain to be defined after these general parameters are announced. (It would be impossible
to develop sound details while maintaining confidentiality.) The five key elements. and .
. summary prescriptions are:
�>-
a..
0
(J
"passive" investment in the· small·disadvantaged business (SDB).
0
1-.
0
:c
2. Tighten Requirements for Graduation. Apply 8(a)'s 9 year graduation limit to all a..
SDB programs, but then direct the NEC and SBA to establish objective industry-specific · >criteria for determining when any individual firm "develops" beyond need for sheltered ~
competition. Direct the NEC and .SBA to establish caps on the 'dollar value of contracts, ~
plus a cap on total dollars a single firm can win through sheltered competition.
-
.
.(J
3. Stringent Safeguards Against· :Fronts and Pass-Throughs. Create a uniform,
privatized certification process for all SD:Ss. Require that certification audits at first
contract and periodically thereafter to. verify continuing eligibility and to monitor.. for
"fronts" and "pass:.through" companies. Increase: civil and criminal penalties. ·
·
-,
:;:::
.
'
4. Sunsets and Caps to Reduce Regional/Industry Concentrations. Direct the NEC to
formulate industry and regional caps/controls to prevent .significant adverse burden on nonSDBs. Direct the NEC to determine industries/areas where sheltered competition programs
may be phased out based upon successful inclusion.
·
5. Reduce the Concentration of 8(a) Contract Dollars Among a -Few Firms.
contract value and lifetim~ value of contracts to a firm.
Cap
Key agency officials agree that we must announce this package, making clear that the details
will require careful consultation. The package would be· described not only in terms of
combatting abuses, but. also ensuring. conf9rmity ·with your policy· .test of fairness.
Further: Steps - Options for Broadening Eligibility: In light of your policy tests, and because
of the shadow cast by Adarand, we· offer these additional options to make minority status less of a defining and exclusive condition of eligibility for procurement preferences.
·
.
OPTION
1:
.
'
'
ANNOUNCE ONLY THE "BASELINE" SET OF ANTI-ABUSE MEASURES DESCRIBED ABOVE.
Pro: It would be prudent to complete the detailed empirical and program assessments required
by the Supreme Court before rushing to judgment. . If we rush, Congress Will feel emboldened
to rush. No policy choices at this stage could accurately be described a:s constitutionally
compelled; they would be naked policy judgments. Defer specific policy judgments of this
.
radical sort until after the· Attorney ·General's process.
Con: Especially· after so long a Review, the public expects at least some policy judgment frorri
the President -- in both the affirmative and negative -- as a measure. of .leadership as well as ·
commitment to the fairness principles. Completely collapsing. the policy judgment into the
consti~tional analysis amounts to ceding policy authority to Justice O'Connor.
·
�>0..
0
<:...:)
·The current minority-~argeted preferences would be replaced by a· single program· for
disadvantaged entrepreneurs .and firms, with three eligibility gate_ways for participation .m
sheltered competition:
• Gateway 1: Socially and Economically Disadvantaged Entrepreneurs -- .
.
'
Eligibility based ·on membership in a group that has .been subject to discrimination.
Geiminely rebuttable presumption for minorities and women. More realistic opening
for. white groups to demonstrate victimization. .
·
• .Gateway 2: Emerging Enterprises
Race-neutral eligibility· for very small firms with little or no government experience, .
and an economically disadvantaged owner.
• Gateway 3: Empowerment Contracting: Distressed Area Employers
.· Preferences to stimulate jobs and development in designated severely . distressed
areas, designated ·by the Department of Labor.
Eligibility- based on performance of the contract in a distressed zone and/or hiring ·
· above a threshold level of employees from a designated area.
·
·
Pro: Preserves a gateway for victims of discrimination, while opening opportunity to deserving .
. white. males thiough Gateway 2. Gateway 3 adds explicit attention to economic development.
· goals. The new eligibility for women is a major step. MBE and WBE goals of 5 percent
could each be retained, within .an overall goal of 15 ·percent.
.
.
Con: Program is a bit complicated to describe. The 15 ,percent aggregate goal is enormous,
and will erode contracting under the 'iordiriary" small business -contracting initiative.
.
o·
::t: .
0..
>c:::
<
c:::
Q)
The current programs, whose purpose is remedying discrimination and its effects,
with women' added.
.
'
.
1-
........
.
'
0
.
. OPTION 3: GEOGRAPHICAL TARGETING ONLY- ELIMINATE RAciAL AND GENDER PREFERENCES
This option would eliminate the current programs and create sheltered competition program
with eligibility determined as in Gateway 3 above, i.e. based on. performance of the contract
in a distressed zone and/or hiring above a threshold level of employees from a designated area
�>-
.
.
.
0...
.
0
0
0
disproportionate . benefit to minority entrepreneurs, though far less effective than currently.
t-
·.~
Con: Will be viewed as abandonment and denial ofthe commitment to address directly the
problem of discrimination-based denial of entrepreneurial opportunity
·
>-
a::
a::
<(
Decision:
ca
_ _Option 1: Anti-abuse reforms only; defer major program changes
_,_-·Option 2: Bro(!.deri eligibility to "three gateway" model
_ _Option 3: Eliminate race- and gender-based preferences; geography. only
·
VI. Sorting Programs into Three Categories
Finally, you said you wanted to sort theprograms:
Group A: Programs You Can Support: Attorney · General and Agencies instructed to
confirm that these c~mply with Adarand•
•
•
•
Group B: Programs whose goals you support, but for which you need additional detailed.
· ·information from the agencies and Justice Department in order to make a final •
· conclusion .
•
·•
•
Group C: Programs you believe require modification in order to comply with .your
policies, including consistency with Adarand•
•
•
•
5
�>-
a..
0
(.)·
VII.· Rollout Scenario More Generally .
. 0
10
A coordinated communications and· outreach effort is currently in development. The
.fmalization of the pollcy options, . speech thematic, arid date will help with this process. The ·
goal of this effort will be to effectively manage expectations and shape the characterization of
the speech before it is given, as well as to amplify it to the greatest extent possible afterwards.
The effort will involve members ofthe Cabinet and sub-Cabinet, and the Legislative Affairs,
. Public Liais~n, Communications and. Press offices. In addition to tl).e Adnllnistration efforts,
outside/independent opinion leaders from .the Civil rights comrD.unity, academia/education,
woinen' s community, economic/corporate and religious worlds will .be integrated into the
··validation efforts.
6
::c
a..
�>-·
a..
0
(.)
0
1-
DRAFT!
0
:r:
a..
>0:::
<(
MEMORANDUM TO THEPRESIDENT
0:::
a:J
.
.
_J
From: George Stephanopoulos and Christopher Edley, Jr.
Re:
Affirmative Action: Decision on Post-Adafand Steps and Completion of the Review
\
. BACKGROUND:
THE COURT, THE REVIEW AND THE IIILL
· The Supreme Court's 5-4 Adarand decision applies strict scrutiny to .Federal race-conscious
programs .. The Court's 1989 Croson decision, on Richmond's setaside program, ~stablished the
, same heightened standard for state. and local measures. . AI~ government race-conscious
governmenfprograms must be narrowly tailored to serve a col!"pelling interest.
.
-
Adarand' s constitutional test is essentially identical to questions we have posed as a matter of.
policy to the agencies.· But the Court .raised the .hurdle in two key respects.
•
Justification: First, the Court now r~quires · a compelling interest,· while we previously
assumed that you (and the Congress) have broader policy flexibility to judge whether each
program's purposes justify race- and gender-conscious decisionmaking; We must now take
greater care demonstrating the justificatic;m for setasides, targeted graduate fellowships, etc.
( Caselaw is uncertain about whether and when nonremedial purposes, such as diversity, can
~eet the compelling interest test.)
.· • · Factual Predicate: Second, in malq.ng policy judgments, you and the Congress were
relatively free. to accept whatever quantity of evidence and tightness of logic seemed,. on
balance; reasonably convinCing. Bl:lt 'now, courts applying strict scrutiny will insist oil an
. unknown but surely much more substantial factual showing. They will probe for the factual
predicate establishing prior discrimination (or other compelling interest), and for the facts.
· . establishing narrow tailoring. .
·
In sum, while the Review ·has asked many of the ·same questions, Adarand.requires far more
rigor. In this light, can we state policy conclusions at this time? Your policy judgment must
conform with the constitutional requirements; but that in turn means that most of your policy
· judgments on these programs must be preliminary or provisional, pending the detailed empirical
·
work that_ is necessary to s.tate and defend a conclusion about constitutionality. ·
•
.
-
I
·. Meanwhile, howev~r; we expect some GOP members of Congress to move legislatively as early
.
as this week;but no later than early July. On the appropriations .front, Rep. Is took, Rep. Franks .
. and Sen. Gramm are reportedly prepared to offer "anti-preference" amendments, perhaps in the-·
innocuous-sounding language of the proposed California ballot proposition, or perhaps striking
.
I .
�~
a..
.0
funds for specific setaside or other 'programs. On the authorization side, Rep. Canady will soon
introduce broad anti-preference language, and there is a chance t~at the Senate may face an anti. , setaside or anti-preference amendment to the National Highway System bill now on the floor.
· . House Democrats are divided on how best to counter a GOP anti-preference measure. Most
tactical discussions focus on a commission of some kind ~to conduct a fact-based review of
whether current programs satisfy Adarand. Under this theory, moderate members would be able
to vote to table or otherwise suspend a GOP move pending the conimission's·report. While the
·Black Caucus·is generally opposed to a colllrillssion, the Democratic leadership and its task force
strongly favor some foirn of commission, believing that members need a device such as this to
provide political justification for voting against an Adarand-inspired preemptive attack on
. virtually all programs. · In the Senate, Democratic k~aders are also very interested ·in a
coninnssion, but ·may accept an Administration-led process with a date-certain for reporting .
..
FIRST ISSUE: THEMATIC SPEECH ON EQUAL .OPPORTUNITY
Your advisers all recommend a ·broad, thematic speech, as soon as practicable, on equal ·
opportunitY, tolerance and comniunity/economic strength. · The speech goals· are: · ·
Go beyond remonstration of those who practice wedge politics by demonstrating hmv to
.. conduct. a national conversation on the issues of discrimination, inclusion and opportunity; .
.
.
.
. Reestablish your commitment to lead. arid shape that conversation by communicating your
· ·values and vision;
·
Provide a third way for moderate Democrats and Republicans who want neither the status quo.
nor a blunderbuss, reckless response to A,darand;
Lay down your own policy marker as guidance to the subsequent processes on the Hill, ig
the agenCies, in litigation and in any Commission. With this done, details and day-to~day
management of the issue can shift qut of the White House, putting an end to months of.
"waiting for Clinton" conim.entary.
The ·speech would be. above the plane of· program details, but. would offer a few specific
examples in order to communicate effectively your central policies and values. The details would·
.
.
be left for other Administra.tion officials to discuss,· and for the Review document.
There are two mairi arguments against .an early speech. First, the danger of a thematic speech
·is that the more unifying the framework of values, the more risk that some pundits will criticize
. you· for attempting to speak to all sides of the issue. We discount this risk both because there
are. far mote observers who recog~ze the need for hea.J.ing, and because selected examples plus
the Review document will .contain enough that is disputable to prove that you are offering
principles, not nostrums. Second, declaring ourselves on policy princip
olden Senator
.
.
.
n~~
1'"/.
.
s ..
"
~
.,
u
lle
'J
v
.
'9(
p.2
(.)
0
r-
.0
:c.
a..
>-
0:::
<(
0:::
co
�. >a..
0
Gramm and others to press harsh anti-affirmative action legislation. They will declare that your
"sympathy" for affirmative action ·makes it pointless to wait for the Administration's detailed
analysis of Adarand's implications. We acknowledge this risk, but consider that GOP
amendments are likely whether you speak or ·not; Congressional pemocrats and civil rights
leaders agree that your speech will improve the chances of forestalling reckless legislation.
.
I
.u
0
10
:I:
a..
>0::::
<(
0:::: .
-
'a:::J
SECOND ISSUE: THE REVIEW AND· A DIRECTIVE TO THE ATTORNEY GENERAL·
.
.
Assuming yqu give a· framework-setting .speech, the two remainiilg questions conce~ release of
the Review, and a directive establishing a follow-on process to assure compliance with your
policies and with Adarand.
,.
To satisfy strict scrutiny after the 1989 Richmond setaside case, over 80 state and local
.· jurisdictions have conducted contracting "disparity studies" to establish the factual predicate and.
to analyze alternative. program designs~ .·In virtually
cases, officials used consultants and
commissions to gather and analyze data, and each telephone-book-like report took months to
complete. While much of the methodology is settled, the work takes time. Comparable Federal
studies will be needed for litigation, and not only for procurement setasides. · ·Such studies will
likely be demande.d .by Congress as well, and indeed they will be necessary before the Attorney
General can confidentlyadvise you concerning the constitutionality ofa specific program.
all
Your advise~s· agree that, with the speech, you should issue a Directive instructing the. Attorney
General to conduct an expanded and more detailed study, as required now by Adarand, to address ·
. the issues raised prelim.i.natily by the White House Review. Working with the relevant agenc.ies,
· and with consultants as needed, the Justice Department would coordinate preparation of the kind .
of empirical work likely to be required by federal. courts and by the Congress.
.
.
.
There are three options for linking the speech and Directive with the White House Review: ·
'
'
'.
.
.
.
.
'
Option 1: Finish the Review Now, With Policy Principles and Preliminary Conclusions.
.The Review could be released containing:
a detailed, policy framework,
.
as sketched in your t:ramework speech;
.
.
descriptions of key programs·, pro~iding helpful explanatory material;
· for a few programs -- where substantial evidence is already available -~ preliminary
conclusions about whether they satisfy your policy test (which includes conformity with
Adarand:); and
·
for most. programs -- those in which· the evidence is too meager to make a confident
constitutional estimate ~- reserve judgment pending further analysis in light of Adarand. ·
�>-
a...
0
c.:>
The materials and prelirhinary conclusions from the Review would be turned over to the Attorney
General's process for further work.
0
1.0
::z:::
a..
Option - 2: . Issue Abridged Review, Reserving. Judgments on Facts and . Policies.
· Aiternatively, the Review document would be substantially shortened to: .
..
. .
.
'
.
.
.
>0:::
<(
.
0:::
Ql
Eliminate the recitations of positive· and negative facts concerning specific; programs, and
factual conclusions based on those facts.
.
. .
.
'
.
.
.
'
'
.
.
.
'
.
'
Eliminate preliminary policy conclusions about fairness or the need for program reforms,
on.the. theory that such judgments should not be offered in a preliminary way, but in light
- of Adarand should await the results of the Attorney General's work.
In essence, the Review document would be ~ri elaboration of the speecli's fr~ework, background
material. on discrimination, plus a description of the. nuts and bolts of s~:yeral programs. : ·
Option 3: Issue no Review; Re.IY. on l)irective to tlie Attorney General.· Finally, we.could·.
announce that in light of the more .stringent . standard of evidence and documentation p.ow
. constitutionally required by Adarand, the· work of the Review has been suspended. and turned
. over to the Attorney General to continue ·in a man.rier consistent with what will be required in ·
litigation. The Presidential Directive to the, Attorn'1Y General would Include any needed
elaboration of the policy framework. In conjunction with the speech, and as a service to ·
Members of the Congress and journalists,. we would repackage sections from the draft Review.
into a short document summarlzing the key programs, the evidence on continuing discrimination, ·
and the law of affirmative action. ~ ·
Analysis:
· .. Favoring Option 1: Complete the Review. We promised that the review would answer the tough
questions you asked, and some observers will equate reserving judgment with "punl." Even if
the constitutional test now makes definitive answers impossible, critics will say ·that surely.·
.something can be said by now·. Our discussions with the Justice Department indicate, however;
. no existing progr~s can be flatly ruled out as constitutionally flawed under any conceivable s~t .
of ·additional facts. In particular, disparity .studies may establish a strong factual predicate of
. prior discriillination in contracting, sufficient to justify the current, modest, raci8lly-targeted goals
and sheltered competition. Recall that the Justice Department argued forcefully to the Supreme
Court that setaside iii Adara;nd would in fact st:trvive strict scrutiny; .that argument will be joined
on remand. · St.ill, this option allows full opportunity to demonstrate leadership.
Favoring Option 2: Abridged Review, Reserving Judgments: Stripping out the facts and
conclusions bearing on "what works and what doesn't" avoids a formal document containing
statements that might create awkwardness in later litigation. · More detailed study is now
· consti.tutionally required: reserving policy judgments avoids controversial pronouncements that
may, in the end, not be constitutionally compelled. (On the other hand, there may be some
X;,S\DEtv 1'~.:
Q.~
/
<
o
~
?
·o
•
I
cj\.e
J
:.s'(
t;.
tP
~
~·
'
p.4
'
�>-
a..
0
policy changes you would embrace regardless of any "disparity study," and whether or not
constitutionally compelled.)
(.)
0
t-
o
:I:
Favoring Option 3: Defer Decisions: Preliminary or tentative decisions about particular
progranis, without the kind of careful empirical scrutiny required under the new constitutional
. standard, will.only confuse the debate and invite second.,: guessing by members of congress eager
. to score political points by rus~ng to action .. Moreover, a policy choice to abandon or reform
programs without being able to indicate whether such changes are constitutionally required will
draw substantial fire. If you speak before the new homework assignment is ·complete, all you
can do is either surmise that programs are acceptable (when the full facts may eventually show
otherwise) or volunteer that you want to reform theni even though a full development of the fads
might ultimately show that such changes are not constitutionally compelled.
THIRD ISSUE: CHARTER OF THE COMMISSION..
.
:·'
·Finally, we~ust respond to the growing Congressional interest in a bipartisan commission. Your
advisers are agreed that if there is to be a commission its membership should not require Senate
confirmation; its fact-fmdirig would supplement rather than supplant the work to be done within
the Administration under the overall leadership of the Attorney General; the Commission's
charter would in no way compromise the authority of the President and the Attorney General to
set polity for the executive branch and d~fine the position of the United States in litigation. We
are also agreed.that, given.the .views of Democratic leaders in Congress, a commission of some
sort is the best option for holding marginal Democrats off of a GOP amendment. Even still, a
tabling strategy is unlikely to succeed in the House. ·
·
·
Accepting that a commission seems necessary, the question· is how· broad .to ·make ·its mandate:.
Option 1: Narrow mandate -- review and supplement agency fact-rmding. This approach·
poses .the least risk to Presidential and agency prerogatives. Agencies, led by.Justice, will do
most .of the work. The Commission would comment on methodology, act· generally as.·
interlocutor, revie~ agency findings, and conduct hearings to supplement the "record.". Although· .
a commission with th~ inevitable independence will stray into policy territory, starting with a
narrow mandate will help~ Moreover, it is the fact-finding role that is of most practical value in
·completing the empirical work required after A.datand.
.
·
Option 2: Broader mandate to develop evidence and rmdings independently. Those
skeptical about agency objectivity may argue thatthe commission needs a full capability to use
consultants and other methods to develop evidence on its own.
Option 3: Broadest mandate -- facts and. general policy debate. This approach, analogous
to the consensus-building model you employed as Governor to tackle education reform, would ·
create the greatest threat to tr'aditional Executive prerogatives, but would also create a vehicle to
sustain a national conversation. Civil rights activists now believe that such a broad discussion
~~SIDENJ-~:
q . .
"<?(
p.5
t
·f-
z
")
u.
a..
>-
e::: .
<(
e:::
o:J
. ....J
�>-
i:L
will be perceived as a poor and unpredictabl~ substitute for Presidential leadership on the issue:
Moreover,. protracted policy debate by a commission would interfere with effective and timely
completion of the factual inquiry needed to defend programs in litigation or on the HilL
0
C,)
0
r:c
0
a..·
>-
0::
<(
0::
c:J
DECISIONS
. _J
Speech:.
-~ ·Schedule speech as soon as practicable
_;._.Defer speech untlllater in the summer .
. Review: .
___Finish now, offering policy views;- issue directivefor DOJ-led process
_ _Issue abridged review, reserve judgment; issue directive .
___No review; issue directive
Commission: _ _ Narrow fact-supplementing mandate
_ _Broader fact-finding mandate
•
_ _Broadest facts-and-policy maridate
p.6
�>-
0..
0
DRAFT
June 12, 1995
33·
(.)
0
I0
:t:
0..
>-
c::
<(
c::
:MEMORANDUM FOR THE PRESIDENT
-
From: George Stephanopoulos and Christopher Edley, Jr.
...,
Ill
....J
(..)
'3:
Re:
Mfirmative Action: The Supreme Court's Adarand Decision
This memorandum presents a very brief summary_ of the Supreme Court's decision this morning, ·
and presents options for our immediate response. Thus far, we have indicated to the media that
(i) the decision is by no means a death knell for affirmative action, and (ii) we do not have to
go back to the drawing board with our affmnative action review because your instructions to us .
. asked many of the same· questions the. Court has focused on· in Adarand.
·
After the Supreme Court· st:Iilck down Richmond's set aside program in the ·1989 Croson
decision,. state and local governments used commissions and consultants to create the factual
record needed to justify their programs under the tougher standard that Adcirand now applies to
federal action. The question is whether to indicate that we will now use some analogous form.
of fact-finding commission at the federal .level-- with details to be defmed after consultations.
Your basiC policy views would still be announced with release of the Report, in the not too
. distant future.
·
·
I.
The Court's Action
The Opinion: In a 5-4 decision, Justice O'Connor's opinion held that any government
action which treats individuals unequally on the basis of race is subject to strict scrutiny. The
·Court relies on the Richmond set aside case, Croson, which applied strict scrutiny to state and
local contracting programs,' but reverses a subsequent holding (Metro Broadcasting, involving
broadcast licensing) which suggested that federal. statutes with benign purposes could be.
sustained under a less rigorous, "intermediate" scrutiny standard.
•
"Strict scrutinyn means that (a) the government's must have a "compelling interest," and
(b) the program must be "narrowly tailored."
•
The Adarand decision leaves open what will constitute a '"compelling interest," but .there .
is a suggestion that it need not be limited to purely remedial measures addressing proven
instances or patterns of discrimination. It is unclear, for example, whether general
. concerns about diversity in the education setting would meet the test (probably) or
whether· a pattern of massive underrepresentation in certain professions would meet the
�>c..
0
test (tougher,' but unknown). The earlier standard for Congressional measures_ had been
·
"substantially related to. achieving· an important interest."·
u
0
1-
0
•
The decision has rhetoric about the tightness with which the program must be "tailored," .
but these implications are also unclear. there is probably no change to current strict
scrutiny law, which requires, inter alia; consideration of race-neutral alternatives, and
sunsetting of the measure. once its legitimate goals are met.
•
Although Adarand concerns a contracting 'program, the language is quite c~~ar and
sweeping .. The same constitutional standard will be applicable to racially targeted
programs in Equcation, ·HHS, and throughout the federal; state and local government. ·
The Key Implications: There is no question but that Adarand's move to the Croson
standard of strict scrutiny tightens prior law. The most important fact is that Croson itnposed
a fact-finding burden on state and local legislatures to establish that. there had been. prior
discrimination of a specific .sort, not just broad societal discrimination or underrepresentation
among local government contractors. State and local governments responded to Croson by hiring
consultants and appointing commissions to· lay the factual predicate, and then reenacting their
.·set aside programs, often with more flexibility and broader eligibility than before. Courts have
generally sustained the revised programs.
.
Two critical and open questions left by the Adarand opinion, therefore, are:
·1.
Must there be a specific factual demonstration of racial discrimination (or present effects
clearly traceable to past discrimination), and if so, what kind of evidence is needed to
·
make the case?
2.
Must that factual case, and the other elements of strict scrutiny, be in the
contemporaneous legislative history? That is, must Congress have made specific
legislative findings of discrimination, and with respect to race-neutral alternatives? Or
will it suffice to· supply that analysis and justification now, after the fact?
This last point is critical. There is good reason to fear that if-this new standard of evidence is
applied to the contemporaneous legislative history, many programs may fall because no one at
the time these programs were enacted would have anticipated such a standard of judicial scrutiny.
Quite obviously, reenactment of many of these programs, even with revisions, would be a
daunting task.
Your advisers agree that we must assume for present purposes the more favorable answers to the -.
two questions above: that affirmative action remains permissible in contexts broader than pure
remediation, if done. very carefully; · that any deficiencies in the legislative history of current
programs can be repaired by evidence developed now..
~'i:.SIDE't\1~ ·
q
. :..v('
t
,_
·z
~
2
:I:
0..
>-
a:::
a:::
<(
o:l
�>0..
0
(.)
·Options:
·o
10.
:::c
We believe it is important to communicate as early as possible a general reaction to the Ada rand
case that will provide a measure of reassurance to those who will fear that the opinion sounds
the death knell of affirmative action, while reemphasizing your continuing commitment to
affirmative action "done the right way." At the same time, we want to begin the process of
moving the day-to-day focus on affirmative action away from the White House, recognizing that
your general policy guidance should suffice a5 agencies and courts work through the implications
of Adarand.
·
0..
>0:::
<(
·a:::
cc
. -I
We see two principal options. The critical question is whether to say now that we believe some
form of commission is a desirable response to the Court'sdecision
Option 1:. Just complete the Review:
The President has always believed that affmnative action is valuable and justified when
. it is done the right way. 'The Court's opinion in Adizrahd is consistent with that view.
Using policy guidance from the President, the Review already asks many of the same
questions the Court has focused on in Ada rand --. ensuring that race- and gendernow work with the Justice
conscious programs are carefully justified and fair. We
Department to confirm that this policy test satis~es the legal test announced in Adarand.
will
The preliminary work done by the agencies for the Review has been encouraging as
regards their fairness and their legality, even under the new standard. But the review is
not complete.
Even when the Review is submitted to the President, there will be a need for ongoing,
detailed factual investigation to ensure that each of the many programs does meet the
Supreme Court's legal standard.
·
Option 2: Same as above,· but with follow-on fact-finding Commission:
· The Review is near. completion, etc.;
Because the detailed factual rnquiry required by Adarand is beyond the scope of the
Review, you have instructed your staff to consult with Congress and the Cabinet on how _
best to structure a blue ribbon fact:..finding commission to examine the facts, in -.
. cooperation with the relevant agencies and with the Department of Justice.
DECISION:
Option 1
Option 2
3.
�·'This memo~dum presents a very brief surnmacy of the Supreme Court's decision t
.and presents options for our irnmediate response. Thus fa.r. we have indicated to th
(i) th.e deCision is by n.o IneQJlS a dDath knllllt for affirmative ~tion, and (ii) we do ot ha.ve .1.0
go back to the dr~wilig board with our ufflnnative action review because your ins tions tc us
as~d. many of the same qu~stions the Court has. fo"used on in AdD.rwad.
·
· After the Supreme Coun. struck down Richmond's set aside program in
der;ision, state and local gn-vemlllcnts uacd commiuion• aa.d con~>ultants. t
ate tho fo.c:tUol
record needed to justify their programs under the tougher standard tbat A.daran.d now .QPpllcs. to
federal oetion. Tho question l$ wh"'thcr to indictt.te lb11.t we will now use some analogous form
'.of~act-fmdinif.commission tbe federal level -~ with details to br: defined .after consultations;
at
[Your basic (o1.icy views would still
dis1ant future.
l.
J ·
be
announced with release of the Report, in the not too
. . · · .·
.
.
.
.
·.
The Co\lrt'a Aetlon
Tht· 011inion: In a 54 decision, Justice O'Connor's opinion beld that aay government
which treats individuals unequally on the b~is of race is subject to ·strict scrutiny •.The
Coun rene..~ QIJ. .the Ric:hmond g.et aside ClUe, Crt>li)tJ, whi~:h appliecl strjct sc:rutiny tc stplo ~and ..
local contracling programs,' but reveiSes a subsequentholding (Metro Broo.dcatting, involving .
bro~dcast licensing) whi.;h l'ugg~stcd that fl!deral. statutes with benrgn. purposes could be
· . sustllined. under a less rigorous, ''intermediate" SQ:Utiny stanciard.
·~non
�GEN!:.k8L.
COUNSEL
ID :202-395-7294
JUN 12'95
P.~
19:23 No.014
.
0
(.)
0
10
test (tOugher. bur unknown). The eatlier standard. for Congressional measures had been
"substantially related to achieving an imponant interest,~
•
:::r:
a..
>~
The decision. has rhetoric .about the tightness with which the program must be ''tailored,"
but th~se impliCatiOni are aJao unclear...The~ ia probably. no ~lusngc to curreftl ~trict.
ar;rutiny law,. wbich ~quires, inter alia, considc;rntion of race-neutral· al~rnativcs. and
·. s1msctting of the: me~t~ure once its lcg~t.imate goals are met.
~
-·
(.)
••
. Although Adaro:nd concerns a coottacting program, the language .is quite· clear and ·~
sweeping, The sanie. r:onstihn:ional ~tandard will ber applicable to rv.citally ta.rgctQd
programs in Bduca'tion1 ·HHs •. _and thtoughout tbe federal; state and local go~c:rnment.
The Key lmplkti.tu,l: There is no· qucstiOl't .but· that Adanmd',r; move to the Croson ·
sumclan1 of stncl scrutiny tightens "pr;or law. The mo~t important far.::t is that Crwo,. impoaed ·
a fpct-findirig burden on Btllte and JO<iallegislatures to cstah1i1h that th~ had been. prior
discl'iminution of
ific sort, not just broad socie[al discrimination or underrepre~ntation
ong loeal
govem~Mnt t!ontraeton:.
State IU\d Jocolsovcmr.n&;nt$' ~5pondcd to Cro$"" by hiring
consultants and appc;inting commissions to lay. the factual predicate. a
. ··
nacting their
f!ct asict;}programs, o~n with more tlex.ibili[f and broader e · . · ·
an before, Courts have
generally· sustained the revised prosrams. ·.· · · A, \-~; ...,"' ~"' • . ~ ,. 1 .., .. 4- b ~ c-)
.
1.
··
·#, \_._,.,...,
""q("'*...,.C
Two critical and open questions left by the Atlarand opiniod. thcrofore, w:c;
Mu5t theJe he e. spce!ifle factual demun.!lrration of racial discrimination. (or ~sent effectl ·
clearly traeeable to past
make the 'case?
Z.
of.- f,t'\t14"'fo.')
.
d~riminatiori),
Qlld if so. what kind of evidence is needed to
.
·
~
·
·.
.
.. Musr that fKtual c"se. and .the other elemfl!nts of striCt scrutiny. be in the
. con.tem.po'r'an.fJI.(Jil~ legislative history?
must Congrqs huvc made spBCific
legislative findings of discrimination,' ai'Jd Wilh re&peet to race-neutral alternativc:s? Or
wllllt a~t!ftcti to ~upply mar Q.llal'~Jis and justiftcati.on now, after the fact?
That .ia,
This last point is crltic:Sl.- There is good reason to fear that if this new standard. of evidl!nee is
applied to the contentpo.ran~ous legiRlstive hilll)ry. ID.Bn)' programs may fall because no unc at
the time these programs were enacted would have anticipated such a standard of judicii.~ scrutiny.
_ Quite ohviou&l)'. reenaclmcnt of many of
thes~; · p:rogrwn6.
even with revisions. would be a .
daunting task.
-
Your advisers agree: that we must uswne for present purposes the more favorable answers. to. the ~two questions above: that affln:native action rem.ains permissible in contexts broader than pure
remediation. if clone very ellJ.'t!lfulty~ that uny de.ficiencii\!14 in tho legislati'V'c history of currenl .
. programs can be repaired by evidenc~ developed now.
·
·. 0
J
. e\ AI. d ~ (pc,~,.._ ~ -+~
dc""""'"..,.-'tl'\._~ +~"' t
t-'L1 &
.ft.c.
~' t~ d ,, .J..o
..,._.,,,
p"'Q """"""' ;' .,, ~"'""~' '.
'fM ,;,,, +- ~t d u.s c..'At..-.•o~" +,w
3
2
�GE~ERRL CUUNSEL
0
.
·
·. ID:202-395:7294
. . ·
,., 1C.lH.'f"'"' +•l<c
. ..-. ..... e." ... ~..
I,.., +• ..
\(',...., .1 .a
,
·
.
.
·
+•'-!'
"'-''II -f.JI f'-'e
vo•c..-.:-.
Options. .c:tr u ..._" , o~ .s
.
,....,~
$
•
·
.
JUN 12'95 · 19:23 N 01
.
.
o. 4 P.~
J ...., c>M ""'"""
(""1
••
~
VGtd
.
~u .,.g/ ·
.
""''1\ c~~t.l/~ ~ .. ~,
:.1..
·
. ~"
..
"1 '-\CI#\4! U- till\ 1 o("(,c,f-
We believe.. it is import4;U't to commur:Ucate a early as possible a.·&~eneral action to the A.da-,flnd 4i\ ~~
case that will provide a measure of rea.ssur ce to those who _will fear t at the opinion sounds
§tJ
the death knell of Bffirmative ac:tlan,. w le. ree:rnplmsizing your conti uinr; commltmcnl tu
affmnative action "done the right way." At the same. time,
·
··
f.
moving the d4y·to-clllY focu:s on 1.ftirmatlve action away trom the W:hite House • ....ecognizing that
your general policy ggidance should suffice a$ agencies and courts
tlu'ough the implications .
of Adamrul.
.
.
work
.
0::::
~
--'
(.)
3i.
.
We see two principal options. The critical question is whether to say now that we believe some
form of c:ommission is a- deairo.blc rospon!Jc to the Co~rt•a ~15ion
Option. 1:. Ju.$1 completa th,e Review:
.
~f)
. The President.bQS always bcHc~cd that affumalive action ls val~ble and justified- when
it is done the risht way. Ttie Court"s opit~ion iD (t.dii.ratJd is oonsisi:Cnt with tha.t vic;w•.
l~
,.rL
~ ... ,~~ \\•~l
(~"
.,.,iJ
Using policy g~:»ida.nc= from lbc President:, tbc Review dread.y asks· many ·ot the same
questions tbc Court bas fcc:u.sed on in AdtJro'/IIJ. -· ensuring that rac:e- and gender-
.
6,.
conscfous programs are carefully justified and. fair. ·We will now work with the Justice
II'•J lrl.~ . Department to confirm that this policy te..qt Ratirdif!.ll the ]p.gal test Mnounc:ecl in .A.tlart.~nd. .
;:... '-~C~'- The t:hc:ir fairness and their legality, even· underthe new standard. But th= ~eview uis .
worl<
the ..p.;.. ;.,.
beo.n
,.Jct"\o ~ regards
the
,., ~-,..:'( ~·" . not c:ompleteA
.
·
·
··
.,.,.
______
d - by
p'-!im!Apry
~""
......
. ~
l-
\
.!\
0
&;vkw b..
encoul'lljling
:_..,~_
.
lbe Review
.
is submitred to the President, there will be a. need for ongoing,
~ l("'"\111W.. ',.,J.' detailed factual invcutigat.i.on to ensure that eacl:i of the ma.ny programs dQCs ~ tbt;;
~.Jt"' :\.' f- · Suprem,e C..,urt'a legal Staftdmt
.
.
. .
.J")f\
\ \"\
..v "'""
to_·:t>;)lC,..)(~
~c. ,1'...,
\ '1(1
,..
/
./'
Even when
·
. [w•+'-''ott .....,,+'-o.~ &;."'1-""';ut .... o'r Rr.:a•..,,.....]· (
(
-:1...
. - .. .
.
.. . .
.l
.
.
.
.
.
.
.
.
The Review is ncar completion, etc.: .
. -.
.
.J,.it:QR:~tbe detailed factual i·nquicy required by Adtlra.rul is beyond tho scope o
Review. you have instructed your staff to consult with t.:ongress und the Cabinet on
.
'
:)
.,
..,.,. ', .. ,.,~
(A .l
(J .;1'
.
+-'~
. ption Z: Sam.e at tlbDVl' but with follow·on fo.ct1fntling Commi1sion: ·
DECISION;
.
_ _ Opftonl
.
.
.
.
-............- Option 3 (Commission)
/2
z
_
.. .
best to struct\11'1'! a blue ribbon fact-finding commissjon to examine th8Adi.t:ls
cooperation with the reb:vant agencies and with tbc Depa:rt.Ql.mnt of Justice ~~
.
.
.
..
~-
.
.
�. AdOJOl~ ~~lv_~.l JPM_
Fr: ~ '"'(" r'. .
.
.
.
.
kJL_~ c.~-~~-~~~.·
~"
·O~ ~ ~ ·~ ~(,~ wlR{J)+(j) ..
.~. o.Q..,
F
H'""'.
~ ~- @ .J ~ L-.. +/.... ~J, '
C0
w..-
.LJ... ._
lA.
~~I ~~;_a._ ·fl.._·
·. ®
. .t>J ~ '-" . ® <MLJ ~ .Jo. ~
~fb..~~) .1~ o4k vfJ~h.
(f)
<--~k;
L-
~J · ·"'-
~
. .
N
l"' j
)'..UI-- . .
•
~--=:--~
-~
a.A-4
. .~. ,__ ""'q-
~ ~-
'-':cikJJ._
<'-' s~ r--./..U-
.
~irfo_'
.
.
:[
Uwl.
;s.J.k ,.s lw.k..of, J.
y'd..
~~
'
I
2•· no layoffs haaac! on raca or gander
·. . 3 • att 1rmat i ve ·act1 on where d i scr imi nation
. . .
(stati~tical
evidence
only OK)
~kW..
··~ ~J~l
4. color and gander blind after discrimination re8e4ied, but
.affirmative action ~ontinu•a for poo~ ~egardlesa ?f race or
~
5.. ImmacU.te inclusion of poor white men . .:Ln al~ · a1}firauit.:Lve .· ·
fU..l
P....
~ ~W
~- ~ . . ·
·
~
:
~~r.
· · diacrimination: exists must becb inclusionas to
action programs.·· ·uowever. su.
in casaa)
·
so limited.
i
· · ~k
. ·..
6•
.set. asides·
based:.~nly
here racial
w.
pa~1ftit·
:abating the r~a:ci~l discrimination. (i.e. second
poQr whites men)
. · ·.
UJl·.JL·.
j~ ~
. 8
·
pii·..
,·
progress in
feranca ·fo
. .
.
on raaidence, ownership, employee• in
· .:~:::::proPortionate
~ofttracJ
marginal ratios of
awarc!sunc!ar
-set asides. {i.e. if goal is 20t and current levet:,, is st .. You
.
'
. can't require that more than sot(?) of the oontrac·ts go to sat.
asides even though ttaai; maana .it will take a few 1:eara longer to
meet overall· goal.)
·
·
·
v
·
.
.
e. areas where permanent raoiaf ancL9andar· basad e.t.tirmativa
~action
•• ,_..;...
-
is nacea•ary:
~ ..,.~..;,l';)oo"•T.;..,;:..o,.\~~t:'l'W'~~
_
....... •
police, teacher•, army,
;:FT;..lio(."\"._~,~~-.:"!l~Pwf......
i
~·-
......
MJ)
J ·. ·~
~··
1 ~ No unqu~lified person hirecJ
~~1-'-'-"'-~ ·~.
"""' C-DvJ'l_J,_
Jjo
pol~cy
makers, etc;:. -
= ~"':,...?'"~·~';~:')!~"t~;;.,~:s:...~-~t"_,, ••.-.;.•,-:.~ .... ...,~.;til#''
.. .:;,,.., ... ,-
�---------------------· - - -
'
II
,
,
I
I
-
I
Withdrawal/Redaction Sheet
Clipton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
4A l>~Le
001. memo
G. Stephanopoulos and C. Ed ley to President Clinton, re: Affirmative
Action- Policy Issues ( 10 pages)
4/20/1995
P5
002. memo
G. Stephanopoulos and C. Edley to President'Ciinton, re: Affirmative
Action -Themes and Hard Questions (7 pages)
417/1995
P5
'-f3
003. memo
G. Stephanopoulos and C. Edley to President Clinton, re: Affirmative
Action- Themes and Hard Questions (7 pages)
417/1995
P5
LJ-Lf
~r~r#43
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
AA [Affirmative Action] POUTS Memos (Chron) [Chronological] [3]
2008-0308-F
wr871
RESTRICTION CODES
Presidential Records Act- J44 U.S.C. 2204(a)l
Freedom of Information Act- JS U.S.C. 552(b))
National Security Classified Information l(a)(l) of the PRA)
Relating to the appointment to Federal office l(a)(2) of the PRA)
Release would violate a Federal statute J(a)(J) of the. PRA)
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAJ
b(l) National security classified information l(b)(l) of the FOIA(
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIAI
b(J) Release would violate a l<'edcral statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions j(b)(8) of the FOIAI
b(9) Release wouhl disclose geological or geophysical information
concerning wells I(b)(9) of the FOIA I
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
I
I,
I
I
I
·I
'
:
I
�~----------------c------~---------------~--~-------~-
13-COS
~
>a..
0
c.:>
THE WHITE HOUSE
0
WASHINGTON
0
1--
:I:
a..
April 7, 1995
MEMORANDUM FOR THE PRESIDENT &
.
From:
Re:
··
·h/
~
VICE PRESIDENT
/?/
.
~/
. George Stephanop0ulos, ChristopheFEdley, Jr. & Peti?'Yu
Affirmative Action: . Themes and Hard Questions
This memorandum summarizes our evolving thoughts regarding policy and communication
choic~es arising out of the Review. Part I outlines the central issue and Senator Dole's response;
Part II offers an alternative response, building on our earlier conversations and on the Review.
Attachment A presents seven "hard cases" that may facilitate your deliberations. We plan to
discuss this memorandum and the cases with you on Monday. On Tuesday, we will discuss the
more specific policy options, some of which are presented in rough draft in Attachment R
L
The Central Issue: Questions about "Preferences"
The central and most difficult questions--substantively and politically--concern group-:based preferences: what are those preferenees ~d when are they appropriate?
In public statements, Senator Dole has expressed support for affirmative action as a
remedy for "proven past ·discrimination against individuals" and for expanded outreach and
recruitment of "qualified minorities and women to give them an opportunity to compete without
guaranteeing the results of the competition." However, he has expressed his opposition to
"quotas, set-asides, and other preferences that favor individuals simply because they happen to
·
·
belong to certain groups."
·The most likely construction of Dole's opposition to preferences implies opposition to
several existing policies identified in the Review, for example:
•
Contracting programs, including: the 8(a) program; sheltered competition among small
disadvantaged businesses (SDBs); and the 10-percent bid preference for SDBs. (Some
of these could be saved, perhaps, if Dole's phrase "simply because" is satisfied by the
current requirement that SDB's demonstrate "economic disadvantage"; this, however,
requires a somewhat tortured construction.)
•
Race'7specific and· gender-specific scholarships and fellowships motivated by inclusion
rather than remediation. Examples include an academic scholarship. program for
minorities that Secretary Shalala established at the University of Wisconsin and an NSF
program designed to support women in basic research.
�>-
•
Clinton-style judicial and Cabinet appointments, assuming consideration of race, gender;
orethnicity amounts to a "preference."
. 00
0
0
10
:::c
IL
0-
An Alternative Approach
>0:::
There is an alternative app·roach to the question of preferences, one· more consistent with. the
President's rejection of the "colorblindness" and "pure remediation'~ visions and his embrace of
a broader justification which includes remediation, opportunity, and inclusion. This approach
would emphasize five points~
1•
We oppose quotas and numerical straitjackets (outside of narrow remedial contexts).
2•
We oppose the use of set-asides in employment and contracting (outside of narrow
remedial contexts).
3•
We oppose giving group-:-based preferences to unqualified persons m the name of
affirmative action.
4•
We oppose group-based preferences when need-based preferences would be just as
.. effective at creating genuine opportunity.
.
5•
.
We oppose group-based preferences when the benefits or burdens of those preferences
are unduly concentrated .
.This Part summarizes the approach, proposing definitions and central propositions, and then
discussing the most significant implications of such a position.
A. Definitions
•
'A .Q!1Q.ta is a rigid numeric or proportional measure that must be attained or that
cannot be exceeded, without regard to the number of potential applicants who meet
necessary qualifications. Example:: Before the Bakke decision, the UC-Davis Medical
School maintained a two-track admissions policy reserving a minimum of 16 .of 100
spaces for minority. students.
•
•
a particular
group of potential candidates that effectively excludes members of other groups.
Example: Under the "rule of two," procutement contracts meeting certain requirements
may be reserVed for small disadvantaged businesses (SDBs). This set-aside is not a
quota because it does not involve "a numeric· or proportional measure that must be
attained or cannot. be exceeded"; in other words, set-asides respect minimum
qualifications, but quotas need not .
A set-aside is a reservation of ~ set of opportunities or benefits for
<C
0:::
co
_J
0
""':)
;:=
�>-
0..
0
gender, race1 or ethnicity. A preference does no.t include consideration of such.
. characteristics, when consideration is essential to the· effective operation of .the
institution or enterprise. Example: DOD provides a 10% bid preference to SOBs in
certain situations.· Because status as an SOB is not ... essential to the effective operation"
of DOD contracting, this advantage is a preference. ·In the case of the police force of a
racially-diverse city, race may be a bona fide consideration and thus positive
· consideration of race would not constitute a .preference. Similarly, race, gender, or
ethnicity may be a bona fide consideration in university admissions if diversity is essential
to the effective functioning of the institution.
(.)
0
10
:I:
·a..
>a::
<
a::
to
. .J
(.)
J
3:
In sum, the concepts as illustrated in Exhibit ·1:
All quotas are set-asides, but not all set-:--asides are quotas.
All set-asides are preferences, but not all preferences are set-asides.
All preferences are considerations, but not all considerations are preferences.
B. Central Propositions
•
Proposition 1: Discrimination in every sector of our society and economy must be
eliminated root and branch. ·
Affirmative action practices may be more aggressive and, if necessary,
intf1.:1sive in settings in which there is a demonstration of present discrimination or the
lingering effects of past discrimination.
Corollary:
•
Proposition 2: Our paramount aspiration is complete equality of opportunity. We
do. not guarantee equality of results.
We must distinguish among affirinative action in different contexts.
Education is more closely related to opportunity-creation than is federal contracting; thus,
minority scholarships differ from procurement set-asides.
Corollary:
Coroll(Jry: We must distinguish among affirmative action !.QQis.. Some tools enhance
opportunity and level the playing field, others come closer to ensuring certain results;
thus, a targeted sureti bond program differs from a procurement set-aside, and multifactor admissions differ from admissions quotas.
•
Proposition 3: Affirmative action remains necessary, but must be transitional.
Inequality of opportunity persists, as illustrated by the persistence of both discrimination
and severe soeial and economic inequalities.
�>a..
.o
0
a·
10
:X:
en
c
0
+::.
ca
...
Q)
"C
·-
a..
>-
' 0::::
<C
0::::
IXl
�)-''
0..
0
.
(.j
.
Corollary: . Affirmative action should be transitional for sOciety: when each program
accomplishes its objectives, it should end.
•
· Proposition 4: We must recognize-.....:and limit--any harm. that these essential ·
programs cause. We must do the right thing, but in the right way.
0
10
::I:
0..
>-·
a::
<(
a:::
IXl
Corollary: Mfirmative action programs must respect individual· merit. Quotas--in
virtually all contexts--are unacceptable because they subordinate individual merit to rigid
numerical objectives.
·
Corollary: Mfinnative action programs must not ·unduly concentrate burdens. The
burdens that affirmative action imposes on vested interests (such as seniority rights) or
on particular regions or sectors of the economy must be limited.
C. Policy Implications
.
.
· Fully developed, these propositions have significant policy implications, particular as
·
·
concer~s set-asides and preferences.
Implication 1: In general, we are opposed to set-asides in employment 1 and
government procurement because they are exclusionary; alternative tools should be
used. We oppose excluding any person from an employment or contracting opportunity·
on the basis of race, gender, or ethnicity. There are two options for when this general
rule should not obtain:
•.
Alternative l(a): Oppose set-asides except in court-ordered or -supervised remedies.
Under this alternative, we would oppose the "rule of two" procurement set-aside and the
8(a) program as currently constituted. ·
Alternative l(b): Oppose set.... asides· except as a remedy for specific findings of
discrimination (by court, Congress, or agency). Under this alternative, we would examine
procurement practices to determine.whether set-asides are necessary.
•
Implication·· 2: Preferences and· set-asides in education and preferences in
employment are appropriate to maximize equal opportunity and inclusiveness but
only if they
(a) are riever awarded to unqualified persons;
(b) are transitional--establish objectives and terminate when those objectives are met;
1
We know of no formal "set:....asides" in the employment context, but there is some
anecdotal evidence that majority candidates sometimes feel that certaiy~;n;~~
by "bean counters" for minority candidates only (e.g., university fac
.
Q
<'
4
0
t-
-;
~
....J
�>-
0..
0
(.)
·(c) are Jleiible--are neither actually or effectively quotas; and
(d) are narrowly tailored--are the least race-conscious means of maximizing equal
· opportunity and inclusiven~ss.
._.
0
0.
::I:
0..
>-
=
•
.
Example: Race, gender, and ethnicity are often bona fide considerations in education and
employment. For example, scholarships set aside for women, if appropriately designed,
are justified by the values of inclusion .and equal opportunity.
Implication 3: Contracting is on the "results" end of the continuum because receipt .
of a contract seems in significant measure a commercial success rather than a mere
entrepreneurial opportunity.· Preferences in procurement, therefore, may be
appropriate only if the above conditions are met and only when necessary to remedy
demonstrated present discrimination or the lingering effects of demonstrated past
discrimination.
Example: Procurement preferences, such as the ·§1207 bid preference, must be
appropriately designed· and justified by the. demonstration of past discrimination or
lingering:effects. Race- and gender-neutral advantages--such as competitive acjvantages
· based on "opportunity creation" as measured by employment and entrepreneurship for
disadvantaged groups--rieed not be justified in this way.
In sum, as illustrated in Exhibit 2, we are opposed to certain practices (the shaded area).
In addition~ we believe other practices must be both tailored and justified by past discrimination
or lingering effects (the cross-:-hatched area).
llL
Conclusion
The Attachment presents seven "hard cases" and outlines both a "Dole" perspective and·
an "alternative" perspective on each case. The cases are:
1•
SDB set-asides: the "rule-of-two" for reserving contracts exclusively for SDB bidders
2•
The Adarand case: bonus payments for subcontracting with SDBs
3•
The Piscataway case: race as a consideration in layoffs
4• ·
Chicago Police Department promotions (Rep:
5•
Balmeker Scholarships: black-only merit scholarships at the University of Maryland
6•
·Admissions to the University of California at Berkeley
7•
Remedial education: a black-only community college course
Lipins~i's
example)
5
0::
<(
0::
co
�Selected Affirmative Action Efforts
0 p po rtu n i ty --------------------------~----------------,..-------------------------------------------------------;.. Res u Its
Opportunity·
·Enhancing
Assistance
0
·=
=
....
,..
0
c.
Education
Compensatory ed
Outreach & recruiting
HBCUs
c.
o:
Employment
I
I
Outreach & recruiting
Apprenticeships
Training
Second look programs
Advantages &
Flexible Preferences
Set-asides
Multifactor admissions
policies
Mjnority-specific
scholarships
(limited competition
among qualified
candidates)
Quotas
Multifactor hiring
(e.g., judicial selection)
I
I
I
I
I
I
I
Contracting
&
Procurement
Technical assistance
Mento ring
Bonding assistance
....
(I)
:l
(I)
~
a=
Yu DrafUApril 6, 1995 AM
Exhibit 2
WJC LIBRARY PHOTOCOPY
�II
I
I
I
'
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrTITLE
DATE
RESTRICTION
00 I. letter
Amitai Etzioni to George Stephanopoulos, re: Affirmative Action (4
pages)
5111/1995
P5
45
002. memo
William Julius Wilson, re: Affirmative Action Challenge (8 pages)
3/20/1995
P5
4~
003. memo
Stephen Carter to President Clinton, re: Affirmative Action (5 pages)
3113/1995
P5
~9-
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5930
FOLDER TITLE:
AA (Affirmative Action] Work Plan Speech
2008-0308-F
wr872
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- (5 U.S.C. 552(b)l
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRA)
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRA(
b(l) National security classified information !(b)( I) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA)
b(3) Release would violate a Federal statute l(b)(3) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIA)
b(6) Release would cQnstitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(S) Release would disclose information concerning the regulation of
financial institutions l(b)(S) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAI
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
:
II
,
,
i
'
I
I
'
I
�>-
UNIVERSITY PROFESSOR
0::
.<(
0::
CCI
May 11, 1995
Mr. George Stephanopoulos
Executive A~sistant to the Chi~f of .Staff
-The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Mr. Stephanopoulos:
This is to follow our brief exchange·at the dinner with the
President on May 2.
I suggest that the following does provide an
ethically sound and community-building. way to resp<;md the antiaffirmative action California Civil Rights Initiative.
It is not
more complicated than the other initiative;. in effect it closely·
mimics its text.
The current initiative reads:·
(A) Neither the state of .California nor any of its political
. subdivisions or agents shall use. race, sex, color, ethnicity
or national origin.as a criterion for either discrimination
against, or granting preferential tr~atment to any individual
or group in ·the operation of the state s system of public
contractinSI.
1
(B)
This section shall apply only to state action taken after
the effective date of this section.
(C)
Allowable remedies ·for violation of. this section shall
include normal and.customary attorney,s fees.
(D)
Nothing in this section shall be interpreted as
prohibiting classifications based on sex which are reasonably
necessary to the normal operation of the. State s system on
publicemployment or public e<;iucatiOn.
·
1
Tuc r:rr .. A"' T ,,,.,. DV
•
Rr'lr'IAA "714
T • ?P.() H STRFPT NW..• WASI-!INr.T()N
nr. 200'i2
�>-
a..
0
May 11, 1995
Letter to Mr. George Stephanopoulos
Page 2
<:...:)
0
10
:I:
a..
>-
0:::
<t
(E)
Nothing in this section shall be interpreted as
invalidating any court order or consent decree which is in
force as of the effective date of this section.
-
(F)
Nothing in this section shall be interpreted as
- ..,proh.ihi..t..ing:._,s.t-a.t.l=! aJ;_t.iP!l . which is necE::s.sa.~y~_-tq,_ei;t:c:t}):f_i_sh 9r .
maintain
eligibility
for
any
federal
program, ---where .
ineligibility would result in a loss of federal funds to the
state.
3i
0:::
CCl
<:...:)
(G)
If any part or parts of this section are found to be in
conflict with federal law or the United States Constitution,
the section shall be implemented to the maximum extent that
federal law and the United States Constitution permit. Any
provision held invalid shall.be severable from the remaining
portions of this section.
The suggestedalternative is as follows:
(A)
Neither the state of California nor.any of its political
subdivisions or agents shall use race, sex, color, ethnicity
or national origin as the SOLE criterion for either
discrimination against, or granting preferential treatment to
any individual or group in the operation of the state's system
of public contracting.
(B) Where there is specific documentation of discrimination
against anyone (including discrimination in reverse) remedies
will be instituted. and penalties exacted.
(C)
Nothing· in this ini,tiative should be int·erpreted as
detrimental to equality of opportunity programs such as
training and educational programs base.d on the need to be able
• to compete on equal footing.
(This addition may not be
needed.)
(D)
This section shall apply only to state action taken after
the effective date of this section.·
(E) Allowable r~medies for violation of this section shall
include normal and customary attorney's fees.
(F)
Nothing in this section shall be interpreted as
prohibiting classifications based on sex which are reasonably
necessary to the normal operation of the State's system on
public employme,nt or public education.
�>c..
0
May 11, 1995
Letter to Mr. George Stephanopoulos
Page 3
C,)
0
t-
o
:I:
c..
>0:::
<(
{G) Nothing ·in this section shall be interpreted as
invalidating any court order or consent decree which . is in
force as of the effective date of this section.
{H)
Nothing in this section shall be interpreted · as
prohibi.ting ....stat.e action which is. necessary t:? --~-~taf?li_s_~ __ _<'._r
maintain
eligibility
for . any
federal
program,
where
ineligibility w9uld result in a loss of federal.funds to the
state.
{I)
If any part or parts of this section are found to be in
conflict with federal law or the United States Constituti9n,
the section shall be implemented to the maximum extent that
_federal law and the United States Constitution permit. Any
provision held invalid shall be severable from the remaining·
portions of this section.
. An argument. could be made·. that the text should be further
differentiated, to protect it from the charge that it is a gimmick.
I tested it on several elected officials from California and
elsewhere. Before one takes it t6 focus groups,·. etc., they need to
be exposed to proper discussion as the electorate would.
I would
like to discuss with you this matter however briefly.
I truly believe this text could make a difference in terms of
defending what should be defended, but not more, in this area.
Naturally, I do not go into all the other related issues here: the
history of affirmative action, what various studies have shown,
etc.
Ethical Rationale:
If race and gender are used as THE exclusive, sole criteria,
then one must accept signs that say, even when there is no proven
wrong-doing, n Latinos~ .Asians, and whites need not apply here, 11 as
was the case with the University of Maryland's black-only
fellowship.
It also follows that a male African-American
billionaire (as in the Viacom case) will be entitled to a benefit
that a poor wh;i.te Appalachian woman with cancer may not.
This
allows reverse ·discrimination which undermines. the very drive
against discrimination by legitimating it.
{One exception is a
situation of the kind that took place in San Francisco's ·fire
department, but this is covered·. by "where there is specific
e~idence . . . . ")
1
0:::
cc
�>-
a..
0
u
May 11, 1995
Letter to Mr. George Stephanopoulos
Page 4
0
t-
o
:::t:
a..
>-
0:::
<(
On the other hand, if we use race and
this can be justified readily on the grounds
so.:.called un-meritorious criteria/ from the
veterans status to alumni parents. How can
race?
gEfnder as A criteria,
that we use ma~y other
state you are from to
we exclude gender and
Rejection slips in this situation would-come-not because you
are white or male but because your total index (taking into account
all your scores} was lower than someone·else's, and a white male
from Appalachi.:l may· go ahead of a black millionaire in the queue, ·
etc., etc.
Public ·support Considerations:
Pollsters often do not take into account that many people have
complex feelings, which we do. not see when they are asked if they
are for or against an initiative and are not given a new third
alternative. While there may be as many as the estimated third of
Californians who may vote for the prohibition without any
consideration of social history/ I estimate that a third or more of
those who would vote for it would be relieved to have a middle,
fair alterative.
It also will allow elected officials a different position than
having to be either for against the current initiative.
'
If any of this requires documentation I ·would be happy to
provide .it.
·Sincerely,
l'-v- (k\·
Amitai Etzioni
0:::
lXI
....J
�PHONE NOQ.~~----------~---nttiDaJ~.~za~x7~~~o~oo=•~w=o•~·~•~•~u=x-!\,.
. .t0·,~:.;83!1.3£:~.11··.":~~~"'
<,;·;'·
'/'
1
P~R
THE STUDY OF URBAN JNEQUALITY(§
I l i l
I! A S '1' 6 (IT
I~
'
/J}
. UN IVERS 1 T Y 0 F CHIC A G 0
CBNTBR
.
',.:t. (
j
5 '1' R I! f. T
·,,
1
C ~ I C: A C 0 , I L L j N 0 I S 6 0 6 3 7
0
.;;:..,•\
)'(" .
· .. \ o
)_
//.A
ll€'
\
IRVING
WJU.IAM]UI.JUS WILSON
\•/
Sv..L
(ll2) 702-8822
~-o:,..
p -t!",c. L
...
!C.Lc..~"
<;"~( l."i
TO:
George Stephanopolous (The White House)
FROM:
William Julius Wilson
SUBJECT:
In response to your request for a memorandum on how President
CUm.vn
DATE:
.0
::::t:
0..
Tnt.: (312) 702-G894 0:::
fAX:
MEMORANDUM
)
-1) I
D. HA~Ris.GMOUAT:D•S(.;ooL 0:::
>~.-~
I
\
~JJ ~
,J;, )
· 011 PUJJLIC Pouc;y STuntns <(
Dirt,tor anJ l.l4cy Flo~r Urdvrrsiry Professor
of Sorh,logy •ntl Public Polity
~\.
>-
0..
~h~uld
reapoad
C.....l ... ~
L,..:e.t
t:~
tho A«Irnuathro
Artinn_t~h.all~'DgP..
March 20, 1995
\ \,_
\_
. I am sorry that I was unable to fax you this memorandum over the weekend.
~- arrived in New Mexico (my second ·home) on: Sunday, and I forgot to bring my fax
ma~e 'With me !rom Chicago. So I had to wait until today to fax this t0 you.
""
How should the President respond to the ·current attacks on affirmative
·
action?
The core dilemma is this: if the President is to defend
policies to lift the
. burdens of segregation and discrimination that limit the life chance~ of black
Americans, he risks fUrther alienating the very white voters he needs to win in
1996. But, if he offers a response that signals a weakening of resolve to support dvil
rights policies, he risks alienating constituencies he cannot afford to lose in 1996:
party. activists, women and minority voters.
. The only way out of this dilemma is to confront, head on,
politically intertwined issues:
two distinct but
1) the President should 'address the economic jnsecW'ities cf world.ng class
Americans by making the case that his policies to create jobs and k"Mse incomes are
·the only real solutions to their problems being offered. Republica;n polides to cut
welfare, cut support for education, deny social benefits to immigrants
end ..
. affirmative action will do nothing to alle:viate t)\e economic squ~ faceO- by so
many in the working class.· They are victims of global economic·dumge, not
affirmative action.
·
amd
!:!
�PHONE N£J.:_ _ _ __
rr.:ur1 ·; ·t-'anason1c IHlJ/t-HX
'.
2
.
.
I'Jd.r.
,.::.l!j
J..;;;;
, ~~
....,., , •
<\1-'E..SIDEt\1 J";: ·
i'(
~«.
.
~v ~
2) the President should rededicate the moral force of the federal g :vernment
to fundamental principles of equality of opportunity in life, the right to be J
ed on
the basis of merit and the right to be free from racial discrimination. To do this,
should present to the public the concept of affirmative opportunity.
These two issues are tightly intertwined because political support for
affirmative action among whites is related to their sense of prosperity. Let me ·
elaborate on each of these po~ts.
Addressing the Economic Insecurities of Working·OassAmericans
When affirmative action and· compensatory remedies for the social and
psychic damage inflicted by segregation were first discussed in the 1960's, the
.
economy was expanding and incomes were rising. It was a time of hope, a time of
·
optimism, a time when most Amerieans believed their children would have better
· . Uves than they had. ·During such times a generosity of spirit permits consideration
· o£ sharing an expanding ple.
But. since .the late 1970's, real wages have fallm:a. Wage disparities betWeen
. those with college degrees and th()se without have widened considerably. Working
class Americans today feel eCQJtomically pinched, barely able to maintain current
standards of living even on two incomes. Many are insecure about keeping their
jobs. and fear they will never be able to afford to send their kids to college. Many
believe that for all their hard work, their children's lives will. be worse than theirs.
· This is not a receptive climate for a national seminar on the moral
underpinnings of affirmative action. The President wUJ first have to persuade
worklrlg class white Americans that he knows what i~ prE?Ssing in on them. He
needs to convince them that he is working hard to relieve the pressure and to build
.a better future for their children. He needs to acknowledge the legitimacy of their
fears, but to challenge forcefully Republican claims that their economic insecurity is
the result of blacks, women and immigrants taking away their jobs. He needs to
· expose the falseness of arguments that white working class Americans' lives will be
improved by eliminating school lunches, reducing educational opportunities, · ·
cutting off welfare benefits to teenage mothers, and cutting taxes for the affluent.
The President should reassert his support of polides to expand educational
opportunities, to expand job training programs to raise skills and thereby raise
incomes. He should point out that his economic and trade policies have created an
unprecedented numbers of jobs and brought unemployment to its lowest levels in
· years, both while keeping inflation down. In short, he should make the case that his
p6licles, not the Contract with America, promise to restore confidence in the present
and hope for the future for American workers. There is an opportunity for the
President to begin to change the debate over affumative action with a forceful
populist rebuttal to Republican polici~ that reward the wealthy and punish the
.....!
�FROM : Panasonic TRD/FAX
PHONE NO.
Mar. 20 1995. 03:34PM .P03
3
parents and children of working class Americans.
-
The Case for ll/flrmt~tive Opportunity
By contrasting "opportunity'' with "action", the concept "affirmative
opportunity" distinguishes this approach from a guarantee of equality of results,
which is how ''affirmative action" has come to be understood. It echoes the phrase
nequal opportunity," which connotes a principle most Americans still support, and
it avoids the connotations of quotas, standard-lowering and reverse discrimination,
which most Americans now detest (regardless of whether they fairly characterize
affirmative action)..
However, by retaining the term "affirmative," the eoncept retains· the.
connotation that something more than offering forma), legal equality is required to
overcome the legacy of slavery and Jim Crow discrimination. We also have the
continuing moral obligation of society to compensate for the enduring burdens-the social and psychological damage-- of segregation, discrimination and bigotry.
"Affirmative opportunity" means to renew the nation's commitment to enable all
.Americans, regardless of income, race, or other attribute~ to achieve to the highest
level their abilities will permit. In this sense, the phrase echoes President Johnson's
·
1965 Howard University speech.
What, precisely, does affirmative opportunity mean? How
would such a policy be put into practice? ·
1) Affirmative. opportunity represents a movement from an
affirmative action based on solely on race to one based on the.principle
of equality of life chances. The major distinguishing factor of
i affirmative opportunity is the recognition that the problems of
;~: disadvantaged individuals--class background, low income, a broken
~ home, inadequate housing, poor education, or cultural and linguistic
~ differences-may not be clearly related to the issue of previous
t discrimination. Nevertheless, children who grow up in homes
.
plagued by these disadvantages are more likely to be denied an equal
chance in life because the development of their aspirations and talents .
Js effectively hindered by their environments. Minorities would
benefit disproportionately from this position because so many of them
suffer frpm these handicaps, bJ!t the problems-of disadvantaged whites
would be addressed as well.
.
·
-
However, affirmative opportunity extends the principle o£ equality of life
.
chances to include race--so that· in addition to class bac:kground, low income,
�FROM : Panasonic TAD/FAX
·PHONE NO.
4
Mar. 20 19
t
~
r-.·
Of:?
~y.
«
4-C,·
a broken home, poor education, or cultural and linguistic differences, ~ .
would also add radal background. The reason for adding race is to ins
that
individual minorities do not "slip through the cracks... The cumulative
·effects of race are n~t captured when one uses the standard measures of class
background such as parental oecupation, education, and income. By the
· cumulative experiences of raee, I include the long-term effects of living in
· certain· neighborhoods, the cultural milieu, the quality of schooling, the
nurturing of parent1, the relources that parents are able to spend or pass on to
.their children and so on. For example, if· we were to rely solely on the
·.
standard measures for college admission-such asSAT scores--even many
children from black middle income families would be denied admission in
favor of more privileged whites who are not weighed down by this
accumulation of disadvantages and who tend to score higher on these
standard measures as a result.. Moreover, blacks and many other minorities
1-~ rontin~e to experi.en'7 racial discrimination. Bxpl~dtly including race under
~ the prmclple of equabty of life chances would continue to help offset or
l' minimize these practices.
.
·
.
e
The principle of equality of life chances is a promise that all Americans will
compete on an even playing field on the basis of merit. It represents simple fairness ..
It would be hard for Republicans to challenge this, proposition. Polling data suggest
that Americans support the idea of affirmative programs to enable people to
overcome disadvantages that are not of their own making. The aim of affirmative
opportunity is to expand the pool of disadvantaged Americans of all racial
backgrounds who are qualified or have the potential to qualify for positions in
education and the labor market. Since race is one of the components of
"disadvantaged" affirmative.opportunity ensures that race does not exclude
..ti qualified minorities. · This would· be done, however, ·through the use of flexible
.t(t criteria of evaluation, not· through numerical guidelines. or quotas, The obvious
rejoinder is that "use of flexible criteria" is another way of saying that you want to
lower standards. On the contrary, the use of flexible criteria of evaluation is to make
sure that your are measuring merit or potential to succeed rather that privilege. In
other words we want to use criteria that would not exclude people who have as
much potential to succeed as those admitted from more privileged backgrounds.
This brings me to programmatic strategies for each of the components of affirmative
opportunity.
To implement the principle of affirmative opportunity, we·must·reoognize
that most promising strategy for increasing competitiveness for scarce places In
higher education and the labor market is investment in human capital-developing the capacities o£ the economically and culturally disadvantaged by
encouraging their acquisition of skills. Five basic strategies are recommended, the
first four of which are not necessarily tied to racial criteria:
(A) Redouble the nation's commitment to nurturin& the minds of the yery
;youns. We should commit ourselves to stimulating cJ:tildren early, before despair
-
...J
�FROM : Panasonic TAD/FAX
PHONE N·;o.~----------------,M~a~r-.~2~0~1~9~95~0~3~:3=6~PM~P~0=-5
s
>-
0..
0
(.)
and hopelessness rob them of their futures. There is a growing consensus in the
social and behavioral science community that the key to· stimUlating a .desire for
lifelong learning is to motivate the very young to learn. Lack of .sufficient
stimulation early on defeats interest in learning. Returns to dollars spent on
Hcadstart-type programs, enriched day care and kindergartens, parenting training,
health care, nutTitional-support and other interventions designed for the very
young will be much higher than returns to dollars spent on job training for teens
and young adults.
·
(B) Press for· w.bllc scbool reforms. Gains made by early childhood .
interventions are all too often undermined by poor schooUng later on. Public
schools must not only prepare graduates for the world of work, commUnity and
citizenship, they must also nourish children's appetites for lears:Ung. The federal
government should be monitoring and funding local school reform innovations,
funding valid assessments, and encouraging the replication ~f successful models.
(C) Expand financial op_portynities for tbe eg>nomically disadvantaged to go
to colle&e· Labor market returns to higher education continue to rise faster than
returns to high school degrees, but the rapid rise of college costs will squeeze more
working and middle. class Americans out of higher education. .
. ·
(0) Bxpand access to job trainin&· There are two important points to make
about job training. First, the administration should stimulate the provision of
training by the private sector, perhaps through. tax incentives. There· is evidence
that the returns to private sector training are higher. than returns to government
training programs. Second, special attention should be paid to dislocated workers.
· They are most likely· to ~efit from retraining and doing so according to non·radal
criteria would address directly a major source of the economic insecurity driving
white male opposition to affirmative a~tion.
·
(E) .linCourase the use of flexible criteria for evaluatins merit. This should
replace a reliance on racial quotas while· pr~serving. a mechanism for providing
entry to qualified minorities and women. Psychometric test scores should not be
relied upon as the sole, or dominant, determinant of entry to higher education or
employment. .While some test scores may corr~ate well with performance, they
often fail to measure important attributes that also determine ability to perform, ·
such as motivation, leadership skills, interpersonal ability, perseverance and
reliability.
Recent claims that on average blacks are less intelligent than whites and that
compensatory social programs cannot work have gained currency among those
attacking affirmative action. These claims do not withstand scientific scrutiny.
Rigorous analysis by a growing number of social scientists finds that such
arguments, premised on radal dispariti~ in average test scores, serio~r.:,:w~
the role of environment..:.. families, Sc:hools and neighborhoods- iJ'<JfJ.ll1Pirl,g
outcomes in life.
.
· .
«
{v Lf&
0
10
:I:
0..
>a::
a::
<(
co
-1
�FROM : Panasonic TAD/FAX
. PHONE NO.
Mar. 20 1995 03:37PM
P0E
>-
6
a..
0
0
0
10
The difference in average test scores touted by some opponents of
compensatory social programs and affirmative action. are largely measures of
differences in opportunities between the advantaged and the disadvantaged especially factors early in life like access to high quality child care and good
·
schooling. The concept of flexible criteria is to design metrics of ability that predict
· .success that are not captured by such tests.
·
::z::
a..
>-
a:::
a:::
<(
c:::'l
_,
Indications of these attributes may be obtained from letters of
recommendation, past performance or other measures. Mayor Daley's recent use of
"merit promotions,. in the Chicago police Department, based on such factors as job
performance and leadership ability, is an example of how such criteria can be used.
Some Pinal Remuks about Race ·
Let me end this memorandum with a few reflections on the sensitive issue of
· race. Affirmative opporturiity offers a principled basis for preferential treatment on
~ Jthe basis of race in certain. contexts. This principle can be justified in several ways.
. One justification is simply that discrimination continues to exclude blacks from
positions for which they are qualified and that special efforts are still required to
overcome it. That is powerfully illustrated by the release this week of the ro-called
Glass Ceiling Commission report, which demonstrates that white men constitute
95% of top management but only 43% of the workforce. Newspaper accounts of the
report d~scribe.various ways the social structure of corporate·management works to
perpetuate the effects of past forms o£ legal discrimination. Senator Dole advocated
creation of this commission in the 1980's and the Clinton Administration should
aggressively expose his hypocrisy in now attacking the very remedies that would be
required to eliminate the. lingering effects of previous forms of discrimination.
Another justification for preferential treatment in this form. is that ethnic
diversity is socially valuable. In the cases of policing, fire fighting and teaching,
racial diversity contributes to stable community relations. A third justification is
that access to such professions and other municipal and government occupations
has been a major vehicle for upward social mobility for black America.tis. A fourth
justification is the "role model•' argument: strong representation by minorities in "
the professions helps to motivate younger people to pursue high aspirations for
themselves, by demonstrating that race is not a barrier to entry. The use of flexible
criteria may be a way to replace the goals and timetables currently used by
government agencies and contractors. .
.
.
Having said that, it will be extremely important to calibrate the use of flexible
·.J. ~aiterla in practice. They must not be perceived as a ruse for lowering standards for
· blacks. They must be presented as a way to expand the pool of qualified ap ·
s by ·
making attributes other than raw test s~res count more. Flexible criter*
~
applied in predictable, non-subjective ways. Otherwise, the practice wi
with arbitrariness, which will quickly undermine public support. In s .
.
r--
~ infected!/~
$
..
· .
.
z
.
.
.
Lt~.
0
'
·~
.
.
Oi
~
~
~
�FRDM : Panasanic TAD/FAX.
PHDNE ND • • ·
Mar: 20 1995 03:38PM P07
>-
7
0..
0
u
connection, the President should also be forthright about the fact that clumsy
applications of the principle of affirmative action have, in the past, led to abuses.
AdmittinSt hiring or promoting unqualified blacks over qualified whites is wrong
~ and should not be permitted. The President's oo~itment to enforce laws against
· .,. race discrimination should include a pledge to prosecute dear cases of
J discrimination against whi~s. He. should pledge to fight against the lowering of
admission standards and qualifications.
·
0
10
:J:
0..
:>-
0::
<(
a::
c:c
...J
. I want to mention a final Justification for the administration to make a
serious commitment to affirmative opportunity,.backed up by real programs and
real dollars. That is the need. to restore hope to the most disadvantaged among us,
particularly low-inrome young blacks. · Growing numbers of yoimg people are
.
deeply alienated from mainstream society. For them the hopes of the dvU rights era
were never to be fulfilled; J;he promises always to be broken.
-
. Since. the days when Dr. King offered black Americans his dream of a society
in which merit, not skin color, would determine how far one· could go in life, a new
. generation has grown up·tasting .the bitter truth that the privileges of American life
are still reserved for whites. Job opportunities have vanished for millions of blacks
living in our cities. Street violenee and crack have ravaged once thriving, if poor,
black .neighborhoods. Housing segregation still prevents most black Americans from
choosing where to live. The deterioration of the public schools, except in affluent;
mostly white, suburban communities, abandons black children to illiteracy and
innumeracy, unable to get or to keep jobs that require basic skills. More black males
between the ages of 18 and 24 are in jail than college. Homicide Is the leading cause
of death in this age group.
. The rhetoric froin our political leaders today demonizes black Americans as
"welfare dependent," immoral, and now, unintelligent. These are the verbal
equivalents of. the police dogs in. Birmingham and fi:rehoses at the Bdmund PettUs
bridge. But the hopelessness and alienation of today is far more dangerous than the ·
frustration and moral outrage of the civil rights. era betause a generation of black
Americans has grown up With no stake in their futures. They have nothing to lose
by acting on their rage. Failure to respond vigorously to this assault on the
·principles o£ fairness and equality for all Americans regardless of race Will only
·. confirm what many black Americans have come to believe -· that America has no
stake in them~ _The result could be a fll'estorm of civil strife compared to which the
1992 rebellion in Los Angeles was merely· a brush fire.
I won't presume to suggest a political strategy to educate the public on these
matters. However, it seems to me that the President should enlist highly respected
white male leaders in this effort. To the extent this message can be communicated
by white leaders of oorporations and unions it will receive a better hearing. · Also,
the President is at his best in town meeting settings in which he has an opportunity
to respond· spontaneOusly to questions. He projects empathy well and
·
A-~
communicate subtle and complicated ideas in these ~lings without
ng to ta~
E
~
l{0
�FROM.: Panasonic TAO/FAX
PHrnE NO~-=----------------MMa~r~.~2~0~19~9~5'0~3~:3~8~PM~.~P~0~E
..
8
>-
0..
0
(..)
down to the public. It might be that a· major national address to_set forth the major
themes of affirmative oPJx>rtunity, followed quickly by a series of televised town
meetings, would be effective. This would enable the President .to communicate
these points in a forum in which the message would directly reach the ·public and
would not be filtered through. the media
0
10
::r:
0..
>-
0::
<(
0::
CQ
J hope you find this helpful.
�~
Al:I"W-cli"U"":I~---
-----~
ti.L
---~
.
'
11
•••
>-
0..
0
.C,.)
0
1'0
_:::t:
0..
"
. >-'
.......
0:::
<(
' 0::: .
co
MEMORANDUM_
To : ·
The President. .
From:
Stephen L.
Dat.e:
Mar~h.13,
.Re:
Car~er
1995
A~firmative Ac~ion
Deax: Mr. President.:
I am flattered once more that. you have asked my advice, this time.
on the subject. of affirmaeive action, and I very muc_b,__re.gret- that
\family_ :o!spons;ciliti~s will ma.}te. it_. impossible ~or ._me -to at. tend
. t.he working dinner this- evening·. As I promised Skila Harris, ·r· am
.putting. ~ome _thoughts on paper,·· in the hope that t.~ey_ will be.· of
some use.
·
· ·
This brief memorandum is _Of necessity. but . a .· sketch . of a large·r·
·argument, and I would be happy to discuss it ~ith· you or·members of...
your st~ff should i e seem appropriate. . ·I have divided what I· have
to say_into three-sections.· Section A sees. forth the theoreei'cal
justifications for affirmative action and argues that: they have not .
·changed.
Section B; unpacks the _principal arguments . against: the
programs. and suggests -.that ·ehey are, with. one exception, specious· ..
Section C discusses the ·p_olitical impl;cations. of all . '?-~ this~- ...
t should add-that my defense of affirmative action is princip~lly
in the area of race' where both t:he· need. 'and the juscification are·..
most. compelling.. It has no direc.t:. application to: programs that are
aimed. at assisting women. _I _also express no opinion here· on . the .
frequent proposals to "broaden" affirmative actio~· programs. .by
taking wider ·account: of socio-economic disadvantage. In general,·
· _I think t:hat · a very good idea; as .long as it is not done in a way .. ·
that ends up reducing the gains that people of color continue· to
make under affirmative action.
·
A.
The ·Theoretical .Justific-ations for Affirmative Action
The original ·theoretical underpinnings for a1:firmative action.
programs have never been refuted., although some of the more recenc
1.
,.
�'
.
·~
...
.
>-
a..
0
(..)
0
justifications are less. cor:vincing. And whacever One may think of, . ~
the cheories; · there is. a s1mple .fact that. must. not. be overlooked: · ~
-·· affirmative action programs ~- They h~ve generated more black >-.
doctors . and firefighters and, lawyers and schoolteachers· :than· we a::
<(.
would ·otherwise.· have had. Thus, the argumen!=- that we should have ·a::
less affirmacive ·action is also, albeit ·indirectly,. an .argument . a::l
that we have t.OO many black. people SUCCeeding·
. .
.
-
J... Rgle ModeliDg .. - Aft.e~ all. these l:"ears, what i':' . st:.ill t.he most ::;
. powerful argument for af·f1rmat:1ve act:1on programs l.S probably that 3:
. they provide oppol:tunities for people who waul?- not :otherwise have
a shot to.show·what.t.hey can do, thus shatter~ng ·st.ereotypes that
hold others back~
This justificat.ion works most cleanly for.
admission to graduate or professional school or at. t.he entry level
in employment~
But it also has .obvious application when one is
·making appoint.ments to public office · -- . not selecting people . who
cannot. do the job, but considering ra,ce ~r gender in the mix ·of·..
· · factors-. That is how. one constructs a cab1.net. -:-· or a staff -- or
a·federal bench -:-.that helps to change t.he way that ochers think
about women or. people of color. You have tried to do exactly this
in your.Administration and should not apologize· for it.
.
.
.
.
'
'
':
. .·
.
Comtlensation
The original conception of affirmative action
is that it. compensates. its beneficiaries for the nation.' s legacy of
racial discrimination. The moral imperative for that compensation
remains ·compelling. The nation so far has not: been willing to.. do
ehe hax:d work -- includ~ng spending the hard_rnoney -·-·that would· be
needed to compensate in other ways. For example, ·the ·nation· c'ouid
decide to spare· no. expense in bringingpredominantly.black schools
up to the first rank, in repairing the social· infrastructure of the
inner cities, and so· on ·- but:. programs of this kind, for alL of
t.heir va.lue, are political.ly unpopular.· Consequent.·ly, af.firmative.
action programs, for all of their· flaws .. provide the nation with
the opportunity to ~epay a tiny piece of what. it: owes those it
.harmed.·
·
·
·
2.
has
J .. Remediation
Mo~t affirmat.ive ac:t:ion programs (some would say
all of them} .exist as ·remedies for past or present discrimination .
. Sometimes they are · j·~dicially imposed; sometimes· they are proposed
by government agenc~es;· but. .most. of the programs that. exist have
been adopted ~olu~tarily. The i_dea ·behind the remedia.l aspect. of
the programs 1s -to place groups 1n roughly the position they would
have been in in _t.he absence of discrimination·. · To fine-tune. such
an approach ~s of course not possib~e, for groups are aniorphous· and
complex. Th1s approach, moreover, ~s the one that. raises polit.ical
hackles with ~ts notion of group .equality. The appea
· . tice, ·
.111r
. however, .remal.ns st.rong: someth1.ng has to be done ~~
.
~
~
J.;;.
4.
.
Representation/Different Voices -- This justi ~ation, lar~ ly
(.)
2
~
4C1-.~
.
�AIRD-GARIER
>-·
Cl.
0
0
Q.
I-
the product of t.he ~last. decade, holds chat it· is vital t.o have
women and ·people·of color in the corridors of power because·of.the
differing a.nd special points of: view that. t.hey are. able t.'? brl.x:t9.
There is a surface appeal t:.o this argument.,· but. al·so a c'?nsl.derable
risk, for· it. is this approach t:ll.at:. leads to .the de~ress.l.n~ debat.es
over whether one view or another is t.h,e ••correct • opJ.nl.on for a
woman or a black American to have .. ·This j~stification is quite a
. bit weaker t;han the . first· three.
· ~~ESID~4'~ .
s., The Mti;.,Affipnative-Action A.tguments.
E~ ,_(.~
z
:J
~
·.
.~
~
>-
~ ..
. c::::
~
;_j
11
a;
1,
The "Fairness" Argument· -- The. ·principal p itical ar
against affirmative action is t.hat t.he programs a · unfair, · ·
to white. males. This argument has gained tremendo . curre
. and ....
seems to ·be sweeping t:he. talk shows. the press, and
alls of· .
the Congress .. But the ·argument is' either misleading ~r actually
.false.
·
·
·,
Let me offer a single example.. · When I read applicacions .·for.~ ·' ..
·admission to Yale, :t. certainly do .take race into account in ·che:
sense that: I read the folders of people of color with greater care.;
looking tor r~asons to admit them· instead. of doing what it is~ ·
easier to do when 4500 students apply·for 175 places _..;. looking .for ·
reasons to. say no.
(I should mention that I also· read wich
parcicular care ._the folders .of applicants who ar~ f~om less known
colleges, . ·who have ha4 interescing 9areer experiences, . and· so . .'
forth.)
Because I read the folders. of .people O·f color that way, .
one might· argue· that whit~ appli.cants are disadvantaged,· and. ·t .
. suppose. that. they are,·. very slightly. But this· slight: statist·ical. ·
'disadvantage is not different .than the similar disadvantages·
. suffered at Yale by applicants who happen not. to be the children of
·alumni.· <In fact it. is less.) And.it is not different than.the .
disadvantages ;suffered irt many areas .of life· by those who do·. not·
happen to be veterans~
H
Indeed, the example of v~terans-. is ·particularly t.'o. the p~int. · The
· reason for the veterans' preference (which. I fully support) ·is that·.·
the. veterans have given:. .some~hing'. special to their country, which·. ·
the .country is seruggll.ng, l.n a ·small way, to .give back.
Black
Ame~icans · have historical! y had something special taken away' by·
thel.I." count:ry, . and · em:ough c:'ffi~tive action, ·. the c.ouncry .
struggles, l.n a small way,_ .to. gl.ve l.t .back.
'
.
Some critics ar~e that the difference· is that t.he sins for which.
affirmative act:ion COmpensates were done· long ago by somebody else.
But. even if. t~at .is true, .it missE;s the point..
The legacy of
rac1.al oppressJ.on l.S ou:r; natl,onal legacy, ·and doing something about:
.it is our national obligation .. Indeed, it should be viewed as an
obligation of American citizenship --·the reason, as Charles Black
once pointed ·out.,· that even recent inunigrants share the duty.
3
�... w...,.,._w•.Jw'
AXI"'LI
OHi\ I U \
...
.
'
~E.SID€-"1\t)':
' <(.
({ U,1:-
'
/_
~OJ
>-' .
0...'
0
(.)
. ' ' '~
Moreover, there is· ungell;tle ·irony in the. f~ct that ~ ~~y' s m<?ve , t
to halt·affirmative actJ.on seems to have ~ts genesJ.s n CalJ.fo 1a
-- irony because if. fairness consists of _not. ~aki~g
__ · .. -~ent
pay for the sins of others, then ca.lJ.fornl.a 1s · a. prl.nCl.J?al
. offender .. This is. a state, after all where people know1.ngly bu1ld ·
their houses where there are.risks·of e~rthquakes,. mudslides,. and
brushfires, and then, when the·en~irely predict:able harm occurs,
they turn. · to the state -and federal gover~ents to spend· tax
dollars, paid.by other (innocent) .citizens to save .then,t_from the
f.oreseeable costs of their. own folly.
0
. :3
I
1-
o·
:::t:
a..
~
0::::
<C
. 0::::
lXI
0
'-:i
3:::
·I do not· say that it is wrong ·for the government to grant spec_ial
preferences to· veterans or to give aid· to those who· have· suffered·
.from great disasters; on the contrary, those are . very good ~deas
with very solid support'.
But ·they· are no less 'll;Ilfair" than
affirmative· action' is said to be.
.
. .
1
.
·'.
'
.
2. The "Oualification·u Argument -- The second, and related, co~on ·
argument.' against affi:rmat.ive ac;::tion is that the programs result: in
the hiring or promotion·o~ less qualified· women or people of color
who. displace better qualified· white males.
The argument . is-. so
. commonly made that it has become· widely accepted. · But· when one
looks at the facts,_ the argu~ents .are thin.· ·
·Only·a 1!ew ce~.reful_st:udies have beenperiormed in ~his area, b~t.
the verdict. seems to be. unanimous: there simply is no evidence .of.
·any-consistent favoring of less qualified women or people ofcolor:
over bett.er qualified white males. 1 Of course there are anecdotes,··
·and some of them are true; but the exist.ence .·of a handful. of
trv.t,hful -anecdotes can hardly be considered a serious argument
against affirmative action when the existence pf a handful of
executions of the innocent is considered an insuffici-ent argument
agai~st·the dSat.h penalty •
·The use of differential hir.ing standards is ·well documented
·(although seill relatively rare} in some· cases· involving public
employees who are hired in part according to scores on standardized,
tests. The debate over the alleged bias in the tests is an old but
continuing one. Many studies, including a comprehensive review by
the National Academy of Sciences, dispute the notion ~hat the tests
. are biased in the way that many. critics charge. The NAS review, in ..
t.urn, ha.s been subj ecced to sharp criticism. Even if there is bias
i~ t.he .tests
it is not. cleaz: that the con.strl;lction of cwo hiri_ng
tJ.:-ers l.S . the way to solve . 1t.
Surely J.t: l.S more . sensible to·
develop better tests, or t.o ·invest in improving the skills .of the
groups against whom t.he bias is said.to.exist.. But this problem of
two-ciered hiring, for all the publicity that it receives, 'is in
fact: quit~ ret:;re,. an? whe~it'd<=?es exist, it is often a .remedy for
proven · d1scr~m~nat~pn, l.n whl.ch case even Republican. Justice
·Departments- have. f.ound the practice justified.
·
·
. 1
1
4
�.
~~/13/199~
.
,
12:56
2EI32881985
. AIRD-cARTER
..
>-
0:::
<(
a::
£:0
3. · The "Stisma 1' ArC:rument
The third. ·and in· some ways t:he ·
·weakest, anti-affirmative action argument ·is that r:.he programs
create
st:i·gma in their beneficiaries. by leading others to doubt .
that those of us who · h·ave obtained professional success · in part
through affirmative action have made. i.t on our own·-- an argument:_,•
I am sprry to say, that is quite often credited to me, pre_sumably ..
by people who have not in: fact read my· ·book on the subject . · For
the s~ke·of precision~ then, let me clarify my views. ·
a
First, ·doubt about: the validity of e.he achievement:s.of peopl~ of
color iri general ·- and black people in particular - ":' is. as ·old· as·
America. _·Affirmative action programs did ·not create the doubt, and
people ~ho believe otherwise are putting thf!ir·heads in the sand.
Second, · the brighc promis~ of affirmaeiv~ actio~ progr_ams was ·th~t
· ~hey would erase. the long-lived stereotypes that create the doubt:,
and alt.hough 'that promise has never been· fulfilled, attit~des ·have
obviously changed~ Here the l.aboratoi:y evidence is. int..eresting::
whit.e·~ericans tend more and more to accept_ chat black Americans
.have. ea,rned the "status. indicators•• chat might s.how up on their·
resumes,· . but~ in the. absence of any indicators, whi_te ~ericans·
.often return to the same o.ld scereotypes. In. other words, what: the
programs · have 'done is to. erase some of the doubts about some of · the.
achievements df · some black people, while doing -little to alter
white at.tit;:.udes about black people· generally.
(See, 'or· example,
the 1990 NORC. survey dat.a. ) But . at:. least:. this is some p_rogress.
.
.
...
'
.
'
;
Third, is it: certainly true chat affirma'tive action provides some
ammunitl:.on for those who want to argue that black·Americans do not
deserve che progress that we have, with ·such difficulty, made .. ·rr
a-way to make the·same progress without providing this anununition
is available, I think. we should flock to it. So far, . none has been
suggested.
Compared to doing nothing .at all, then, affi:rnlative.
action looks very good.
·The 11 Color-Slindness". Argument -- The most:. principled of the
arguments against affirmative action is that we as a sociecy should
·take no account. of color. . I certainly agree that ·there is. great
risk in supposing that we can be so delicately:colo~-conscious -thinking al:)out people's color when it is c.o t.heir benefic, not
thinking about: ·it: when it isn't.
But, race. should never have
4.
5
�.
I
:
I
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrfiTLE
DATE
Charles Moskos to George Stephanopoulos (2 pages)
00 I. letter
RESTRICTION
3/20/1995
P5, P6/b(6)
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5186
FOLDER TITLE:
Affinnative Action [I]
2008-0308-F
wr444
RESTRICTION CODES
Freedom of Information Act- )5 U.S.C. 552(b))
Presidential Records Act- )44 U.S.C. 2204(a))
PI
P2
PJ
P4
National Security Classified Information )(a)(l) of the PRAI
Relating to the appointment to Federal office )(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information )(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy )(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
.
1:
I
. b(l) National security classified information l(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAI
b(J) Release would violate a Federal statute )(b)(J) of the FOJA]
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells )(b)(9) of the FOJA)
I
.
I
I
I
I
�fl3/19/95
11:12
7084757226
MOSKOS
>a...
0
(.)
\
0
NORTHWESTERN UNIVERSITY
10
:I:
a....
>-
·a:::
"<(
0:::
CD
March 20. 1995
To:
Mr. George Staphanopoulo$
From:
·Charles MoskDS. (tel)
SubJect: Affirmative Action
The dlscuseion on affirmative action this paet Monday waa very productive.
That the Prealdeot devoted such a lengthy time to his guNta spMks to an
extraordinary commitment to guide America on this moat vexing issue. We mf.fSt
· ksep In mind, of course, that affirmative action le much less pop4Jiar amcng the ·
general eleCtorate than nwae In the Green Room that evening.
Emma
The Mll!taf¥
The example of the armed forc8a highlights how .
affinnattve action changed the stumbling organization of the 18708 into the ·
premier and effective organization It Is today. A.a outlined in pervious mamoe.
the Army suoceu story is bas&d on no tolerance of racial dlecrfmlnation•. • pplk;y
of goals not quotas. no timetables. promotiOn goals baaed on qualified poola,
and agencies to upgrade personnel to meet rigid standards. · Nowhere else h$8black achievement been so impressive.
·
·
.
These conditions cannot always be replicated ·in civilian life. but they aerve
as models for good affirmative action. Such ~Jtive referanoet to the mllttary
example wlll·alao enhance the President's standing within the armed·fon::es. ·
The military example also has another spil-off. Like the mUitary. AmeriCcfpa .
can also upgrade otherwise disadvant~ youth. Tha mlllt.ary/AmeriCorps
examples counter two of the objections. noted by the President. ra~ against
affirmative action: the anti-government maod In 1he country aod the pop~~r
support of lndM;Iual over group rights. Through service to the country tradltionally·in the military, but now also through AmeriCorps - indivkJuals from
depriwct groups can eam post-service benefits. The Gl Bill preceQ&nt.
moreover. Invokes one of the moat successful government programs ever.
· How IQ Blfocus Affirmative Action, In what would admltteQb' be a daling
move. I would drop affirmative action tor all but Afro-American•· This, aqa.ln,
essentially follows the milllary model. Baacks have a sanae of identity and
grlevanoe with America that is unique and far ~ that of any other ethnie
group. Th.at Immigrants. who voluntarily come tp this country '!lf9 recipient$ of
affirmattve·action boggles the mind..
.
·
.
COLLECi( Of AltTS AND SCIENCES .
, - - -...
-
-·
....
-
·-
-
-- - - -
�~3/19/95
.
17:12
..
MOSKOS
7~84757226
.. .
'
.
.
«~€-SIDE'I\IJ>. >-
.
t
.
Diversity for ItS own sake, muc!l less enhancing mulifcu~uralism, is .:.0 j,. .
~
argument for affirmative action. Remember that these buzz words have a
.
.
.
0
4
~
~
negative ring In middle America. We are a nation with a common shared c ure
and reject the notion that America is but a collection of different cultures.
Surely. narrowing affirmative action to Afro-Americans will upset the
.
affirmative action establishment. But survey d~tta are quite cle•r that affirmativEt ·.
action is not popular among most Asian Americans, women. and even
Hispanics. The core constituency for affirmative action has been and will rem•Jn
. Afro-Americans. Increasingly, blacks see affirmative action as exclusive as
much as Inclusive because· of emphasis shifting to other groups.
.
.
.
The Chimera of Affirmative Actjori Ba$8d On Class. Income affirmative action
has a sort of intuitive appeal~ but does not hold up under scrutiny. For slar;ere. tt
is much more difficult to operationalize than either race/ethnicity or gender.
Even more to the point, the non-black poor would soon displace blacks in
affirmative action procedures. Affirmative action based on class or income,
ironically enough. would · work against black Americans, the very group that is
most justified in affirmative action.
General Prlogjgles and alba SgeeCIJ, • The speech should include some ·
examples of outl$ndish consequences· of affirmative action and how new
policies will prevent these from happening. Stress how e.bsolute proportlonaljty
is neither possible nor desirable. Then go on to look at success stories. Here
the military example should be prominent.
Uttimately. affirmative action must mn.t a single test: Does 11. in the long run,
Improve the performance of the particular organization in which it Is ·
·
implemented? This is why the military model is so impressive.
The choice before us is stark. To drop affirmative action entirely would be a
tremendous· step away from racial equality. To obtain racial equality without
.
affinnatlve action, we would have to crimlnallze racial discrimination. Certainly. ·
affirmative action is the best of the options. .
·
.
Ibe Politk;s of Affirmative Action. A focus on Afro-Americans will increase
the President's base where It matters - a large black vote turnout -- without
materially affecting his strength in other present recipients of affirmative action.
The major political reality Is that white America is hostile to affirmative action.
Here the President could consider how to fram$ affirmative -.ction a& a nonpermanent policy. Specifying a precise end date for afflrm~tive action is not
feasible. but setting up a Commission to Book at the problem from long-term
vieWpoint might be.
.
.
.
.
a
. Finally, let us be thankful that the President ls.uniquely suited to lead the way
on affirmative a.otlon. He is absolutely true to his self on a gen141ne commitment .
to racial comity and equal opportunity. Only a President Clinton can reframe
· affirmative action in a manner that is both goOd politics and good for the country.
....J
�I
i
,
I
.
I
;
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT(fiTLE
DATE
RESTRICTION
Phone Ne. (Ptu1ial) (I page)
P6/b(6)
To Chris Edley, re: Affirmative Action Memo Outline (3 pages)
002. memo
05/24/95
n.d.
PS
41
COLLECTION:
Clinton Presidential Records
Chief of Staff
George Stephanopoulos
OA/Box Number: 5186
FOLDER TITLE:
Affirmative Action (3]
2008-0308-F
wr445
RESTRICTION CODES
Presidential Records Act -144 U.S.C. 2204(a)(
Freedom of Information Act- (5 U.S.C. 552(b)l
National Security Classified Information ((a)(l) of the PRAI
Relating to the appointment to Federal office ((a)(2) of the PRAI
Release would violate a Federal statute l(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and bis advisors, or between such advisors (a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAJ
b(l) National security classified information l(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2)of the FOIAJ
b(3) Release would violate a Federal statute ((b)(3) of the FOIA(
b(4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA(
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAI
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
"
i
:
I
I
I
I
�>a..
0
(.)
Affirmative Action memo outline
0
·. 10
wide chasm which can be measured by objective evidence
ill exists between blacks and whites in America.
II.
Affirmative action should not end until this chasm is
closed; we would be reneging on· ou-r most· deeply held
principles if we ended this effort now.
.
~ht current affirmative action
programs is warranted. Not every current program contributes
r-0 d1osi.n.g_the._gap.__bet..ween: blacks and whit~-~ L some progr_a.tll§___,~
are not well.run, some are off.the ·mark and some are clearly
wrong-headed.
·
III. Nevertheless,
IV.
We must convince the public.that the goal of affirmative
action ~- closing the gap between blacks and whites -- is
justified. As part of this effort, the public.must
understand:
A~
B.
v.
Affirmative action will not continue forever, but it
will continue until the gap is closed.
We must all work together to hasten the day when
affirmative action is no longer needed.
A national commission can be created to:
A.
Determine areas of our national life. where measurable
progress must be made.
B.
Monitor progress toward closure of gaps in these areas
between blacks and whites over the long run.
c.
Recommend specific affirmative action programs for
phase out ·as gaps are closed.
:I:
a..
>-
a:::
a:::
<(
CQ
�... ::a.
!c)
>-·
a...
0
'1-
Affirmative Action memo
(.)
·~
0
10
z
A wide chasm still exists between blacks and whie s
America. It is a chasm of physical separation and oppor
which can be demonstrated by objective evidence:
:::c
a...
>-
0:::
<(
•
Our metropolitan areas remain highly segregated. On average,
65 percent of the African American residents in our cities
would have to move to achieve residential integration.
•
Access to decent, affordable housing and homeownership is
_______ shax:pl¥-_d_i_s_p_g,rate between rac~s :. 7J ,~e:);:"cent ot lqw_- income_
blacks have worst case housing needs, compared to 65.5
percent of whites; blacks are treated less favorably than .
whites by real estate agents and laridlords 46 percent of the
time; mortgage-loan denial rates are 18.2 percent for highincome blacks,· compared to 7.9 percent for high-income
whites; the homeownership rate for all blacks is 42.5
percent, compared to 67;8 percent for all whites.
•
B:J-ack children. are much more likely to begin life in poverty
than white children. The poverty rate is 45;9 percent,
compared to 17 percent for white children.
•
Blacks are much more likely to face unemployment. than
whites. Unemployment for black men is 14.5 percent, compared
to 6.7 percent for white men; and 14 percent for black
women, compared to 5 percent for white women.
•
Blacks earn less than-whites. The average weekly wages of
black women are 70 percent of the average weekly wages of
white women with comparable experience.
These and other quantifiable measures clearly show that
American society remains sharply, racially divided along fault
lines coinciding with our citizens' most fundamental needs,
including housing, job opportunity and income.
This coincidence of race and disparity of opportunity
threatens to tear us apart as a nation, and affirmative action
efforts must continue until these fundamental gaps between blacks
and whites are closed. We would be reneging on one of our most
deeply held principles -- equal opportunity -- if we ended
affirmative action now.
However, reaffirming our commitment to affirmative action
does not mean across-the-bo~rd endorsement of all existing
affirmative action programs. Not every program contributes to
closing the gap between blacks and whites; not every program is
well run. Some are entirely off the mark and wrong-headed.
A review of affirmative action programs is warranted to
determine whether they are in fact accomplishing their purpose.
Such a review shoul~ result in ter~ination of programs which are
0:::
1:0
-
�----------------------------------~-----~
------------
----
------------
>-.
c...
0
(.) .
2
0
10
not narrowing the chasm between blacks and whites and in the
continuation of programs which are.
:c
c...
>0:::
We must convince the public that closing this divide is a
goal worth pursuing. It should be made clear that affirmative
action will not continue indefinitely, but that it will continue
until the nation makes objectively measurable progress. -The best
way to end the need for affirmative_ action is to work together to
close the gap between blacks and whites.
·
e
Determine areas of our national life where measurable
progress must be made to eliminate the future need for ·
affirmative action;
•
Monitor progress toward closing gaps between blacks and
whites in these areas over the long runi and
•
Recommend when specific affirmative action programs can be
phased ·out.
'<(
0:::
co
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
2008-0308-F - Affirmative Action [Part 1]
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 7
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/cf2888027179710afe47edaaf4b98937.pdf
d8b69d8bb86a768fb991818164c373c4
PDF Text
Text
SUBJECTffiTLE
DATE
·. 001. schedule
President's Schedule [partial] (I page)
07/17/1995
P6/b(6)
· 002. letter
Lawrence Perlman to Alexis Herman (pffit:lal] (1 page)
07/11/1995
P6/b(6)
Ira Magaziner to POTUS, re: Broder/Johnson Interview (4 pages)
7/14/1995
P5
DOCUMENT NO.
RESTRICTION
AND TYPE
003. memo
(., ~ CJ
l-7
COLLECTION:
Clinton Presidential Records
WHORM-Subject File-General
FGOOI-'07
QA!Box Number: 21793
. FOLDER TITLE:
290770SS
. Whitney Ross
2008-03Q8-F
wr500 ·
. RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
.
.
Pl National SecuritY Classified Information [(a)(l) of.the PRA]
P2 Relating to tbeappointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal stat~te [(a)(J) of the PRA]
·?4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
'5 Release would disclose confidential advice between the President
· and jJis advisors, or between such advisors [a)(S) of tbe PRA]
'6 Release would constitute a clearly unwarranted invasion of ·
personal privacy [(a)(6) of the PRA]
.
Freedom oflnformation Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA)
· b(2) Release would disclose internal personnel rules arid practices of
an agency [(b)(2) oftbe FOIA]
·
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
· personal privacy [(b)(6) of the FOIA]
b(7) Release ·would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(S) Release would disclose information concerning the regulation of
·financial institutions [(b)(8) of the FOIAJ
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
ofgift.
..
'RM. Personal record misfile defined in accordance with 44 U.S. C.
·. 2201(3).
RR. Document will be reviewed upon request. ·
COPY
�July 14, 1995
(
MEMORANDUM TO PRESIDENT BILL CLINTON
·FROM:
IRA C. MAGAZINER
.BRODER/JOHN~ON INTERVIEW
SUBJ:
BACKGROUND
On Monday, July 17th-you will meet for one hour with David Broder and Hayries ·
Johnson who are completing a book on the health care reform debate .. Their book will be:
published early m1996. While other books are being written, the ·Brodei::/Johnson book will
be the definitive a:ccoimt for· political and· media elites. Depending upon it:s content, its ·
· appearance could. become a campaigri issue.
(.
Broder arid Jobnson conducted interviews with hundreds of participantS in the health
. care debate, most occurring. as. everits unfolded. The~ book focuses on the politics health
reform and they use health care as an example to discuss broader issties about the political.
of
process.
· The First Lady has met with them and with her approval I have met on a number of
occasions with them and have shared various materials with them.
·
Right now, as you knoW~ the First Lady and I and to some extent you, are blamed ·for
·the so called "health care debacle" by the Washington conventional wisdom.' We allowed a
·
group of policy wonks meeting in secret to produce a complicated,· big government, ·
unrealistic plan which overreached and was dead
arrival. You were influenced by your
ultra liberal wife and "wonky" .old college friend to accept this unwise venture over the .
objections of most" of your advisors. Your presidency, the Democratic party and any chance
of reasonable health reform went down the drain due to this grave error.
. ::
on
· In fact, Republicans committed what Paul Starr has called "the perfect crime." They
killed health reform without getting any of the blame. The DLC, some congressional ·
Democrats looking to place blame for their failure to enact reform, many interest groups who
opposed us but want to say they favored "sensible" reform, many groups who supported us .·
but were ineffectUal and ·inany witbln out own Administration looking to distance themselves
from a failure have found it convenient tocontributeto this coi.wentional wisdom. ·
Broder and Johnson know that the conventional wisdom is not tnie. There is a
. chance that this book, by presenting a more accurate and balanced view, could create a less
distorted picture of what we tried to do.
Paper Copy Generated by
NLWJC Staff
�WHAT BRODER AND JOHNSON MAY BE TIDNKJNG
. Though I don't know how Broder arid Johnson will represent events in their book,
they appear to understand that: ·
•
This was an incredibly difficult undertaking in the best of circumstances.
•
Delay was fataL Many interest groups were prepared to compromise with us.
·on our terms in the winter and spring of 1993 when momentum was on our
side. We lostmomentum and gav~ them tiine to organize to oppose us when
we had to delay j::he bill until October.·
The task force was.not responsible f~r the delay. Difficulties with the
economic program which delayed its passage forced. the delay of health care
•
reform.
•
.Diversions. oli N.AFfA, ·Haiti, Somalia, etc., 'Yere in part responsible for our
inability to communicate effectively on health cate inthe fall of 1993.
•
The power and sophistication of opposing interest groups reached new heights
· .with health :reform and this _played-~ major role in our defeat.· .
·
·
•
The Democratic party and its core constituency groups -- organized labor,
seniors, con.Sumer groups could not mobilize a grassroots counter ·offensive to
the NFIB, HIAA, insuranpe agents, etc.
-• ·
We depended on the old Democratic leadership strUcture in Congress to push
. through a bili for us and they were too weak and their power too diffuse to do
~so.
.·
•
. Dole and the Repubiicans, for political reasons, ultimately decided to kill any
. bill and put tremendous pressure ontChafee et al not to cooperate with us.
•
The health care crisis will not go away by Itself. Serious problems remain
· which are not b:eing resolved.
They do seem to feel, however that:
•
.
.
We overreached our electoral·mandate by proposin:g too big ·a package. It was
too much for a Pres.ident with a 43 percent mandate and a slight congressional
majority (compared td the Roosevelt Social Security and Johnson
Medicare/Medicaid and Civil Rights bill majorities) to try to pass major deficit
reduction and a massive health care reform plan in his frrst two years. ·
2
Paper Copy Generated by
NLWJC Staff
�We did not successfully. build the political preconditions .for success by locking
·
up interest group support. .
•
We should have had stronger legislative and political leadership in the
Administration devoted to health care to accompany the First Lady's
communications skills and my policy skills from the very begfuning.
• ·
We tolerated exceptional acts of disloyalty from members of our own
Administration which helped undermine us.
•
•
•
Om press relations were poorly conceived and executed.
POINTS YOU MIGHT MAKE
.
The most important sense to communicate is that we knew we were attempting a very
difficult fea~. We pursued the fight- despite tht? risks becau8e the health care crisis is a
serious problem which must be solved. Wha(we attempted was possible•. We made some .
·mistakes, we had some misfortunes (Mitchell and Rosterikowski., .etc.) and we tiltllp.ately ··
coulqn't get it done. We came closer thari anyone has before. Though. its failure has been
painful, ·it was a risk worth taking~
••
· · To counter the conventional wisdom whetl you talk to .them, you might wish. to
· reinforce a few accurate .but usually overlooked points:
•
Comprehensive health reform which inCludes universal coverage, slowirig cost .
. growth to the growth of personal income and ending discrimination ill the
insurance market was and is still favored by the vast majority of Americans .
.•
The major elements of your program were considered moderate when first
proposed. All had antecedents in bills sponsored by moderates and all were
·
popular with the American people ~yen as late as the summer of 1994 -- .
employer mandates, premium caps, community rating of inSurance, preserving
Medicare, tobacco taxes to finance reform, etc.
•
There is no way to solve the problems of the .health care system withou{
creating fierce controversy. Even if one tries to go s~ep by step, once really
meaningful steps are proposed, they will engender powerful opposition.
•
We knew .·health reform would be an uphill battle but felt that it was an
important economic and soCial issue and to be .faithful to campaign promises,
w.e had to try to succeed with it.
3
. Paper Copy Generated by.
. NLWJC Staff · •.
�·•
Despite the rewriting of history as people try to
failed health care effort, one must remember that from September of 1993
·.. until as late as April of 1994, most people in Washington thought that we
could achieve comprehensive health reform including universal coverage ... Our
proposals were popular for many months and we, moderate Republicans and
·conservative Democrats·all stated publicly and privately that a deal could and
would be worked out.
.•
·
.·
..
UltiiDately, politically motiVated Republican opposition killed health reform~
We got beat badly in the communications war as our plan was severely
rnischaraCterized. Opponents mobilized effeetively, spent a lot of money and
pressure scared the public and some congressional DeiD.ocrats sufficiently ·
this
to. provide. cover for the· Republicans.
•
•
· Nobody during the debate or silice haS c9meup with a better proposal for
· solving the nation's health care p~oblems. ·The problems will not go away by
themselves. The number o(uninsured is still climbing at over one million per
year. Private sector cost growth has moderated temporarily; but is. still risirig
at twice the rate of inflation, and a lot of this slowing is dtie to cutbacks in
benefits, dropped coverage and one time savings as employees are forced or
· encoliraged iri.to lower cost health plans. Republican proposals to cut Medicare
and Medicaid costs Without comprehensive reform cotild ·threaten many of our
.
. hospitals in underse:rved areas and our academic centers as well· as adding.
significantly to the nUm.ber of uninsured people .
. . Attached· is the letter Broder & Jobnson sent to Mike Mc~rry requestip.g the
· meetiJ:ig. .
··
\
4
Paper Copy Generated by·
·
· NLWJCStaff
·
�Withdrawal/Redaction Sheet·
Clinton Library
DOCUMENT NO.. ·
AND TYPE
001. report
SUBJECT!fiTLE
DATE
Addressing Affirill.ative Action by Stari Greenberg (33 pages)
RESTRICTION .
7/14/1995
COLLECTION:
Clinton Presidential Records
·· . WHORM - Subject File General
HU012
OA!Box Number: 23362
.. FOLDERTITLE:
122146SS
· Whitney Ross
2008-0308-F
·wr860
RESTRICTION CODES
Presidential Records Act -144 U.S.C. 2204(a)]
:PI National Security Classified Information l(a)(l) of the PRA)
P2 Relating to the appointment to Federal office l(a)(2) of the PRA)
P3 Release would violate a Federal statute l(a)(3) of the PRA)
P4 Rd~ase.would disclose y:ade secrets or confidential commercial or
fi!Jancial information l(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
· and his advisors, or between such advisors la)(S) of the PRA)
. P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRA]
.
C. Closed in accordance with restrictions contained in donor's deed
of gift.
.
.
. .
.
PRM. Person.al record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed:upon request.
Freedom oflnformationAct- 15 U.S;C. 552(b))
b(l) National security classified information l(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA]
b(3) Release would violate a Federal statute l(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy l(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
. purposes l(b)(7) of the FOIA) .
·
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIA]
b(9) Release would disclose geological or ge9physical information
concerning wells l(b)(9) of the FOIA]
�I\QLPll\C711--:-x;;;:::51l;;;;;;;;;;r-------:-------:-----------,-~----:---------;w'WA:sfsH~IN;;Gr~oN;';;oc~2~oo~ci2;----.
INC
.TEL 202 547-5200
FAX 202 544-7020
ADDRESSING AFFIRMATIVE ACTION
Report on the New Jersey Project.
by Stan Greenberg·. .·
JULY 14, 1995
�,, .........
··coPY
�·
-- RESEARCH
INC
1\!l 'I-
515 SECOND STREET NE
WASHINGTON DC 20002
TEL 202 547-5200
FAX 202 544-7020 . ·
-cONFIDENTIAL - 1 OF 5
·Date:
July 14, 1995
To:
President Bill Clinton (1)
Vice President Al Gore {2)
Leon Panetta (3) .
Harold Ickes (4)
George Stephaiiopoulos (5)
· From:
Stan Greenberg
RE: ADDRESSING AFFIRMATIVE ACTION
Report on the New Jersey Project·
In advance of the affirinative actionspeech, we conducted a survey and focus groups
in the key swing state of New Jersey-- to help the White House put affirmative action in
tlie best possible context, and to help it work through the politics of the issue. This is
. obviously a difficult issue which needs to be framed properly to build support and minimize.
political losses.
·
THE RHETORICAL CONTEXT
There is a majority in the country who believe affirmative action is still needed: 52
_percent nationally (NBC/WSJ) and 54 percent in New Jersey. That majority reflects broadbasea opposition to discrimination, a recognition thatprogress has been made and could be
threatened, and a fear aboutwhat might happen if affirmative action were simply abolished.
Within that bloc are significant minorities that support things lik~ goals"(31 percent) and set·
· ·· ·
·
asides (41 percent).
But we also understand that the majority is misleading: for many people, the term
"affirmative action"is vague and without meaning; large majorities are opposed to goals and
. set~asides. "Group preferences" are a lightening rod and, increasingly, the terms of debate.
In-the survey, racial and gender preferences were opposed by 2-to-1, and in the focus
group~. they produced passionate opposition.
. PY.'
Ce
DETERMI~ED
~
TO BE AN ADMINISTRATIVE .
RKI:\GPer.E .0.12958asamended,Sec.3.3(c).
itials: Y'lF- ·
Date:
· ·
.
.
.
.
.
ll/?/11
ji)fli(;l\:llll?-1:=
.
.
�Aflirmative Action. ·
When people understood affirtnative action to be racial preferences, they described it in
· terms that. sounded very much like welfare: "money for nothing," "unfair," ''hand· outs,"
"undeserving," "don't like the idea of hand outs." The Dole affirmative action message had
clarity because of his ability to say he would end group preferences and stand up for the
. most qualified. Our inability to be clear here comes at a price. People are opposed to
· discrimimition and accept preferences as a remedy, but only for those disadvantaged by the
specific .acts of discrimination.
.
.
The bloc of intense opponents of affirmative action is larger than the bloc of intense·
proponents and more strategically placed. In the course of this survey and the focus groups,
their concerns about affirmative action produced a small but politically important shift that,
.if replicated in the real world, would put New Jersey in doubt. So it is important that we
·.
get this right.
·
·
Real Reform
i'
The President could come close to winning this issue if the public thought he was
serious about reform -- correcting abuses while maintaining affirmative action. IIi the focus
groups, the downscale married women preferred Clinton on this issue if that is really his
intention.. But the President has a high hurdle of disbelief to overcome if he is to be
credible. The public is inclined to think that he is being rhetorical, trying to take both sides
of an issue, fool people with things that sound good but are not real. There is a real danger
. that a reform proposal coUld reinforce the impression that the President will not stand up
for what he believes, .that be is just being political. Many .of the men in the focus. groups .
concluded that.
·
In the survey, a clear statement about support for affirmative action in prinCiple and
clear statement of abuses produced a positive response {66 percent feel better about the
President); indeed, 58 percent say that, after the statement, they thirik of him as "strong."
(We shall see later that we lose this issue when contraSted with· Dole's position; but it is
clearly better to lose w:lth strength· and principle.) .
·
The President should ·state very clearly that he is opposed to discrimination,· believes. ·
every one should have· an equal chance to succeed, ?Tid that affirmative action is important
· to that end. It may not be popu1ar, ·but that is what I believe. At the s~nJ!e time, there are
.abuses and they must be fixed.
· ·
·
)
Page 2
C9PY
�.Affirmath'e Action
The Sons·
The sons have become a symbol of v.lhat. is wrong With affirmative action --: and
allows both married men ?-Tid women to feel wronged on behalf of their chrldren. A
small majority opposes goals in college and university acceptances (52 percent), but there .·
is a large bloc of intense opponents (28 percent). Tne intense opponents of university
affirmative action grows to 35 percent among those with some post~high school education
and to39 percent among white non-college men.
In. the focus groups, the issue brought out more resentment than any other we
considered.
·
.
. My son wanted to go to college, and said he was Hispanic. ·He took
advantage of his background because my husband's Hispanic. If he were
an Irish-American, nothing. If I had married an Irishman, my son would
be digging ditches.
·
The average white middle class person works 3 jobs to send their kids to
colleges, and their kids ate not eligible for financial aid. ·
The guidance counselor told my son that he would have gotten in had he
·
been a minority.
If my kid worked his butt off but doesn't get in because he's the wrong
color, what values does that teach him?
Let those college professors see their kids blocked from getting into
college.
The President should address the sons to show he knows what is at issue, the
challenges·facing middle class families, and emphasize his fight for college loans -exJ>a.nded, affordable,· guaranteed -- equally available regardless of race. If you are
,.qualified to get into ·college, you are eligible. The commitment to college loans is a
critical part of the affirmative. action message: reform means correcting abuses and
_making sure that the sons of the working middle class can get the loans to go to college.
Page 3
cePY
�Affirmative Action
Goals, Not Quotas
An astonishing· 67 percent oppose goals for the number of minorities to be
employed in a fum,_ but opposition drops to only 36 percent if one ·simply says, "setting
goals, not quotas." The President must constantly emphasize that point.,
The Qualified
.·.
.
.
.
.
There is an emerging consensus that the 'best qualified/! should be hired. Discrimination should not block it, and affirniative action should not substitute some other
standard. That is one of the primary abuses that people focus on. Indeed, even .
supporters of affirmative action and i:ninorities are opposed to the hiring of the unqualified, ·or even to the use of preferences rather than qualifications, to decide between the
~--._..-·-equally-qualified-(California-Jocus-gmups ).--In:_the-focus-groups,""people-constantly
·
·
referred to the concept "qualified" as a norm: ,;qualified people are being discriminated
agailJ!lt"; ·'1etting-iil non-qualified people"; "atoning for discrimination should mean taking
the most qualified"; ''hire whosever qualified for the job."
. The hiring. Of the non-qualified or lesser-qualified connects affirmative action to
welfare. People think blacks Will learn that they. can get ahead on a free ride, without
having to take responsibility and achieve something.
The President must associate affirmative action with giving a hand to those who
are working to succeed, not people looking for a free ride. It must be about giving
people hope and rewarding responsibility. A firrri commitment.i:ri law that the unqualified must never be hired over the qualified must be a signal to people that they must
· strive to db their best.
· From Set-Asides to Poor Neighborhoods
·The public is wary about set-asides for minority contractors: 54 percent opposed,
including 30 percent strongly. But there is strong support for "set aside programs thai
guarantee a certain percentage of government contracts to firms that locate in poorer
. neighborhoods": almost two-thirds (66 percent) ~upport that idea, with almost a third
strongly favorable ..
__ /
. Page 4
ce·PY
�Affirmative Action
The President will correct a real abuse and substitute the right standard if he
abolishes set asides and moves to programs that help poor neighborhoods, whatever their
~ace. In the foclis groups, there was a sigh of relief that he had finally moved to a nonracial standard and, at the same time, addressed an important problem. People wanted
_· to make -sure that the law required that these firms employ people from the neighborhood
-
·: Diversity · ·
Voters are open to diversity arguments when they are placely clearly in the
context of jobs that would be better perlormed if they reflected the commuiiitis
.:diversity. But voters are cautious about this grant of authority. In the case of the police
serving a mitlority community, 62 percent are supportive. But support drops off almost
.20 points when put in tbe context of a university that wants to provide a better learning
experience for its students.
Eliding Affirmative Action and Equal Rights
There is majority support fcir affirmative a'ction because people'believe that they·
are defending the civil rights regime that protects against discrimination -- against racial .
· minorities but, more importantly, women. Our communication should elide affirmative
· action and protections against discrimination in order to highlight the threat.. We ca:rillot
· go back to square one and hope· for the best. People favor "reform" over "abolishing"
precisely because they are nervous about the consequences. · We should emphasize that
·they have good reason to be nervous. The President should ask the question of women:
do you really believe that without these laws, you'll get the best chance at the jobs you
. are qualified for?
PHOTOCOPY
WJC HANDWRITING
CGPY
.Page .)
�Affirmative Action -
THE POLffiCAL CONTEXT
The President will lose ground on this issue and to Dole when this issue is joined.
the impact of the issue is somewhat mitigated by counter pressures, such as the support _
of :rriany _Republicans for affirmative action, an·d frankly, the gr,eater importance of other ·
concerns. Just 23 percent say this is one of the top few 'issues for people. Still, in this
dose contest for the Presidency, the "antagonists" on affitrnative action -are strategically
placed in the· middle and thus play a disproportionately important role.
The State of Plav in New Jersey
The President begins aile ad of Dole in New Jersey, 50 to 44 ·percent. That is an
impressive 6 point lead in a state critical to 1996. Unfortunately, the President's hard jobperformance stands at only 38 percent, suggesting that the Pre$ident's advantage is
tooted in Dole's weakness.
.-
On affirmative action in_ general, the President begins with a 14 point advantage
over Dole(48 to 34 percent). But when the issue is posed starkly as the President
wanting. to maintain it, and Dole wanting to abolish it, the Clinton advantage drops to 4
points (47 to 43 percent).· When. the President's reform position is counterpoised to
Dole's commitment to abolish racial preferences, Dole moves into a 4 point lead (47 to
43 percent).
- The shifts away from Clinton to Dole are most marked among white men (net - 9
points), white union households (-12 points), white high school graduates (-11 points),
, and white non~college men (-12 pointS).
Page 6
�Ar1irmative Action
The Antagonists
To judge the· impact of this speech and decision, it is important to iook at those
most opposed to it. They are the ones most likely to move electorally. Using the New
Jersey survey and replicating a model created by Gallup, we divided the electorate into
four segments.
True Believers (16 percent).
Strongly believe Affirmative action is needed;
. see racism or sexism as a major problem;
support group preferences for .either blacks or
women.
Floaters (33 percent).
Tnink affirmative action is needed and see
some race and gender discrimination problems;
support. 3 of 5 affirmative action policies .
.Doubters (31 percent)
Doubt affirmative action programs are still .
needed and see few discrimination problems;
reject preferences and goals, but support benign
outreach programs.
Antagonists (20 percent)
Say affirmative action has gone too fa..r and see
no discrimination problems; oppose preferences
and affirmative action polices, even recruitment.
.
.
-
The problem is simple: 29 percent of antagonists are Clinton voters, as are 43.
percent of the dubious. (A parallel 23 percent of true believers are Dole voters -- but
·.that bloc is smaller and less likely to move as a result of the decision). Among the weak
Clinton voters -~ the- 13 percent of the electorate that we describe as "conditional" and
· · l/vulnerable" -- 19 percent are antagonists, and 45 percent are .doubters or antagonists.
Weshould anticipate weakness at this strategic point in the electorate.
Not surprisingly, 60 percent of the antagonists are men, but more striking is the 62 percent .who are Catholics.
·
P3.ge 7 _
�Affirmative Action
The Clinton-Dole Comparison:
.
There is clarity and power in opposition to group preferences which is why the
message comparison produces a shift to Dole: among whites, 2~ percent feel much better
.about the President after his statement but 34 percent feel much better about Dole --a 9
point advantage (in a survey where the President .is ahead overall). Among the conditional and vulnerable Clinton supporters, the Dole advantage is 14 points -- explaining
· ·· · the vote shift away from the President.
·
At the end of the fo.cus groups, all the undecided voters ( 60 percent of each ·
group) shifted to Dole~ Many said th~y would give Dole "a chance," but an equal
number said.Dole would be "more for.the working class people," ''he's more for the
regular people." Being for the "qualified" and against "group preferences" enables him to
make a case with these mostly downscale voters. ·
·
·
·
Balancin~ the Loss'es
The aggregate shifts are not that l~rge, in part, because .rriany voters are reluctant
to dismantle the anti-discrimination regirtle. Many of the men were ready to '1et the
chips fall where they many," but many women were nervous about where this might go ..·
. Almost a quarters of the true believers are now supporting Dole, as are 39
· percent of the floaters. These are voters in a disconsonant position who could shift back
toward Clinton. These pro-affirmative action Dole voters tend to better-educated which
suggests a possible upscale balance to downscale losses.
·Black support clearly rises for the President after his position is laid out on
affirmative action: 85 percent feel better, including 54 percent who feel much better
about him. The gains in enthusia.Sm are most marked with black men (64 percent much
better) where Democrats and the President have suffered losses over the last couple of
years.
One should also recognize that had the President moved to end affirmative action,
he would have paid a price among black voters and Democrats generally~ We presented
voters with a Democratic congressional candidate who wanted to end affirmative· action:
27 percent were mor~ ·likely to vote for that candidate and 24 percent less -- an unim- .
pressive 3 point gain. Half of black voters were less likely to support that congressional
candidate and 35 percent of all Democrats.
Page 8
�Affirmative Action
Welfare Reform Trumps Affirmative Action ,
While the affirmative action issue is very important, it pales nextto welfare. The ·
biggest worry in the state is that there are"too many people on welfare who shouldn't be
there" (58 percent). That ranks above concerns with inequality (52 percent) and jack of.·
jobs (49 percent), the next highest worries.
A Republican candidate for Congress who runs against affirmative action arid for
the opening up of the colleges and university to everyone, scores political points (49
percent more likely to support, including 28 percent much more likely). But when the .
. candidate combines thatposition with support for to'ugh welfare reform, 60 percent say
they would be more likely to support him or her, including 32 percent much more likely..
Two-thirds of the weak Clinton voters say they are more likely to vote for that anti. affi~ative action/anti-welfare Republican candidate.
.
.
. ·.
.
·. .
.
.
.
.
~
In the focus groups, we presented voters with a bundle of po{ential Republican
issues. The most-powerful were cutting spending, limiting immigration, cutting taxes, and
ending welfare as we know it. Threy times as inany people cited ending welfare reform
as tnentimied eliding a:ffirrnative.action (even' after an.hour of discussion on the subject).
Affirmative action is dangerous but, combined with welfare reform, it can be lethal.
·'
In the focus groups, a pro-3..ffirmative action, but pro-welfare reform Democrat,
. was received very well. Participants described that candidate as "somebody I would vote
. for,'; "I woUld listen to what this guy has to say," that is somebody with ''new ideas." By
cantrast, a straight pro-affirmative action Democrat was described as ."past his time,"
. "failed policies of the Democrats," ugoing for a particular niinority vote," "wants the lower
class to vote for him," "coui-t.ing a particular vote." In Democratic hands, welfare refonn .
is an antidote to affirmative action; in Republican hands, it exaggerates and broadens
the impact of afflnnative action.
The administration cannot allow the Republicans to take ownership and win
. welfare reform. The President needs to challenge the Republicans for failing to act on
welfare reform and then, if possible, move irt a bold way administratively to make
welfare reform happen and allow the President to take ownership of this change.
PHOTOCOPY
. WJC HANDWRITING
.,
Page 9
CG·PY
�COPY
�I
.;
New Jersey Concerns
.
1
'
l!iiii. A Ve.ry Serious Problem
Percent
.
.
58
Who Should be on Welfare?
Job Training and Day Care
:
Rich getting Richer and Poor getting
0
0
1J
-<
Poorer~
·Not Being Able to Get a Good Job
Quotas for Colleges
l
Insufficient Loans, Scholarships and Job Training
~
RaCism and Discrimination against African-American.
Discrimination against Women
Limiting Rights to Bear Arms
Discrimination Against White Men
Ui\C.NJ Statevoide Survey
Gn:cnher·g Research lnl·.
7/11/')5
0
20
40
60
Figm·e
(Q35-
�I.
.. ,)
Past Discrimination
Do you believe that where there has been discriminatioQ in the past, preference should be given today
Preference for
African-Americans
080
070
.
·Preference for
Women
Pcr·ccnt
- - - - - - - - -
63
-
- - - - - - - - - ' - - - - - - - . - - - - - - - - - - - -·
62
60
·-u
·-<50
40
. 30
20
10
0
~------~--------~~----------~----/
Preference
No Preference
Preference
No Preferences
DNC NJ Statewide Sun·c)·
Gr~cnherg
07/lli95
Research Inc.
Figur·e 2
(Q53 & 56, Q54 &
�.. J
Affirmative Action
mmJTotal Percent Strongly Favor ESomewhat Favor
Percent
Guarantee Government Contracts to Firms in
Poor Locations
66
Expand Recruiting for Minorities _.
0
0
Goals for the Number of Minorities on Police
Forces
~als, not Quotas, for Minorities to be employed
·V
,
-<
·
by a firm
G oaI s .f' M'
't "
. . 't'
tOr mor1 es In. U. mvers1 1esI
Colleges·
Guarantee Minority Firms Government
Contracts
Number
of Minorities to be Employed by
Firms
0
DNC i'i.J Stntcnldc Sun·cy
c;fccnbcrg Hescilrch Inc.
7111/95
20
40.
60
80
· Figm·
(Q58-
�Affirmative Action P:fofile Vote
President Clinton states that affirmative action remains an important tool in achieving equality for African-Americans and women
and making America orie country where everyone has a chance to succeed. We've made important progress in ending
discrimination, but our work is not done. We should certainly-correct the abuses iri affirmative action and make sure it follows cou
guidelines. We should -never allow quotas, and an unqualified candidate must never get preference over a qualified one. Reverse
discrimination is prohibited. But we still have important work to fight discrimination. and achieve equality for minorities and w·omen.
So I continue to support affirmative action.
·
·
·
.
.
Presidential Candidate Bob Dole recently stated it' is time for. our country to end affirmative action. While it played an important
role at an earlier time, today, it has-become a policy of racial and group preferences. It is time to abolish all preferences based·on
race, gender or national origin. We a:re all Americans, and we must be judged as individuals, on our own merits. Of course, we
must maintain our laws against discrimination and insist our companies and universities hire the best qualified, regardless of their
race or gender. But now is the time to end affirmative action and racial group preferences.
Without Statements
0
do
~0
With Statements
Percent
- - - -
-·
- -
-
- - - -
-
- - - - - - - - - - - - - - - - - - - - - - - - - -
.'
48
47
- - - - - - - - - - -.- -
--
- - - - - -. -
40
20
0
L-------~----------------------------/
IJNC l"J Statewide Survey
Crecnhtirg Rc.sl'arch lnl·.
07/11/95
Clinton
Dole
Clinton
Dole
FigUI'C 4
(Q69 & Q74)
�COPY
�. DNC-NJ.Q1
July 10-11, 1995
691 Respondents
FREQUENCY QUESTIONNAIRE
1. First of all, are you registered to Vote at this address?
[IF YES, GO TO Q2]
.
[IF NO] l;m sorry. Is there a registered voter at home I can speak to?'
[REPEAT INTRODUCTION OR TERMINATE]
2. Many people weren't able to vote in the 1992 election for president between George Bush, Bill Clinton, and Ross Perot.
How about you? Were you able to vote, or for 'some other reason were you unable to vote?
·
Voted ...........· ............. :1 . . . . . . . . . . . • . . . . ·95
. Ineligible/too young ............................ ,. .. 5
'Did not vote ........................... [TERMINATE]
Can't remember/Don't know .......... : . , .. [TERMINATE]
Refused ........... · ................... [TERMINATE]
a
3.1 know it's long way off, ·but what are the chances of your voting in the election for president in 1996 -- are you almost
certain to vote, will you probably vote, are the chances 50-50, or don't yoi.J think you will vote?
· Almost certain ...... : ............... : ...... ~ . . 91 .
Probably ... : .. ; .... : ..... ~ . . . : . . . . . . . : . ·.. ·. . . . 9
50-50 .......· ........................ [TERMINATE]
Will not vote ......................... · [TERMINATE]
· . (Don't know) . . . . . . . . . . . . . . . . . . . . . . . [TERMINATE]
4. Generally speaking, do you think thatthings in this country are going in the right direction, or do you feel things have
gotten pretty seriously off on the wrong track?
·
Right direction .................... ·............ : . . 26
Wrong ·track ......................... , ...... ·. . 56 ·
(Don't know) ............... : . . . . . . . . . . . . . . . . 18
'
'
'
5. How would you rate the condition of the national economy these days? Is it very good, fairly good, fairlY' bad, or very
bad?
.
Combined
Very good ..................... 4
Fairly good· . . . . . . . . . . . . . . . . . . . . 42
Fairly bad ................. ·. . . . 36
Very bad . . . . . . . . . . . . . . . . . . . . . 14
. (Neither good nor bad) . . . . . . . . . . . 3
(Don't know) .................. .
...
, .:: ...
COPY
46
49
�DNC-NJ.Q1: Frequency Questionnaire, July 10-11, 1995
r
2
1.
6. How would you rate the condition of New Jersey's economy these days? Is it very good, fairly good, fairly bad, or very
bad?
Combined
Very good ..................... 4
51 .
Fairly good . . . . . . . . . . . . . . . . . . . . 47
Fairly bad . . . . . . . . . . . . . . . . . . . . .. 27
Very bad ..................... 15
42
· (Neither good nor bad) . . . . . . . . .. . . 5
. (Don't know) ......... , . . . . . . . . 3 .
.
I
[
I .
I
\
7. Is that mainly because of the economic direction set by Bill Clinton nationally or because of the economic directionset
by Christine Whitman in New'Jersey? ·
Clinton ......... : ... · ................ : ..... ·... 17
Whitman .................- ...................... 47
(Both) .... ·
....... ·............................ 16
(Neither) ................................... 12
· (Don:t Know) . . . . . . ......... , . . . . . . . . . . . . . . . .'. 8
8. When yot,J think about the ·economy today, do you see increasing instability or increasing opportunity?
··
Increasing instability ... ~ ............... -. . . . . . . . . 53
Increasing opportunity . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(Both) ...... · ........ : ............. ·........ : . . 7
(Don't Kndw) ..... : ..................... ·• . . . . . 7
9. ·When you think about yourself and your family, do you feel the changes happening today are mostly good or mostly bad?
[FOLLOW UP] • Would that be very or pretty (good/bad)?
Combined
Very good ... , .. , . . . . . . . . . . . . . . 5
Pretty good : . . . . . . . . . . . . . . . . . . 42
Pretty bad . , ...... ·............. 36
Very bad ................ , . . . . . 8
(Don't know) . , . . . . . . . . . . . . . . . . 9
·.
~
.r
J
l
47
44
I
!
COPY
�·. ow,
1 e to rate your eelingstoward some people and organizations, with one hundred meaning a VERY WARM,
-FAVORABLE feeling; zero meaning a VERY COLD, UNFAVORABLE feeling; and fifty meaning not particularly warm or cold ..
·· · You can i.Jse any number from zero to one hundred, the higher the number the more favorable your feelings are toward that ·
person or organization. If you have no opinion or never heard of that person or organization, please say so: · ·
· ·
[IF DON'T KNOW:]· Would you say you are unable to give an opinion of [NAME OF PERSON OR ORGANIZATION]. or
have you never heard of[NAME OF PERSON OR ORGANIZATION]?
[WRITE IN NUMBER}
[NO OPINION/OK= 101] [NEVER HEARD ,; 102]·
[READ FIRST]
10. George Bush. Give George Bush a rating,
with 100 meaning a very warm, favorable feeling;
Thermometer
zero meaning a very cold, unfavorable feeling;
and 50 meaning not particularly warm or cold _................. .
59
%Warm
%Cool
53
24
- . 42
29
48
53
47
32
13. The Republican Party ....................... , ..... ~ ... ' _·_55_-_
47
·30
14. Rush Limbaugh ....................... ; .............. __35_
21
49
·-57 ...
49
21
• . ... .
-52
41
30
17. Christie Whitman ...................... , ...... ·.... -.... .
55
53
30
18. An independent, third .political party ....................... .
44
_24
35
19. Jesse ~ackson ................. ·_ ........... .'. : .. : .. .
38
23
51 .
20. Talk radio host, Bob Grant ......... -.....•...... :......... .
32
11
34
21. Bob Dole ............ _
........... : ................... .
50
40
32
22. NeWt Gingrich
41
29
48
23._ The NRA, National Rifle Association ........... : ........... ___37_
24
52
24. AI Gore .. : . ....... : . .... _
.......................... .
53
47
29
. 25. The Evangelical Christian· political movement ........ -... ·.... .
35
12
32
26. Colin Powell .................. :· ........ ·..... . . . . . . . .
66
60
13
27. Blacks and minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64
48
11
37
30
25
18
[ROTATE Q11-Q29]
11. Ross Perot [pah--ROE]
12. Bill Clinton · ................... : ....... : ............ .
15. 9ill Bradley .................. : ..................... .
.
..
16. The Democratic Party . . . .. . . ...... ·.. . .. ·.. : ·' : .·...
.
:
~
............. : .... _: .......... · ........ .
28. Feminist women's groups ............. __ ...
29. The black clergy organization
~
.... _ . . . . . . __ 52_
53
COPY
.-
�l:liV' JVU
Ul:;;lll~
UVI
n;;::;,-
o-y-~~r
'-'fll 1\.VII 0,.;)
I
I
c;.;:)lUc;TTI"""-----c:;-J'\.~ItJIIL'
~VUU
1
JUU\.
lUll t
VI
}JVUT-.-
--
Combir:ted
Excellent ........................ 4
Good ........................ 34
Just fair .. , . . . . . . . . . . . . . . . . . . . 45
.Poor ........................ 16.
(Don't know) · . . . . . . . . . . . . . . . . . 0
[
-
t
38
61
r
31.
32.
.33.
I
.
''
34. In next year's election for U.S. Congress, do you
candidate in your district?
plant~ vote for the [ROTATE]
.
·.
'
Democratic candidate or the Republican
·
Combined
Democratic candidate . ~- ......... 29
Lean Democratic .... , .......... 9
Republican candidate ...... , ·... ·. 34 ·
Lean Republican . . . . . . . . . . . . . . . 8
(Undecided) . . . . . . . . . . . . . . . 20
'
.
38
42
.
34b. Now let me re~d you two brief statements on affirmative action programs, and ask which one tomes closer to your own
point of view. [RE;AD BOTH STATEMENTS SLOWLY]
.
.
f~"
r
r-\
. [ROTATE]
Affirmative action programs are still needed to counteract the effects of discrimination against
minorities, and are a good idea as lpng as there arena rigid quotas.
Affirmative action ·programs have .gone too far in favoring minorities, and should be phased out
because they unfairly discriminate against whites.
[IF RESPONDENT SELECTS STATEMENT ASK:]
Do you feei strongly about that or not so strongly?
Combined
Needed -- strongly . . . . . . . . . . . . .
Needed -- not feel strongly . . . . . . .
Gone too far -~ strongly ~ .- ...... ·. .
· Gone .too far ~ not feel str~:mgly · . . .
(Don't know) .. , ... : . . . . . . . . .
COPY
. 32
. 21
. 27
. 10
.. 9
54
37
1
�Now, I wantto do something different.· I'm going to read you a list of things some people think are problems in New Jersey...
Please tell me how much of a problem you think each .one is -- a very serious problem, a ·problem, a little problem, or not
a problern.
Very
Serious
Problem
A
.Not
Little
A
(Don't
Problem Problem Problem know)
A
Total
A
Problem
Total
NotA
Problem.
.
.
[ROTATE Q35-Q42]
People not being able to get good jobs.
Is ~hat an a very serious problem, a problem,
a little problem, or not a problem? ....... ·..... : 49
29
12
7
2
"91
7
36. j 44. Racism an(j. discrimination against blacks.
24
36
21
16
3
81
16
58
27
10
3
2
94
3
12
22
24
38
5
58
38
39./47. Discrimination against women ........... 20
30
26
21
3
76
21
40./48. Qualified students not being able to go to
·New Jersey colleges because of quotas for
.
. .
..
minorities and other groups. .................... 34
24
15
13
14
73
13
32
31
17
11
9.
·ao
11
42. Government limiting people's rightto
bear arms. ·........... ·
.... .- .......· ......... 20
19
18
35
7
57
35
23
14
7
4
89
7
23
10
. 11
3
85
11
35.;43.
37.Joo many people on welfar~ who
. shouldn't be there.
• • • • • • • • • • • • • • •
0
. . . . . . . . .
:
38./46: Discrimination against white men.
...
0
••••
41./49. Lack of loans and scholarships to go to ·
college or get job training.
••
• • • • • ••
•••
0
••
•
••
0
•••
. [SPLIT 8] 350 RESPONDENTS
43.44.
45. Lack of child care arid job training to
help people get off welfare................... 52
46.47. 48. 49.
50. The rich getting richer and poor poorer.
•••
0
••
52
[END SPLIT 8 -- GO TO Q51]
COPY
�51. Do you think the problems facing minority groups in America's inner cities are mcire problems of personal ·responsibility
or are they more problems of racism and economic injustice?
·
.
Personal responsibility ............................
Racismjeconomic injustice .........................
(Both) ............................... ~ . . . . . . .
(Don't know). . , ....... ·.................... : . . . .
.
48
26
19 ·
6
52. When you hear 6n the news about someone being accused of making racist statements, what is your first reaction -~
do you tend to think the charges about racism are generally justified or do you tend to think the charges of racism are
exaggerated?
·
(
Justified ....................................... 21
· Exaggerated .. , . . . . . . . ~ . . . . . . . . . .............. ·. . . . 56
(Depends) ................................... :· 18
(Don't know) .................................. · 5
r
i· .
I
(
I
\..
COPY
�53./56. Do you believe that where there has been job discrimination against blacks in the past, preference. in hiring or
promotion should be given today?
~
Should -- preference ...........- ................... 28
Should not -- no preferences ........... , ............ 63 ·.·
(Don't know) ............. : .................·. . . 8
54./55. Do you believe that where there has been job discrimination against women in the past, preference in hiring or
promotion should be given today?
·
Should -- preference .............................. ·32
Should not -- no preferences ................. :... ·.... 62
· (Don't know) .............................. ·. . . . 6
55:56.
57. In order to fill the hiring goals of an affirmative action program, suppose a company were to give a job to a well qualified
.··black applicant rather than to an equally qualified white applicant. · Would you view this as discrimiriation against the white .
job applicant, or would yo~ hot consider this discrimination? .
.
Discrimination against white applicant ..• : .. ~ .......... 19
Not discrimination against white applicant ..... : . : ...... 69 ·
. (Don't know) ............ : . . . . . . . . . . .... , .. . . .. ~ ... 12
COPY
�I
(
Let me read you some specific types of affirmative aCtion programs. Please tell me whether you favor or oppose each one.
[FOLLOW-UP] Is that strongly or somewhat. (Favor/oppose)?
.
r
[ROTATE Q58-Q62]
[DK]
Strongly Somewhat Somewhat Strongly
Oppose
Favor
Favor
Oppose
Total
Favor
Total
Oppose
L
[SPLIT C]
58. Setting goals for the number .of minorities
to be employed in a firm. .................13
.
.
17
32
34
3
31
67
59. Set aside programs that guarantee a certain
.percentage of government contracts to
minority owned firms. ............... ·.... 16
25
24
30
5
41
54
l
.· 60./65. Setting goals for the number of
minorities to b·e accepted at university
and colleges . . . . . . . . . . . ·...... ·...... ' ... 17
26
24
28
5
44
52
r~
61./66. Requiring expanded recruiting and .
advertising to get more minorities to apply
.for positions. .. ~ ·~ ... ; •................ ·25
36
18
17
4
61
35
62./67. Settings goals for the mimber
ofminorities to be employed by the police
so the . force will .be more diverse and
better able to do its job. .............. :. 28
33
17'
15
6
62
32
[ALL RESPONDENTS]
[SPLIT SAMPLED= 1/2 A, 1/2 8] 341 Respondents
63: Setting goals, not quotas,· for the number
of minorities to be employed in a firm ....... 19
·64. Set aside programs that guarantee
a .certain· percentage of government
·. contracts to firms that locate
in poorer neighborhoods. .. •
...... ·.· ..... 31
38
20
16
8
56
36
\
\
35
15
65.
66.
67;
14
6
66
28
. .J
I
'
[END OF SPLIT D - GO TO 068]
i.
l
!
COPY
�[ALL RESPONDENTS]·
I'm going to read you a series of paired items. For each pair, please tell me which one you trust more when it GOmes to
changing affirmative action and anti-discrimination laws and setting a new direction on these issues.
BB. First, what about [ROTATE ORDER] the Democrats or the Republicans. Which one do you trust more when it comes
to affirmative action and anti-discrimination laws and setting a future direction on these issues.
[FOLLOW UP] Do you feel strongly about that, or not so strongly?
Combined ·
Democrats -- strongly . . . . . . . . . . . .
Democrats -- not feel strongly . . . . . .
Republicans - not feel strongly .. . . . .
Republicans -- strongly . . . . . . . . . . .
(Don't know) .............. , ...
36
13
11
23
·17
49
34
· 69. What abo tit {ROTATE ORDER] Bob Dole or Bill Clinton. Which one do you trust more when it comes to affirmative
action arid anti-discrimination laws and setting a future direction on these issues.
.
[FOLLOW UP] Do you feel strongly aboutthat, or not so strongly?
Combined.
Bob Dole "" strongly· : ..... :
Bob Dole -- not feel strongly .
Bill Clinton - not feel strongly
Bill Clinton -- strongly . . .. . . .
(Don't kriow) . . . . . . . . . . .
':.·
COPY
....
....
....
....
....
..
..
..
..
..
21
13
15
33
18
34
48
�r
\.
action .. After hearing that, do you tend to agree more with Bob Dole or more with Bill Clinton?
.
.
[FOLLOW UP] Do you agree much more or somewhat more?
Combined
r
I
Dole -- much more . . . . .
Dole -- somewhat more . .
Clinton -- somewhat more
· Clinton -- much more . . .
(Don't know) .... ~ . . .
.........
....... ..
.........
.........
.........
20
23
26
21
43
I
l
47
10
71. Let rile read you what President Clinton has said recently about affirmative action.
.
.
.
.
Affirmative action remains an important tool in achieving equality for blacks and women and making America
one country where everyone has a chance to succeed. We've made important progress in· ending
.discriminati9n, but our work is not done. We should certainly correct the abuses in affirmative action and
make sure it follows court guidelines. We should never allow quotas, and an unqualified candidate must
never get preferences over qualified one. Reverse discrimination is prohibited. But We still have important
work to fight discrimination and achieve equality for minorities and women. · So I continue to support
affirmative action.
·
· ·
·
. 1.
I
~
a
After hearing that, do you feel better or worse about Bill Clinton? [FOLLOW UP] Is that much or somewhat (betterjworse)?
Combined
Much better . . . . . . . . . . . . . . . . . . . 27.
Somewhat better . . . . . . . . . . . . . . . 39
Somewhat worse . . . . . . . . . . . . . . . 13
Much worse .................... 8 .·
· (Dori;t know) . . . . . . . . ... . ... ·. . . 13
66
I
l
21
72 .. After hearing Clinton take this position, do you think of him as strong or weak? [FOLLOW UP] Is that very or somewhat
·(strong/weak)?
·
·
Combined
Very strong . . . . . . . . . . . . . . . . . . . 20
Somewhat strong . . . . . . . . . . . • . . . 39
58
Somewhat weak . . . . . . . . . . . . . . . . 19
Very weak ..........·. . . . . . . . . . 13
32
(Don't know) . . . . . . . . . . . . . . . . . . 9
I
I
i
.,'
I
COPY
�It is time for our country to end affirmative action. While it played an important role at an earlier time, today,.
it has become a policy of racial and group preferences. It is time to abolish all preferences based on race,
gender or national origin.· We are all Americans, and we must be judged as individuals, on· our own merits.
Of course, we must maintain our laws against discrimination and insist our companies and universities hire
.the best qualified, regardless of their race or gender. But now is the time to end affirmative action and racial
, group preferences.
After hearing that, do you feel better or worse about Bob Dole? [FOLLOW UP] Is that very or somewhat (better/worse)?
CombinedMuch better . . . . . . . . . . . . . . . . . . .
Somewhat better ...............
Somewhat worse ..... , . . . . . . . . .
Much worse ................. , .
(Don't know) , .... ·...... ; . . . . .
32
31
16
10
12
62.
26
74. After hearing those statements, do yciu tend to agree more. with Bob Dole or more with Bill Clinton?
[FOLLOW UP] ·Is that much or somewhat more?
Combined
Dole -- much more . . . . .
Dole -- somewhat more . .
Clinton -- somewhat more
ClintOn -- much more . . .
(Don't know) . . . . . . . .
75.
COPY
.
.
.
.
.
.
.
·~·
.
.
..
..
..
..
..
.
.
:
.
.
...
...
...
...
...
.
.
:
.
.
29
18
47
23
20 ·
. 9
43
�r··
76. Let me ask you about Congress and the affirmative action issue. If the Democratic candidate fOr Congress in your area· · 1 ·
cam.e out for maintaining affirmative actioh, wOuld you be more likely or less likely to vote for that candidate, or wouldn't this
1
issue make any difference to you?
·
(FOLLOW UP:] Is that much or somewhat (morejless) likely?
Combined·
Much more likely . . . . . . . . . .
Somewhat more likely . . . . . . .
Somewhat less likely . . . . . . . .
Much less likely .......... :
No differeQce : ......... · .. ·.
(Don't know) . ~ . . . . . . . . . .
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
..
..
..
..
..
..
11
13
14
12
43
. 6
24
26
I
. [END OF SPLIT
c-
GO TO 078 OR 079]
[SPLIT D] 341 Respondents
..
.
. . .. .
·
.· ..
77~ Let me ask you about Congress and the affirmative action issue. If the Democratic candidate. for Congress in your area.
came out for ending affirmative action, would you be more likely or less likely to vote for that candidate, or wouldn't this issue
make any difference to you?
·
·
·
·!·
(FOLLOW UP:] Is that much or somewhat (niorejl!~ss) likely?
·Combined·
Much more likely . . . . . . . . . . . . . . . . 8
Somewhat more likely . . . . . . . . . . . . 18
Somewhat less likely . . . . . . . . . . . . . 13
Much less likely .. , ... , ......... · 11
No difference .......... , . . . . . . . 41
(Don't know) . . . . . . . . . . . . . . . . . . 8
27.
24
r.
[END OF SPLIT D :... GO TO 078 OR Q79]
1-
I
l
I
l
L ..
COPY
�[:Sf'LI.I AJ 341 Responaems
.
78. ·The Republican candidate for Congress 'supports ending racial preferences and .affirmative action, particularly in the
·colleges and un[versity so they will be open to everyone in New Jersey. Would you be more likely or less likely to vote for
that candidate or wouldn't these issues make any difference to you?
· [FOLLOW UP:] Is that much or somewhat (morejless) likely?
Combined
Much more likely . . . . . . . . . . . . . . . 28
Somewhat more Iikely . . . . . . . . . . . . 22
Somewhat less likely . . . . . . . . . . . . . . 7
. Much less likely ................. : 7
No difference . . . . . . . . . . . . . . . . . . 34
(Don't know) .·. . . . . . .. . . . . . . . . . . 3
49
14
[END OF SPLIT A - GO TO Q80]
[SPLIT B] ·350 Respondents .
.· .
79. The Republican candidate for Congress supports ending racial preferences and affirmative action, particularly in the
colleges and university so they will be open to everyone in New Jersey. The Republican candidate also supports tough
· welfare reforms, that limit the number of years on welfare and limits welfare payments for more children? Would you be more .
likely or less likely to vote for that candidate or wouldn't these issues make any difference to you?
[FOLLOW UP:] Is that much or somewhat (morejless) likely?
Combined
Much more likely . . . . . . . . . . . . . . . 32
Somewhat more likely . . . . . . . . . .. . . 28
Somewhat less likely . . . . . . . . . . . . . 10
Much less likely . . . . . . ; . . . . . . . . . . 9
No difference ....... ~ . . . . . . . . . . 16
· (Don't know) . . . . . . . . . . . . . . . . . . 6
· [END OFSPLIT 8 - GO TO QSO]
. '
.
.
COPY
60
19
�I. ,
Finally, I would like to ask you a few questions for statistical purposes.
r··
80. Generally speaking, do you think of yourself as a Republican, a Democrat or what?
Combined
Party wj Leans.
· Strong Democrat . . . . . . . . . . . . . . . . . . . . . 17
Weak Democrat ................... : . , 17
lnd -Lean Democrat .. : ................. 9
·Independent . ·...... ·.................. ·. 7
lnd- Lean Republican ........... ~ ....... 9
. Weak Republican .................. ·. . . 22 ·
Strong Republican . . . . . . . . . . . . . . . . . . . . .15
(Other) ........................ ,.._ . 2
(Don't know/Refused) . . . . . . . . . . . . . . . . 2
43.
46
81_. In what year were you born?
. 18-24
. 25-29
30-34
35-39
.
4044
~
:45-49
.............................................. 7
•
•
..
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
0
0
•
•
•
•
•
•
•
•
•
•
~
•
•
•
•
•
•
•
•
0
•
0
•
0
8
·.................... ·............... • .......... 13
.................. ·............. ; ... ·....
12
.
.
.
..
.
. ·g
~
>: ......... ·.. :
~
0
•
•
•
•
•
•••••••
·•-!·
0
- •••
••••••••••
••••
••••
0
•
:
••
• • • • ••
•
•
•
••
'
(
.............................. ·................ ·, .. 10
~~:~: :::::::::::::::::::::::::::::::::::::::::::::>~
.
.
.
.
60-64 . . . . . . . . . . ' . ~ . . . . . . . . . . . . . . . . . . . . '. . . . . . . . . . . . . 7
Over 64 ... ·.. ·.......·
............................... ·.... ·.16 ·
(Don't Know/Refused) . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . 2
82. What is the last year of schooling that you have completed?
·1_-11thgrade .····:······:.·, ............... ·........... 5 .·
High school graduate .................................. 28 ·.
,
Non-college postH.S. [E.G. TECHJ ...................... : 3
·f
Some college [JR. COLLEGE} . . . . . . . . . . . . . . . . . . . . . . . . . . 22
College graduate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 ·
Post-graduate school ................ ~ ... , . . . . . . . . . . . . 14
(Don't know) ............................ : . . . . . . . . . 1
I
I
I
COPY
�I
83./84. Thinking in political terms, would you say that you are conservative, moderate, or liberal?
Combined
Liberal . . . . . . : . . . . . . . , . . ....... ; . . . . . . . . . . . 7
Somewhat liberal . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Moderate, closer to liberal . . . . . . . . . . . . . . . . . . . . . 16
Moderate .................................... 8
Moderate, closer to conserVative ............... : 21
Somewhat conservative . . . . . . . . . . . . . . . . . . . . . . 18
·Conservative . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 12 ·
Other .................. ~ ................. 6
Don't know /Refused . . . . . . . . . . . . . . . . . . . . . . . . 0
18
31
84.
85 ..What is your religion?
[DO NOT READ CATEGORIES]
Prot~stant ....... : ...................... , ............. : . . 28
Catholic ......_.. : ....................................... ; .. 50
Jewish ·..... ··.......· ......... _. -~ .... , ·. :. . . . . . . . . . . .. . . . . . . . . . . . 6
(Otherjnonejrefused) ...... : ............................... ·. 16
. 86. How often do you attend
church -- every week, once or twice a month, several times a year, or hardly ever?
Every week ~ . . . . . .. : . . . ... ·. . . . . . . . . . . . . . .
Once or twice·.a .month . . ...... · . . . . . . . . . . . . . .
Several times a year -~ . , . . . . . . . . . . . . . . . . . . . . .
Hardly ever . . . . . : . >• . . . . . . . . :. .. . . . . . . . . . .
(Never) ...· ... · .. · :·. .. . . . . . . . . ... . . . . . .... ·... ,·
(Don't know) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . .. : . . . . . . . . . . 34
. . . ......... : . ·. . 17
. . . . . . . . . . . . . . . . 20
. . . .... : . . . . . . . . 20
. . . ............. ·. 5
. . . . . ......... : . . 3
· [ASK QNLY IF PROTESTANT (Q85 = 1)] 197 Respondents
s7.Which one of these words best describes your kind of Christianity- fundamentalist, evangelical, charismatic, pentecostal
.
. .
· or moderate to liberal?
Fundamentalist ... : ............ : ......................... : . 17
Evangelical ,. ........ · . . . ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 12
·. · · Charismatic/pentecostal ...................................... 7 ·
· Moderate .to liberal .......... : . : ................ : ... ·. . . . . . . . 43
. (Something else) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(Don't know) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . 13
88. Are you married, single, separated, divorced: or widowed?
...
Married ..... : .... · ............. : . .. : . ............... · · ... ·51
·.single . : . ........ · .. ·
... : ............. -......· .· .............. 22
· Separated/divorced .................... .-. . . . . . . . . . . . . . . . . . . . 9
Widowed . ; ....... , .......... ,................................ _9
(Don't know) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
COPY
.
�nomemaker?
Employed .·.......... ·..... ·........ · ..... ·........... ·.· 55
Unemployed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Retired ......................................· ... 20
Student .......................... : .............. 2 .
Homemaker .... : . .............................. · 6
(Other) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(Don't know;refused) ....... ; .................... · 0
90. Are you a member of a labor union? [IF NO] Is any member of your household
a union member?
Yes: Respondent belongs .......... : ............ : ..
Household member ................... : ..... , . . . .
No member belongs ......-............ : ...........
(Don't know /refused) ................. ·. . . . . . . . . .
r
19.
9
70
2
·.I
I
91. How many guns or rifles do you own? .
·None . , ........... _. -~ .· ................................
·One_, ....................... : .... ·............. ,
Two to three . . . . . . . . . . . . . . , . . .. . . . . . . . . . . . . . . . . . .
.
Four or more ......... ~ . . ....... : . . . . . . . . . . . ... ~
DK/Ref ........ ·.· .........· ....... ·..... , ........... ·.
82
5
.6
5 ·
-2
I
· 92. What is your race?
White ... ~ . : .......... ; ...... .- : .. , ... ·.... ·. . . . . . 86
6
~~i:~~nl~ .[P-UERTO. RICAN,· MEXICAN-......... ' . .. .. .
. . /. ·
. AMERICAN, ETC.] . . . . . . . . . . . . . . . . . . . . . . . . 3
(Other) . . . . . . . . . . . . . . . . . . .. . . ....... , . . . . . . . . . 3
(Don't know;refused) .. : ............. ; ..... : .... .
. Gender"·
M"i:l.le ... ·
.......•. _. ....... ·..... ·....•.. ·..... ·.... 49
f
Female .....· .. : . ... ·... · .... · ........ ·
.............· .. 51
··
93. And what is your zip code? ----~-----_:..,..._ __
And finally, strictly f;r verification purposes, can I have just your first name? _ _ _ _ _ _ _..;..__ _ _ _ _ __
[THANKYOU VERY MUCH FOR YOUR TIME [TERMINATE]
;
'
COPY
.
�Withdrawal/Redaction Sheet
Clinton Library
DO,CUMENT NO.
AND TYPE
001. memo
.002. envelope
DATE
SUBJECTrriTLE
RESTRICTION
· . Address [partial] (1 page)
911411995
P5
1995
Deval Patrick to Alexis Herman, re: Affirmative Action Follow-Up (4
pages) .
P6/b(6)
COLLECTION:
· Clinton P~esidential Records
Public. Liaison
Alexis Herman/Ruby Moy
OA!Box Number: 7661
FOLDERTITLE:
[Affirmative Action] [Folder 3]: Affirmative Action [Folder I]
Presidential Records Act·~ [44 U.S.C.2204(a)]
.
Whitney Ross
2008-0308-F
wr507
RESTRICTION CODES
Freedom of Information Act- [5 U.S.C. 552(b)]
.
_PI National S~curit)> Classifi-ed I~formation [(a)(l) of the PRAj
. P2_.Rdating to the appointmenfto Federal office [(a)(2) of the 'PRA]
. P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disciose trade secrets or confidential commercial or
· financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between suchadvisors[a)(S) Of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) Of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift..
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
·RR. Document will be reviewed upon request.
b(l)
b(2)
,
b(3)
b(4)
b(6)
b(7)
b(8)
b(9)
National security classified information [(b)(l) of the FOIA]
Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIA)
.
'
Release would violate a Federal statute [(b)(3) of the FOIA)
Release would disclose trade secrets or confidential or financial
information [(b)(4)ofthe FOIA)
Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
Release would disclose information compiled for law enforcement
·
purposes [(b)(7) of the FOIA)
Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�· U.S. Department of Justice
Civil Rights Division
Ojjicd oflhll Asslsram Auomey
U~neral
•
1
Washing/em, D. C. ZOJJO
TELEFACISJJ\ULE COVER SHEET
DATE;.
TO:
PHO!'ITE::
FAX:
. FROlV!:
OFFICE OF THE ASSIST
CIVIL RIGIITS DIVISION
FAX NUMBER: 202..514-0293
PHONE: 202-
5/4 _. ;2/57
COM1vlENTS:-1t-t_{!oyU~~-- tM ~-/ld:&th.
. 1b Kud. ~ 'S 1-;·&Jr ~
NUMl~ER OF PAGE..<i TRANS:MJTTED (INCLUDINS7 THIS SHEET) _ _4~--
{max~ 30 pag~) ·
.
.
.
.
TBE lNFORl'vlf.A.TION CONTAINED IN THIS TRANSrvllSSlON is PROPERTY OF THE UNITED STATES AND IS.
AITORNEY~Cl.mNT PRIVD..EG£:0 AND CONFIIiENTIAL. IT IS INTENDED ONLY FOR THE USE OF THE
INDlVIDUAL ()R. ENTITY NA!VlED ABOVE. 1F TIIE READER OF TIUS MESSAGE iS NOT THE INTENDED
.RECIPIEN1r, YOU ARE HEREBY NOTIFIED mAT ANY DISSEl\I!INATION, DISTRmtmON, OR COP11NG OF
TillS C01Yll\·11JNICATION IS-STRICTLY PROHIDITED. IF YOU JIAVE RECEIV'ED THIS COlV11viUNICAT10N.
lN ERROR., PLEASE NOTIFY US I!VU\o'JEDIATELY BY CALLING 202-514-2151.
�U.S. Department of Justice
Civil Rights Division
.- ..
,,
Office of VlC Assi~IDnl
Allur'rl·~Y
,.....
.·
.· ...
»b.rlzi11gton, D.C 20035
Genernl
August· 14, 1995
',
(!.')
'(.0
\
C 0 N F I D E N T I A"k ..
Ml!IIOP.J~IDUM TO·
ALEXIS
~
..
··
Pl\.TR~CK ~
Ul
\'ifl~
DE'V'AL: L.
.
. ASSIST:AN'l'· AT'rORN~Y GEnR.AL ·
CI'VIL RI<i:HTS 'DIVISION
FROM:
SUBJ!lO~~:
.
..
'
·'.
~
~··.-·
ifbr you
a nmnhE!r of my thoughts about fallowing-up o'n the President'1 :s
e:peech and policy roll-out. on affirmative action. These will run
from 1:he general to the specific, ' and are
t)o particular , order.
(It'~~ 1:he best I can do on the way out of the. ''doQr on vacatSlon. ) .
.
.
lu:; I will miss Monday 1 s meeting, I wanted to set out
in .
.
-:Ba~ically, ·I believe our .theme · shoulc;l·. be that the President
has c::andidly and prograinatically address.ed every ·objection the
oppo~ai't:ion raises to afj::irmative action; and that those who
corltinue to insist, affirmaLtive action• ~s wrong, clearly believe.
that integration itself in wrong..
··
·
\
·
:L..
Go On IJ:'he. Of.fene;i ve.
Proponents '.on this issue gain
nothing· being on the defense on this issue. We have
been on it for too long, ·and we have allowed myth and
hyperbole to define the debate. I believe·,that th~ ·.
plan that you w.:Lll develop in this and·· subseq1.1ent
meetings should provide for a weekly or a bi-weekly .
initiatives by key members of the administration and.
key sui·rogate.s, taking the case directly to· the public,
over- the heads e>f the politiane::, 'in the form of
speeches, op-e!d and magazine pieces, radio and
television appearances (especially talk-radio) and the
- like.
2.
Rgpid Respons~s Team.
urianswE;~red.
·
·
We let .outrags:ous charges
·go,
It gives us the air of d.ef ens i veness. · I
suggest we form a.small "Rapid Response Team" which
will answer any claim in any newspape~. or magazine or
.\
DETER\11:'\,ED TO BE A:'1 ADMINISTRATIVE
_MARKI:\G P1~r E.O. 12958 as amended, Sec. 3.3 (c)
Initials: · \NF:. Date:-::."-'u/._,_I'"I-4/.J.I''---).OO$·o~·f
· ·
�on any x·adio or television prograin that attack·s the
President's po:Li1~y or his initiatives in this· ar2.a.
3.
TalkingPoints. The Republicans (J. Boehner) put out o.
set of talking points throughout the Congress
immediately af1:e.:r the President's speech.
They are
rife with di'st.ortions and mischaracterization's. ·
Democrats need a set of talking poi!lts in similar form
that sp~~cifically addresses the points made. by. the
Republicans and offers the added facts on the basls· of
which \ole believe affirmative action remains justified.
We have prepar·~~d a P,raft in our office and Susan will
bring them· alc,ng to Monday's meetinq.
4,.
Strategy. we should have
·several pointe: ready to present to the Congress shortly
after Labor D~ty. The Preside.l'lt s distressed area
initiative.should be ready by then. An alternative to
the nRule of Twctt should be in form by then. Th~a SBA
should have. pi~oposals for tightening up graduation and
certification re.quirements and for curbing fronts and
· Pro-Active Leg_islative
f
pass~throughs
by then.
HE! should role all of this out at once, having touched base
~vith key members of Congress, the minl:;>rity business
·
c:mlllllunity, as well a~. the others with '.whom we touched base
J:mfore •.
!3 ..
O_p-Ed .A.nd Maqa;l:!ine Pieces. We should have key persons
in and out of the Administration pr.epared to sign op-ed
pieces.supporting the President's policy choices and·
the legislative role-out. Some of those peciple should
be from the C(m~rress, others· should be prominent
· Americans outside of the government. We should
conside~r cu1ti.Vclting Kemp and Bennett, and other
conservatives and well-known moderates~
·. 6.
.Q_anady /Dole H~:::~arinqs. Canady is apparently. planning
hearings iri ·s~e:ptember or October to 11 parade the
horrors" of affirmative action. We should be planning
for this now, a~3sisting Democrats on the comrni ttee and
elsewhere in the. House to challenge the accuracy. ot tfH?.
accounts that may be offered and developl.ng our own
\
"parade of sticcesses".
·
7.
I have been approached .about writing a
short book on my own views on affirmative action, for
publication in ,;anuary. This would not involv€l any
information.about the process by which the President
arrived at his policy, or any other inside information.
Apparently, I c:an do this within all applicable ethics ·
rules, but I am not '5ure· that it is wise. I would. do . ·
Book ProposaL
2
�it only if it would add irl tome way to our over~ll
strategy.
8.
Dellinq•~r Memo..
Twioe now 1 in the New Reput;?lic and in
. a recent Nat HE~n·toff column': in the Washingto]l Post, the·
press lias mischa:racterized the diversity argume-nt in.
·the post.-Adarand Dellinger memor~ndum. Both Walter and
Z.like Sm<:\ll of llialter's office ha~,\e. written short pieces
answerhlg' this. :t~ believe we. should place these
rebuttals in major newspapers.
I believ~a. ~Te have a very important, galvanizing
t.l1.en1e here if we re!main true to the President's message of a
united America.
Ir.1 my experience before a wide variety of
ctu.diences, i·t possible to reach people broadly toJith ·these
themes. Since they are deeply personal to the President and
ma.ny of the rest of us, they have art unusual potency. We
G;enerally~
::;hould exploit it.
3
�.Withdrawal/Redaction Sheet
Clinton Library .
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. memo
Laramie McNamara to Debbie Fine [partial] (3 pages)
02/03/1995
P6/b(6)
002. agenda
·Coffee with Fundraisers from Across the Country ·(4 pages)
02/0711995
Personal Misfile ·
003. meino
Alexis Herman to Mack McLarty, re: Friends/Supporters ·(3 .pages)
2/26/1994
P5
(_p ?/11
004. memo
Alexis Herman to Mack McLarty, re: Friends/Supporters (3 pages)
2/26/1994
P5
(;;1).~7
.
.
Oc.-p·
COLLECTION:
. Clinton Presidential Records
Public Liaison
, Alexis Herman, Ruby Moy
OA/Box Number: 7661
FOLDER TITLE:
[Affirmative Action] [Folder 3]: Business
.
.
Whitney Ross ·
2008-0308-F
wr509
RESTRICTION CODES
Presidential Records Act- (44 iJ.S.C. 2204(a)l
PI
P2
P3
P4
National Security Classified Information [(a)(I) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
.
PS Reiease would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.·
. Freedom of Information Act- [5 U.S.C. 552(b)]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
·
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
. b(7) Release would disclose information ·compiled for law enforcement
purposes [(b)(7) ofthe FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�February 26, i994
MEMORANDUM FOR MACK MCLARTY
.FROM:
ALEXIS HERMAN
SUBJECT: FRIENDS/SUPPORTERS
In response to your recent expression of concern regarding the·
President's. business friends, this is to make you aware of the
progression·of our plan to spend i994 focused on friends and
supporters of The President.
·
·. 1)
Identifying Additional Supporters
Although we feel that we have good lists of the. President's
friends who are business people, there is no question that
there are other people within the administration with whom
business has contact and who are considered friends and
their are personal friends Of the President who may not
appear on any other lists. We are speaking with each
relevant office (McLarty 1 Lader 1 Rubin, Hernreich) · to ·
assemble the most comprehensive list.
.
2}
.
'
Integrating Supporters into General Business Actiyities
'
'
Throughout the past year we have included in most, if not
all, of our general events representatives of: Clinton/Gore
Business.Endorse:i;'s(9/92), DNC Trustees and Economic
.Conference participants. This includes events here as well
as on the road(i.e. APEC, Houston, Meet 1 n Greets ••• ).
Unfortunately since we still do not have, a data base and
often work from lists rather than computer· files, our
records are.inadequate and rebuilding them would take an
inordinate amount of time.
Toward the effort of formalizing our relationship with DNC
Finance, Laura Hartigan and Terry McAuliffe brought me an
updated list of· Trustees and BLF members broken down_ by
. state, so we can do better targeting. Among the activities
·we are integrating :them into are, the activities .around the
G-7 meeting in .Detroit, the White House Conference on Small
Business Stat,e Meetings which begiri in June, and State
Opinion ~eader meetings for Health Care.
·
�..
'
3)
small Business·ariefings for Health Care
We have designed a program to recruit small business support
for the Health Security Act exclusively from our friends.
This helps us recruit support from the likeliest targets in .
-addition to giving them the opportunity to do something more
"substantive" than the political activities they are
. involved in locally. The DNC has given us contact people
for each state and we are reac~ing out to key people with
whom we worked on the campaign{see attachments).· Priority .
is being given to key areas of the country where we are in
n~d of support.
4)
Letters to The Editor/Press Statements
We are contacting business friends from around the country
to write Letters to the Editor or statements that we-can
release to the press _in support of health care reform.
Obviously we can do this for other initiatives, but the ~ost
pressing need is for health care.
5)
Briefings for Friends
We have told Laura, Terry et al, that.we will arrange
opportunities for business supporters to come to briefings
designed exclusively for them, but invited by us so that
they feel they are. being asked for their input by the White
House rather than the DNC. These need to be coordinated
with the Crime and Health Care State Opinion Leader
. meetings, the State Days that Political is organizing and
our small business briefings, but we should be able to
·
schedule at least orie per month starting the end of March.
We will need participation form senior White House staff and
Cabinet members for these meetings. Obviously if the
President and Vice President can participate they would be
· all that much more effective. I also suggested to Laura
that we hold briefings for campaign Trustees who have not
participated in the current program. This would be a good
·vehicle for determining why they are not participating,
since this group includ$s some of the President's early and
strong supporters •
. Ricki told me that in the next day or so she should have a
White House event scheduled for the BLF. This will
certainly help to bring in a number of thePresidents
friends, but this group is by no means "pure" because of all
of the corporate people that are members for reasons other
t~an ideology.
Additionally, I have asked Tim Chorba who ran the Georgetown
effort for the campaign to provide us with names who may not
appear· on other lists.·
�.-:
•.. '
~
. 6)
CEO
LUnches
At the risk of sounding like a broken record, this is the ·
best vehicle we have for recruiting business support and
therefore the best vehicle for getting input fromjtaking
care of our friends. I.can think of no better reason to
.
reinstate weekl~ CEO lunches that to protect the President's.
base. This would enable us to touch supporters in the most
meaningful and productive .way which will benefit us both
. with the President's policy initiatives and his politics.
.
Since Labor Day we have had so few CEO Lunches that only one
could be designed to include a diverse group of people and
on general topics. The others were trade(TPCC) or health
care {post-BRT) .and not designed for brinqing in a variety
of people. The loss of the CEO lunch has been a. huge blow
to our business outreach .program .
. 7) ·
Issues
It is important tnat we be·aware·of issues that our business
constituents are interested in and that we have adequate
substantive materials on the President's policy initiatives.
To that end, we have a weekly call with the NEC and we work
with the Communications staff assigned to ea.ch initiative •
.8)
Social/Delegation Trips
Again, now that our rela-tionship with the TrusteefBLF
programs is more formalized, I am using these lists almost
exclusively for additions to social lists and.for delegation
trips. I have included old lists of CEOs who were helpful
.with the economic package and NAFTA who to my knowledge have
never been invited to a social function as well.
.
.
I have attached several previous memos which may provide you with
additional information. Let me know if there is anything else
you need.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
001. memo
SUBJECTffiTLE
DATE
Deval Patrick to'Alexis Herman, re: Proposed Policy and Initiatives on
Affmnative Action (7 pages)
3/9/1995
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Public Liaison
Alexis Herman/Ruby Moy
OA/Box Number:
5916
FOLDER TITLE:
Deval Patrick Affirmative. Action Draft
Whitney Ross
2008-0308-F
wr914
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S. C. 552(b))
National Security Classified lnformatio~ [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Releas·e would violate a Federal statute·[(a)(3) of the PRA)
Release would disclose trade secrets or coilfidei1tial commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advi~e between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
·
an agency [(b)(2) of the FOIAj
b(3).Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]'
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
PI
P2
P3
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be. reviewed upon request.
�~idential: Draft
2/27/95
PROPOSED PClLICY AliD INITIATIVES ON AFFIRMATIVE ACTION .
..
In recent W'1~eks 1 w~~ have witnessed· the emergence yet again
of heated politi«:-:al rhei:o:ric seeking to divide our nation along
race lines. "Af:Eirmative Action" has become a code for unfair
trieatment of white men and for undeserved preferences doled· out
to un.qualif.ied women an.d minorities. 1 Permitting the current
mi:sperceptions to continue unabated poses grave danger to the
uriit.y of our nation, anci to the distance we have come in
ov,erc:oming the ccmtinuiJr1g effects of discr iinination. We must
.· move: toward a society o:E full participation.
President Clinton should address this; danger head on through
a st~ra.tegy that .com.bine:s ·1) a major speech on the current state
of civil rights <arid full participation in America; 2) an ·
· Exec:ut.ive order :that clarifies which forms of affirmative action
will be deemed acceptable by this Administration arid forbids any
mis'l:Ls>ets of that principle; and 3) creation of a J:,ipartisan; blueribbcm panel to examine the state of race, ethnicity and gender
eqUcLJ.j_ty 1 and intergroup tensionS 1 as America prepares to mOVe
. into the next century •.
'J.•his commission would also make recommendations about the
best: tools to use in meeting our long~range · goai of ·an inclusive
sociE~t:y.
I:.
}le•commendation: Clea.rly define and stronqly support .
nf::firmative action, w•hile renouncing misuses in government
2l!Ld
in the priV& te Setctor •
'
·~:he Administration s~hould stand finn in its commitment to
prcmtc)'t:ing equal opportunity for all .Americans. As. part of this
conmdtment, we should continue to support carefully crafted.
me:a~mres that take into. atccount race, ethnicity and gender as a
me:am~ to redress past anc1 present exclusion from opportunities to ..
pe~rj:()rm in jobs, educaticm and government contracting.
·
· 1~.
What "A.ffirmat.ive .Aetion 11 Means
J~ffirmativet action needs definition.
Affirmati_ve action
me:al1E> any plan 6r progr-an\ which, based in any part on race,
et:hrrU::.i ty, or ge:nder, c:rE~ates or enhances an opportunity for
--------------------
.
.
' .
.
The current debate over affirmative action has focused
for the most · pax·t on preferences based on race, gender and
.
et:hlr'l.ic:i ty. However, the affirmative action principles discussed
in ·tJh:is paper apply as WE~ll to non-discrimination measures
prob9c::ting older.Americ:ans, disabled persons and veterans.
~J_ETER\1l~ED TO BE A~ AD:\11:\"ISTRATIVE
.':c\Rl{J.\G PcrE.O. 12958asame~ded Sec.33()
' · ·
J.<~tttal~:
a,.,
'"f-.-
. ___ )~!!!~£
,
ll/1/•1
•
•
.
C
�qualified persons; to perf~:lrm~ This may range from outreach for·
quc!ilified minori 1:.ies and ,..,omen candidates to consideration of
race, ethnicityor qender in selecting from among candidates.
In plain terms, and ·Ln accordance with Supreme court
this 1~dminis1:.ration has supported, and should continue
to support, affilrmative action plans which do not compromise
valid qualifications, and which are flexible, realistic,·
reviewable and fair.
G•~nerally, this means we have supported
af:firmative·action plans where
pr~acedent,
(1) race, ethnicit.y_or gender is one among several factors
considered;
.(2) fundameJntal and valid performance qualifications are not
compromised;
(3) numbers used, if any, are genuine goals rather than
numerical s·traightj ackets or "quotas, " and are based \lPOn ·
the availability c•f a relevant qualified candidate pool;
· . ( 4) timetables for achieving the goals are reasonable, and
t.he continuinq value of the plan is reviewed ·at appropriate
· intervals, and
.(
· (5) ·the vested ri9hts {as distinct from a sense of
E:ntitlement) Of . II innOCent bystanderS II are reSpected •
..
Thie: J<:ind of affirmative action is well within the. parameters set
by t:tle! Supreme Court • 2
11.
Misuses of AfJ:i:rmative Action
We should acknowledg·e that. affirmative action is sometimes
l:nis1.me!d, While such mlsuses are the exception rather than the
rulE!r they profoundly undermine public confidence in and the.
prewt..:Lcal intent of affirmative action and should be renounced.
ThiH occurs:
(1)
where a patet'ltly unqualified person receives a benefit
· e>ver a qualified one;
(2) where numeric:: goals are so strict that the plan lacks.
reasonable flexibility;
Affirmative act.ion can arise in several different
. ccmb:mts:
(1) a.s a relitedy for past discrimination, imposed by a
CClUJ::t, on a priva.te employer. or On a state or local government;
(2) y<Jluntarily adopted by private and public employers and
·
edUG<3.1::ional institutions,, as well as by various entities
re!c•a:iving federaL! finaJrtcial assistance; and (3) enacted by
Ccm(;nJass, adopteed purs1~ant to executive ·order or adopted by a
fe!d1::r-al agency pursuan·t t.o a grant of -authority by Congress. The.
pri:n.:dples in the text generally apply in each ·of these contexts,
witltl ·the fewest restrai.ntf:; arising in private sector activity.
·
2
�(3) where the nuinE!r.ical goals bear no relationship to the
available 'pool of qualified candidates;
{4) . where 1::he plan is of indeterminate length, such that. it
outlasts achievement of its goals; or
·
(5). ·where 1'1 innocent bystanders" involuntarily lose vested
rights (~:.. 1 seni<::>ri ty) •
Each of these ar13 occas:lo:ns where· race overtakes reason and where
the c·r ig inal intentions of affirmative action are abandoned.
·II..
Eatioriale
Until just 40 years ago, Alnerica was racially segregated by ·
. bo·t.h. law .and custom. E:ven after Brown v. Board of Education, it
· was a.nother 2 0 years before the nation began undertaking steps to
eradli.cate Jim Crow in its most pernicious forms. Meanwhile,
.America has beco:me an increasingly more multiracial and
.mul tJ.e:thnic ·society. E:ntry of women into tradi tiorially male jobs
and schools ha.s also only recently begun: to take place.
·~~ile.su~stantial progr~ss has bee~ made in eliminating
disc:ri.minatory ·barriers to employment, education and government
cont:ra~cting, some barriers, and the effects of previous barriers,
remah1. African Americans and Hispanics continue to lag far
behind whites iri rate of employm~nt, income and education leveL
The 1.:memployrnent rate for African Americans was more than twice
that Clf whites in 1993 1 TN'hile the median income of African
AlnerJ.c:ans ·was barely mc>re than one-half that of whites.
Hispanics fared only mode.stly bet.ter in each category.
Tra~ric:ally, in 1992, 50.7% of African American children under 6
· and 44,% of Hispanic children lived under the poverty level, while
onl~r J.4. 4% of white ~hildren did so.
Th e overall poverty rates
·werE! 33.3%.for A.frican Americans, 29.3% :for Hispanics and 11.6%
for whites.
\
1
Unequal·acdess to education plays an important role in
creat:Lng and perpetuatingr. these disparities. In 1993, less than
3% olE college graduatef; were unemployed, 'but whereas 22.6% of _
whit:E~·s had colle:ge degrees, only 12.2% of: African Americans and
9. Q!~ .of Hispanics did. As the nature of lour economy evolves,
edlu<::ational cred.entialf3· will become even more crucial in
det•§rmining whet.her individuals can rise into the middle class or
wiil be consigne!d to pc:l!VE~rty-level jobs or· unemployment.·
1
1
Affirmative! actio:n on behalf of women also remains
Although the unemployment rate for women is
compa.J:able to that for men, women· remain· Severely
. .
und1a:rJcepresented in mo:s:t stereotypically male occupat~ons, such
as t:h1a construct:ion traldes, and as police', firefighters, ·
sci1;m:ists and emgineers.. While women have made inroads at the
ent:ry level of certain professions, such as business, law and
Wctr:r•:1nted~
1
3
�medicine, they hi3.Ve not been promoted as would have been
expected.
It is clear· from t.hese_ statistics that many individuals,
, becau.se of race and ethnicity, have been denied the tools and the
opportunity to share in and contribute to the wealth of our
na·tia·n. The exclusion (:>f these people from our economy
co:nst.i tutes a tremendou1:; loss of human resources that we shoUld
no·t t.olerate. Bt:!cause :subst'antial discri.mination. and its effects
pe:rs.i.st, we cannot _,_ a.:s some have suggested -- abandon
cons.ideration of race, national origin and ,sex altogether.
Reliance on economic disadvantage instead of race, ethnicity.
and e:ex is not a:n acceptable alternative. First, the problem
beingr addressed is not limited to the· effects of past
discrimination and the ,economic disadvantage resulting from that
discri.mination. Rather, current discrimination continues to
produc:e a need for remeldial action •. The Equal Employment·
·Oppctrt:unity Commission .received over 90,000 complaints of.
emplc•y1llent discriminati·on. last year and the. docket of the Civil
Right:e: Division is filled with cases of discrimination. on the
basJ.si Of race, 'ethnicit~y and S8X in emplOYment; hOUSing 1 educ:ation and voting. ·where the reason for exclusion from
oppClrtunity is race, ethnicity or sex,' it is not a sufficient or
propm:.·ly focused resporise to prefer individuals based on economic
disadvantage.
z.roreover, one of t:he1 legacies of ou!r history of . .
disc:rimination against minorities and women is a history of .
sterEwtyping that makes lt 'difficult for many in our society t;.o
evaltwte individuals on the basis of merit. Dehumanizing
·,
sterEwtypes about African Americans, other minorities and women).
many of which developed t.o justify treat~ent of individuals as \.
infm:-ior, persist and xnake ·consciousness\ of race, ethnici ty and
se:x ne~cessary if these stereotypes are not to continue to inflict
disadvantage ..
In addi ti0n, a prEafe~rence based on e~onomic disadvantage
not offer the samE:! prospect. of integl-;ating our places of
entpl<)~rmt;rit and e:ducati<:m, thereby helping \us to know each 'other
and overcome stereotyp«::s ·that perpatuate e~clusion. And, in the
final analysis, it is unlikely that an applicant will feel the
st:iJ"lt;J of rejection any less painfully because he or she ·perceives
tt.La·t: it was base:d on· ec:onomic status, rather than race, ethnicity
or ::;,=;<. Indeed, the nt:•ticin of a preference based on economiC·
cla::;::; that is not a remedy ·for any specific harm, such as racial
disc:::rimination, is lik,ely to offend the sense of fairness of many
in t::>u:r .society.
doe~;
· As the Presddent JtLa~> often stated, affirmative action
· withb-1 certain constraint:.s -- can be a useful tool to help
achi;rire the national gmil of equal opportunity and full
4
�participation. l~t the same time, it ·is .important to address real
and perpei ved 'mi~mses oj: affinnati ve action programs. The
PrE~sident and other senioJ~ officials have repeatedly eschewed
numerical straitjackets and o·ther inflexible methods which
discourage rega'rd for valid qualifications and discredit
affir:m.ative action as a pJ::oper response to the historic problem
of exclusion of I11inoritie1; and women.. Some of these misuses -and th.:a mythology whic.h has grown up around. them -- may ·have
spc:tw:ned the so-called 11 Civil Rights Initiative" in California and
other legislative~ measures to limit affirmative action or
elimim:tte it altc>gether. By educating the public about both the
ends .and the m~ans of affirmative action, and condemning variants
on it, the Administraticm addresses many of the concerns
detr•:11::1t.ors raise. 3
·
.
I
.
'rhis approach -- strcmg support for flexible· affirmative
actiol1 while renouncing affirmative action -misuses --. is
.suppt:>jri:ed by the civil J~:·ights enforcement officers in the
Admini1;tration. Further, it is consistent with positions the
Adminiatration has taken in cases and in public ·comment~?. It is
als:o l:Lkely to be. suppoJ::"te~d by several key party constituents,
including minorit.ies, Wl:>mEHl and organized labor. Business ..
lea~dm::-n and state and lo·cal government administrators have also
support:ed this type of af:f:i:rmative action.\ . If placed in its
largm::- historical·and present-day factual bontext, other
Ame!r:Loans cari 1 t. O•O.
' 1
.
III.
~~he
Test
'
For every existing or future aff.irma:ti ve action plan, the
Adnllin:Lf;tration should· ask itself whether .the program serves to
. pro.mc>1:E~ opportunities fc)r hitherto exclud~d Americans to
· part:Ld.pate without unnecessarily limitin~ the opportunities of:
. oth.ere;. The.goal must be to advance the ~ation as a whole
without: leaving out or ignoring the contribution of any Americian.
IV.
l~J~esidential Ini ti~:~ti.ves
g
Given the pendency of Adarand Constructors, Inc. v.
Pena .:Ln the Supreme court, it.is inappropriate topropose changes·
·in affirmative action in government contracting at th_is time. In
that c:atse, the Administration has argued in support of
prefE!rE!nces in contractJ:ng directed to disadvantaged business
enterp:r:·ises, with a preeai:mption that minority status implies
disactva.ntage. The Court:' s decision may. clarify the permissible
scope of such preferehCE!S and provide an occasion ·for
reexetntination. At that ·time it may be more appropriate to
consicletr. whether· certain preferences in contracting should ·
continue in ac.cordance "rith the principles set forth above.
5
�r...·
M:aior Address em_ civil Rights
The :Presider1t should make a major address to the nation on
civil :t"ights. This addt~e!';s will serve to reaffirm· this .
Adrnini:stration' s conuni t:n1e11t to eradicating discrimination and
brin·~i:ng together a unifiE~d nation.
The Preside'nt. should
dire·ctly and forcefully attack current racial demagoguery. This
addr.es:3 will alsc> serve to put. the affirmative action debate in
prc)p,~:r: context.
The addrE~ss is the opportunity for the President
to a:nn1:>unce concrete short- and long-term measures that reflect·
his. ,::::,:>Jnmitment tc, eradicating discrimination and providing equal
oppo:r·tunity. Other senlo1::- officials in the Administration and
key .. 1,;aders outside the Admini·stration should be enlisted to
·rein:fi:JJrce and expand up1:m this message.
lB..
Proposecl.PreSi~eJltial
Directive or Executive order
~rc:> clarify t:he para.me~ters and address the misuses of
affilrmative actic•n discus~:;ed above, the President should issue a
·P:retsid.,:mtial Directive or Executive Order. It should (i) define
the kind of affirmative action we support and set forth. the
goveJ:-n:Lng principle we follow, (2) renounce misuse of affirmative
act.ioni, and (3) direct all federal agencies to review their
progrc:tms in light of such principles.
I1: is import.ant to note that there are already existing
Execti1:JL Ve Orders ·and regulations th~t address these issues,
·including, for example, Executive Order 11246, as amended, which
aut.horizes the Department of Labor's contract compliance program.
Inclemi, the existing regulations and orders requiring federal
cion.trac:tors to have affir:ritative action plans have clear ·
prohibitions against the u.se.of quotas. Nonetheless,
.
clariflcation of· the appropriate uses of affirmative action ',by
all 9overnment agencies through Executive Order would provide a
vehic!JLE~ for detailing the Administration's position,· without
takiil9 on the extreme risks of dealing with a volatile political
issu.;~ in the current hosti.J,e legislative climate.
1
c~.
Creation of a commission
J~t the same time that he issues .the new Executive Order or·.,
Direc:t:ive, the President should establish a blue ribbon .
·
· Commh1s:ion to examine the long range challenge of race, ethnicity
and 9Emder relations, and intergroup tensions in America and to ,
propOSlE! solutions. To be most effective 1 the President should \
appoirtt~ a chair of the commission who is highly regarded among
Amer ic:a.ns such as GeneraLl colin Powell, along with a leading,
well-·re!spected Democrat. Soqial science experts also should be
inclt.:LCleo.d. · The Co:mrnissict:n should be directed to conduct hearings
· i'n local communities arc•und the nation, in order to create a
prodtllC:t.i ve and responsible national dialogue. leading to a
conse:rlsus concerning .the best methods to ensure that all
6
�AmE~ric.ans· continue to hctVt:!. opportunities to participate fully in
the~ .1\:m,~rican dream.
The~ Commission should issue its report in·
thE~ s:p:r.-ing of 19~16, on thEa. occasion of which the President should
re··e:m.pJhasize the theme c>f national unity and full participation
- of a 11 America·ns.
1
rhe Commission ·should be a vehicle both to gather important
info:rJ!Ili:ttion regarding the current state of opportunity in
Ame!r.it:a, and to limit tll'lte dangerous and divisive rhetoric that
th:re;;,:tc:ms to engulf the 1996 campaign. Our race relations are
toe> :C:r;:i.gile 1 and too potentially explosive, to penni t . political
demaqoques to tear apart our nation's fabric. The Commission is
th€! Jnt:>!:;t effective device to address this serious problem.
I
.
. .
~rhe President must act quickly to control the. debate· on race
and f5i:op the divisive rhetoric that is infecting· the national
convE~J:'f>ation on this most crucial. issue. He can. begin to do this
by:
.
(1.) Delivering a major speech on the current state of
-civil rights and full participation in America;
(2) Issuing -a11 Executive Order that reaffirms support
.for the core pri.nciple of affirmative action but also
bans the misuse of that principle; and
(3) Creatfrlg a bipartisan, blue-ribbon Commission to
address the long rq_hge state of opportunity in America.
7
�DOCUMENT NO.
ANn TYPE
. DATE
·SUBJECT/TITLE
RESTRICTION
001. schedule
President's Schedule [partiai] (1 page)
04/1311995
P6/b(6)
002-. note·
POTUS (2 pages)
n.d.
P5
003. schedule
National Rural Conference, Ames, Iowa [partial] (1 page)
04/25/1995
P6/b(6)
l:-3~~
.
COLLECTION:
Clffiton Presidential Records .·
WHORM~Subject File-General
FGOOI-07
OA/Box Number: 21793
FOLDER TITLE:
289053SS
Whitney Ross
2008-0308-F
wr496
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)l
Freedom oflnformation Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
. P2 Relating to the .appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disciose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [{a)(6) of the PRA]
C.·CJosed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U-S. C.
2201(3).
RR Document will be reviewed upon request.
. b(l) National security classified informatio~ [(b)(l) of the FOIA]
b(2) Release wouid disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) ofthe FOIAI
b(4) Release would disclose trade secrets or confidential or financial
·
information [(b)(4) of the FOIA]
·
b(6) Release would constitute a clearly unwarranted invasion of
·
personal privacy [(b)(6) of the FOIA]
b(7) Rekase would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) ofthe FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
COPY
�••••
.
.....
Paper Copy Generated by .
i\,n ....,, rc Staff
COPY
\
.
�Foreign Policy Talking Points
April 12, 1995
Mexico
Guatemala
Haiti
Iran
Iraq-_;__--~-:---:---..;______;...,--____:~··.-l~. ~~ ~-~~
Libya
~~c~-c.>
.. · · · ·
Egypt
Turkey
Pakistan _ __:__ ____.:_ _ _ _ _
~---~--:-:.· ~~tyMll• !W ·JJ\Ji\"~
North Korea _ _ _ _ _ _ _:.,___ _ ____;.._ ___,- 1t-.22¢. 'W\[WIM nv \h.
.
~
.
. .
Bosnia and Croatia:::J"'""'=----......:~~ ~~At~
'r"' ~ .
~'\A:A IM !..<kt ")~l.l.hll ~pt,g, t~
~
.
Russia·.,....---~----__.:._...:.-------~'\> "i>'t;...~
Burundi
t'aper Copy Generated by
.
NLWfCStaff
COPY
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
FOIA 2008-0308-F - Affirmative Action
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 5
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
-
https://clinton.presidentiallibraries.us/files/original/2f24de8c4cea7e83abd1a5b680c9f5b8.pdf
472dc82b650a81f25c5cef57742b5a1c
PDF Text
Text
Clinton Library
DOCUMENT NO.
AN,IlTYPJi:,
SUBJECTffiTLE ·
. .
~-;. ~i~ ~:~r~:t~ .~:~;::~:(: -~;:f'~.i-~:~~~
· · OOT.email
..
..
,;
·..
.
. ..
.
DATE
.
-
RESTRICTION
·,,
..
Ddreyer to Stephanopoulos, re: AA Speech -Notes to George (2
pages)
7/1111995
P5
C0LLECTION:
Clinton Presidential Records
WHORM -Su~ject File General
HU012
OA/Box Number:
23362
FOLDER TITLE:
120182
Whitney Ross
2008-0308-F
wr858
RESTRICTION CODES
Freedom of Information Act- [5 U.S. C. 552(b))
Presidentilil Records Act- [44 U.S.C. 2204(a)]
PI National Security Classified Information [(a)(l) of the PRA)
· P2 Relating to the appointment to Federal office [(a)(2) of tbe PRA]
. P3 Release would viol=!te a Federal statute [(a)(3) of the PRA)
P4 Release would disClose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
. and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
COP\'
�ddreyer
From:
To:
Subject:
Date: ·
ddreyer
Stephanopoulos (9)
A.A. Speech- Notes for George
Tuesday, July 11, 199510:14AM
I am not sure I understand the positioning, for starters. Apart from the changes in procurement, which are obviously significant, it seems that we are
defending much of the existing system. If that is the case, I don't think we are getting enough out of it with the audience that should be happy about it At
the same time, while the President has been eloquent on prior occasions on the issue of why white men are angry, it seems to have been inserted as an
~ 1 afterthought. Across the board, I think it lacks passion, and the kind of detail that an advocacy statement should have to be persuasive. What is the story
t' that the speech is supposed to tell? Where is the self-help component of Memphis? Where is the sense of challenge that seemed to come -- perhaps .
·
this is a bad example --with Souljiah?
Speciic ideas. The treatment of the South is incomplete. I think it can be argued that the South, because it was the site of so many searing battles on
civil rights, is the one region of the country most advanced in terms of race relations. And, if that is true, than a son of the region should say that
I thought the paragraph that begins "There remains a side of Amerian that we don't like to show to the rest of the world .... " is awfully weird. It is
wordy, but not specific; it seems to be an asid.e, a throw-away.
·
·
The narrative needs to be strengthened. In the next·paragraphh "Yetthat is what some people want to do. We are destined to become a
sodety heavy with the burden of a citizenry that is undereducated, etc." That is not set up by any facts and figures that talk about the costs and
consequences of discrimination against blacks. And therefore it is not apparent why we are arguing that diversity is our greatest asset. It does't follow.
Perhaps we should point to the Balkans where societies are atomized and then shoot at each other when people of different backgrounds do not
surrender their differences, I don't know.
The next step in the storyline is that the legacy of discrimination included African Americans not having a full economic partnership. [Here, the
But language
about ownership and profits and the liberating qualities of capitalism would be good here (this idea is at least meant to be the antithesis of dependense,
isn't it?).
.
·
.
·
·
·
· ·
.
t ~ President's language from the Memphis speech on the redemptive powers of work would be good-- or something with that kind of feeling.]
~f
Why are the changes in procurement signposted more.? Isn't the President announcing the biggest changes in govbernment procurement
policy in thirty years? If he is, why is it expressed so bureaucratically and non-chalantly. Or, alternatively, if we are resisting a trend started this term by .
~ \the Supreme Court, say that. this passage seems balanced between the two, and then:ifore feels no where.
·
·
!-
i.
Bottom of page four. Area of special concern. Presumption against an employer taking rcae or gender. I support taking diversity into account
as a matter of law. But not as a matter of policy. What are these three paragraphs trying to say? Where does he now come down vis-a-vis the New
. Jersey teachers' decision. · I think this section needs to be calrified, because you run the risk of a slick problem.
Page 1
·~
a.
0
0
�The passage on income inequality seems buried and half-hearted, and it seemed so central to his analysis of race during the campaign.
·
would insert at least a foreshadowing of these ideas in the front.
Sorry this sou rids so pissy. I know you would like to move on to something better. Senate testimony perhaps? Love, 02
>a.
00
Page 2
�Withdrawal/Redaction Sheet
vvr
Clinton/Library
D,OCUMENT NO.
AND TYPE
DATE
SUBJECT!flTLE
RESTRICTION
OOI. memo
Janice Lachance to Jason Goldberg, re: Minority Discharge Issue (3
pages)
4/2111995
P5
002. letter
Donna Neely et al. to POTUS (I page)
02/02/1996
P6/b(6)
O,Q3a. letter
Joseph Ciunpell to Kathleen Connelly (4 pages)
07/19/1995
P6/b(6)
003b. memo
Kathleen Connely to Lawrence Lucas (2 pages)
06/16/1995
P6/b(6)
003c. letter
Bernard Benton to Lawrence Lucas (I page)
06/24/1995
P6/b(6)
003d.list
Case summaries of complaints (I page)
02/02/I996
P6/b(6)
o'o3e. letter
Dan Schaefer to Bernard Benton (I page)
06/15/1995
P6/b(6)
003f. letter
Johnny Brown to Lawrence Lucas (I page)
06/24/1995
P6/b(6) ·
003g. letter
Rudolph Browh to Lawrence Lucas (I page)
06/24/1995
P6/b(6)
003h. letter
William Haring to Elizabeth Estill (3 pages)
01/12/1994
P6/b(6)
003i. letter
William Haring to Elizabeth Estill (4 pages)
02/09/1994
P6/b(6)
003j. letter
Elizabeth Estill to William Haring (4 pages)
03/03/1994
P6/b(6)
COLLECTION:
. Clinton Presidential Records
·Cabinet Affairs
'Kitty Higgins
,ONBox Number: 8996
F~LDER
TITLE:
Box I, Folded: [Affirmative Action- March 20, I995 to May, 22, 1996] [I]
Whitney Ross
2008-0308-F
wr485
RESTRICTION CODES
Pre,sidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
. PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA] ·
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
·
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIAIb(7) Release would disclose information compiled·for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
)"'·
. concerning wells [(b)(9) of the FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release· would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
~nd his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
'
'
1
�Withdrawal/Redaction Sheet
Clinton Library
SUBJECT!fiTLE
DATE
o:o3k. letter
George Morgan to La\Vrence Lucas (1 page)
06/26/1995
P6/b(6)
· 004a. letter
Wardell Townsend to Donna Neely (2 pages)
04/03/1995
P6/b(6)
004b. complaint
decision
EEO Complaint ofDonna Neely (4 pages)
n.d.
P6/b(6)
005a. letter
Wardell Townsend to Donna Neely (1 page)
I0/23/1995
P6/b(6)
005b. complaint
decision
EEO Complaint of Donna Neely (8 pages)
11/0I/1993 . · P6/b(6)
006a. letter
WardellTownsend to Donna Neely (1 page)
I0/23/1995
P6/b(6)
EEO Complaint of Donna Neely (4 pages)
OI/04/1994
P6/b(6)
DOCUMENT NO.
AND TYPE
. 006b. complaint
decision
RESTRICfiON
COLLECTION:
Clinton Presidential Records
Cabinet Affairs
. Kitty Higgins ·
OA/Box Number: 8996
FOLDER TITLE:
Box I, Folderl: [Affirmative Action- March 20, I995 to May, 22, I996] [I]
Whitney Ross
2008-0308-F
wr485
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a))
Freedom of Information Act- (5 U.S. C. 552(b))
PI
P2
P3
P4
b(l) National security classified information ((b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute ((b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ((b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA)
b(S) Release would disclose information concerning the regulation of
financial institutions ((b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOIA)·
·
National Security Classified Information ((a)(l) of the PRA)
Relating to the appointment to Federal office ((a)(2) of the PRA)
Release would violate a Federal statute ((a)(3) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA) __ .
PS .Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRA)
'C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C..
2201(3).
RR. Document will be reviewed upon request.
�UNITED STATES
OFFICE OF PERSONNEL llllANAGitMENT
W 1\ISHINGTO.I'ol, D.C:_ 20415
lJ~"FICE OF TI-ll! blRECTOR
APR 2 I 1995
MEMORANDUM FOR JASON GOLDBERG
.STAFF ASSISTANT
CABINET AFFAIRS
THROUGH:
MICHAEL CUSHING
CHIEF OF STAFF
FROM:
JANICE
;: -~
}
JJ.~~i~ ~0
~v~v·-·
/ _
A
.
.
LACHAN~QA{..u...u ~
DIRECTOR OF COMMUNICATION~ AND POLICY
SUBJECT:
r~
Minority Discharge Issue
'
SUMMARY OF FACTS
In response to a FOIA request from Knight-Ridder
newspapers in early 1994, 'oPM provided a statistical report from
our-central Personnel.Data File (CPDF) on.discharges in federal
employment.
The data revealed that, of the nearly 12,000 federal
employees discharged in fiscal year 1992, minorities were
discharged at a rate of 3.1 times the rate of non-minorities.
OPM's final report on this issue, released to the media
on April 19, featured a statistical analysis conducted by Dr.
Hilary Silver of Brown University which concludes that after
controlling for all the variables tracked l;:ly the CPDF, .race is
one of the top five best predictors of termination. The other
predictors are grade, promotion history, performance appraisals
and awards.
·
Variables that are not part of the CPDF and, therefore,
not part of Dr~ Silver's study include pre-~mployment-history,
substahce abuse, record of conforming to implicit workplace
norms, and performance in school.
·
The statistics for fiscal years 1993 and i994 reflect a
continuing dispaiity in discharge rates. The disparity ratios
are:
FY 1993
FY 1994
3.2
3.3
_ Because the statistics are not improving, OPM has
worked to:limit·discussion and media coverage of this issue to
fiscal year 1992 statistics. We have been successtul to date.
�2
II.
CLINTON ADMINISTRArroN ACCOMPLISHMENTS
The Clinton Administration is the first administration
to: ~onfront the issue; develop an 18-point action plan in an
attempt to uncover the underlying causes of disparity; organize
an inter-agency working group to study the -problem; cooperate
with an independen:t researcher, Dr. Hilary silver of B.:rown
University, in ari unprecedented ·statistical examination of the
disparity.
·
•
OPM's 18-point action plan was announced February 4,
1994, to provide a multi-:-disciplinary approach to discovering the
reasons for the disparate discharge rate.
Its four major
·
components... were:
statistical reviews, OPM discharge environment
rev~ews, agency actions,. and employee and supervisory ~raining
initiatives.
In the year since the action plan was released a number
of promising best practices have emerged across government. They
·include:
DEPARTMENT OF THE NAVY AT PARRIS ISLAND:
civilians at this installation have ~sed teams of specially
t.:rained neutral.facilitators to re•olve corifl~cts in the
workplace when they first arise.
The use of early intervention,
creative approaches to discipline, and alternative dispute
resolution are reported to have prevented some 100 clai~s ot
·unfair labor practices and, of the 800 contacts with the EEO
office, only five employees filed formal complaints.
DEPARTMENT OF LABOR: Exit surveys are sent to all
full..:time employees ~ho leave the Department voluntarily.. Labor
us~s the responses to determine whether there are common reasons
wh:y employees choose to leave_and whether different groups of
employees cite different reasons~
·
DEPARTMENT OF TRANSPORTATION: DoT is developing
cu1tural 11 audits to assess the degree to which organizational
units treat-all employees fairly.
These audits include:
orientation programs _for both managers and employees, focus
groups with selected employees, face-to-face interviews,.
confidential surveys, data analysis, and feedback to the
organization.
11
III. RECOMMENDATIONS
On the basis of both quantitative and qualitative
findings, OPM recornrnends that agencies take the following
actions:
SUPPORT. OPM recommends that agencies develop
ways to help employ~es and supervisors resolve problems.
Specific techniques inc~ude: designating skilled counselors,
coaches, or mentors who are available to help employees on a
�3
voluntary basis; and, proyiding a team of trained staff to help
managers resolve disputes early and informally.
TRAINING. OPM recommends that agencies assess the
training needs or their employees and provide training where
·appropriate. Specific kinds of training that may reduce
disparate discharge rates include!
Training rorilew employees about eXpected work
behaviors. This may be a part of new employee
oriehtation programs.
Training for all employees about cultural
differences, the value to the organization of
having a diverse workforce, and effective
strategies for dealing with~people from different
backgrounds. ·
Training for supervisors
employees, especially in
counselling to employees
preble~ behavior or poor
in communicating with
providing feedback and
at the first sig~ of
performance.
Training for supervisors, managers, personnel
staff., equal employment opportunity staff 1 union
officials, and others in alternative dispute.
resolution techniques.
·
-"""
MONl:TOR:ING AND FEEDBACK.
OPM recommends. ):hat
agencies regularly monitor their personnel actions to determine
whether they are equitable. While many agencies have internal
evaluation programs in place, it is important that these programs
include ways of capturing indicators related to disparity, and
communicating the information to managers and employees.
Specific techniques include:
Reporting data about discharge rates, and other
personnel actions, by group.
conducting employee surveys to gather information
. abo~t perceptions of organizational clim~te.
conducting exit interviews with former employees
to ask why they left and their ideas for.
improvement .
. ACCOUNTABILITY. OPM recommends that agencies hold
managers and supervisors accountable for taking personnel actions
Agencies c~n use the information. from the monitoring and
.rairly~
feedback activities to hold~supervisors and managers accountable.
cc:
George Stephanopoulos
Attachment
�Withdrawal/Redaction Sheet
·
DOCUMENT NO.
AND TYPE
001. memo
Clinton Library
SUBJECTffiTLE
DATE
Richard Hayes to Alexis Hennan, re: Affirmative Action (4 ·pages)
3/511996
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Cabinet Affairs
Kitty Higgins
OA/Box Number: 8996
. FOLDER TITLE:.
; Box 1, Folder 1: [Affmnative Action- March 20, 1995 to May 22, 1996] [2]
Whitney Ross
2008-0308-F
wr861
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S. C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office ((a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would vioiate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOIA)
c. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
iRR. Document will be reviewed upon request.
�MEMORANDUM FOR ALEXIS HERMAN
f)(
FROM:
Richard Hayes
RE:-
Affirmative Action
.DATE:
March 5. -1996
You requested that I set-up a meeting on affirmative action to review our next steps. A
meeting has been scheduled for Wednesday, March 6, 1996, ·1 am. in Leon's office. Leon
Panetta. Harold Ickes, Jack Quinn. John Hilley, Geotge Stephanopoulos. Marvin Krislov and
Kumiki Gibson will be attending the meeting. In the remainder of this memo, I have summarized
the issues and the decisions that need to be made and the actions we have taken to date.
Policy/Political. Issues to be Addressed:
1. Announcement of the Administration decision on affirmative action procurement;
2. -Administration's legislative strategy on affirmative action;
3.
--'------'4.
-Decoupling of 8(a) changes from affirmative action procurement proposal;
Issuing Administration's Ex~cttti_y_e_O_r.d_E~LQJLem~owerment COIJ..tractil1~ ---~- __ _
____________ _
5. Presidential forum-to reaffirm support for affirmative action programs.
Affirmative Action Background:
Since the President's July 19, 1995 speech on affirmative action, the Administration, under
the general dir~ction .of the Attorney General. has:
(i) undertaken a review of affirmative action programs that use race. ethnicity or gender
as a consideration to expand opportunity or provide benefits to members or groups that have
suffered discrimination;
(ii) conducted an evaluation of programs that use race or ethnicity in decisionmaking to
figure out if they comport with the Supreme Court's strict scrutiny standard; and
-(iii) suspended the Rule of Two Program at the Defense Department October 23, 1995,
for failing to meet the narrow tailoring requirements set out in Adarand Constructors V. Pena.
.-(·
.
�2..
./
.!
i
for failing to meet the narrow tailoring requirements set out in Adarand Constructors V. Pena.
Thus far, the Administration has taken the following actions to "mend, but not end"
affirmative action programs that do not meet the President's directive or the standards set by the
court:
'
.
(i) Defense has developed a set of four proposals that are intended to help offset the
negative economic impact on SDBs from suspending the Rule of Two - despite several meetings
on this issue, the minority business community remains unhappy with the Defense Department
staff and will probably be equally displeased when the proposals are issued as an interim final rule
around March 15, 1996;
(ii) Justice issued a memorandum to General Counsels February 29, saying that the strict
judicial scrutiny requirements of Adarand will not require major modifications in the way federal
'agencies have been carrying out affirmative action policies in federal employment - Federal
agencies have _long been subject to the standards of Title VII of the 1964 Civil Rights Act, which
prohibits discrimination based on race or ethnicity in employment and imposes limits on the use
·of affirmative action in the workplace;
(iii) .Justice has developed a framework to reform affirmative action in federal procurement
that is designed to ensure compliance with the constitutional standards established by the Supreme
Court - The proposal affirms that the continued use- of race and sex preferences in federal
procurement decisions meets a compelling government interest; several significant technical issues
remain outstanding and need to be addressed, but the general reaction from the vetting we have
done to date is that the proposal represents a reasonable way to go. [Ann Devroy is writing a story
about this that may appear irt the Washington Post on Thursday, March 7 -- one of the GCs leaked
this information to her after we did a briefing for them last week];
- ---··
----- ·------------------
(iv) Justice has defended the constitutionality of the 8(a) program in one· of two postAdarand challenges to affirmative action programs~ while SBA continues ·to improve its efficiency
and general effectiveness - the most recent case, Dynalantic v. United States Department of
Defense and United States Small Business Administration is being argued March 8, 1996, in the
United States District Court for the District of Columbia;
(v) Justice is continuing to review the use of affirmative action in federal grants and the
process by which states set goals in affirmative. action procurement- there review is expected
to continue for another month or two; and
(vi) The Vi'ce President's office has drafted an Executive Order on E!fipowerment
Contracting that would provide price or evaluation preferences to qualified businesses that are
located in areas of general economic distress or that hire a significant number of residences from
such an area-· In the mean time, Senator Bond introducedthe "Hub Zone Act of 1996" (S. 1574)
February 23, 1996, to provide Federal contracting opportunities for small business concerns
located in historically underutilized business zones. Our constituents generally support our
proposal, but not that proposed by Senator Bond because his bill requires that a percentage of all
prime contracts would be required to be awarded to businesses located in these hub zones.
�vvr
1
3
Over the past few weeks, extensive consultations have been held with representatives of
the Civil Rights Community, minority businesses, women's groups, and Hill members and
committee staff representing the Congressional Black Caucus, Congressional Hispanic Caucus,
Constitution Subcommittee, Small Busienss Committee; Women's Caucus, Asian-Pacific Caucus,
Judiciary Commitee, and the Government Operations Committee. These meetings generally
focused on Justice's procurement reform proposal, and to a limited degree, SBA's proposals to
reform the 8(a) program. We also solicited advice on how we should proceed in light of the
following events: (i) Rep. Canady (Florida) is marking up his bill to outlaw affirmative action .
programs ("Equal Opportunity Act of 1995") Thursday, March 7, 1996- the bill isexpected to.
pass out of subcommittee and possibly the full committee (but not into April), but its not clear
what will happen in the full House. Dole and others have introduced similar bills, but Canady's
bill is the only one that is moving at this time; and (2) Rep. Jan Meyers (Kansas ) is expected to
·renew her efforts to suspend use of the 8(a) program - Phil Lader rejected her most recent
request to do so, but she is expected to keep on trying.
The consensus between Hill members and staff is the Administration should announce its
position on procurement reform. The members are anxious to have something thatthey can point
to in the light of Canady's actions, although our proposal is not an answer to Canady. It was felt
that it was better for us to get out in front of Cana:ay's efforts, so we don't look like we are
playing catchup. It was also advised that we try to find "blue-dogs" to support our position. Rep.
LaFalce is also encouraging us to do something on 8( a) although he would probably' be happy
with our efforts to improve the efficiency of the program, routing out fraud and abuse, etc.
Members of the Civil Rights Community and minority businesspeople are generally
supportive of our actions if they are in response to the Court, -but draw_ the line about going
further~ They are adamant that we not make any major structural changes to the 8(a) program this
----- ----yeai~siiice tneJustice-DepartrnenfnasTaKen the-pos1tion that the program meets the constitutio-n~------. ·test. Their "joint" position is that whatever we do is not going to satisfy Rep. Meyer, so why start
down that path. They argue that the Administration should defend the programs and they are
willing to help. We met with Ellie Smeal and the Feminist Majority la5t week group about
affirmative action activities in California and seventeen other states (which are also aimed at
eliminating preferences for women). They are recruiting women from 100 college campuses to
go to California and conduct voter registration and affirmative action campaigns. All of the
groups are also quite concern that we not set up a situation where "white women and black men
_are fighting over a shrinking piece of the pie."
Key Features of Justice's Procurement Reform Proposal
The Justice Department's procurement reform proposal relies on the use of "benchmarks",
estimated by regression analysis for each industry for the entire government, that will represent
the level· of minority contracting that one would expect to find in a market absent discrimination
or its effects. Under the reform structure, federal agencies will, subject to the benchmarks, be able.
to use several race-conscious contracting mechanisms: SBA 8(a) program; a bidding credit for
�·r.
4
SDB prime contractors; and an evaluation credit for non-minority rpime contractors that use SDBs
in subcontracting. The 8(a) program will continue to provide for sole source contracting and
sheltered competitimi for 8(a) firms subject to the benchmark limits. Agencies will also undertake
a variety of information, technical assistance, outreach activities designed to make minority firms
aware of contracitng opportunities and to take advantage of those opportunities .
.Other information features of the proposal include:
o 8(a) participants will qualify automatically for SDB programs and 8{d) subcontracting
- others-can establish their eligibility by submitting required statements and documentation and
being certified by an SBA approved agency;
o Members of designated minority groups will continue to benefit from the statutorily
mandated presumption of social and eonomic disadvantage - others can do so by submitting
·
clear and convincing evidence;
. o Every applicant will be required to submit with each bid a certification from an SBA
approved organization that the business is owned and controlledby the designated socially and
economically disadvantaged individuals;
·o .. Procedures for SBA to make an eligibility determination within 15 days for all protests
about an SDB;s eligibility; and
o Tough criminal penalties including fines, . imprisonment and debarment against
individuals who present fraudulent information or .use an .SDB as a front in order to obtain
contracts.
·----
�Withdrawal/Redaction Sheet
Clinton Library
SUBJECTffiTLE
DATE
001. memo
Alexis Herman to the POTUS and VPOTUS, re: Affirmative Action
Procurement Reform (6 pages)
4/8/1996
P5
002. telefax
Ginger Lew to Kitty Higgins and Alexis Herman (2 pages)
03/2811996
P5, P6/b(6)
003. memo
Richard Hayes to Kris Balderston, re: Affmnative Action (1 page)
4/12/1996
P5
004. list
Status of Affirmative Action Activities (2 pages)
4/19/1996
P5
Di;>CUMENT NO.
AND TYPE
RESTRICTION
COLLECTION:
· Clinton Presidential Records
· Cabinet Affairs
1
Kitty Higgins
. OA/Box Number: 8996
FOLDER TITLE:
:Box 1, Folder 1: [Affmnative Action- March 20, 1995 to May 22, 1996] [3]
Whitney Ross
2008-0308-F
wr476
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
PI ,National Security Classified Information [(a)(l) of the PRA]
P2,Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 .Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
. PS .Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personai record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b))
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIAJ ..
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
fina·ncial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�! ,.
'
E X E C U T I V E
0 F F I C E
0 F
T H E
P R E S I D E N T
12-Apr-1996 10:10am
TO:
TO:
Kris Balderston
Holly Carver
FROM:
Richard Hayes
Offic~ of Public Liaison
. CC:
SUBJECT:
Richard Hayes
Affirma,ti ve. ac_tion.
Kris, I will theck with Alexis, but I would
off~r
the following·
su~gestions:
1)· make a decisiori as to whether there needs to be.a cabinet le~el discussion
about the proposal with/without the President and Vice-President before it ii
published.
Such a meeting would give the President the opportunity for him to
make it clear to them that he is still serious about affirmative action and he
·wants them to commit their agencies to following throug on this committment.
2) Possibly working through the PMC, have the agencies make affirmative action a
with respect to procuremnts this year.
There also needs to be ~
working group that will take ·on working out the specifics of putting the
procurement reform package online in time time for the next fiscal year. ·Alexis
asked Bill Coleman to chair a small group of experts, but this effort needs to
be. a_prdiority of the Deputy Sees.
pr~ority
3) Commerce has the lead on developing the benchmarks for the new proposa. This
ia a big effort and needs to get started. They are also going to need money to
carry out.
4)
Ned to think abut amplification events the cabinet can do to·help get the
message out when the proposal is released.
Richard
�vur.I
Status of Affirmative Action Activities - 4/19/96
1.
SBA
-- Ginger Lew conducting interviews for John Whitmore's replacement (Associate
Deputy Administrator) today; she expects to select replacement within one week - 10 ,days.
Whitmore, would be moved once his replacement is chosen.
-- Judith Rosseu -- per Ginger, we will deal with her once they select Whitmore's
~~~
~-Weldon
2.
.
has recommended (Hopson?) for the Counselor's position. -- check status.
Defense
--.Placement of OSDBU office --White House should tell them to leave it where it is
and not have it placed under P. Haeper. Dellums has expressed his concern about doing
otherwise -- is going to be calling Kiminisky per Dorothy Robyn (NEC). Whit Peters agrees.
-- Bob Neal ready to move from GSA to DOD -- can be accomplished in a matter of
minutes, once issue of Office location is settled.
-- Replacement rules at OIRA. Would: (1) extend 10% price ·preference to all- awards
except construction; (2) pilot project to remove "bond differential" from construction bids for
SDBs; and (3) increase consideration urged for bids fromprime contractors with binding SDB
_subcontracts; and (4) notification of SDB replacement with removal for cause.
-- "Unbundling" policy -- agreement with Kelman to let DoD proceed; need to answer
Cardis Collins letter to Leon -- Kelman has offered to help.
-- Targeted tum-on for construction. Justice won't support now. However, DoD
probably willing to consider limited pilot test in West -- extend the 10% price preference to
construction in the context of the Justice benchmarking proposal. -- close loop week of 4/22.
3.
Justice
-- Justice procurement reform propsal - ok, except for time frame for considering use
of set-asides -- options: (1) two years versus or (2) six months - one year; immediate use in ·
egregious cases of underutilization. White House call ..
-- Cabinet/POTUS sign-off - Release by end of month?
-- POTUS role in rollout; communication strategy (message???) --media/amplification
�4.
Other
-- Agency jawboning in use of 8(a) program -- awards off about 10% since October
govemementwide, even though overall procurement up about 10%;
-- New Kellman initiatives to spur SDB procurements, etc.
-- Hopewood - Riley letter to State Attorney Generals/University Presidents
5.
Leon/Harold Meeting with Weldon Coalition --May 1????????
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. list
Addresses [partial] (1 page)
n.d.
P6/b(6)
002. memo
Christopher Edley to George Stephanopoulos and the Core Group, re:
Affmnative Action: Themes and Hard Questions (7 pages)
4/6/1995
P5
003. notes
Meeting Notes, re: Affmnative Action Hard Cases (2 pages)
4/4/1995
P5
COLLECTION:
Clinton Presidential Records
Cabinet Affairs
Jennifer O'Connor
: OA!Box Number: 6500
FOLDER TITLE:
Affirmative Action [I]
· Whitney Ross
2008-0308-F
wr480
· RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information 'Act -·[5 U.S.C. 552(b)]
PI·National Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
~personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
· information [(b)(4) of the FOIA]
b(6) Relea~e would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
. C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�. I
lru_, offr ·,
opltl/)/l
'~· llLll
2.'
3.
:1 tnvt cf.tud?_ .
(_CA\.f ·~ ~(f/Y?Is /fl£tkc~
f'U.A...
(k'V\_
L:u._ { .vi-~ · CUVI.ftci~A.afi~
. l"evt.L c.P'Y\.: ku_
(J...
b::Lb ;~
�·. ~k ~ w'~- ~ V'-ti ~
fo~~ ~
cLW cUv1M
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECT!fiTLE
DATE.
RESTRICTION.
001. note
Re: affirmative action (1 page)
n.d.
P5
002. notes
Meeting Notes, re: Affirmative Action (2 pages)
3/5/1995
P5
003. note
Meeting Notes, re: Affirmative Action (3 pages)
3/6/1995
P5
004. memo
G. Steph~opoulos and C. Edley to President Clinton, re: Affirmative.
Action- The Supreme Court's Adarand Decision (3 pages) ·
· 611211995
P5
. COLLECTION:
Clinton Presidential Records
Cabinet Affairs
Jennifer O'Connor
• OA/Box Number: 6500
FOLDER TITLE:
Affirmative Action [2]
Whitney Ross
2008-0308-F
wr862
RESTRICTION CODES
Pr,esidential Records Act- [44 U.S.C. 2204(a))
Freedom of Information Act- [5 U.S.C. 552(b))
PI Nationai.Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
· financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�,,
;
~
~~
;:
~llf/h 1/c- Ul~~S> 1~;,~(/t,~
ch
~ Y'~
"
~i
li f mGJ - WvJ ~ ~ ~ 4 i-/U-8 _; ~ liif!tU
. Cfl/r-_ ~~ ~n:JJ__fvf'-~. ruvuu~ lz
/)JVf..-,Q__
(j<;. -,.
�1'~ ~~ ·- Pv~, G\vlUtJ)
1:
G:> , /Gt ~
J. rvto
i:
.
.
,.
1
1
I
' ;i
-
Q~~ i'f ~ ~ ~I;~ 'tt-!01~) ~~~
! . -&~Ul)[ V~
')
J (\vQ,S};
i: · Po~ s ~
-===1 ;
r ~'
.
Jf
tl
li.
V\Uvt · [
see01.-·LA--
1
LeJ- Us lou:f 1',dNI_ ~ tJv.-; j
\)-··
f»"tH -
~ . hJ ~~· . ~ a vavtA.a.~ .1' /2._,
t-;•·
VII' 1V\VAA~ CVh htr-vfM
·~~
i0rN}
(
0-
;:'~()vl-v(/v; 11 ~\c.l,JQ ~~t ;
,I
~
{)e/V)vtA I ·~
N
fv V'r'-rYL
h
{!/0L 1
~. Si~ err Vol-LA.~.
ck
-£,
v
vl
v
()
I.
S{;!l.--t_
WV\_Q
tfY'v .
·
lou0~
,-rAk IY\-. c~h L-a W/\r~. ~-t.et ~~/'f'--/,J
it .
~~
)~ j
[i-1 let \.c._ aA
0-vJ-·· .{\{if f1;) V\fV\) ~ 1/UJi?~ \~ ov~ ,\__l_N)y (--t> \tr&--l c:J
f {_
\s cY
.
UhW
Nv--.p) J'-> ~
!;
:i
VYl
.
fl
!i .~ GS. !Xu{? t~ \vv) LJ~ ·j}-U- UJU'-VV\. ~ {J;)v~ oc~~ .
m\Jvth' rv11J)r~. 1
c)[V· cf pr~Yh.__
l: ·~ ctlAGU_JG~-A-eNv~) ~ ~ ~. tin Ifl1}'(/);/ ~ -1-o '"duJrAPJ !J Vrl ~d ';
otv. ·~. ciJ evr j ~ u{? ~9 -b ~!All~_)
w-
.-.
9
~.r
. plu.A u)J
:i
i[
-v COrYJlllltJ
r"V71h[!Yt~ ·~~\
gcr·
~~
Vc oldJJ.._
.· ~m> gU-· ~
/¥)c.'-; QVV'-i~v.
.r :({'."
6.<-
·lrvv J:v
r~
--o
''~ay( v
11
/VVA)L/J
.-~/J..J._
.
~ff:'-fY ~v-clt. 1-v vW.. tfw~ J bc'v Lf ~ /;//~ .
e_.wt 11 2.MvltVVJ!W --fVv,~ ~~
~ (Z
tU\..t ~'V_ , 1 ~ f'-1vJJL
-
if
rQ_ ~.
CVJA(~
vJ--G/'L
.
��;
~
' ~ I
i!
jJ;.
i:.
.
�~- ~
c:f 5. ~~t/"" ,
~. all~c,'\-__+- c i v , [ I' ( ~·0vK, ·o ki-~ c~v')llr'-vVll ~vrQ~+ ~ Ll
~ l~ 1·) ~'Kl WJ-)_. ~-; ~cv l- ·t-v Ci" ; {)VuJ-:::. 1v1 rt0
1'Gvkc/ .
. ..· .
c:;--'vL '~
)
(__Q_}j_Jy:-u'--'-cit_. ~~)\_ fJ 'Y\){)J/.P (_j dVJ j'J;'l\. j
g,)
0
L-~.,_H
V0J5CQ\
1 v·'-"--·
rt.
-</
· V)f\QJ\\-u .
· ·rt"-(LJ
¥- -ci-·~ ~/VJ v'IU~Tlu----:,
.
I
cA . Cell!~~ (J--D-'"'U_(__ -~-
f
Y\ U\/
c:S~AfJ~~
0'-~'---L.t
C6vl'--~ . :=r V)~}
~ 'f00~:h ·~ v1J\.
. p-Dl~ ':> -'7 (.Vv\Q_/tJk4~
I ~
((_)/ll(j VJ I
�.
'
V~~t--Z.-~ la~.
l
~, G-ko~AAv~V?
. Cf-· 17 VVJ.l Vl VJ/~h-L----.?
[~+--
LrJ1lv\ h
1
. _ -
tiJ'---L
LL{LJ'-
UV\f·
J _ 7 /-z-:7
~)~'0
.ccJ l- - V-~-'/"vL-o - c/'vJ-- ~c t:11::,1- ~·li'tiJt~;" jdt t/1 ft mj
~-- uYl ~- L},J~~
~-a.d,
_z__} ) '
1\J)u'L~-
r.
.
h
~· LD~ Al
b)
L-:71__ .-
I"'
6;
~\-ljj~- ~~f-
ra/, !r
0)
·
'
_ '.o c::ltfrvY\LN~JL
-~~
t\
j-UNU 0
\\:-,
Po~
£i ~-J/~0;_: ;ttJL:Ii uc·
lVv"Y'--
.
.
/c0vc!. 4 /LjJ/ .
7D) :SCA--L.1 ~Q_ l s~ ~- yJLf-f?t-'0 f· f] uVYV-1J VI!Rk ,,~4_M ;' t{~ oAl. (/Y1UVJ../~
.
·\;v_ . r:YJ_& .~l JL~ ~ . €0U( u</; 1.30-Jd~ =oL
I ~~l W. ( VY'\L;~JJI- f [(yj~!)-rl!hl LKQ) ; VV1 VtJJ~~~f
~(,. ~·~_) (}~~~
.
;\@>~ ~~ ~ b UA-\-:=c~, utCJ4Y U(l('s.k
V) s+ - t.:'t ~44(; ~
. u~kl·, u~1 tf:.~ rG}"v\r ~ .6
h l - 0:_ Ll'l \{__tv-( CJ/) r-l t-1:~ .
1
't) ;:
o
E
0
0_
r~.e v ~ GJ~ {/{' JJuv~ - L\J'f.( l \
d
/_;~ . {}~__;--"')
-v
~\
'{/~'--'-
~--v )~'}_~
~~J~ ~
V\: ~ ;;1o\l.i
_/ ~ ~
V-€ UVU{_j
U)f\.)t--
VI\QA\j j)t..f-· l~V:=l :
\)\<,vYI
~~--
k>1 ')
{ 1!\ \ \A.U~~
C~\.clJ\o~
'7 .c,
~
.~'\
b
I!'{) [2A.__
dVtVliL
.
1
(\ _.55 Lrl>r'/ t ~-'~v\~-- ~ \l/) \h ~-h-~ ·\·--\~
V~2 /v 6~
Cl \lc. -f {:: _. E () C 1 . l)<L) ::r 'S>C... /tv~ 1,ckt.
\
\0\
s
.f\. (-7- .~
\ .
~LJ ~-- <!:J\f''t--A..~) 801~ t~ . \-,-~'-= q·)·' bt' kDL l'Clf_JJ.. ~ _put_,~
C;<l I.
\
.8YYK ·~. C/Y\
n
.
1\G~ .1 0 · ~ {:-{Je)i. 1 Uu~
o
If\ l
1\ '
'
u\...\)---eJ.
I
('>
11..::; tli'-eJ____
�---------~---------
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AN,DTYPE
DATE.
. SUBJECT!fiTLE
RESTRICTION
001. memo·
Michael Waldman to G. Stephanopoulos, re: Draft of AA Paper (4
pages)
5/15/1995
. P5
oq2. memo
Michael Waldman to G. Stephanopoulos, re: Thoughts on AA Speech
(1 page)
·
6/20/1995
P5
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Michael Waldman
OA/Box Number: 6632
FOLDER TITLE:
Affirmative Action Background
Whitney Ross
2008-0308-F
wr906
RESTRICTION CODES
Preiiidential Records Act -144 U.S.C. 2204(a)l
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl
P2
P3
P4
b(l) National security classified information l(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled fo.r law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
·concerning wells l(b)(9) of the FOIA]
National Security Classified Information l(a)(l) of the PRA]
Relating to the appointment to Federal office l(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of thePRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRJ\1. Personal record misfile defined in accordance with 44 U.S.C.
. 2201(3).
RR Document will be reviewed upon request.
�i.
June 20, 1995
MEMORANDUM FOR
GEORGESTEPHANOPOULOS
CHRIS EDLEY
DONBAER
CAROLYN CURIEL
FROM:
MICHAEL WALDMANfW
SUBJECT:
THOUGHTS ON AA SPEECH
A few random thoughts on the AA speech:
* Remember Bill Clinton's original "affirmative action strategy. "
Abeve all, this is a
GOP attempt to use the politics of race to trump the politics of class. The original approach ·
·of the Clinton campaign and administration was universalist -- if we create a growing
economy, provide health care for working families, family leave, rising incomes, etc. etc.,
then the hot-button racial issues will recede in importance (even if they don't fully disappear) ..
It is the failure of health care that has opened us up on this, more than anything else, in my
judgement. But that basic intU:itioii -- what we must do is expand opportunity for everyone;
that "angry white males" have a right to be angry, but it is misplaced if it is directed at blacks
rather than at leaders who have ignored them; etc. -- still can be a part of the rhetoric. If you
did away with all affirmative action, it still wouldn't appreciably expand opportunity or truly
increase job security for the angriest of white males.
* There needs to be an "enemy." All great speeches have an enemy -- otherwise it's
lofty platitudes. The enemy must be sharply etched. I would imagine it's "those who wo~ld
use race to divide us." An appeal to healing, reconciliation, etc., will sound like so much
blah-blah unless it pushes off against something.
.
* Stress that we need programs and policies for now.
We need to frame the policy
changes we make as being principled· and as part of moving to the "right" questions rather
than rehashing old questions:
In 1965, the problem addressed was the society-wide impact of a domestic apartheid
system (which had been de jure dismantled only a year before).
·
Now, we still see discrimination, but we face two other problems that are problems for
1995 and that must be dealt with now: a) persistent, self-replicating poverty in the
inner-city, which has been cut off from the national economy; b) millions of people,
black and white, who have fallen through the cracks as we move the global economy.
Hence, the changes we propose in the set-asides -- still targeting race, but aiso location
and start-up businesses. Nobody would think it intrinsically improper to have either
~mpowerment zones or a contractor preference for laid-off steelworkers who are
starting their own business.
�Withdrawal/Redaction Sheet
VVI
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
001. agenda
AA Meeting with House Democrats (2 pages)
002. memo
Skip Stiles to Lorraine Miller, re: Politics
Attacks (1 page)
RESTRICTION
7/14/1995
of Technology Program
P5
3/30/1995
P5
COLLECTION:
: Clinton Presidential Records
Legislative Affairs
. Lorraine Miller
' ONBox Number: 5926
FpLDER TITLE:
Affirmative Action (6]
Whitney Ross
2008-0308-F
wr907
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)l
. Pl: National Security Classified Information [(a)(I) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidentiai commercial or
financial informati~n [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
' C. Closed in accordance with restrictions contained in donor's deed
,
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
Freedom of Information Act- [5 U.S.C. 552(b)]
b(I) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
�·.THE WHITE HOUSE
WASHINGTON
.....
.March 14, 1995
· Affirmative Action Meeting with House Democrats
DATE: Wednesday, March 15, 1995
LOCATION: Cabinet Room
TIME: 5:30-6:30 pm
From: Pat Griffin and George Stephanopoulos
I.
II.
PURPOSE
To consult with Democratic Members ·of the House on
affirmative actlon and solicit their input on the
issue.·
BACKGROUND
The group that you are meeting with is a subset of a 50
person working group on affirmative action created out
of the House Democratic Caucus. This group represents
a good cross section of the working group, including
geographic diversity, women, African Americans, Asians,
· and Hispanics.
The Chairs of the Caucus working group are Reps.
Clyburn, Lipinski and Lowey. You should also know that
Rep. Mfume is Chairing a working group within the
Congressional Black Caucus on the issue.
The-Members are interested in discussing four issues:
1. They will strongly urge you to delay any action or
formal statement on affirmative action until they have
had a chance to educate their colleagues on your
·
position. Many of the Members have expressed concern
that, in their opinions, outside forces are pushing·you
to make a quick and definitive statement on your
position. They believe that you will be better served
if you take as much time as you need to make an
informed and thoughtful decision.
You should know that,· in an effort to gather advice
from Members, Pat Griffin, George Stephanopoulos and
Deval Patrick have met with the Congressional Black and
Hispanic Caucuses and have scheduled meetings with the
Asian, Progressive and Women's Caucuses throughout the
remainder of the week. · Gil Casellas, Chair of the
EEOC, is also meeting with Members to discuss the
issue.
�2. Members have also expressed concerns about the
Interagency Review on affirmative action. The concerns
stem from their lack of information on the types of
questions being asked.and exactly what you are looking
for iri this review.
·
You should'know that, to answer these concerns, Chris
Edley is meeting with the Congressional·Black Caucus
working group Wednesday morning specifically on the
topic of the review. He is willing to hold. ~urther
briefings if necessary.
3. Several Members have suggested that you establish a
national commission to review affirmative action
practices and their impact throughout the country.
While they do not disapprove of the inter-agency review
that-we are undertaking, many Members believe that a
more national examination of these programs is
important.
4. Finally, Members are looking for you to take a firm
stand on the issue of affirmative action.
III.
IV.
PARTICIPANTS
See·attached list.
.PRESS PLAN
White House photo only.
v.
SEQUENCE OF EVENTS
Informal discussion.
VI.
REMARKS
See attached talking points.
�Memo to Lorraine Miller - 3/30/95
From: Skip Stiles (225.-8483)
RE: Politics of Technology Program Attacks
We heard yesterday that the Republican Leadership in the House
is pushing the high technology ·industry to go along with the
Republican attacks on the high technology programs . like ATP and
TRP. Apparently the R's are dangling Capital Gains relief as the
carrot and have a number of sticks available to punish them if they
don't go along.
The specifics are: 1) TheR 1 s have a draft letter in support
of their position· on tax relief, deficit reduction, · and the
Contract generally.
They · have reported gotten the National
·Association of Manufacturers (NAM) to go along. 2) · NAM is working
the Electronic Industry Association (EIA), who is reportedly ready
to sign, and other high tech groups.
Other . moderate companies 1
· like Dupont, are being pressured as well.
This is obviously an atte~pt to show support for the
Republican tax cut and their resc~ssions of ATP and TRP.
But it
also shows an attempt to cut into Clinton's. base in the high tech
area, critical in California and Texas for starts.
The industry
quislings are bein:g pushed hard -'I have heard this from a number
of companies. They will be shunned later in the 104th unless they
make changes now and get on board.
(The scene is really surreal.
Pressure is even being made to change staff at D.C. offices for
some companies because there.are "too many Democrats" on staff!)
The R 1 s plan to put Democrats in a box by saying, "You: want to
protect your social programs? Then you should cut these "Corporate
Welfare" programs in the technology area. Look, even the industry
·agrees. with us - see this letter? So if you want to keep social
programs, just cut these technology·programs for starts." We saw
the start of this on the recent recision bill, where people
proposed cutting science and technology (mostly NASA)· to fund
social programs.
We are.pushing on this end, but you need to sic the dogs on
the high tech folks as well from your end.
A letter implying.·
support for the Republican position on technology ("We don't need
these industrial policy programs, we just need tax relief to spur
the market.") screws us for the rest of this Congress and spills
over into the election. Help!
�Withdrawal/Redaction Sheet
VVI
Clinton Library
DOCUMENT NO;
AND TYPE
001. memo
. SUBJECT!fiTLE
DATE
Peter Jacoby and Tracey Thornton to Dep. Chief of Staff, re:
Legislative Strategy for Defeating H.R. 1909 (4 pages)
7/23/1997
RESTRICTION
P5
COLLECTION:
Clinton Presidential Records
Legislative Affairs .
Janet Murguia
ONBox Number: 11029
. FOLDER TITLE:
Affirmative Action: [Defeating H.R. 1909]
Whitney Ross
2008-0308-F
wr908
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl National Security Classified Information [(a)(l) of the PRA]
Pi Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confid.ential commercial or
financial information [(a)(4) of the PRA] .
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
, personal privacy [(a)(6) of the PRA]
b(l) National security classified information[(b)(l) of the FOIA[
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose. information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
·
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
P~M. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request:
!
�,,f!
r
I
July 23, 1997
MEMORANDUM FOR THE DEPUTY CHIEF OF STAFF '
TO:
Sylvia Matthews
FROM:
Peter Jacoby
Tracey Thornton
RE:
Legislative Strategy for Defeating H.R. 1909 by Representative Canady and S. 950
by Senators McConnell and Hatch
Goals:
You have asked us to prepare a legislative strategy for defeating H.R. 1909 and S. 950,
·legislation that would prohibit the Federal government from using any race or gender conscious
affirmative action programs in contracting, hiring or any other Federal program or activity. To
defeat this legislation two goals must be accomplished: 1) unify House and Senate Democrats in
opposition t6 the legislation; and, 2) either convince enough key House and Senate Republican
moderates to oppose the legislation or persuade those key moderates to convince their leadership
that a floor vote should be avoided due to the political damage such a vote would entail for
moderates. We anticipate that floor action in the House and the Senate will not occur before the
August recess but it is still critical that we move quickly to implement a strategy for achieving
·
these goals.
Strategy:
Unification ofDemocrats- House:
The unification of House Democrats must focus on solidifying the position of Democratic
moderates - especially those moderates who represent southern, rural constituencies - in
opposition to the Canady legislation.
In the House this means four things: 1) an acceptable Democratic alternative must be
developed so that Democratic moderates will have a bill they can vote for in lieu of the Canady
bill; 2) the Administration must clearly communicate its efforts to bring the federal government
into compliance with the Supreme Court's Adarand decision; 3) moderates will have to be shown
the impact (especially the economic impact) that the.Canady bill will have on their districts; 4)
independent third party validators (such as the DLC and others) should approachthe moderates
to secure their opposition to the Canady bill and their support for a Democratic alternative.
Currently, the leading idea for a Democratic alternative is crafting a legislative proposal to
codify the Adarand decision. Ideally, this could be drafted and introduced in a bipartisan manner
-·.-··
�,,J
2
and then offered as an amendment by a Democratic moderate or as a Democratic substitute during
the House floor debate. 1 ·House Judiciary Committee staff is currently working with the House
Democratic Caucus task force on affirmative action to develop an alternative bill which will be
able to win broad support within the diverse Democratic Caucus. '
Democratic moderates must also know that the Administration.is working hard to bring all
of its programs into compliance with the Adarand decision. This gives those moderates (and all
other Democrats) an additional argument for voting against the Canady bill. We need to make a
. concerted effort to produce and communicate a very clear status report of our efforts. Moreover,
in those areas where our progress has been slow, we rteed to show how we are quickly moving to
correct those deficiencies.
Additionally, we need to show, on a district-by-district basis, the impact that this
legislation will have on federal government programs. In this regard, an economic analysis would
be especially helpful for persuading both moderate Democrats (and moderate Republicans) that
the bill could result in the loss of valuable contracts by minority and disadvantaged government
contractors in their districts. House Democrats are'already working to examine the bill's impact
. by consulting with the agencies to determine which of the most politically popular government
hiring and contracting programs would be impacted by the legislation.
As part of this effort, House Democrats plan to show how the bill would negatively impact
.minority hiring for police and law enforcement programs. It is generally acknowledged that these
programs have been responsible for defusing many potentially dangerous race-related law
enforcement incidents in areas with a large minority population. Development ofboth this.type of
contracting information and hiring information on a district-by-district basis, even if for only the
·districts of targeted moderat~s .~m both sides of the aisle, would be very useful.
·In communicating both the Administration's efforts to comply with Adarand and the
impact of the bill on specifi~ federal programs, the support and efforts of Cabinet members will be
critical. Enlisting the support and time of Cabinet pnncipals to talk to Members of Congress on
this issue is critical because they, more than White House principals, can explain exactly what the
bill will mean for Members and the federal programs that currently benefit their constituents.
Finally, we should make an effort to recruit third-party validators, like the DLC, to
approach the Democratic moderates on this issue. The Vice President could be helpful in this
regard in both convincing the DLC to take the right position and in activating them ort the issue.
1
A key question for the Admicistration with respect to any attempt to codify Adarand
would be the measure's enforcement mechanisms. Currently, the only way to enforce our efforts
to bring the Administration into compliance with Adarand is by filing a lawsuit. A codification of
Adarand would likely include a statutory enforcement scheme that should be reviewed carefully
by the Administration.
·
�3
Unification ofDemocrats- Senate:
In a meeting earlier this month Senator Daschle promised the civil rights community that
Senate Democrats will be united in fighting efforts to dismantle fe'deral affirmative action·
programs. As proof of this commitment, Senate Democratic leadership staff has been working
with other Democratic offices to develop a strategy for defeating the Hatch legislation and any
other similar initiative. In this effort staff has asked the Administration for a status report on our
efforts to bring federal programs into compliance with the Adarand decision. As in the House,
developing and communicating a clear message about our compliance efforts is critical.
The moderate Democratic Senators who are most likely to support Senator Hatch's
legislation are Senators Breaux (D-LA), Hollings (D-SC) and Lieberman (D-CT). Senators
Breaux and Hollings ate up for re-election and Senator Lieberman has been difficult to read on
these issues. Senator Lieb~rman seems to favor economic development-type approaches and it is
unclear where he would come out on the Hatch approach. It will be important to maintain open
lines of communication with these offices and to work with the Democratic leadership to solidify
· these votes against the Hatch initiative.
Republican Moderates - House:
We need to convince20 to 30 House Republican moderates to either vote against the
Canady bill or believe that there would be serious political consequences for them .if they were to·
vote for the bill on the floor of the House. If we are successful on either course, and the
· sentiments of this group is communicated early to their leadership, it is likely that the House
Republican leadership would keep the bill from coming to the floor. Similar to the Democratic
moderates, a Republican stra,te~ sho.uld include the following: 1) an alternative should be .
developed so that those moderates who wish to vote for an alternative have that opportunity; 2)
we must clearly communicate our efforts to bring the federal government into compliance with
the Supreme Court's Adarand decision; and, 3)'moderates will have to be shown the impact
(especially the economic impact) that the Canady bill will have on their districts.
Developing an alternative that drains Republican votes away from Canady is a critical
component of a Republican moderate strategy. As mentioned above, the codification of Adarand
is already under consideration in the House as an alternative. Such an alternative is likely to pick
up some Republican moderate support in the House. Additionally, J.C. Watts (R-OK), who is
opposed to the Canady approach, is developing an alternative approach with fomier Housing.
Secretary Kemp. This measure should also draw support from Canady. More importantly, since
Watts is a leading Republican spokesman on the issue, and close to the Speaker, his opinion on
whether the Canady bill proceeds to the House floor will be critical.
The remaining components of a Republican moderates strategy - communication of
Administration efforts, and developing a district..;by-district impact analysis- are similar to the
components discussed above with respect to the Democratic moderates strategy.
�4
Senate Republicans:·
. Like the House, the key to defeating this legislation is to split moderate Republicans from
the bill. We have two advantages in the Senate, however, that we don't have in the House. First,
Senate Republicans are generally more moderate than their House counterparts and two, the
confirmation process for Bill Lee will allow us to lay the groundwork for defeating the Hatch bill
when it is considered by the Senate.
The more moderate nature of Senate Republicans is already evident in a fight over
Committee jurisdiction for the Hatch bill .. Early on, Senator Hatch moved (with Senator Lott's
support) to keep the bill out ofthe Senate Labor Committee which is chaired by Senator Jeffords
(R-VT), ·a leading moderate. Moreover, Senator McConnell, the lead cosponsor of the Hatch bill,
. is a new member of the Labor Committee so his cosponsorship is probably a signal to Senator
Jeffords that McConnell will be the leadership point-man on the Labor Committee if the bill has to
go through that Comri:littee. Despite this maneuvering, however, if the attempt is made to move
the Hatch bill through either of these Committees at this point, it would be a close call as to
whether or not Republicans would have the votes to pass the bill out of committee.
An additional factor moderating the Senate Republicans is that the women in their caucus,
prodded by the Democratic women Senators, will likely make any move to generally abolish
affirmative action uncomfortable for their caucus.
The second advantage in the Senate arises from the opportunity to establish our message,
and respond to the "sound bites" by Senator Hatch and his supporters, during the confirmation
process for Bill Lee. Through this process, Republicans will be able to assess their resolve in their
caucus to take on this issue. ·Bill Lee will have to make a compelling case for affirmative action.
He, in essence, will be our first real dialogue with Senate Republicans on race and other related .
matters. To the extent that.he is successful, not just in being confirmed, but in rriaking a strong
stand, he will advance the ball significantly in the ·senate on this issue because he will help lay the .
foundation for the next round of the discussions. If we can make our case properly during this
process, Republicans will be reluctant to simply abolish affirmative action outright.
cc:
John Hilley
Janet Murguia
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
DATE
SUBJECTffiTLE
RESTRICTION
A~DTYPE
o:o1. memo
Under Secretary of Defense to Edley, re: Affirmative Action Review
(3 pages)
4/7/1995
P5
COLLECTION:
Clinton Presidential Records
Public .Liaison
Alexis Herman/Ruby Moy
OA!Box Number: 5916
FOLDER TITLE:
Affirmative Action [4]
Whitney Ross
2008~0308-F
wr910
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)] .
. Freedom oflnformation Act- [5 U.S.C. 552(b))
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the. FOIA]
b(2) Release would disclose internal personnel rules and practices of
a·n agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA)
b(4) Release would disclose trade'secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
· b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA)
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(J) of the PRA)
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
·a'nd his· advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�I.
vvr
. ... - - - - - - - - - - - - - - - - - -
-
1
UNDER SECRETARY OF DEFENSE
4000 DEFENSE PENTACiON
WASHINGTON, b.C. 2030. ·4000
APR
P'P~NELAND
~DIN!SS
.7 1995
MEMORANDUM FOR CHRIS EDLEY
SUBJECT,:
Aft"lrmative AetioD Rwiew
I ari1 pleased that the President has ordered a review of affmnative action. The effort is
long overdue. It should have been done in the 1980s, but the Reagan and Bush administrations
lacked the interest and moral authority to treat the topic credibly.· The Clinton administration has·
.an advantage here, and should use it creatively. Beyond assessing laws and programs, President
. Clinton should use this occasion to renew our national conversation on race. Let me offer two
observations about the review, then suggest how the President can take us to a higher plane.
'•
THE REVIEW
Firstt you and George should continue to press us to define, categorize and assess our
policies and programs. Public attitudes have been skewed by the critics' suooess in defining
affirmative actlon as preference. When pollsters define it that way, they find .. surprise! •• that
the public opposes it (because the public opposes preferences). Rich Morin's repOrt on a recent
WP/ABC survey is a classic example. We also need a typoloay that, at minimum, distinguishes
between remedial programs (the kind courts impose to remedy past discrimination) and inclusive
. prusnuns (those that companies or colleges voluntarily Wldeitake to acWeve greater diversity or
some other social good).
Our assessment of a specific program' • effectivenesB and legal so\lndneMB depends on
how its purpose is defined. As we make those assessments, we muSt avoid conflating class and
rae~. SOme of the continuing argument about the Oreal Society stems from confusion over
whether a particular program was supposed to solve a class problem or a race problem. Lyndon
Johnson may have blended the two for good tactical reasons. We could do the same thing, as
long u we \J,Ilderstand the; ramifications. We also m1.1st ~void a logical fallacy that many people
commit when they try to· distinguish between equal opportunity and equal results. That
distinction holds for individuals, but not for large ~ups. (I wrote abook on this.)
Second, we need to put the current review into perspective. Although the public debate
c~ntcrs on afi1multive action, the issue is driven by deep, unresolved questions about. race and
.color in America. We could develop intellectually compelling responses to current complaints ·
about affinnative action and still not address the visceral concerns that drive the politics of this
issue. Thia is a case in which cogent policy analysis will be helpful only at the margin.
0
�Therefore, we should sec the review as part of a long campaign. Affirmative action has ·
.been under concerted attack for a number of years, with its critics often dictating the terms of the ·
debate. A few speeches and policy pronouncements are not likely to hive much effect asainst
that relentless onslaught. So, in addition to good analysis. we need a multifaceted, long-term
campaign to win hearts and minds. Someone needs to develop a media stratesy: and someone
needs to energize leaders, scholars and advocates.
·
PRESIDENTIAL LEADERSHIP
What should be President Clinton's public role? On this as on other controversial issues,
. it is more important that a President show moral conviction than that he demonstrate mastery of
. the subject matter. The public wmts to know where the President su.nds and where he wants to
lead the nation. He should provide the moral impetus for a national conversation on this su~iect.
Our nation has gone through more than two oenturies of interrupted conversations a.bout
race. Virtually every generation has one; often it ends raggedly and unconstructively. But the
President and many others in this Administration were members of a generation that saw struggle
. and sacrifice produce positive results. Many of us participated in the civil rights movement.
Few of us emerged from the 1960s without having engaged in a serious conversation about race.
Shlcc the 1960s, however~ the focus has shifted from moral fundamentals to questions of
enforcement and program administration; so the issue has come to be dominated by lawyers and
policy experts. The public voice has surfaced only in sporadic outbursts.
The transition from movement to bureaucracy has had two unfortunate ramifications.
· One is that a generation has come of age without having to confront its hopes and fears about
matters of race and color. When I, as a teenager, experienced discrimination, I was aware that
many others were struggling with the IG111C thing. When my tcenzage daughter confronts raoe, she
does it alone, or in brief, furtive exchanges with a few friends. And, she is not dealing just with
black and white; her world is a spectrum of colors. Another ramification is that the moral
fundamentals have become separated from the bureaucratic details. This often happens when
moral principles are digested into statistical standards; it causes political dyspepsia
and
We need to remind ourselves- how we got to 'this point
consider where we go from
here. President Clinton is the perfect person to start us on that path. Few national leaders have
grenter morol credibility than he on this iss-ue, or greater facililty for engaging the public in dialogue.. One of the keys to his campaign was the empathy he projected during town ball
. meetinss. 1 do-not propose the President actually conduct such a conversation. Others can do
that. auided perhaPs by materials frOm NEH. the Southern Poverty Law Center or the Kettering
Foundation. The President should provide the broad moral contours.
What should the President say? Think in terms of a speech (with several iterations) that
allows him to reflect on generational change .... on heritage and hope. President Clinton could
·begin with reflections about growing up in a country where racial inequity was legally mandated
and opportunities for women were greatly circumscribed. Next, he could assess our current
'•
�condition: the progress we've made; the eviden~ of continuing discrimination; the inequities
that the current generation has inherited from the pasti the complexities of rac;:e, color and gender·
. tuiliiy. Finally, he could dc:scribe the world that he would llke his daughter to inherit.
CONCLUSION·.
In short, we need (1) a moral visiun, pruvidcd by the President; (2) the review, to help
clarify and refine atfuniative action policies and programs; and (3) a strategy that links, in the
·
public mind. the moral fundamentals with the proaram mechanics.
Thank11 for incl\Kling 1hc Defense Department in this e~ffurl. I hope Lhc: materials we've
provided on the military experience have been useful and that the suggestions offered above
don't lead you astray. Please call me if lean help further. ·
......
�Withdrawal/Redaction Sheet
\J '1171
Clinton Library
DOCUMENT NO.
SUBJECT!TITLE
001. memo
Marilyn Digiacobbe to Alexis Herman, re: AA andthe White Ethnic
A~DTYPE
Constituency
0p2. letter
•
DATE
RESTRICTION
7/15/1995
P5
7110/1995
P5
(2 pages)
Deval Patrick to George Stephanopoulos
(3 pages)
I
COLLECTION:
, Clinton Presidential Re~9rds
i Public Liaison
. Alexis Herman/Ruby Moy
. OA/Box Number: 7661
FOLDER TITLE:
.. [Affirmative Action] [Folder 1]: [Affirmative Action] Af Ac Rollout
Whitney Ross
2008-0308-F
wr911
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)l
Freedom of Information Act- [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRAI
P2 1Relating to the appointment to Federal office.[(a)(2) of the PRA)
P3 Release would. violate a Federal statute [(a)(3) of the PRAI
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b}(8) of the FOIA] ·
b(9) Release would disclose geological or geophysical information
concerning wells [(b}(9) of the FOIA)
C. Closed in accordance with restriCtions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
~R. Document will be reviewed ~pon request.
�July 15, 1995
· MEMORANDUM FOR ALEXIS HERMAN
FROM:
MARILYN DIGIACOBBE
SUBJECT:
AFFIRMATIVE ACTION AND THE WHITE ETHNIC
CONSTITUENCY
This is an issue which presents challenges for the Administr~tion amongst the white ethnic
community. This· constituency, like the rest of the country, understand that injustices exist
and that they need to be corrected, but many do not feel a sense o( personal responsibility
and don't view themselves as any part of the equati_on.
In order for us to minimize negative impact amongst this constituency on the President's
Affirmative ACtion speech, it is important for the President to make some connection with
.tl).is audience in his speech. It would be helpful if the President would talk about the fact that
we want all the immigrants ofthis nation to get ahead ori their own ability, and that in giving
to one person we are not taking it away from others but helping the entire society to grow .
and benefit. What we are doing is helping the family of America to move forward together.
I think the weaving in of the common ground· message, and the acknowledgement that there
needs to be some economic basis for Affirmative Action programs will help. It will appeal to
the better nature in people.
·
I will focus on touching base and energizing supporters of the President in the white ethnic
communities to affirm the President's Affirmative Action message. My focus is on key
coinmunity leaders and supporters in the following constituencies: Polish, Italian, Irish, Greek,
Armenian, Hungarian, Portuguese, and Ukrainian-American groups.
Goals of the effort:
*
Touch base with key community leaders and supporters prior to Wednesday as a
courtesy, to let them know what the President's message will be .
*
.Provide talking points to key community leaders and supporters that are geared to the
white ethnic commlll)ity.
·
*
Conduct conference call(s) with key supporters who will support and affirm the
President's message in their community. (List attached.)
*
Appeal to high-profile supporters and elected officials to validate the President's
message in the ITi~d!a.· ·
�~
I
Targeting high-profile supporters and elected officials to validate.
High-profile supporters:
Mario Cuomo
Recommendation:
That the President or Leon Panetta call him prior to the speech. . ·
Ask Mario Cuomo to speak out, and to use his SatUrday Radio program to have a
dialogue on Affirmative Action. Possibly, have Leon Panetta or other surrogate go on
· the radio program.
Michael Dukakis
Tony Coelho
Recommendation:
to speak out.
George Stephanopoulos should call, get their input and ask them
Elected officials:
Sen. Barbara Mikulski
Sen. Paul Sarbanes
Sen. Bill Bradley
Sen. Joe Biden
Rep. Nancy Pelosi
Rep. Marcy Kaptur
Rep. Rosa DeLauro
Rep. David Bonior
Recommendation:
These are members that connect with their white ethnic
constituency and have some appeal. Sen. Mikulski in particular, is articulate and
effective on this issue and connects with the white ethnic working class. These
members should be included 'in the Congressional outreach done prior to Wednesday ·
and asked to validate.
.
�....., '\,J
I
I
Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
· 001. memo
Leon Panetta to the President [partial] ( 1 page)
07114/1995
P6/b(6)
· 002. list
Affirmative Action Conference Calls [partial] (1 page)
n.d ..
P6/b(6)
n.d.
P6/b(6)
6/27/1995
P5
003. list
DATE
· Black Radio Talk Shows [partial] (1 page)
RESTRICTION
004. memo
Stephanopoulos and Edley to POTUS, re: AA - Speech, Review, and
Policy Decisions (11 pages)
005. memo
Marilyn Digiacobbe to Alexis Herman, re: AA and the White Ethnic
Constituency (2 pages)
7/15/1995
P5
006. memo
Stephanopoulos and Edley to POTUS, re: AA -Decision on PostAdarand Steps and Completion of the Review (6 pages)
7119/1995
P5
007. memo
Stephanopoulos and Edley to POTUS, re: AA - Decision on PostAdarand Steps and Completion of the Review (5 pages)
7/1911995
P5
008. note
R to AMH [partial] (1 page)
n.d.
P6/b(6)
009. memo
Stephanopoulos and Edley to'POTUS, re: The Supreme Court's
Adarand D.ecision (3 pages)
6/12/1995
P5
-
.
COLLECTION:
Clinton Presidential Records
Public Liaison
Alexis Herman, Ruby Moy
OA/Box Number: 59 I 5
FOLDER TITLE:
[Affirmative Action- Speeches, Outreach, and Adarand] [1]
Whitney Ross
2008~0308-F
wr514
RESTRICTION CODES
u.s.c·. 552(b)J.
Presidential Records Act- [44 U.S.C. 2204(a)l
Freedom of_lnformation Act- ]5
Pl National Security Classified Information ](a)(l) of the PRA)
P2 'Relating to the appointment to Federal office ](a)(i) of the PRAI
P3;Release would violate a Federal statute ](a)(3) of the PRA)
P4lRt!lease would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA)
.PS'Release would disclose confidential advice between the President
and his advisors, or between s~ch advisors [a)(S) of the PRA)
P6<Release would constitute a clearly unwarranted invasion of
personal privacy ](a)(6) of the PRA]
b(l) National security classified information ](b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency ](b)(2) of the FOIAI
b(3) Release would violate a Federal statute ](b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy ](b)(6) of the FOIAI
b(7) Release would disclose information compiled for law enforcement
purposes ](b)(7) of the FOIA]
b(8) Release, would disclose information concerning the reg.ulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells ](b)(9) of the FOIA]
C. Closed in 11ccordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.·
�··s
•
/
~AI)
l :\(
0
,~~ ~
~\{;1'. ~ )(~' \-~\ \e, (_/'' ..
July 15, 1995
Ja\1 u
J~~ .
~.g;
0 \}."
\J
MEMORANDUM FOR ALEXIS HERMAN
FROM:
SUBJECT:.
.·
.
. MARILYN DIGIACOM '·.
'
~
~
h
-
·~
I
"I
~
Q~
.P
\
\J;
.
)f/f
ePf
'rf)
0~
AFFIRMATIVE ACTION'AND THE WHITE ETHNIC
CONSTITUENCY
):0
0,
f\\(;
X~
0
.
This is an issue which presents challenges for the Administration amongst the white ethnic
community. This constituency, like the rest of the country, understand that injustices exist
and that they need to be corrected, but mariy ·do not feel a sense of personal responsibility
and don't view themselves as any part of the equation.
In order for us to minimize negative impact amongst this constituency on the President's
Affirmative Action speech, it is important for the President to make some connection with
this audience in his speech. It would be helpful if the President would talk about the fact that
we want all the irirmigrants of this natiol).-to get aheaq on their own ability, and that in giving
to one person we are not taking it away from others but helping the entire society to grow
and benefit. What we are doing is helping the family of America to move forward together.
I think the weaving in of the common ground message, and the acknowledgement that there
needs to be some economic basis for Affirmative Action programs will help. It will appeal to
the better nature iQ. people.
I will focus on touching base and energizing supporters of the President in the white ethnic
communities to affirm the President's Affirniative Action message. My focus is on key
community leaders and supporters in the following constituencies: Polish, Italian, Irish, Greek,
Armenian, Hungarian, Portuguese, and Ukrainian-American groups.
Goals of the effort:
*
Touch base with key community leaders and supporters prior to Wednesday as a
courtesy, to let them know what the President's message will be.
*
Provide talking points to key community leaders and supporters that are geared to the
white ethnic community.
*
Conduct conference call(s) with key supporters who will support and affirm the
President's message in their community. (List attached.)
*
Appeal to high-profile supporters and elected officials to validate the President's
message in the media.
�- - - - - - c - - - - - - - - - - - -------------
\.lUll
Targeting high-profile supporters and elected officials to validate.
High-profile supporters:
Mario Cuomo
Recommendation:
That the President or Leon Panetta call him prior to the_ speech.
Ask Mario Cuomo to speak out, and to use his Saturday Radio program to have a
dialogue on Affirmative Action. Possibly, have Leon Panetta or other surrogate go on
the radio program: Michael Dukakis
Tony Coelho
Recommendation:
to speak out.
George· Stephanopoulos should call, get their input and ask them
Elected officials:
Sen.
Sen.
Sen.
Sen.
Rep.
Rep.
Rep.
Rep.
Barbara Mikulski
Paul Sarbanes
Bill Bradley
Joe Biden
Nancy Pelosi
Marcy Kaptur
Rosa DeLauro
David Bonior
Recommendation:
These are members that conrtect with their white ethnic
constituency and have some appeal. Sen. Mikulski in particular, is articulate and
effective on this issue and connects with the white ethnic working class. These
members should be included in the Congressional outreach done prior to Wednesday
and asked to validate.
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
001. memo
Ofield Dukes to Alexis Herman [partial] (1 page)
06/13/1995
P6/b(6)
002. letter
Lawrence Perlman to Alexis Herman [partial] (1 page)
0711111995
P6/b(6)
003. letter
Lawrence Perlman to Alexis Herman [partial] (1 page)
07/1111995
P6/b(6)
004. memo
Deva1 Patrick to John Schmidt, re: Response to Adarand and
Alternatives to a Commission (2 pages)
6/14/1995
P5
005. letter
.Weldon Latham to Harold Ickes, re: Presidential Scilutiori to
Republican Attacks on Minority and Female Business Set-Aside
Programs (4 pages)
617/1995
P5
006. memo·
Shirley Wilcher to Thomas Williamson, re: Follow-up to Meeting with
· Kelman, Eldey et al. (2 pages)
· 5/10/1995 ,
P5
COLLECTION:
Clinton Presidential Records
Public Liaison
Alexis Herman, Ruby Moy
ONBox Number: 5915
FOLDER TITLE:
Support
Whitney Ross
2008-0308-F
wr518
RESTRICTION CODES
Pres.idential Records Act- [44 U.S.C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pll'fational Security Classified Information [(a)(l) of the PRA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
p~rsonal privacy [(a)(6) of the PRA)
·
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA)
b(J) Release wouldviolate a Federal statute [(b)(J) ofthe FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) ·Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA)
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOlA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
. C. Closed in accordance with restrictions contained in donor's deed
ofgift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�...
~-
~
"
.
U.S. Department of Labor
Employment Standards Administration
· Office of Federal Contract
Compliance Programs.
Washington, D.C. 20210 .
MAY I 0 1995
MEMORANDUM FOR THOMAS S.. WILLIAMSON
Solicitor of Labor
BERNARD E. ANDERSON
Assistant Secretary, ESA
WILC~ERYUJ
FROM:
SHIRLEY J.
Deputy Assistant Secretary
SUBJECT:
Follow-up to Meeting with Kelman, Edley et al.
I feel very strongly that the Secretary needs to begin to express
the views of the Departm-ent· of Labor regarding Mr. Kelman's
streamlining proposals as they affect OFCCP. First, regarding the
most potentially harmful proposal.for this agency, the "flow down"
to commercial subcontractors, what I find most troubling is that
Office of Federal Procurement Policy (OFPP) had no indication of
the potential impact of such a proposal on the contract compliance
program, and had no data regarding the number of contractors or
potential contractors affected, the universe of subcontractors
generally, or the numbers of persons potentially affected.
Even
the definition of a commercial contract as viewed by OFPP remains
a mystery to me. If OFCCP or the Department of Labor were to make
such a sweeping recommendation to OMB, we would not have been given
five minutes before being sent back to do more study.
I suggest
that the Kelman proposal deserves.· the same treatment.
In any·
correspondence with the President's Chief of Stqff, the Secretary
sho·uld so recommend.
· ..More importantly, for the President to be asked to explain why the
Federal government would permit potential contractors to be exempt
from the Executive Order simply because they did not want to comply
with the affirmative action and nondiscrimination requirements is
sheer folly and is political suicide.
The questions that would
flow from such a pronouncement, including why these particular
subcontractors were selected and none in the defense or
construction industries; what the impact of such a proposal would
be. in terms of the universe of companies included and the numbers
of women and minorities excluded (an unanswered question); and
whether this indicates a major reversal from prior administrations,
could be very embarrassing.
For the record, Clinton and Reagan
would share the dubious distinction of being the only two
presidents that did not act to strengthen the Executive Order
·program since 1941.
Working for America's Workforce
�Similarly, raising the threshold to $100,000, thereby_ excluding
21 percent of the contractor universe, for the sake of
facilitating th~ procurement process is extremely inadvisable.
This is true most importantly because this action will have been
done for the convenience of the contracting agencies and not for
the contractors. As you indicated, the symbolic value of raising
the threshold when there has not been a clamor to do so (although
it has been ~uggested before) and.before there is a political
· . need is· also political folly. .Raising the threshold should be
done only when we have no other option, e.g.; when' Congress
demands.it and OFCCP's appropriation is at stake. It is at best
a fall-back position.
Lastly, the preaward review process does not belong at the table
during a review of the principles of affirmative action.· The
OFPP proposals to eliminate preawards are only made for the
convenience of the contracting agencies, not for the "angry white
male." Neithei he nor the contractors will benefit if we
eliminate preawards. Moreover, if we eliminate the program we
must have assurances that we will receive notices regarding the
award of prime contracts and any known subcontracts within two
days of.the award. The contract information must be sent to
OFCCP's regional offices or the National Office directly from the
agencies, so we will not have to rely on the Federal Procurement
Data System that notifies us of the award· of the contact up· to.
six months after the award. To have to rely oh the FPDS is
unacceptable.
Frankly, it is disheartening to have to debate the very issues
that we fought so hard to defeat under the Reagan Administration.
While we· all understand the political environment. in which we
work, it is not clear to me why these proposals need to be
addressed at this time and why the President need·s to incur the
wrath o":i: the civil rights community and its constituents, when
there is little perceptible benefit to the angry white male.
Moreover, it does little good to say that ~e supports the
principles of the Executive Order while allowing OFPP to
effectively eviscerate the program. Clearly, very few iri both
communities will be deluded about the actual impact of such a
pclicy.
.
�Withdrawal/Redaction Sheet
·
DOCUMENT NO.
AND TYPE
Clinton Library
DATE
SUBJECTffiTLE
RESTRICTION.
001. list
Attendees for 9:30 Meeting [partial] (1 page)
07/14/1995
P6/b(6)
002. list
Addresses [partial] ( 1 page)
07/21/1995
P6/b(6)
003. memo
Barbara Woolley to Deborah Fine [partial] (1 page)
07/10/1995
P6/b(6)
oo4.list
Women's/Civi1 Rights Names [partial] (1 page)
n.d.
P6/b(6)
005. memo
Barbara Woolley to Deborah Fine [partial] (1 page)
07/10/1995
P6/b(6)
006. list
Proposed List of Invitees for Monday Dinner with POTUS [partial] (2
pages)
03/0911995
P6/b(6)
007. list
AA Callers - Constituents [partial] (2 pages)
n.d.
P6/b(6)
008. list
Meeting with Women Business Owners on AA (1 page)
6/2611995
P5
COLLECTION:
Clinton Presidential Records
Public Liaison
Barbara Woolley
QNBox Number: 23688
FOLDER TITLE:
Affirmative Action Documents 1 (2]
Whitney Ross·
2008-0308-F
wr481
RESTRICTION CODES
Presidential Records ACt- 144 U.S.C. 2204(a)l
Freedom of Information Act- [5 U.S.C. 552(b))
PI National Security Classified Information [(a)(l) of the PRA)
P2 ~elating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release wouldviolate a Federal statute [(a)(J) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
.P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
.
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
. b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement ·
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
. financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR Document will be reviewed upon request.
�MEETING WITH WOMEN BUSINESS OWNERS ON AFFffiMATIVE ACTION
M<?nday, June 26, 1995
3:15PM-4:15PM·
Room 180,.0EOB
-~.~
PPARTICIPANTS:~~Lyfine Revo-Cohen, Hubbard and Revo-Cohen,, Inc.
_.Laura Henderson, Prospect Associates tP
'"'J}aren Hasti~ Williams, Esq., Crowell & Moring
___.---f==:;-1u_dy Lichtman,. Women's Legal Defense Fund @
.
.
.
----+--·.-.-A
_
_,udr!Y Ha~nes, ~usiness ·and Professional Women.'~
· Qm{Millm'aii:>National Women's Business Council I!JI .
_.-!r---,-:o-.hirley Blase, Women Construction Owners and Executives (()
.,Lynn K. Claytor, Contract Compliance; Inc. 'e1 ·
. -~arcia Greenberger, National Women's Law Center Q
.. ·-··
ij:ope Eastman, Paley, Rotharn, Goldstein, Rosenberg & Cooper t1
..:Kathleen T. Schwallie, Esq., Women Business Owners Corporation
...I:;illian B. Handy, TRESP Associates, Inc. ~Etienne R. LeGrand, Women's Initiative for Self-Employm~nt 11ft
· Amelia Parker; Executive Leadership Council
~'
..
0•
~NC
(
8
~:no~~~::•
f
@';?>
(!JJ'
~ 'MI. I\ Yy)d4\..
Rt~i ~1N~
...
Wl>0t--·
White House
Harold Ickes
George Stephanopoulos
Chris Edley
· Doug Sosnik
Betsy Myers .
Barbara Woolley
f\CAn~ 'Z./rK.;J
r:\
v' ~a~f\~
L\"~ b.-T~ W~
~/' .,,{if\ ':J)e.O~··I\1(
n
·"-~ +\J~
s~\..~ ~
r .... .
I
'
......
\
.-..::.;
"'
OvvvJ.i~ P~t"'~e~
�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
001. letter
Phyllis Watkins to Elizabeth Myers [partial] (1 page)
07/20/1995
P6/b(6)
002. memo of call
Elaine Clift [partial] ( 1 page)
n.d
P6/b(6)
003, fax
Andrea Wolper to POTUS [partial] (4 pages)
07/21/1995
P6/b(6)
004. memo of call
Dorothy Davis to POTUS [partial] (1 page)
n.d.
P6/b(6)
005. fax .
Holly Monsosto White House/Women's Issues [partial] (1 page)
07/21/1995
P6/b(6)
006. letter
Sherry KoehlefAlpem to POTUS [partial] (1 page)
07/19/1995
P6/b(6)
007. letter
Sherry Koehler Alpern to POTUS [partial] (1 page)
07/19/1995
. P6/b(6)
008. list
White House List (2 pages)
3/8/1995
P5
03/09/1995
P6/b(6)
I
009. list
Proposed List oflnvitees for Monday Dinner with POTUS [partial] (2
. pages)
COLLECTION:
·Clinton Presidential Records
Public Liaison
. Barbara Woolley
OA/Box Number: 23688
FOLDER TITLE:
· Affirmative Action Documents 2 [ 1]
Whitney Ross
2008-0308-F
wr482
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)l
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl.National Security Classified Information [(a)(l) of the PRA)·
P2 :Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ ·Release would violate a Federal statute [(a)(J) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS ·Release would disclose confidential ·advice between the President
and his advisors, or between such advisors [a)(S) of the PRA]
P6.Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified information [(b)(l) of the FOlA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(J) of the FOIA]
.b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
·
b(8) Release would disclose information conce.rning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) ofthe FOIA]
C. Closed in accordance with restrictions contained in donor's deed·
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
. 2201(3).
· RR. Document will be reviewed upon request.
�Gloria ste1nem
. Ms Magazine
212-551-9787
• fax 212-551-9788
Susan Faludi
Author, Backlash
310-276-3869
Barbara Bergman, Ph.D.
Professor of Economics
American University
202-885-2725
fax 202 .. 885-J')go
leading authority on women's labor force participation
Author, In! Economi£ Emergence g! Women
i
I
I .
I
Ronnie Steinberq, Ph.O.
Professor of Sociology
Temple university
215-204-1824
fax 215-2.04-3352
Leading authority on wage discrimination and women's
employment policies ·
Edi~or, E~ual ~~yment Policy ~women and
Job Training ~ Women
I
~
1
:I
1
I
I .
j
:J
... )
Ph.D.
Professor of sociology
·Maryl~?.E=t 'i'~tylor,
Pennsylv~nia
814-8~5-2527
State University
814COPdUCted recent
benefit:!iAries
'fAX
.
study on impact of affirmative action on
Heidi Hartmann, Ph.D.
Director, Institut.e for Women's Policy Research
202-833-1599
fax 202-833-4362
· Labor force economist and author of books and articles on wage
discrimination and occupational sEu)regl!'lt: i.on
Recipient of 1994 McArthur Genius Award
5
.
�fb"J·j~~,ui&~A·
(} t{J) (JMX:i:J ~ r
. ;:7.
~z,v
h
,_ <-
{.Of ..Y.{)afrzd
~~
(~~du~L/~
7- {/I
~ /vr.cnu ~--:_, ?l!
.
I g. :fy:u~
JC
�Withdrawal/Redaction Sheet
Clinton Library
DO(:UMENT NO.
ANPTYPE.
SUBJECTrfiTLE
DATE
RESTRICTION
001. memo
Lynn Cutler to Harold Ickes et a!. [partial] (1 page)
03/08/1995
P6/b(6)
002. memo
Betsy Myers to Barbara Wooiiey, re: Recommended Names for
President's Affirmative Action Event (2 pages)
3/13/1995
P5
003. memo
Be_tsy Myers to President Clinton, re: Speech to DNC Chairs (1 page)
7/12/1995
P5
COLLECTION:
Clinton Presidential Records
, Public Liaison
Barbara Wooiley
OA!Box Number: 23688
FOLDER TITLE:
Affirmative Action Documents 2 [2]
Whitney Ross ·
2008-0308-F
wr483
RESTRICTION CODES
· Presidential Records Act- [44 U.S. C. 2204(a))
PI' National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA)
PJ Release would violate a Federal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
'financial information [(a)(4) of the PRA)
PS Release would disclose confidential advice between the President
·and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
; personal privacy [(a)(6) of the PRA) .
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
. Freedom of Information Act- [5 U.S.C. 552(b))
b(l) National security classified information [(b)(l) of the FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(J) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade' secrets or confidential or financial
inf01·mation [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA)
b(9) Release would disclose geological or geophysical information
· concerning wells [(b)(9) of the FOIA]
�MAR 13 '95
11=58AM SEA
~·JBCCLINTON LIBRARY PHOTOCOPY
P.1
U.S. SMALL BUSINESS ADMINISTRATioN
WASHINGTON,
D.C. 204(1
M E M 0 R A N D. U M
DATE:
March 13, 1995
TO:
Barbara Woolley
FROM:
Betsy Myers, Assistant Administrator
Office of Women's Business ownership
SUBJECT:
Recommended Names for Presidents Affirmative
Action Event
l)
.1'~
Hedy Ratner
Director
Women's Business Development Center
8 south Michigan Avenue, Suite 400
Chicago, IL 60603
PHONE - 312-853-3477
FAX -
31~-853-0145
--Member of National Women's Business Council
2}
Kathleen T. Schwallie
Chevalier Law Firm
19 Encanto Drive
Rolling Hills Estates, CA 90274-4215
:PHONE - 31 0 - 53 0 ~ 0 5 82
FAX - 31 0 - 53 0 -14 8 3
--National Association of Women Business Owners
Procurement Task Force
· 3)
.Shirley Blase
Executive Director
Women Construction Owners & Executives
1000 Duke Street
Alexandria, VA 22314
PHONE - 703-684-6060
FAX ~ 703y836~3482
iS~~
�Chtvalii~!~.E .. ~~ '95
12: 31PI•I SE~ I·JBO
~
·
CLINTON LIBRARY PHOTOCOPY
J
.
t)''\
\~
A1 ,, .\ ,..(\\ ·
ty·
-....)' \T
Cheval~r T..aw Ftnn
18Enecto Dri\'¢
Rolling Hills :Estatc.s, (:.&, 90~74-4215
TclcphoDe: (310) 530-0582 Ttle«~pier. (310)5."~0-1483
~
ll-mall7S334-2560®compuscrve.com
t..:~ tS<f/
/. o··
•o~.tsiMJI.ETILINSMIIIAL
DATE:
March 11, 1995
TO:
D01.1s ~osrrik
Cw.rge Stephannpohs
CC::
The Hun. Barbara Uoxer
The I Ian. Di.aJU\e Feinstein
The lion. Jane Harm11n
Butiy'Myeis
PllOM:
Kathleen T. Sdlwalli.-
MbSSAGI:: I am writi11g on behalf of the Nal:i.cm.a.l. Asioclatian of Wo.ll'ltm Husii\esa
Ownera as oo-dutirper11cm af its Proc:w"ement Special Intln'SSt Group. We are
confident t.hal upon ~om.pletina his review of federal affirmaLiv~B ;\l;UOtt projJl'.a.a\1,
the President will cunclu.dii that soal• progr~ whit!h.rcmediate for disaimi:tali.un
again~t women-owned fimls have su''~d.ed, al\d that only by retaining these
p~:ogtanu and enlw\dns th~ mit women cunLrac=lon .!:~lake ful'ther gi'li11"ln 11JY31 unly 1.8% of federal gov~ent con.il'~U:ts were awarded to women
owned buainwt~li!tl deep.ite the fact that they ~ompri~ 11pproxlmately 30% of all
btisinesse8 in this country. The taxpayer~> are .not reari.vi.J.'\3 the best value for tncir
tax dollars whct1 many of this C0\.\1\try's DlO!IL ~!!icil!nt and innnv#lti\"1! firmR·
-·
women-owned firm11---do not have the opportunity to ~pelt!. And llUtl is all they
wanl i.e to rompete ,· not to be given preferential treaLmt:nL
NAWBO e1.1pporb the Wl\tinuation of all goals pro,grama for wamert-owned
0\tSines~~. RcpL1clng goals programs with. others based on. "nel!d" wiJlnot ensure
Wll'!
have a ttend.er-blind procurement system. NA'\1\~ dOI!ll nolsupport 8E!t-aF>ide
progr.ms.
'Thi& Admirlistr~uun row taken an impotW\t tt@p £orwf!t'ti tn 1'P.fO'I'm these
programs by pursuing tiUI UJte ol certificati.oJt of wot'l'ltn·nwned bU9iru:sacs, rather
thfln ~~etf.certification. In the future, only those busln.eae:; which are truly owned
and. controlled by wol"r''Pn will benefit from gualw _prosrams.
The Pnurid.vnt .auat l\Ot l'etrea.t on e:nfor(.-eme:nt o.f equal opportuniLy lawlf, H.l$
leadership un Lhi• liil.le will be pivotal tn their continued sua:ess.
N~ of pagoM, mduding
thit:i LTIUltWlittal sheet 1
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Extent
The size or duration of the resource.
397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
FOIA 2008-0308-F - Affirmative Action
Identifier
An unambiguous reference to the resource within a given context
2008-0308-F
Is Part Of
A related resource in which the described resource is physically or logically included.
Previously Restricted Document Release no. 4
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference