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..'.:
Administering Identity: The
Determination of "Race" in Race
Conscious Law
Christopher A. Fordt
"
Modem American anti-discrimination law seeks to remedy the effects
of racial and ethnic prejudice by ensuring equality in areas such as polit
ical access and employment opportunity. In this effort, the concept of race
is central both to identifying and to rectifying the effects of prejudice.
Various 'economic and social ,benefits, for example, are awarded based
upon injuries and solutions defined with reference to racial categories.
Race and ethnicity, however, are today recognized as being largely social
constructs: with little empirical or scientific basis. This dichotomy between
the importance of race classification to anti-discrimination law and its jun
. damental~indeterini~ creates what the, author calls a core dilemma of
modem race..-conscic.iIS law: the difficulties of how we "administer race."
He explor~s two 'related questions beari~g on this dilemma. How should
the law-iiideed. can the law-intelligibly define the nature and bounda
ries of the groups to whom remedial preferences are addressed? Furtlu!r
more, can the law "accurately" sort individuals into these groups once they
have been defined? The author explores the approaches several different'
group conscious programs and legal regimes have taken in attempting to
deal with these questions, from methods employed in sex a.n4Native Ameri
can classification to the systems of classification used in the Jim Crow
South. in modem India and in SOUlh Africa during the. apartheid era. .
I
ADMINlS'l'ERINO IDENTITY
Today, our laws and governmental regulations establish an enonnously
.elaborate system of race-conscious policy, seeking to remedy the ill effects
of past discrimination, to break down barriers to minority advancement, and
to allocate various sorts of social and economic benefits to those made
Copyright e 1994 California Law Review, Inc.
t Christopher Ford received his A.B. from Halvanl in 1989 and his D.PbiJ. from OxfOM
University (Christ Church) in 1992. He worked as a Junior Rcscan::h Fellow at Wolfson Col1ege,
Oxfon1. in 1991-92. The IWIhor is grateful to Professms Bruc:e Acb:rman of the Yale Law School and
Robert Post of the Boalt Hall School of Law at the University of California, Bmeley. for their guidaru:e
and encouragement. Most of all, however, he wishes to thank his wife Jennifer 1.. Davis-Ford for her
boundless love, kindness, and paIience.
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needy by societal prejudice and contempt. Race is no longer strictly a fac
tor that we aspire to render as irrelevant as the color of one's eyes. It is a
cornerstone of modem jurisprudence. We cannot. therefore, avoid answer
ing hard questions about how it is, exactly, that we "administer race"; we
cannot avoid having explicitly to determine and defend how it is we ask
public authority to take account of racial identity.
A.
Malone v. Haley-Pressure on the System
This Article attempts to address two closely related questions. How is
the law to define the nature and boundaries of the groups utilized in the
administration of remedial preferences for persons "on the basis of ... their
membership in a specified group or groUpS"?1 How can the law accurately
sort individuals into these categories? Thankfully, it has been many years
since respected thinkers were producing biologically-determinist rational
izations and typologies for the rigid classification of mankind into racial
groups possessing distinct and enumerable physical, moral, and intellectual
attributes. 2 With more wisdom today, we are able to recognize racial and
ethnic categories as largely socially-constructed creations. Sw;h categories
are at most only stereotypically associated with particular phenotypical
characteristics. which are themselves mutable and, as the Reverend Martin
Luther King, Jr. so memorably put it. of no more intrinsic moral value than
the color of one's eyes. That modem American preferential programs are
.targeted at categories with such a "socially constructed" character makes it
even more important-and difficult-to consider carefully the procedures
with which we administer race.
The case of Malone v. Haley, J an unreported single-justice opinion of
the Supreme Judicial Court of Massachusetts. illustrates some of these
conundrums. Paul and Philip Malone, twin brothers who lived in Milton,
Massachusetts, took part in 1975 in a city civil service Competition for jobs·
with the Boston Fire Department. They scored poorly and were not
4
accepted. The twins, who were fair-haired and light-skinned, had identi
fied themselves as White in. the 1975 test application. In 1971 they tried
again, this time identifying themselves as Black. The Boston Fire
Department had by that time become subject to a court-ordered affinnative
action program,' under which the city maintained separate minonty candi
date lists for firefighter vacancies..The twins' 1977 test scores of 57 and
69, respectively, would not have qualified them for the job as White candi
1233
dates,6 but based upon their self-identification as Black they were hired and
served on the force for ten years. The Malones' troubles began in 1987
when they sought promotion to lieutenant. and the Fire Commissioner
noticed that the twins were classified as being "Black." A hearing officer
declared that the Malones were not Black and had therefore falsified their
1977 application and examination materials, in violation of state Personnel
Administration Rule 3(4)(c). The state's personnel administrator promptly
fired the brothers. Noting that the Department had required on,Jy racial
"self-identification" in 1977, the Malones appealed, arguing that they
should still be considered Black by the Department.
Deferring to the "particular d'lmain of the factfinder who had an
opportunity to observe the 'witnesses and to judge their credibility,"? Judge
Herbert Wilkins of the Supreme Judicial Court for Suffolk County, Massa
chusetts, followed the hearing. officer's three-part test for adjudicating
claims to racial identity.8
[T]he Malones might have supported their claim to be Black[:] (1)
by visual observation of their features; (2) by appropri!lte documen
tary evidence, such as birth certificates. establishing Black ancestry;
or (3) by evidence that they or their f~lies' hold themselves out to
be Black and are considered to be Black in the community.9
Neither Malone brother, Wilkins wrote. met any of these three criteria.
To begin with, both had "fair skin, fair hair coloring, and Caucasian facial
features."lo The personnel administrator had concluded that ''they do not
appear to be Black."11 The birth certificates of the Malone brothers and of
their parents also showed the Malone family to have been "reported consis
tently to be White" for three generations. ll "Finally. there was no evidence
that the Malones identified themselves personally or socially as Blacks,"
except for the narrow purpose of claiming jobs and promotion in the Fire
Department. IJ Judge Wilkins also found substantial evidence that they "did
7. Td. at IS.
.8. Ill. at 16.
9. Td.
10.
II.
12.
Td. at 17.
Id. (iDternaI qllOll8lion marla! omitted).
Id. at 18. The pamnts' birth c:eniIiC8la mpoI1ed the race of the Malone brother.;' grand
. pamnlS as White., thus "estahllsh{iDg] the racia1 identity for thme geMrations." Id.
Against this evidence the Mal00es uwshaIIed only a
questionable and inconclusive photograph of a woman they claimed to be Sarah Carroll, their
matemaI grcat-grandmoII!a'••••. ~ was DO mliable means of verifying the identity of the
WOIl1llD in the photograph. The Malonea offered only their hamay IeStimony thai they had
been told thai this is a photograph of their gmat-grand.molher. MOlIIOVa', eveD if the identity
of the WOIl1llD wcm accepted. the hearing offieer found thai the pbotograpb itself was
inconclusive OD the issue of the race of the _II18II piClllred.
Tll. at 19.
13. Td. at 19·20.
James E. Jones. Jr.• TM Genesis and PrumJ Sumu td AffjmwliW! Action in Employnumt:
Economic. Legal. and Political R~alilies. 70 IOWA L REv. 901.903 (198S).
2. S«. ~.g.• Jos. A. ROBERT$, TIm RACE CONI'LICT' IN So\.rrImRN STA'lES: AN E'nINOUlOICAI.
. STUDY OF T1iE ORIGINAL TYPES AND T1iE EFftrr OF HYBIUDITY (1899).
3.
ADMINISTERING IDEN1'fi:y
6. "The lowest sc:oting noo-minority C8Ddidale who was ever certified eligible for appointment
based 00 that examinatioD had a sc:om of 82." Td. atl 0.1.
1.
4.
1994]
No. 88·339 (Sup. Jud. Ct. Suffolk County. Masa. July 25. 1989).
Td.. slip op. at 17·18.
Td. at 2 ('"[T]he Boston Fmd>epartment (was) subject to a federal consent decree: enten:d in
S.
1975 in NAACPv. Beecher, C.A. No. 72·3060-P (D. Ma.ss.) ..,.
~
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CAliFORNIA LAW REVIEW'
[Vol. 82:1231
It seems to be taken for granted in modem American racial jurispru
dence that these categories are cotenninous. For gender-based classifica
tion,this maybe true: one would not, in most cases, expect divergence
between someone~s self-perceived identity as a male, on the One hand, and
the agreement of either men or women about this fact of biological identity,
on the other. With respect to racial and ethnic characterizations, however,
this cannot so easily be said to be true. Therefore, these classification
schemes may produce different results. If racial and ethnic identity is to
remain a salient factor in the allocation of social benefits, we must be aware
of 'how various procedural systems may differ; we must be willing to
examine the degree to which the policy interests served by each such classi
fication scheme map the contours of sociological identity. The proper pro
cedure for "administering race" is the core dilemma of modem raceconscious law.
.
Th~ race-administration systems examined below employ these classi
fication paradigms in different mixtures and titke them to different
extremes. Part II of this Article will examine the ways in which this task is
presently approached in the United States for various purposes, while Part
ill will recount other significant approaches to racial or ethnic classification
taken, for comparative purposes, from other areas of law, from U.S. history,
and from other countries.
' ,
II
ADMINISTERING
BENEPlTS
At present, the two primary U.S. systems for group-keyed benefit allo
cation are the promulgation and enforcement of anti-discrimination laws
such'as those requiring proportional hiring and promotion, and the redraw
ing of political boundaries on the basis of race so as to create "minority
majority" districts that will boost minority political representation in local,
state, or national political. fora.
A. Employment: The EEOC and Affirmative Action
The first modem "affirmative action" program was established in
1969, when the U.S. Department of Labor issued the "Philadelphia Plan" to
set up racial hiring goals and timetables for contractors involved in feder
ally-assisted construction projects in thatcity.46 Since then, a network of
federal regulations has been put in place requiring federal contractors, pri~
rlSS,
46, For a description of the Philadelphia Plm's hiring goals, see Owen M.
A 11urcry of Fair
EmploYrlUnJ Uzws. 38 U. CHI. L. REv. 23'. 274·75 n.49 (1971). An accoUnt of the policy roots of
affirmative action appears in Jones. supra note I. at 9OS·07. and James E. Jones, Jr., TIre Origins 0/
A/fimrtllivt! Action, 2) U.C. DAVIS L. REv. 383. 393·94 (1988). Another early approach simply
imposed hiring goals on building contractors by requiring aIlemating BlJIclcIWhite job referrals. 51111
Local 53 of the Int'! Ass'n of Heat and Frost iJuuiators v. Vogler. 407 P.2d 1047. IOSI (Sib Cir. 19(9).
This was said to work well as a pmliminaty injunctive measure bealusethe
then high. Sell Fiss. supra, at 27S n.49.
dCmand for referrals was
1994]
ADMINISTERlNG'IDENlTI'Y
1241
vate employers, public school systems. institutions of higher education, the
armed forces, and various -organs of local. state, and federal government to
_ implement anti-discrimination measures of various sorts. An important pan
of such regulation has been to require racial and ethnic 47 group-based pref
erences in hiring and promotion decisions, in an effort to make up for past
discrimination ,suffered and, to overcome disadvantages "built in" to
American society by a legacy of historical and ongoing wrong.48 The suc
cess of this remedial, effort relies upon the existence of the discrete and
definable classification categories that are its stock in trade: 49 If benefits
are to be provided to people "on the basis of . . . their membership in a
specified group or groups."so the law must have some clear and coherent
way of identifying groups and group members; Whenever there are
"Malones" willing to challenge their allocated position in a benefit-distribu
tion scheme, the system must _ willing to examine its foundations.
be
Preferential progratiis rely for their coherence ~pon making hard num
bers out of the conceptually muddy-Le., "soft"-variable of racial iden
tity. Given that the pervasive ethno-racihl cOst-accounting of government
policy relies inescapably upon detailed- statistical data, where does this
information come fn,.n?· In the employment context, the group-keyed allo
cation of benefits for purposes of "affirmative action" is derived from two
very different sources of information. The first of ihese is the U.S. Census
and the various population projections derived from it The second is the
information provided by employers through their Equal Employment
Opportunity filings as mandated by federal law. We shall examine each of
these in tum.
'
47. No attempt will be made here to define the terms "race~ 8JId uetbnicity." primarily because
Ibis Article ques that they are ultimately inddinable. As terms denoting vague (but tenaciously held)
conCepts of collective biologiCal and/or cu1tum1 iclentit)'.howevet. !heir use is unavoidable.
48. O:ntral to afllrmative acUon theory is the iclen of mmedy. necessarily conceived in group
terms. Discrimination Nis not . • • against indiYiduals.. It is discrimirullion apinst a people. And the
remedy. therefore. bas to correct 8JId cure and compensate for the discrimination against the people and
not just the discrimirullion against the identifiable penons." Bulb Manhall. A COmmtml 011 the
Nondiscriminlltion Principh! in a "Nation 0/ Minoririt!s.» 93, YAJ.I! W. 1006, 1006 (1984). In
·conferfingj benefits upon a class of penona. namely. the actual and likely Yictims of discrim:inalion...
rlSS, lupra note 46. at 236, remedial preference programs hope to achieve a 'i:tansitional componsa,tion
for past wrongs" by putting entim racial or etIuIk groups in a soc:io-economic position that is the "rough
equivalent of proportional represeiltation." MmbaII, supra, at 1011·12. This means mtuming the
victims to the position where they Would have beta "but for disc:riminalion." Jones, supra note I, at
921.
49. The modem AmeriCIIJI commitmllllt to remedial group:keyed racial benefit.a1location is
predicated upon certain assumptions about the salience and coherence of racial and ethnic identity. both
in the allocation of social disadVIIJIIllp and in its correc:tion. "The model of justice underlying
affirmative !!dian is characterized by two basic elemeuu: (I) use, of a racial pn;ference to include or
exclude. and (2) mliance on the gruupas its f'undaI=ltal entity." Arval A. Morris, New Ught on Racial
Affimrtllillil Ac:tion, 20 U.C. DAVIS L. REv. 219. 227 (1987).
'
f
,
.50. Jones. suPra note I. at 903.
i~
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1.
CAUFORNJA LAW REVIEW
1994]
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The National Census
In the final account, it is the Bureau of the Census that tells us the
most, in aggregate tenns, about our collective racial and cultural heteroge
neity. Race and ethnicity statistics are compiled from three different ques
tions on the basic census data fonns sent to households around the country
every ten years. The most significant aspect of this information is that it is
entirely self-reported. Question 4 on both the "long" and "short form"
questionnaires deals with the race of individual respondents. While sex,
age, marital status, and other questions are- asked as simple factual
responses, each respondent is asked to fill in one of several circles indicat
ing "the race that the person considers hims;ljllierselj to be. "!II However
Question 7, regarding respondents' "Hispanic origin." is an inquiry
demanding a rather less subjective answer: "Is this person of Spanish!
52
Hispanic origin?" A handful of permissible responses are offered. Ques- .
tion 13 appears only on the "long form" sent out to seventeen percent of
households nationwide, and asks, "What is this person's ancestry or ethnic
origin?,'!!3 A number of suggested answers are provided for Question 13,
largely pertaining to non-U.S. national origin. 54 Questions 4, 7, and 13 are
asked independently, and no relationship of mutual exdusivity exists
among any of their responses. ss These responses form the raw data from
which the Bureau of' the Census compiles its elaborate accounting of
America's racial and ethnic heterogeneity and ethnographic trends. As is
evident from the self"consciously subjective "race that the person considers
himselflherself to be~' query of Question 4, the Census Bureau disclaims
any pretense of objective "reality"-though in the wording 'of Questions 7
and 13 it approaches the various indices of ethnic and cultural origin with
less relativist qualification. Self-reported census data relies upon respon:'
of course, but these catego
dents returning "accurate" answers in all
ries of race and ethnicity are analytically "slippery" in a way that indicia of
income and marital status are not.
A major technical problem for the census compilers is that this self- .
reported data is frequently incomplete. There is no way to compel
responses to all sections, and no way to ask follow-up questions later.
Furthermore, with the addition of write-in "Other APr' (AsianlPacific
areas,
51. BUREAU OF THE CENSUS. U.S. Dep'I of Comm.. OftIciaJ 1990 U.S. Census Form 0-61. at 2
(1989) (emphasis added). .
52. It!
53, It! a16.
54. It!
55. The form permits, for example. a racial response of "EsIdmo~ and a simultaneOUS Hispanic
Origin atIlIwer of "Argentinian." Question 13 is also asked iDdependently, permitting an ArgentiMan
EWmo In indicate her Nigerian ancestry-and sillce Question 8 on !be long form asks respondents In
indicate their U.S. state or foreign c:ountry of binh, a single penon migbt. for e:u.mple. enter a
procedurally valid self-reponed response of Esldmo (rBA::e). Argentinian (Hispmric origin). Nigerian
(ancestr)'/edmicity). and Ulcminian (nati!Jlla\ origin).
,~
ADMINISTERlNG,'IDENTITY
1243
Islander) and "other SpanishlHispanic" categories since the 1980 census,S6
data-collectors receive a barrage of idiosyncratic respoQSes. Nearly ten mil
lion people coded the "other race" bOx on the 1990 census forms, either
marking the "other" circle without elaboration of writing-in a different
group name. Some of these responses were routinely folded back into the
standard categories ("African-American," for example, was assigned to the
"Black or Negro" classification), but many "other" categories did \lOt so
easily' fit. For some statistical purposes "other" answers could be left as
they were, but for other purposes (such as projecting yearly group popula
tion data until the next census) the existence of these "nori-specifieds'" was
considered unacceptable:S?
The existence of this group is inconsistent with the race categories
defined by the Office of Management and Budget in OMB Directive
15. Such "non-specified" race persons also.e· not found in data
sources other than the' census. In oriler to serve the needs of some
portions of the [data] user Community it is necessary to assign each
of these, persons to a specified race. 58
.
,
Because ninety-five percent of the "other race" responses were found
to be write-ins of apparent Hispanic sub-groUps,S9 the Bureau used a "Race
Assignlnent Rule" which assigned. each non-specified respondent "to the
specified race reported by a nearby person with an identical response to the
Hispanic origin question.' o6O ,Nonresponders were classified as being of the
same race as their nearest family member, housing-bloc co-resident, and so
forth. Those who, did not indicate an ethnic origin were themselves
assigned that of the person in the nearest "proximity:>61 This "race
modification" system allowed the 9.8 million "other race" respondents to be
folded back, into. the .standardized categories of Question 4. 62 . This had
some effect upon the aggregate,population totals recorded for the country,
increasing, for example, the number of recorded "Whites" by about nine
million, "Blacks" by about 500,000, and "AsianlPacific Islanders" by just
under 200,000.63 ,
56. AMERICAN DEMOORAl'HlCS, 1990 C-Us QuEsnoNNAIRB 2 (1989) (available from Bureau of
the CensWl. U.S. Dep't of Conun.).
57. Telephone In!en'iew willi Stanley Rolart. RaciaJ SlBIistics Office, National Bun:au of the
Census (Mar. II. 1993).
58. OREooRY SPI!NCIIlI. U.S. DEP'T OF Cow.olRcs, No. 1990 CPH-L-74. AGE, SEX, RACE ANI)
ffispANIC ORlOlH IHPoRMAnoH FROM ma' 1990 CIlNsus: A CoMPARISON OF CEHSUS REsUL'B wrrn
REsULTS WHEIU! AOl! ANI) RACE HAVE BEI!N MODIJ'IED I (1991).
59. It! at 2.
60. It! at I.
61. Telephone Interview willi Omgo!y SpeDCa'. CIief of the Population Projections Branch,
Natiollll1 Bun:au of the Ceasus (Mar. II. 1993).
62. SPENCl!R,:supra ,nolO 58, at I.
63. Raw IDIaI populalioa figures appear in id.
appear at id. 8pp~ !hI. I .. at 1-6.
app~
!hI. 2. at 7-12. The "nIce-modified" tota1s
�, <
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[Vol. 82:1231
Interestingly, persons reporting themselves to be American Indians but
not listing an officially-recognized tribe were excluded from the statistical
"race-modification" process because
preliminary 1990 research suggested questionable reporting in the
American Indian category and ... previous research showed that a
high proportion of such persons were much less likely to be
American Indians than those who actually provided a specific tribe
response as instructed on the census form.... These were excluded
because of evidence from the 1980 census that misreporting of race
was much, higher in these codes than it was in codes representing
specific American Indian tribes.64
Additionally, the results of race-modification procedures were over
ridden in four U.S. counties where they resulted in what was deemed to be
too large' a modification-driven increase in the listed American Indian popu
lation: "In each [such] case the persons were made White:163 This kind of
race-modification override based on the Bureau's independent assessment
of whether individuals in question were "really" of the race they claimed
themse;;ves to be was apparently only possible for the Native Americans
due to the peculiar status of "Indian" under U.S. law. For other self-identi
fied racial and ethnic categories no such quasi-empirical "verification" was
possible.
Even apart from "race modification" procedures that reclassify the
given response of nearly one American in twenty-five, ambiguity lurks in
the contingent nature of any self-reported system for racial and ethnic clas
sification. such as the U.S. census. Personal self-identification, after all, is
enormously contextual: "It embraces multiple levels or tiers, and it changes
with the environment. An African student in France will identify himself in
one way; at home, in another. . . . Notwithstanding the multiplicity of
ascriptive identities, all levels do not remain equally significant~ if only
because all contexts do not remain SO."66 Since race and ethnicity are
socially-constructed categories, they may vary over tiine and from place to
place. For example, Jos6 Cabranes has recounted the confusing attempts to
apply conventional "North American notions of race" to the popUlation of
Puerto Rico during the early years of the 20th century.67 Put simply, the
problem was that Puerto Ricans and the mainland census administrators and
interpreters had very different concepts of "race." It was rrequently
observed in this regard that "'on the mainland a drop of Negro blood
64.
ttl. at 2.
65. ttl. at 3.
66. Donald L. Horowitz, EtJuoic tdtmtity. In B1'IDI\aTY: T!f:EoRy' AND ExPmtIENCII III. 118
(Nathan Glazer & Daniel P. Moynihan eels.• 1975) (fooli1Ote omiued).
67. See Jos!! A. CABRANES. CITIZENSHIP AND THII AIomluCAN EMPIRE (1979).
~.
J
1994]
ADMINISTERING IDENTlTY
1245
makes a' white man a' Negro; while in Puerto Rico a drop. of white blood
makes a Negro a white man.' ,t68
.
Since self-reported data from the island assumed one "definition" of
race while mainland data-interpretation assumed another, official U.S. gov
ernment statistics for Puerto Rico, writes Cabranes, "were invariably mean
ingless:t69 As a result of the incompatibility of mainland and Puerto Rican
conceptions of race, U.S. census repOrts between 1899 and 1950 suggested
that blacks and mixed-race persons,were simply vanishing, as the percent
age of the population (self-)reparted as' "White" increased steadily with
each decade of U.S. governance. This "disappearance" became so marked
by 1939 as to prompt ,a major American encyclopedia to remark that
[i]f this decrease should continue for a number of' years, the black
race would eventually disappear from Porto Rico [sic] unless there
is an immigration of that
from the other West Indian islands in
the future. This is the only island in aU the West Indies where the
white population is so overWhelmingly in the majority}O
The number of people whom mainlanders might classify as "Black"
may have been no fewer than before-.,.or indeed niighthave actually
~ncreased-but because the idiosyncratically self-ruported census data
shared no benclnruirk of "real" racial identity with its interpreters, the main
lander and the Puerto Rican each ended up with an inaccurate statistical
account of the other.
The salience attached to particular characteristics and' the classificatory
meaning of such attributes thus may be quite malleable. Particularly in a
system of self-reported identity that allows intuitively anomalous responses,
such as the U.S. census, and which routinely "modifies" millions of per
sorial identifications, the degree to which census information can be said to
reflect the "true" racial composition of the population is questionable.
From the abstract theoretical vantage point of the Census Bureau, it is diffi
cult to judge the degree to which different self-rePorting individuals and
subpopulations may be "speaking" in mutually unintelligible classificatory
tongues.
race
2.
Employer tEO Filings
Of all classification systems in the United States, race classification
. carried out through Equal Einployment Opportunity (EEO) regulations and
the group-preferential hiring and promotion policies of affirmative action
programs has perhaps the most immediate impact Qn AmeriCan ,lives. The
government has been unable to provide much definitional help to the
.68. Iti. at 98 0.475 (quoting PuERTO RIco ~ ~. 1M Cooi>mtAlwN wmr THE
WRll'ERS' PROORAM OP THII WOlUCS PRooRESS ADMIN., I'uEIno RIco: A Gums TO THII IslAND OF
BORlQtmN 110 (1940».
69.
ttl.
70. 22 BNcya..oPI!l)Lo\ ~ 403(1939), (jIlDtetl in CuIlA.llliS, llIpm note 67, at 98 n.475.
~
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CAliFORNIA LA W REVIEW
1994]
[Vol. 82:1231 .
administrators of such programs, however. The Department of Labor's
EEO rules for federal contractors, for example. included "Standard Federal
Equal Employment Opportunity Construction Contract Specifications,"
which defined "minority" by describing various racial groups merely as
"having origins in" or as the "original peoples" of various continents
(Africa, Europe, Asia, the Americas).71 Despite the indeterininacy of these
definitions, the failure of federal contractors to apply specified minority hir
ing goals may result in the tennination of an employer's federal contracts,
and debarment from future contracts. 72 Under Title vn of the Civil Rights
Act of 1964,
every employer, employment agency, and labor organization subject
to this title shall (l) make and keep such records relevant to the
detenninations of whether unlawful employment practices have
been or are being committed. (2) preserve such records for such
periods, and (3) make such reports therefrom. as the Commission
shall prescribe by regulation or order ....73
Federal district courts are given jurisdiction to enforce compliance
upon' the application of the Equal Employment Opportunity Commission'
(EEOC) or the U.S. At;omey General. EEO record-keeping requirements
expressly
supersede any provision of State or local law which may conflict
with them. Any State or local laws prohibiting inquiries and record
keeping with respect to race, color, national origin, or sex do not
apply to inquiries required to be ~de under these regulations and
under the instructions accompanying [EEO] Reports . . . .'4
An EEO-I form detailing employment by race, ethnicity, and sex is
required of most private employers subject to Title vn.7!! Similar require
ADMINISTERING IDENTITY
ments for filing forms obtain for labor unions subject to Title vn (EEO
5_
-~
3),76 state and local goverJll11i::nts (EEO-4)," public schools (EEO-5),7S and
'
"
"
~-
;I"~:t~·~
institutions of higher education (EE()"6).79
Self~reported information provided by employers on the "race, ethnic
ity, and sex of their employees (broken down by job category) is used to
evaluate their compliance with federal hiring goals. The Department of
Labor runs a nationwide network of Office of Federal Contract Compliance
Programs (OFCCP) offices which draw up statistic;:al tables showing
workforce availability by race, sex, job category, and skill level. These
Metropolitan Statistical Area (MSA) and other regional tabulations are the
standards against which hiring practices are judged for federal contract
'compliance and Title vn "disparate impact" purposes. The proportion of
women and minorities employed in each '1ob group" is compared to calcu
lations of the theoretical aVailability in the local labor market of each cat
egory of person with the appropriate skill level. A finding of "underutiliza
tion," which occurs when a job group has "fewer minorities or women . . .
than would reasonably be expected by their availability,"so requires an
employer to work out a suitable remedy with the local regulatory bureau
cracy.SI OFCCP rules do not give precise standards for judging underu
tilization, but three basic approaches are possible.
One approach is the "any difference" standard. If there is any differ
ence between relevant group. proportions employed and those available in
the loCal labor market, then the group is ''underutilized.'' This approach
C.F.R. § 1602.8 (1993). It is punishable Ibcreundcr by a fine of up to $10.000 and imprisonment for up
to five years. 18 U.S.c. § 1001 (1988).
alto EEOC. EEOC foRM 274, LocAl. UNION REPoRT
76. 29 C.P.R., §§ 1602.22·.28 (1993);
(EEO.3); lNsTRUctlONS fOR Fn.INo AND ~ ~ I (1993) [hcreinaftcr EEOC
foRM 274).
29 C.P.R. §§ 1602.30-.38 (1993); UtI Ow EEOC. EEOC FORM 164, STAn; AND l..ocAL
GoVl!&NMENT INFoRMATION (EEO-4): lNSTRUC'I1ON BooKLET 1-2 (1991) [hereinafter EEOC foRM
164).
78. 29 C.F.R. §§ 1602.39-.45 (1993); '" also EEOC, EEOC foRMS I68A AND B. E.uMENTAIlY
SECONDARY STAFF INFORMATION (EEO·5): lNSTltUcriONS FOR FI1.INO AND REcoRDICEEPINQ
REQuntEMENTS I (1992)[hcreinaftcr EEOC foRMS 168A &: B).
'
79. 29 C.F.R. §§ 1602.47·.s5 (1993); UtI also EEOC, EEOC foRM 221. ffwHER EDUCATION
STAFF INFoRMATION (EEO.6): lNsTRticnoN BoolW!T I (1991). These guidelines refer to Ibc staff
members emplqyed by universities; tbar: is no federal oYcnigbt nf Ibc group composition of the studenl
body III such institutions. Note, bowever. Ibal in Ibc cameo. aI least, of law school admissions,
affirmative action programs arc:DOt voluntary: the ABA rcquimI all law schools seeking aecrcdilation
(or wishing 10 keep their aecrcditcd statUs) 10 "demonsIraIe. ... by concrete action. a commitment to
providing full opportunities for Ibc study of law and entry into Ibc profession by qualified members of
grouj,s (DOUIbly racial and ethnic minorities) whicb have been victims of discrimillalion in various
forms. n STAM>AIU)S FOR APPROVAL ()II LAw Sa«loLs AND I!m!itPIti;rATIONS, Standard 212 (American
'.
'
Bar Ass'D Oct. 1992).
80. 41 C.F.R. § 6O-2.1I(b) (1993).
81. See 8tm11ra1ly BASIC EE.o RssoUllCB MANuAL cb. 16, III 7-16 (Douglas S. McDowell ct a1~
National Found. for the Study of Employment Policy cds., 1989). FedaaI guidelincs to help cmploym
do in-bouse "workforce lIJIII1yses" and "utilization analyses" arc CODIaincd in 41 C.P.R. n 6O-2.II(a)
{b) (1993).
$"
n.
71. 41 C.P.R. § 6O-4.3(a)(I)(d) (1993). For these purposes Ibc federal authorities, unlike census
and vila! slatistics officials. make 110 effort to distinguish between nu:e and ethnicity. 'However, Ibc
definitions are still nOI wholly mutually exclusive: while "Black" is defined expn:ssly to uclude
individuals of Hispanic origin (a depanurc from census 'and vila! slatistics methods), Hispanic minorities
are still said to be defined "regardless of nu:e." Asians and Native Americ:ans, however, are nol defined
so as to exclude Hispanics. Further muddying these definitional waters. Ibc EEO regulations also
require federal conb'aCIDrS to keep records of "Blacks. Spanirh.slU'lll11Md Americans. American Indians.
and Orienla!s" in their employ. 41 C.F.R. § 60-2.1 I(a) (1993) (emphasis added).
72. The standard form senl to all private employers required to submit filings to the Equal
Employment Opportunity Commission (EEOC) informs Ibc employcn of the COI1liiCqucnces of their
failure to comply with EEO regulations. See EEOC, STAHDAIU) FmtM'loo. RBv. 4-92, EMPLOYER
INFoRMATION REPoRT EEO-I: lNSTRIJCTlON BOOKLET I (1992) (referring 10 the sanctions under
§ 209(a) 'of Executive Order 11246) [hcreinaftcr STANDAJU) foRM 100).
73. Title YD. Civil RigblS Act of 1964. Pub. 1.. No. 88-352. § 709(c). 78 Sw. 241.262 (codified
as amended III 42 U.S.C. § 2000c.8(c) (1988».
74. 29 C.F.R. § 1602.29 (1993) (covering reconIkccping requiremcnlS for labor unions); see also
29 C.F.R. § 1602.30 (1993) (requiring similar recordkceping by
andlacal govcmmenlS): 29 C.F.R.
§ 1602.39 (1993) (requiring similar reconIkccping for public primary and secondary schools).
75. STAHDAIU) FORM 100. supnz noIC 72. III I. § I(A) (explaining who must tile a EE().I Form).
Willfully making a false slatemCnt on an EEO-I form is defined 8.11 a violation of 18 U.s.C. § 1001. 29
1247
"
i
'J
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CAUFOKNIA LAW REVIEW
[Vol. 82:1231
was promulgated in an OFCCP Technical Guidance Memorandum., but has
been rejected by several COurts.82 A second approach would be the "statisti
cally ~ignilicant" difference standard. If the discrepancy is statistically sig
nificant, underutilization is occuning. This approach .is suggested in
Hazelwood School District v. United States. 83 A possible third approach
would be a bright-line mathematical rule. For example, a violation occurs
if the level of employment falls below eighty percent of the proportional
representation of the group in the local labor market.
Whichever test is used, it is clear that each is subject to classification
difficulties. A commercial manual for employers faCing the federal compli
ance audits notes:
Determining [female and minority workforce] availability is a com
plicated, laborious and time-consuming process. It is inherently
subjective in many respects and ,the end product represents a rough
estimate, at best. It often' is a source of conflict during compliance
reviews with OFCCP investigators seeking high availability figures
by emphasizing population and unemployment figures, and contrac
tors seeking relatively low availability figures by stressing the
importance of skills. In the final 3.Ralysis, availability figures often
are more the product of negotiation than they' are precise
calculation. 84
·
.
ADMINISTERING IDENTITY
1994]
1249
found within federal regulatlons. 86 These definitions are not entirely con
sistent with the Census definitions. While the Census statistics treat
Hispanic .origin
a category independent of race.S? the employer guide
Jines themselves expressly define the "Black" and "White" groups to
exclude persons of Hispanic origin. 88 The Census Bureau tries to resolve
this tension between the census and EEO classification by re-counting "His:
panic" as an exclusive category as it compiles MSA statistics from raw
census data. 89
More fundamentally, however. there is a tension between the methods
of the census/MSAsystems and employer EEO systems of classification..
Census-derived data is ultimately self-reported. Racial and ethnic classifi
cations of employees are seldom so. To begin with, federal EEO compli
ance officials apparently have no way of "verifying" the figures employers
submit in their EEO filings. The law prohibits the use of census data to
connect employer responses to individual names, sO EEO filing andMSA
data cannot be directly linked. 90 EEO regulations also actively discourage
asking employees to classify themselves, and federal compliance officials
apparently feel that employee-by-employee self-identification surveys are .
beyond their capacity.91 Compliance audits may check employer EED
reports against the group-classified personnel records employers' are
as
'.
p:
./
86. STANDARD FORM 100. supro note 72, at S. Otber EEO fonDs use Ibe same categorizations.
Su. lI.g.• EEOC FORM 164. supro note 17. at S; EEOC FoIu.t 214, supra note 76. at 2.
81. Sell STANI>ARD FoIu.t 100. supro note 72, at S.
88. SIIII. e.g., EEOC foRM 164, supro note 17. at S. The EEOC also advises employers Ihat, for
classification purposes. "no penon should be counted in morelhan Dne nu:o'elhnic group." STANDARD
foRM 100. supro note 72, at S•
Even if "negotiated," however, the compliance process requires some
source of raw data.
The Bureau of the Census compiles MSA breakdowns of local occu
pational categories by sex, Hispanic origin, and race for federal EEO offi
.cials from the self-reported sex, race, and ethnicity responses of the "short
form" questionnaire and the detailed education. and occupational break
downs of the "long form."8! The classification procedures. for judging
employer compliance, however, are quite different. The group definitions
suggested to employers generally follow the "original peoples" formulation
89. In its occupationaJ-category statistic, the Bureau provides' only Ibe categories MHispanic.
origin" and fi:ve racial categories specifically. desigDated "not of Hispanic origin." BUIUlAu OF THB
CEHsus, supra note 85. at 2. 'Ibis is not wholly consistent wilb the contractor guidelines and Mminorily"
definitions of 41 C.F.R. § 6O-4.3(l)(d) (1993). whic::b fail to define the MAsian and Pacific Islander" and
MAmerlcan lJidian or Alaskan Native" categories as being ucJilsive of HispllDic origin. Nonelheless.
Ibis procedure avoids some of the P!"8CIical problems Iha1 might be created by comparing dara in which
Hispanic origin identification removed respondcntII from Ibe pool of racial identifiers to dara in which it
did not. The greater appan:nt fannal consistency of the MSA and EEO categories, however. simply
. hanges Ibe locus of disconnection baween EEOIMSA classifications and the underlying self·reported
C
census data. The change of Hispanic origin into a race-displacing category from a _independent one
by the MSA compilen presumes Iha1 seIf·identified "Spanish c;:uIture.or origin" is necessarily a more
salient axis of individual seJf·idenlilication and/or employment discrmination \han Mcolor," a conclusion
whic::b is not intuitively obvious. Nor is Ibis treaJment of Hispanic origin as race-displacing CODlIistently
followed even wilhin the Census BureaU's EEO file. "Detailed occupation" and "educational
attainment" breakdoWDll an: not compiled in Iha1 file wilb i-efm:ncc to Hispanic origin and Ihus operate
from a proportional popuIaIion base very different from the employer·reporting system in whid! the
COIintry's nearly 23 million MHispanicn self-identifiers are counted as a dis1iDct category eltClusive of
(indeed. carved out ot) olber racial classifications.
'90. Indeed. official census fonDS an: kept scrupuJousIy c:oiIfidentiai. Completed census fonns
whicb are IhC only way of connecting pa:rticular racial and ethnic classificatiOllS to individual names and
addresses-are available only to census officials and only for statistical purposes for the first 72 years
ariel' Iheir submission. BUIUlAu OF nIB CEHsus, supra note 51. at I.
91. Telephone Interview wilb FedemI Compliance Officer at the District Office of the U.s. Dep't
of Labor. Hartford, Conn. (Mar. 9, 1993).
82. SIIII. lI.g.• FireslOlle'Synthetic Rubber & Lalelt Co. v. Marshall. S07 F. Supp. 1330 (E.D. Telt.
1981). The "any difference" standard is apparently. however, still urged by OFCCP as a proper
standard. SIIII BASIC EEO REsouRCE MANuAL, supro note 81, ch. 16. at IS. 'Ibis test in many cases
might well not meet the son of Mmanifest imbalance" required in order to justify race-conscious
remedies under 1ohnson v. Transpot'flltion Agency. 480 U.S. 616, 628·31 (1981).
83. 433. U.S. 299. 306·13 (1977) (adcnowledging that statistically significant differences can
make a prima facie case. which is rebufctllble by evidence that the statistical difference is not caused by
discriminalion); Stitt also BASIC EEO REsorntCE MANuAL, supro note 81, ch. 16. at 16.
.
84. BASIC SEO REsorntCE MANuAL, supra note 81. ch: 16, at 4.
85. Telephone Interview wilb Mary Kirk, EEO Statistics Office. National Bureau of the Census
(Mar. 10. 1993); Sllll also BUREAU OF THE CENSUS, U.S. DEP'T OF COM.... 1990 CEHsus BEO FlU! 2
(1992). The Populalion Estimates and Projections office prepares ell1borale projections of population
trends and projected population toWs on a gmup-by·group basis for many years in advance. &III. lI.g~
1ENN1FER C. DAY, U.S. DEP'T OF Co_.• PoPut.ATlON PRQIIiCTIONS OF THE UNITED STATIiS, BY AGE,
SEX. RACE, AHD HIsPANIC 0Iu0lN: 1992 TO 2OS0 (1992).
;..
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CAUFORNIA LA W REVIEW
[Vol. 82:1231
1994]
:~'-!{
required to keep, but cannot systematically "verify" individual classifica
tions. 92 OFCCP audits of employers suspected of "underutilizing" women
or minority groUpS93 can include an on-site investigation by an "Equal
Opportunity Specialist" (BOS), but if any takes place at all, EOS '~verifica
tion" of employer-submitted hiring figures is only of the most informal sort,
based upon stereotyped group categories and a cursory "visual survey" of
employees encountered.94 That such impressionistic "verification" may
sometimes occur is indicated by the care with which employers often seek
to stage-manage EOS on-site visits to show off "units which are fully uti
lized with women and minorities . . . [andl areas of affirmative action
accomplishments.'t9S As a rule, however, federal auditors rely exclusively
upon employer-submitted figures. Compliance is thus evaluated by com
paring individually self-reported ~'availability" data with employer-reported
group hiring and promotion figures.
Employer data itself is usually the product of what might be called
"intuitive-appraisal tests." If, to the recording official, a person "seems" to
be Black (or Hispanic, Asian, etc.) she is classed as so being. The use of
employee self-identification for EEO record-keeping (which would be more
consistent with MSA data) is permitted, but is strO~,gly discouraged given
the "sensitivity" of such inquiries. As an alternative, federal regulators
96
encourage simply making a "visual survey" of the workforce.
92. Telephone Interview with Tony Perkins, Seaetary. Equal Oppommity Advisory Council
(Mar. 12. 1993): Telephone Interview with Lynwood Battle. PersoIlMl AdminiStrator. Proctor &
Gamble Co. (Mar. 12, 1993).
93. A finding of ''undenltilization'' is DOl the same thing as a finding of unlawful discrimination.
Underutilization cases will usually be settled by aPment with aD offending employer without formal
litigation.
. . . .
94.. OFCCP officials contacted iri the pn:patation of this Article claimed never 10 "spot-check"
employee self.identifieation by asking employees what race they considered themselves 10 be.
Moreover. even if this self·identification approach were used it would nOl produce useful results until a
.
representative sample of the workforce was queried by the lIDS.
95. BASIC EEO REsouRCE MANuAL, supra note SI, ch. 17. III 7. TIle Equal Employment
Advisory Council (EEAC) advises its employer-clients 10 IOUS their own plants ahead of lime "in order.
to identify areas where the accomplishments of the company's affinnative action efforU 8lC the most
app8lCDL" It! (emphasis omitted). A visitinS EOS sbouId be taken 10 !bose "departments or other
organizational un.its which 8lC fully utilized with women and minorities. and employmeot offices wllcre
all of the required employment notices 8lC prominently posted." Itl. The EEAC recommends !hat
employers nOl allow the lIDS "to ruam aimlessly thtoughout the facility." Itl. Rathel. they should
"outliM a mule in advanc~ which will highlight areas of aifinnative action accomplishments." It!
. Employers 8lC well advised. the Council writes. 10 pnepare a "strategic plan" for handling EOS
inspections: ''The purpose of the plan is 10 mana8~ the activities of tlul inWlnigator so !hat he or abe
develops II favorable impression of the company's affirmative 8CIion programs." Itl. ch. 17. III 9. The
EEAC also recOmmends !hat employers 8ltempt 10 persuade a visiting OFCCP official 10 commit in
advance''to the number and identity of persons 10 be interviewed." Itl. ch. 17. III 12.
96. TIle £EO.I insIrUctions. for example, StresS th8l an employer "may acquire the nu:etethn.ic
infonnation ncc:essary for this report either by visual susveys of the wort: force. or from post.
employment records as 10 the identity of employees. Eliciting infonnation on the racelethn.ic identity of
aD employee by direc:t inquiry is nOl encouraged." STANDARD FoaM 100. supra note 72, 1Il4-S. Similar
wolding appears in EEOC FoRMs 168A.& B. supra note 78. 1Il.6. Moreover. 29 C.F.R. § 1602.1~
(1993) notes !hat "Employers may acquire the infonnation necessary for completion of .. ; Report £EO.
,(l"""
ADMINISTERING IDENTITY
1251
The instructions that accompany EE0-3 (a reporting form for unions) .
describe four possible approaches to employee classification. 97 The first
method, classification based upon "existing records," relies upon the exist
ence of previous classifications and thus presupposes a prior choice
amongst the remaining three options. 98 The next two approacbes are varia
tions on the inniitive-appraisal method: an official may "make a tally of
each person by race/ethnic category and sex using personal knOWledge and
acquaintanceship with the persons listed" or "[al visual survey, or 'head
count' may be used for identifying individuals by race/ethnic category and
sex[,l ... [which]. is usually the simplest way to gather information ...
where persons are together in one place."'»
The fourth option is ~'Self"Identification."loo .As we have seen. how
ever, because of "the high degree of sensitivity of many persons when
asked to identify themselves[.J .. '. gathering information as to the raceI
ethnic identification of an individual by direct inquiry .is not
encouraged."IOl Self-reporting, it is emphasized, should only be a last
resort when "all other methods prove impractical and burdensome."I02
Thus, "visual surveys" are the predominant means of employee classificaI either by visual surveys of the work force. or III their option. by the maintenance of post-employmem:
rccon:Is as 10 the identity of employees." Aa:ording 10 the EEO-4 instructions.
although the Commission does no! COCOW1Ige dircd inquiry as a method of determining racial
or ethnic identity. this method is no! prohibited .•. wllcre other methnds 8lC no! practical,
provided it is DOl used for purposes of discrimination.
... (With) employees .•• located III t1ifferent addresses~ •• it is reCommended Ihat visual
susvcys be conducted for the employer by persons such as supervison who 8lC responsible for
the wort of the employees or 10 whom the ciinployees report for instruction or otherwise.
EEOC foRM 164. supra note 77. III S.
. 97. EEOC foRM 274. supra note 76. III 2.
98. Itl.
99. It! Visual susveys 8lC perhaps even more common in the hiring process, where it ill in many
stalCSiUegaI 10 ask aboUt applieanlS' race in job interviews. It is eithCr discouraged or ilIcgallO ask
applicants about their race in 23 stales, 10 ask about the color of their stin, eyes, or hair in 27 stales, 10
ask about their national origin, ancestry. or lineage in 2S stalCS and to require a pholOgraph as part of a
job applicaliOD in 26 SlateS. Mcmonmdum from Jeffrey A. Norris. President. Equal Employment
Advisory Council. 10 EEAC Members app. (Aug. 9. 1990) (rr:gartIing Sl8lC probibitions on pre
employment inquiries). Even wbere inquiries 8lC permitted (as they arc by federal preemption after
hire). Sl8lC officials join their federal eoimterparts in recommending "visual surveys." The New Yort:
Division of Human Rights. for example, warns of "the tIiJlquieting effects which such [direct) surveys
may engender. It is advis8bIc to g8Ibe.r ethnic data by indirect means mIIiez than by direct and overt
inquiry of employees. apprcnlicca. or tenants." Naw YORK: I'RE-EMPLOYMENT INQUIRY GUIDI!, [SB
FAIR &IPl.. PRAc. MAN.} LAB. RIll.. REP. (DNA) No. 747, III 4S6:7S01. 456:7506 (May 1994).
100. EEOC foRM 274. supfflnote 76. III 2.
101. Itl.
102. It! (suggesting c:ettain notice and c:onIidentiality procedures). Fums filling out EEO reports
8lC advised !hat "[r}wcelethn.ic designations as used by the [EEOC] do not denore scientific defin.ilions of
anthropological origins. For the purpoSes of diis report. aD employee may be included in the group to
which he or she appeaIlIlO belong. identifies with, or is regrmIed in the conmiun.ity as belonging." It!;
S~~ also STANDARD foRM 100. supra note 72, III S (containing idaltical wonling). TIle ''visual susvcy"
is thus the primary means of employee-classilication by un.ions and finns for EEO purposes. and only if
there is aDy "doubt'" about employee identity 8lC employers likely 10 consider asIcing au employee to
self·idaltify. Telephone Intetview with Lynwood B8llIe, SUPffl note 92.
�1252
CAUFORNIA LAW REVIEW
1994J
{Vol. 82: 1231
tion; the employer-submitted EEO information is grounded in the subjective
assessments of individual personnel administrators-who are not, one
might suspect, entirely disinterested in the outcome-about whether an
employee. for example, "looks Black" or "seems Hispanic."\03 This infor
mation is judged against self-reported MSA data.
This mechanism, which juxtaposes the apples of self-reported race and
ethnicity with the oranges of stereotyped group ascription, is the foundation
of federal EEO enforcement. . This conceptual mishmash might not be
troubling were race a "hard" variable like biological sexual identity
because, barring disguise or deception, the two systems might be expected
to classify individuals identically. Given the analytical muddiness of
"race," however, we cannot be sure that either the procedures employed in
census classification or the "visual survey" methods used by employers will
closely track the distribution of race-based disadvantage at which the
remedial thrust of EEO policy is presumably aimed. An enforcement sys
tem based upon the comparison of data derived from these two types of
procedure arguably does a poor job of addressing the remedy to the wrong.
B.
!;"i: .
ADMINISTERING IDENTlTY
12S3
districts lO6 and innumerable smaller ones-for everything from state legis
lative elections to water district boundaries.
The recent furor over North Carolina's proposed congressional District
12 illustrates most dramatically the development of race-conscious electoral
. allocation. As a result of the 1990 census, North Carolina became eligible
for a twelfth seat in the U.S. House of Representatives, and the stale
General Assembly. set about drawing up a redistricting plan. Forced to
comply with section 5 of the Voting Rights Act of 1965,107 which required
that any changes in its voting laws or districting be approved by the federal .
government,l08 the state submitted the redistricting plan to the U.S.
Attorney General for vetting. The General Assembly plan had already cre
ated one "minority-majority" congressional district-peculiarly. shaped so
. that Blacks in it were a majority-but the U.S. Attorney General felt-that
North Carolina should have created a second "minority-majority" district as
well.
The state drew up a revised redistrictiDg scheme which was approved
by federal officials. This revised plan created District 12, which became the
focus of controversy because of its peculiar geographical shape. As Justice
O'Connor described it:
Electoral Redistricting
The second majority-black district, District 12, is ... unusually
. shaped. It is approximately 160 miles long and, for much of its
length, no wider than the I-85.corridor. It winds in snake-like fash
ion through tobacco country, financial centers, and· manufacturing
areas ''until it gobbles in enough enclaves of black neighborhoods."
Northbound and southbound drivers on [-85 sometimes find them
selves in separate districts in one county, only to ''trade'' districts.
when they enter the next .... One state legislator has remarked that
. "[ilf you drove down the interstate with both car doors open, you'd
kill most of the people in the district UI09
Recent controversies before the U.S. Supreme Court illustrate another
important use of racial classifications, namely the allocation of political
power along racial lines through the adjustment of voting district bounda
ries. Such mechanisms have long been used to disadvantage minorities and
ensure White political control of democratic processes. In Gomillion v.
Lightfoot. 104 for example, the Supreme Court invalidated an attempt of the
Alabama Legislature to change the shape of Tuskegee, Alabama, "from a
square to an uncouth twenty-eight-sided figure" in such a way as to dis
empower minority voters and ensure a continued White monopoly of
political power. lOS
.
Like race~conscious employment and promotion, however, electoral
district adjustment haS in recent years become an important weapon in the
federal government's remedial anti-discrimination arsenal: Today, the
Justice Department oversees state and local voting law and policy to ensure
that redistricting does not adversely affect minorities, sometimes stepping in
to redraw boundaries so as to adjust the likely proportion of minority
elected officeholders. Since the 1990 Census reapportioned congressional
seats across the country, state legislatures have, under the Voting Rights
. Act, created some twenty-six so-called "minority-majority" congressional
This effort was intended to ensure that the state's Black citizens, as a
group, would have political representation more proportionate to their share
of the population. Though the North Carolina population was twenty per_
cent Black. 110 in more than ninety years the state had never sent a non
White representative to Congress. III As· a result of the redistricting plan,
Eva Clayton and Melvin Watt became the state's first black representatives
106. Gerrymandering: Whithtr Shall It Wtllldt'r?, IlCQNOMIST. July 10. 1993. at 18.
107. 42 U.S.C. § 1973c: (1918).
.
108. 42 U.S.C. § 1973c provides that changes in voting law or policy in designated areas be
approved by the U.S. Disttic:t Court for the District of Columbia. or. in advance, by the U.S. Attorney
103. The "visual survey" method does not specify whether it is permissible for an employer to
consider the speech plIlIemS or dialect of employees in making classifications for EEO purposes. In
practice, of course. there is no oversight of employer decisions. So they are free to consider whaleVN'
factors they feel to be appropriate.
104. 364 U.S. 339 (1960).
105. Id at 340.
General.
109. Shaw v. Reno, 113 S. Ct. 2816. 2820-21 (1993) (cilations omitled) (some internal quOlation
.matIts omitled).
110. ld at 2820.
III. See Brenda Wright, Yes: Toward a PolitJa oflllCbuion, A.B.A. J., July 1993, at 44.
I
..
~
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CAliFORNIA LAW REVIEW
[Vol. 82: 1231
.since 190 1,112 joining a record number of thirty-eight blacks on Capitol
Hill.lll
In June 1993, the Supreme Court reaffinned that "district lines obvi
ously drawn for the purpose of separating voters by race require careful
scrutiny under the Equal Protection Clause regardless of the motivations
underlying their adoption,"114 and permitted a challenge to the legality of
District 12 to be heard in a North Carolina federal district court. I I '
Regardless of the ultimate fate of District 12, however, this decision cer
tainly will not end the debate over race-conscious reapportionment of elec
toral districts. In her opinion, Justice O'Connor carefully noted that "[t]his
Court never has held that race-conscious state decisionmaking is impermis
sible in all circumstances."116 Rather, the Court limited its application of
strict scrutiny under the Equal Protection Clause to "reapportionment·
plan[s] ... so highly irregular that ... [they] rationally cannot be under
stood as anything other than an effort to 'segregat[e] ... voters' on the basis
of race."1t7 Redistricting plans following more ''traditional'' districting
principles-or perhaps even ones of District 12's irregularity, if narrowly
tailored and armed with a "sufficiently compelling justification"118-would
presumably still pass muster. Most "minority-majority" districts around the
country, therefore, do not appear to. be in immediate danger, nor does the
Court's holding on its face implicate 'the legitimacy of anti-discrimination
"results" testing under.section 2 of the Voting Rights Act.
It is clear in this area that a coherent. accounting of "who is what" is
still necessary. Whether, used to invalidate or enjoin state or local district
ing or voting rules under section 2 of the Voting Rights Act,. or, more dra
matically, to encourage "minority-majority" ~Iectoral districts pursuant to
section 5, voting rights law depends fundamentally upon the veracity and
.coherence of its statistical database and the intelligibility of whatever theory
of racial identity underlies it. The local and regional group population sta
tistics that are the backbone of U.S. voting rights enforcement come from
the U.S. census"":"which the Bureau makes available, for a fee, in easily
accessible computer database form to state and local governments around
the country, as well as to private individuals. These are the same basic
figures used by EEOC and OFCCP-officials in evaluating private employ
ment practices.
112.
Id.
113, House 0/ RepresenlOlives: Old Jowis, New Faces, ECONOMIST. Nov. 7. 1m 8129 (noting
a jump from 25 to 3S Black rqln:sentatives).
114. Shaw, 113 S. Ct. at 2826.
115.
c.
Alternative Approaches to Identity
In attempting to remedy race-related wrongs, our social engineers
work with data which is as conceptually muddy and contextually contingent
. as our notions of race and ethnicity themselves. Accordingly, it is unwise
for courts and administrators simply to assume that the foundations upon
which they erect these· platforms of public policy and jurisprudence are
solid. Rather these foundations should be examined with care. The weak
ness such examinations uncover deserves close attention. The Malone case
suggests that race-administrative systems grounded in personal self-identifi
cation .may not survive sustained pressure. especially in areas with immedi
ate and concrete personal impact,. such as employment preferences. To help
us understand more about other classification systems, the next sections will.
examine some alternative approaches to racial identity used in the United
States.
Id. at 2824.
117. Id. a12S26 (quoting Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960» (Wrd modification and
third omission in original).
liS. Id. al 2824.
12S5
Thus voting rights law is built upon a self-identified population pool
that records ethnic and national-origin data entirely independently of race.
It is administered, however, as if race and ethnicity were mutually-exclu
sive categories. and. nearly four percent of all responses are statisticaiIy
"modified."119 Since voting rights applications deal with much larger sta
tistical samples than employment discrimination law-with entire political
districts, for example, rather than with the shop floor of a single
employer-the distortions and ambiguities of a self-reported. database are
likely to be less damaging in dti's context. Electoral redistricting does not
advantage or disadvantage individuals in the immediate sense that preferen
.tial policies in the workplace do; it is not a system for allocating particular
ized benefits. Nevertheless. as Cabranes' Puerto Rican example
illustrates, 120 even at dtis more abstract level it may be unwise to take such
figures entirely for. granted. Procedures of census response-"modification;'
have an impact upon classifications in a particular locality, and could
thereby have an undue influence upon race-based electoral redistricting. In
. four U.S. counties, it should be recalled, the Census Bureau overrode "race
modification" results when they resulted in "too many" individuals being
classified as N~tive Americans. 12l If redistricting is to maintain its enor
mous importance in the allocation of political representation, and if such
programs are indeed to remedy discriminatory wrong, the electoral engi
neers and the popul~!ion surveyed by the census must both be speaking the
same classificatory language.
.
Id.
116.
ADMINISTERING IDENTITY
1994]
119. See supra BOIes S7~3 and accompanying texL
120. See supra BOIes 67·70 and accompanying text.
121. "See supra note 6S and accompanying !eXL
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CAllFORNIA LAW REVIEW
[Vol. 82:1231
',}t°t;_
1994]
ADMINISTERING IDENlTTY
1255
"'''\
.since 1901,112 joining a record number of thirty-eight blacks on Capitol
HiIl.lIl
. In June 1993. the Supreme Court reaffirmed that "district lines obvi
ously drawn for the purpose of separating voters by race require careful
scrutiny under the Equal Protection Clause regardless of the motivations
underlying their adoption," I 14 and permitted a challenge to the legality of
District 12 to be heard in a North Carolina federal district court. II!!
Regardless of the ultimate fate of District 12, however, this decision cer
tainly will not end the debate over race-conscious reapportionment of elec
toraltlistricts. In her opinion, Justice O'Connor carefully noted that "[t]his
Court never has held that race-conscious state decisionmaking is impermis
sible in all circumstanceS."1I6 Rather, the Court limited its application of
~trict scrutiny under the Equal Protection Clause to "reapportionment
plan[s] ... so highly irregular that ... [they] rationally cannot be under
stood as anything other than an effort to 'segregat[e] ... voters' on the basis
of race."117 Redistricting plans following more "traditional" districting
princi;,lles-or perhaps even ones of District 12's irregularity. if narrowly
tailored. and armed with a "sufficiently compelling justification,,118-would
presumably still pass muster. Most "minority-majority" districts around the
country, therefore, do not appear to be in immediate danger. nor does the
Court's holding on its face implicate the legitimacy of anti-discrimination
"results" testing under section 2 of the Voting Rights Act.
It is. clear in this area that a coherent accounting of "who is what" is
still necessary. Whether used to invalidate Or enjoin state or local district
ing or voting rules under section 2 of the Voting Rights Act, or. more dra
matically, to encourage "minority-majority" electoral districts pursuant to
section 5. voting rights law depends fundamentally upon the veracity and
coherence of its statistical database and the intelligibility of whatever theory
of racial identity underlies it. The local and regional group population sta
tistics that are the backbone of U.S. voting rights enforcement come from
the U.S. census-which the Bureau nlakes available. for a fee. in easily
accessible computer database form to state and local governments around
the country. as well as to private individuaJs. These are, the same basic'
figures used by EEOC and OFCCP officials in evaluating private employ
ment practices.
112,
8
Id.
113.
House of Rep1't!Stlntatives: Old Jowls, New Faces. ECONOMIST. Nov. 7. 1992. 8129 (noting
jump from 25 1.038 Black repm;;entatives).
114, Shaw, 1-13 S. Ct. at 2826.
115.
C. Alternative Approaches to Identity
..In attempting to remedy race-related wrongs, our social engineers
wod with data which is as conceptually muddy and contextually contingent
as our notions of race and ,ethnicity themselves. Accordingly. it is unwise
for courts and administrators simply to assume that the foundations upon
which they erect these' platforms of public policy and jurisprudence. are
solid. Rather these foundations should be examined with care. The weak
ness such examinations uncover deserves close attention. The Malone case
suggests that race-administrative systems grounded in personal self-identifi
cation may not survive sustained pressure, especially in areas with immedi
ate and concrete personal impact, such as·employment preferences: to help
us understand more about other classification systems. the next sections will
examine some alternative approaches to racial identity used in the United
States.
Id.
116.
Id. at 2824.
117.
Id. at 2826 (quoting Gomillion v, Ughtfoot. 364 U.S. 339. 341 (1900» (third modification and
third omission in original).
.
Thus voting rights law is built upon a self-identified population pool
that records ethnic and national::arigin data entirely independently of race.
It is administered, however, as if race and ethnicity were mutually-exclu
sive categories. and nearly four percent of all responses are statistically
"modified."119 Since voting rights applications deal with much larger sta
tistical samples than employment discrimination law-with entire political
districts. for example. rather than with the shop Boor of a single
employer-the distortions and ambiguities of a self-reported database are
likely to be less damaging in this context. Electoral redistricting does not
advantage or disadvantage individuals in the immediat~ sense that preferen
qal policies in the workplace do; it is not a system for allocating particular
ized benefits. Nevertheless, as ·Cabranes' Puerto Rican example
illustrates. l20 even at this more abstract level it may be unwise to take such
figures entirely for granted. .Pi:ocedures of census response-"modification"
have an impact upon classifications in a particular locality. and could
thereby have an undue influence upon race-based electoral redistricting. In
four U.S. counties. it should be recalled, the Census Bnreau overrode "race
modifi~ation" results when they resulted in ''too many" individuals being .
classified as Native Americans. 121 If redistricting is to maintain its enor
mous importance in the allocation of political representation, and if such
programs are indeed to remedy discriminatory wrong. the electC?ra1 engi
neers and the population surveyed by the census must both be speaking the
same classificatory language.
.
118. Id. at 2824.
119.
120.
121.
Ike suprrz notes 57-63 and aa::ompanying text
.Su suprrz notes 67-70 and accompanying text
See suprrz nOte 65 and accompanying text
�1256
1.
CALIFORNIA LAW REVIEW
2.
Crime Statistics
The F~eral Bureau of Investigation (FBI) has chosen its own method
of racial and ethnic classification in its breakdown of national crime statis
tics. Crime statistics are compiled from monthly reports filed voluntarily
by city, state, and local law enforcement agencies from across the country.
To facilitate these compilations, the FBI requests that data be tabulated
according to i'Uniform Crime Reporting" (UCR) criteria which ensures uni
formity in the quantity and quality of data provided with each submission.
UCR guidelines include requests for the age, sex, race, and ethnic origin of
all offenders arrested by local police forces. 122 At present, comprehensive
accounting of the race and ethnic origin ofvictims is usually available only
for the crime ofmurder, a crime for which the FBI information requests are
unusually stringent. 123 To standardize the format of submissions, the FBI
requires local law enforcement authorities to choose from among only five
standardized codes for race and three for ethnicity (Hispanic, non-Hispanic,
. and unknown). 1~
Unlike the census classifications, crime statistics are not self-reported~
Because it is often difficult to obtain racial and ethnic self-identifications
from either arrestees or victims, officers filling out arrest logs and after
action reports commonly use no more than the informal "visual survey"
method. l25 The FBI offers only vague definitions associating different
racial groups with the "original peoples" of various areas of the world
(Europe, Africa, East Asia, and so forth), and "Hispanic" persons as those
of any "Spanish culture or origin, regardless of race."126 Officers therefore
have little choice but to fall back upon cultural stereotypes when classifying
victims and offenders. A man whQ "looks Black" or "seems Hispanic," for
. example, will be so recorded based upon the arresting officer's intuitive
assessment of his racial and ethnic identity.
Thus, the method of racial classification used in the compilation of
crime statistics is no more sophisticated than the EEOC's stereotype-driven
employer-reported "visual survey" methods. It lacks even the rmnimal the
oretical oversight of employee identification provided in the EEOC context
by EOS officer on-site. inspections. In crime reporting, the "visual survey"
discretion of reporting officers is left entirely unquestioned.
122. FBI. u.s. DEP'T oF JusnCE, UNIFORM CRIMI! REPoRTING HANDBOOK 58. 84· (1984)
[hereinafter FBI HANDBOOK).
123. 1<1. at 63-65. A computerized national law enforcement daIa system, the National Incident
Based Reporting System (NIBRS). in which comprehensive inc:ident-by-inc:ident reports will tie
collected for every major crime. may be on lIIe horizon, however. Telephone Interview willi Joe
Sabbalaso. New Haven Police Department (Mar. 10. 1993); Telephone Interview willi Official at FBI
Uniform Crime Repof!ing Unit. Washington. D.C. (Mar. 10. 1993).
124. FBI HANDBOOK, su.pra note 122. at 63-64. Most police forces do not presently collect
elilnicily information, but willi lIIe NIBRS system this daIa will be reportable on an optional basis.
Telephone Interview willi Gary Lopez. Connei:ticut State Police (Mar. 11.,1993).
125. Telephone Interview willi Gary Lopez. sUpra note 124.
126. FBI HANDBOOK, sUpra note 122, al 58.
ADMINISTERING IDENTITY
1994J
[Vol. 82:1231
'f ..
1257
Vital Statistics
Whether self-reported or subjectively ascribed, the racial and ethnic '
classifications of the FBI's UCR division do not have much direct effect
upon the individuals classified thereunder. Race classifications for vital sta
tistics such as birth and death certificates, on the other hand, haye a poten
tially much greater individual impact. As we have seen in Malone v. Haley,
the administrative resolution of disputes over alleged mistakes in racial
classification for purposes -of hiring and promotion may hinge upon the
racial status designated on a birth certificateP7 Because birth certific~
data includes race, it may often be-as Malone illustrates-a tempting
source of official "documentary evidence" for "double-checking" or "sec
pnd-guessing" other methods of individual·· classification. ibis potential
~'official" status of vital statistics data, however, is especially worrisome
because the origin of thi~data is even quirkier and more questionable than
the data generated by the census orEEO systems.
The procedures generally used in making birth certificaterace-identifi
cation records are outlined in guidelines prepared for state and local govern- ,
ments by the 'National Center for Health Statistics (NCHS) in
Washington. l :28 From'1950 to 1989, these federal guidelines included a
procedure for determining the race of a child from the self-reported race of .
its parents. The mother and father were asked their respective races, to be
coded as follows: White (comprising Mexican. PUerto Rican, and other
Caucasian) 1; Black 2; Indian (North, Central. and South American Indian,
and Eskimo and Aleut) 3; Chinese 4; Japanese 5; Hawaiian (including part
Hawaiian) 6; Filipino 7;' Other Asian or Pacific Islander.8; Other races 0;_
Not classifiable 9. 129 The race ofthe child was then determined according
to a formula supplied by the NCHS:
[I]ncases of mixed parentage where only one parent was white, the
child was assigned to the other parent's race. When neither parent
was white, the child was assigned the race of the father, except if
either parent was Hawaiian, the child was assigned to Hawaiian. If
race was not reported for one parent, the child was assigned the race
of the parent for whom race was given. l30
\...
Nonresponses were c~ "not-classifiable." Additionally, if the race
of the mother was coded not classifiable, the mother's race was recorded as
127. Recaillhal in MtJltJM, lIIe Malone broIhers failed the "documentary evidence" prong of t1ie
r.u:e-verific:ation test adopted by the court becI!use their birth certificates and lIIose of lIIeir parents
indicated "White" status. Malone v.HaIey, No. 88-339, slip op. at-18 (Sup. Jud. Ct. Suffolk County,
Mass. July 25, 1989).
128. See NAnONAL em. FOR 1iBAL11I STAnsm:s. U.S. OsP'T OF IiBALm &: HUMAN Savs.,
INsTRUCT10N MANuAL, PART 12: CoMPI111!It 80m Rill NATAUTY DATA. ~ 1989. at 14 (1989)
[lIenIinafter INsnUJCTlON MANuAL, PART 12).
129.
1<1.
National Ctr. for Hcallil StatisticII. U.S. Dep't of HeaIIh &: Human Servs~ ~ Report of
Final Mortality StI11istiJ:s, 1989. MONtHLy VITAL STAT. Rm>•• Jan. 7, 1992. at SO.
.
130.
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1994]
[Vo!.82:1231
1259
and grandparents. However odd this system of classification may be, it is
sometimes accorded probative value in individual cases. 13:\;
This coding system was abandoned by NCHS in 1989 in part because
it was felt that "the increasing incidence of interracial parentage" combined
with "the growing proportion of births with race of father not stated" made
it "more appropriate to tabulate births by the mother's race" than to use a
"nec~ssarily arbitrary combination of parental raceS."136 Since 1989,
NCHS haS required the following system:
Birth data are tabulated by the race of .the mother as reported
directly on the birth certificate. If race of mother was not stated. it
was imputed as that of the father. if known. If neither race was
stated, race of mother was imputed as the race of the mother on the
preceding record with known race,l37' .
The 1989 birth certificate revisions have also attempted to obtain
more specific information on race. The ne", 1992 guidelines, for example,
require several states to adopt an elaborate series of subcategories for Asian
or Pacific Islander respondents. '38 Additionally, the 1989 revision of stan
dardized birth data guidelines also contained a question iibout the mother's,
Hispanic origin on birth certificates. 139
Despite these attempts to improve the system. the po~t-1989 system is
in some ways as odd as its predecessor. The race of one's father is irrele
. vant unless the mother's race is simply unknown or not otherwise available.
Racial status in this formal system is thus rigidly matrilineal. Within this
system, race can never change or be escaped except by accident of sex
chromosomal inheritance: only through male children can race be
"changed." A Black woman's female progeny would remain Black for
. indefinite generations even should they marry Whites or even Hawaiians.
The new coding system. like the.old; effectively "re-starts" with each matri
monial self-identification. Women are not required to self-identify accord
ing to their own birth classification. but the potential for certificate-based
that of the father, if known. If neither parent's race was known, officials
were to "impute mother's race as race of mother of the preceding record
with known race of mother."131 . State health officials generally followed
this system with only minor modifications: 132
This coding algorithm embodied· a number of curious assumptions.
One notable characteristic is· that any coupling between Whites and non
Whites was deemed to produce non-White children. White racial status
.could only be removed by inter-group parentage, never gain~. 133. The ori
gins of this categorization are obscure, but it may reflect shopworn racist
assumptions about race "poUution"-that White status may only be "lost"
by admixture, forfeited·by foreign "taint." By the formal logic of the sys
tem, no amount of breeding with Whites will confer "White" status to a
"non-White." Standing in stark contrast to this attribute of "White" status,
Hawaiian status was defined so as to include any conceivable degree of
"part-Hawaiian" descent, so that a code 6 (Hawaiian) parent always pro
duced code 6 (Hawaiian) offspring no matter what the race of the other
parent. l34 Thus, in a sense, the status of "Hawaiian" was the morphological
polar opposite of that of "White." While "White" status could only be
maintained through the most selective breeding with other Whites, it was
definitionhlly impossible to shak;e a "Hawaiian" designation: a child with
one Hawaiian parent by. this system was always "Hawaiian"; so also was
that child's child, and so on indefinitely. Something in Hawaiian "blood"
was apparently so indelible that it could never be erased.
In practice, since this system was self-reported and no attempt was
made to ensure that one's self-identification corresponded to prior birth cer
tificates, each generation was effectively classified anew. This system, in
other words, was effectively "re-started" with each generation. Nevertheless,
this does not mean that classifications on prior birth pertificates are mean
ingless. We should not forget that Judge Wilkins employed a sort of birth
certificate-derived racial estoppel against Paul and Philip Malone by judg
ing their racial status in part according to the designations of their parents
135. AI the level of aggn:gate population statistics. moreover, the Struclllre of the coding system
might have produced results at variance with conventional ideas of racial identity. Assuming, under
prevailing social conventions. that at some IIIICeS1mI ~d.istance" IIOII-White pan:ntage will become
"invisible," the classificatory logic of thC old NCHS system would have overestimated the non-White
population by dcsignaling any and aU descendants of non-Whites as non-Whites. However. asking
parents to self-identify may have mitigated much of this distortion at the aggregate level.
136. National Or. for Health Statisiic:s, U.s. Dep'I of Health &: Human Servs.. AdviuJce Report of
Fbtol Natlliity Stmistics. /990, MONnILv VrrAL STAT. REP., Feb. lS, 1993, at 49 [hereinafter NlIlaIiry
Statistics. 19901.
'
, r
137. National Cit. for Healm Statistics. U.s. Dep't of Healm &: Human Servs., Adv.ince Report of '
New Data from tM 1989 Birth Certificate, Mo!mn.v VrrAL STAT. REP., Apr. 15. 1992, at 29.
138. NAnONAL
RlR H&u.m STATISTICS; U.s. DIlP'T OF H.liALm &: RUMAN Savs,.
JNSTRucnON MANuAL. PART 3A: Cl..AsstPrCATtON AND ComNa iHsTRUcnONS FOR LIvE BIRTH
RE.coRDS. 1992, at 16 (1992) (bemIIafter 1Nsn11JCT1OH MANuAL. PART 3A).
139. (NSTlU.lCTlOH MANuAL. PART lAo at 15. By the 1990 data year. a moIher's Hispanic or non
Hispanic origin was required information on 99'1> of birlb records nationwide. See NaIIlliry Sto.tistic.s.
1990. supm note 136. at II.
131. JNSTRucnON MANuAL, PART 12, supra note 128, at 14.
132. For example, Connecticut's
of Health Services stipulated that wI1CII the raee of
both parents was unknown, and either puent was deemed 10 have been of Hispanic origin. the child
would be classified as "White." See Letter from Karen Frost, ReseIm:b Analyst, Office of Realm Policy
Development, Health SW"VeiUance and Planning. Connecticut Department of Realm Services. to
Christopher Ford. attachment (Mar. 12, 1993) (on file with author).
133. See ilL The NCHS coding system. however, rested upon a volunlaly self·idcntific:ation by the
parents; the system made no effort 10 hold parents 10 the raee classific:ations !hey lhernsel\-cs had been
assigned al birlh.
.
134. See William Petersen, The Ciouification ofSub1UJtioll.l in HtlIIINJii: An Essay on tire Sociology
of Knowledge. 34 AM. Soc. REv. lI63 (1969); William ~ Chinne AmerictUIS ami JaptJ1II!se
Americaru, in £:ssAVS ANI> DATA ON AMElUCAN Enooc GROUPS 65. 73 (Thomas SoweD cd., 1978).
DePartment
c:ra.
~
�"if:;
.~.
;'.
,.'
1260
CAUFORNIA LAW REVIEW
1994J
[Vol. 82:1231
estoppel as applied in Malone remains. As a conceptual system, the new
method is dauntingly peculiar, and at best has only an arguable connection
to the sociological reality of race and discrimination. ,Irrespective of his
self-perception, or society's perception of him, for example, the child of a
Black man and a White woman would forever possess a birth certificate
classifying him as White.
Since both NCHS reporting systems have relied heavily upon racial
and ethnic self-identification by infants' parents, elaborate methods have
been devised for dealing with nonresponses and with nonstandard write-in
'answers' for "other" categories. Maternal 'nonresponses where the father's
race is unknown, as we have seen, are assigned "the race of the mother on
the preceding record with known race."I40 Thus if a mother neglects to fill
in the proper check-box on her hospital birth certificate "worksheet" while
recuperating from childbirth, her child will be assigned a race according to
the race indicated on the previous record encountered by the data-entry
clerk. Where no race or Hispanic origin is recorded (because the mother
could or would not self-report), ''unknowns'' are distributed randomIy.'41
The NCHS office in Washington, D.C. promulgates guidelines gov
erning how local health officials are to fold write-in "other" responses back
into the standardized codes. 142 Although generally no second-guessing of
written "other" entries takes place, coding "Indian" with a recorded birth
place outside the Americas is re-classified as "Other APr' (or "Asian
Indian" where available).143 To h~lp state officials compile standard
category data from the diverse responses received in, "other" write-ins, the
NCHS provides lists of common self-designations with instructions as to
how each may be coded back into the standard. categories. Thus, for exam
ple, racial identity responses of "Amerasian," "Indo-Aryan," "Ubontilian,"
or "Hindu" are to be coded as "Other API," while "Anglo-Saxon,"
"Afghanistan," "Hebrew," "Hispanic," ·"Mohammedan," and "Zoroastrian"
are all considered "White."'44 As can be seen, certain religious affiliations
under this system are allotted racial characteristics: ~ndus are presump
140. See supra note 137 and ag:ompanying tex\.
141. Telephone Interview with Lloyd Mueller, Connec:ticut Depamnenl of Hc:alth Services (Mar. 8
1993).
142. Racial entries written as "Asian.» "Yellow.» "Oriental." or "Mongolian." forexampte. are 10.
be entered as code 8 ("Other APII. The entries of "Afro-American." "Colored.» "Negro.» or "Brown"
are to be folded back in as code 2 (Black). tf Hawaiian identity is reported along wid! any oIber
response (e.g. "Chinese-Hawaiian"), the entry is coded simply as "Hawaiian." With fractional
responses, such as half-Japanese, the prefix is disregarded and the race is coded as ri:ported.
iNSTRUCT10N MANuAL, PAllT 3A. supra IIOIC 138, at 16-17.
143. ttl. at 17.
144. This coding list is taken from the version of the NCHS list used by the Connecticut
Department of Hc:ald! Services-the Automated Vital Statistics Systems (AVSS). S4e Lcuer from
Karen Frost, supra note 132. IlllaCtuneDt, AVSS Races Sorted by NCHS Code [hereiriafter AVSS Races
Sorted by NCHS Code]. The master NCHS list is found in blSTRUCT10N MANliAL,PAllT lA.suPra IIOIC
138. app. E.
'
...
ADMINISTERING IDENTlIY
1261
'tively Asian, Jews and Muslims presumptively White. 14!1 Mysteriously,
responses of "Nassau" (the capital of the Bahamas) result in an NCHS cod
ing as "Black," while answers of "Bahamian" are coded merely as "Not
Classifiable or Unknown:'I46 A similar list aids state officials in coding
nonstandard responses to the Hispanic-,origin question back into the primary
categories: "Falkland Islands" or "GuatemaltecQ" is to be coded 4 (Central
or Souib American), "Basque." "Valencian," or "La Raza" responses
become code 5 answers ("Other Hispanic"), while "Amish," "Bahamian,"
"Jewish," or "White" are classified as 9 (non-Hispanic).'47 Incongruously,
for the Hispanic-origin question a written response of UWhite" is treated as
"non-Hispanic," while for the. racial-origin question a response of
"Hispanic" is treated as "White."I48
This algorithmic folding of nonresponses or idiosyncratic responses
like "UbontiIian" back into the standardized category codes does not occur
merely at the aggregate level, wh~n NCHS compiles its annual natality sta
tistics. AstOnishingly. this process also takes place for individual birth cer
tificates. As part of their "quality assurance follow-up," Connecticut health
officials, for example, endeavor to ensure that every individual birth certifi
cate is given both a race and an ethnicity code. Where no responses are
recorded or. a 9 ("Not Classifiable") entry is given, this might consist of
contacting local physicians'and having them try to re-establish contact with
mothers for the purpose of soliciting a self-categorization more intelligible
to the bureaucrats. Nonstandard written responses, if they appear on the
master NCHS lists of "alternative" group names, are accordingly re-coded
as standardized categories. When these methOds fail, the certificates might
be left as ''unknqwn''-a category of little use for estoppel or other later
adjudicative purposes. 149
i
~.
. This is the sort of system uponwbich judges will have to rely for
"documentary evidence" of the race of future "Malones." tntimately, as .
with the self-reported infonnation on,U.S. Census forms. the system lacks
any "reality" check: what if Mrs. Malone had grinned and said "Black"
145. Su AVSS Races Sorted by NCHS Code, supra note 144. The NCHS system appears 10 wort
around the principle of sWistical likelihood, but it should be clear from this coding system that on a
cer1ificate-bY-i:enificate basis its results may not always conform 1000r pm:oncieved notions of racial
COmmunity. Self-identification by religious affiliation, for example, might result in the childn:n of
Louis Farmkban being given binh cer1ificates identifying them as White.
146. ,ttl.
.
147. Su Letter from Karen Frost, sUPfa note 132, attadunent, AVSS Ethnicity List [hereinafter
AVSS Etlmicity List]. The master NCHS list is found in iNsTRl1C11ON MANUAl., PART 3A. supra IIOIC
138. app. H. Written responses may also be cbecked against the NCHS list of recognized Indian ~bes
from the United States. Cannda and Mexico. Su id. app. F.
148. Compan AVSS Races Sorted by NCHS Code. supra IIOIC 144 with AVSS Etlmicity List.
supra 1IOIC'147,
.
.
149. Alternatively,. if "'wlkoowns" WCR\ coded as the NCHS m:ommends for statistical
accounting-thai is, by "imputing" identity based upon the fIII:C of the mother with the "previous record
with known I'lICe, " self supra note Il7-the resUlt would be dowmighl perVene: essentially a nmdom
assignment of race.
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[Vol. 82:1231
when so asked by the hospital orderly? Had the twins' parent§ had more of
a sense of humor-or more foresight?-their boys' career in the Boston
Fire Department might have had a different ending.
m
A
COMPARATIVE ANALYSIS
Can comparative law in any way illuminate our classificatory dilem
mas? One potential avenue of enlightenment is to look at how the
American legal system deals with classification for other group categories.
Another avenue is to look at how other legal systems approach the subject
of group definition and status-allocation. The next several sections will
briefly discuss examples drawn from U.S. and foreign experience with
these dilemmas.
-~
A.
The Easy Cases
In many cases, the definition of groups and the drawing of lines
between individuals has not proven problematic at all. To the extent that a
particular group can be defined according to clear and invariant characteris
tics or criteria. the administration of programs allocating benefits according
to membership or nonmembership is not particularly taxing. Alternatively,
even a highly socially-contextual "fuzzy" group definition can be workable
if we, for example, (1) accept a principle of "fractional descent" by which
the genealogical "closeness" of a group-member ancestor can be cwculated
by reference to a primordial "base population," or (2) allocate the establish
ment of membership criteria either to the members of some base population
or to ari official decision-malcing third party.
1.
Sex Classification
seen,
As we have
the drawing of lines between men and women is
comparatively unproblematic. At the most basic level, it is technically pos
sible to refer to an empirical scientific standard. For example, women com
peting in the Olympics might be given "Barr body" tests for the presence of
a second, vestigial X chromosome in order to ensure that they are indeed
female. The ~ definition of sexual type is at this level straightforward.
Moreover, in the day-to-day world, without sophisticated medical parapher
nalia. distinguishing between men' and women is relatively uncomplicated.
At the point of intimacy, genitalia usually make the matter unmistaicable,lso
but even in a more socia! setting the presence or absence of particul~ sec
ondary sexual characteristics provides a generally reliable test. The more or '
less dichotomous nature of the sex variable ensures that any group-prefer
ential program based upon sexUal classification would.- be-in its defini
tional terms, at least-relatively uncontroversial.
'
ISO. See. e.g.• THB CRYlNO GAME (Miramax 1992).
•• '!;..
1994J
2.
ADMINISTERING IDENTITY
1263
Native Americans
A more complex example is that of the definition of Native Americans
for purposes of U.S. law and tribal court jurisdiction. In a scientific sense,
there is no apparent basis for differentiation on "Indian" status grounds.
There are no unmistakable and invariant pbysical characteristics and there
is no genetic litmus test. As with race and ethnicity, the category is primar
ily a socially~constructedone. Nevertheless, it poses fewer administrative
problems than race or ethnicity, because the administrative system defers,
in ~ malcing clas,sificatory choices. to a "political" process of "member
reference," malcing no claims to objective integrity.
Most "Indian law" in the United States focuses upon tribes rather than
upon individuals. but there are enough exceptions to muddy the waters. 151
Traditionally, the term "Indian" was conceived in classically racial terms.
In 1846. for example, the Supreme Court ruled that ,a White person adopted
by an Indian tribe was not Indian for federal jurisdictional purposes. 132
Indians under United States law have seldom been regarded as an undiffer
entiated group. however, and jurisdictional statutes governing ,tribal courts
and other measures have usually held "Indian" status to o~tain primarily
through specific tribal affiliation. ' The Indian Reorganization Act of 1934.
for example, defined "Indian" to include
all persons of Indian descent who are members of any recognized
Indian tribe now under Federal jurisdiction. and all persons who are
descendants of such members who were, on June I, 1934. residing
within the present boupdaries of any Indian reservation, arid shall
further include all other persons of one-half or more Indian blood. 153
This classification system made Indian categorization largely a func
tion of recognition by the tribe itself. combined with the delineation of a
speCific population base group of tribal affiliates and direct descendants. 1-'4
This essentially tribe-by-tribe approach has been an enduring tradition of
U.S. "Indian" law. Even where statutes defined the sCope of government
., I. The Indian Civil Rights 'Act requires tribes 10 honor certain provisions of the Bill of Rights
and otber individual protections from which they woUld othawisc be exempt 2S U.S.C. § 1302 (1988
&: Slipp. v 1993). Some stlIlUII!S, cases. and regularions defille "'Indian" differently for different
purposes. For example. !he Indian Health Care Improvement AI;!: provides separate definitions for
"Indian." "Ulban Indian." and "RIII'III Indian." 2S U.S.C. § 1603 (1988 &: Slipp. V 1993). Ulban
Indians, Incijans who live outside tnldilional tribal enclaves, arc included for purposes of alcohol
t:reannent programs and reauitmem inlO !he hcaJth professions; bill are excluded from other plans. Ill.
Historically. tIic use of differing criteria 10 dcU:nninc Indian StaIIJS has caused !he listed U.s. Indian
popuIalion 10 vary significantly. Census figures show a 14 pen:em increase in the Indiu population
between 1960 and 1970. but a doIIblillg of thar population between 1970 and 1980. Set! WEIISnlJI.
slIpTQ nOle 45. at 144.
152. United Stata v. Rogers. 4S U.s. (4 How.) 567. 512·73 (1846).
IS3. 2S U.S.C. § 479 (1988).
1:54. -II WIIS. not. however. entirely clear what the "persons of onc-half or more Indian blood" clause
meant. lIS the descent system WIIS c:ompliClllcd by the admixture of boch tribe-'''membersbip" criteria and
some Undefined notion of ''blood.n
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CONCLUSION: EsSAYS ON HATE SPEECH
These two essays, then, ultimately coincide. Society evaluates minori
ties' demand for hate speech regulation in terms of the current ,paradigm,
namely free speech. Within that framework, minorities are portrayed as
asking for an incremental adjustment, a new "exception" to the grand sweep
of First Amendment protection. To staunch defenders of the First
Amendment, that demand necessarily appears short-sighted: it would
reduce the amount of liberty we all enjoy, a reduction that would fall (in
their view) disproportionately heavily on the very persons clamoring for
protection.
But, of course, these arguments can be answered. Minorities 'may per
sist in their demands even in the face of paternalistic arguments to the con
trary. Now, we must evaluate their claim on the merits, which, in turn
requires balancing. But how shall we balance their demand for respectful
treatment-for full inclusion in the human COriImunity-against our inter
est in'speaking freely (even derogatorily) of and toward them? We argued
in the first essay that this feat is practically impoSSible, because speech and
community, liberty of expression and full eqUality of citizenship, are both
linked and in indissoluble tension. There are ways to resolve this tension in
the reforniers' favor, just as there are argu.t1ents to address the casual pater
nalism of the free speech advocate. Although other western societies have
made the adjustmen~ we are skeptical about the prospects of the United
States joining them anytime soon. Free speech, like aU marketplace activi:,. ,
ties, benefits those who are currently life's winners, reinforcing their advan-.:
tage while ,enabling them to say to th~mselves that they won fair and
square. Perhaps only t,he threat of serious social disruption will shake the,
current complacency, so that in twenty or fifty years we will look upon hate,
speech rules with the same equanimity with which we now view defama
tion, forgery, obscenity, copyright, and dozens'ofother exceptions to the
free speech principle, and wonder why in the Jate twentieth 'century we
resisted them so strongly.
'"
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.
The Outmoded Debate Over
Mfirmative Action
Dank~l
A. Farbert
The academic debate over affirmative action has become a bitter stale
mate. I Opponents consider affirmative action to be reverse discrimination,
charging that racial discrimination is equally wrong regardless of the race of
the victim. Supporters retort that the relationship between African.
Americans 2 and whites is hardly symmetrical, and that racial preferences
.
,
'
Copyright e 1994 California Law Review. Inc.
t Henry J. F1elCher Professor and Associate Dean for Faculty, Ulliversity of Minnesota School
of Law. r would like to thank Steve Roo for his I-eseareh assistance. and Jim Chen. CIU'OI Chomsky:
Dianne Farber, Phil Frickey. Sam Issachamff. john powell. Suzanna Sherry. Mike Tonry, Gerald Torres.
and Judith Younger for their helpful comments. r would also like 10 thank the edilOrs of the California
lAw Review for their invitation to panicipate in this Symposium on Critical Race Theory.
I. See. e.g.• LoUIS FISHER & NEAL DEvINs. PounCAL DYNAMICS OF CoNsmvnONALLAw 283
(1992) (describing the affinnative action debate as "intractable"); Cheryl r. Harris. Whiteness As
Property. 106 HARv. L. Lv. 1707. 1766-77 ([993) (describing affirmative action as a "wellspring" of
bitter debale); Samuel IssachlU'Off. When Substanct Mandates Procedu.re: Manin v. Wilks and the
Rights of Vested Incu.mbents in Civil Rights GOnsent Decrt!t!s. 77 CoRNELl.. L. REv. 1~9, 252 (1992)
(stating that the affirmative action debate is "caustic and draining").
2. Many discussions of racial issues in the legailitenU\II'C focus on African Americans. implicitly
assuming either that there are no other minority groups or that other groups pose identical problems. For
criticisms of this approach. see Alex M. Johnson. Jr.. The New Voice of Color, 100 YALE LJ. 2007.
2034 n.112 (I 991) [~reinafter Johnson. New Voict\; St!t! also Jerome M. Culp. Jr.. Posner on Du.ncan
KelWldy and Racial Difference: White Authority in the Legal Academy, 41 DUlCE LJ. 1095. 1[09
. (1993) (recognizing that focusing on a model of black participation in affirmative action "iIIuminates
and obscures important issues in this debate about race and the law"); Alex M. Johnson. Jr., Defending
the Use of Quotas in Affirmfltive Action: Attaclcing Racism in the Nirreties. 1992 U. Iu.. L. REv. 1043.
1072-73 [hereinafter Johnson. Q~tasJ (observing that the historical experience of African Americans
is unique among minority groups). This Article will be guilty of the same failing, with one exception.
See irifm text accompanying notes 183- [8S.
In my view. ihe failure 10 focus suffiCiently upon alternative minority groups is the single most
serious weakness in the race literature. It not only distorts our views of other minOrity groups but also
deprives us of comparisons that might help us better understand black-white relations. relations between
other minority groups and whites. and relations among minority groups.
It is worth noting that at present. twelve percent of the U.s. population is African American; three
pe"",nt is Asian. and nine percent is Hispanic. Among the college population. Asians and Hispanics
together slightly oUlnumber African Americans. See Stephen' Buckley, The Challenge to Black
DomifllJllce. WASH. POST NAT'L WKLY EDmON. July 26-Aug. I. 1993, at 25. The "black model" of
affirmative action thus fails to account for at least hilIf~of the minorities typically targeted by such
programs.
Since this is the first reference 10 racial groups in the Article, a few words about tenniDology are in
order. I originally attempted to alternate between terms such as "black" and "African American ...· or
"minorilies" and "people of color." None of these terms is entirely satisfactory-for example, the
distincfion between "Whites" and "people of color" ignores the fact that about half of Mexican
AmeriCiUlS consider themselves "white." See infra text accompanying note 183. Because the editorS
'.' .893
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CAUFORNIA LA W REVIEW
[Vol. 82:893
are necessary to remedy discrimination, to provide role models for the dis
advantaged, and to increase diversity. Opponents, in tum, attack these
arguments as nonnatively wrong or empirically false. Although little·new
can be said about these arguments, the dispute continues with no sign of
resolution. 3
The sterility of this debate suggests that it is time for a fresh perspec
tive. This Article will reconsider affinnative action in light of an emerging
body of scholarship, Critical Race Theory (CRT).4 CRT prompts a recogni
tion of the urgency of America'sracial problems and an uncompromising
search for real solutions rather than comforting. stop-gaps. If we are to
move beyond the stale debate over affinnative action, we must heed this
insistent call for a changed intellectual focus. One of CRT's tenets is that
conventional civil rights scholarship has limited application to current racial
problems. With respect to affinnative action, I believe CRT is correct about
the decreasing ~levance· of contemporary scholarship. I will argue that
major changes in the level of affinnative action are unlikely, and that in any
event, affinnative action has reached the limit of its ability to address our
racial problems.
Part I begins by reviewing the political and legal history of affiJ.:!11ative
action. Although the evolution of the judiCial doctrine is well-known, the
political and economic aspects of affinnative action have received less
attention from legal scholars-one of several sholJcomings in the existing
literature. The focus then shifts to Critical Race Theory. After a short
introduction to CRT, I will discuss the views of CRT and non-CRT scholars
pertaining to affinnative action. Although CRT scholars generally favor
affinnative action, the degree of enthusiasm varies greatly. CRT scholars
are united, however, in the view that African Americans could achieve pro
portional representation in the economic and the academic worlds were it
not for discriminatory selection criteria. Thus, they question the "stan
dards" that now limit African Americans' access to desirable jobs and aca
persuaded me that frequent allt'mations in terminology sometimes lead to confusion, I have now
'generally avoided the term "black" in favor of "African American."
3. Some of ihe leading articles and a useful bibliography of works through 1991 can be found in
JOHN GARVEY & T. ALEXANDER ALElNIKOFF, MODERN CONSTlT1JT10NAL THEORY: A READER 422-81
(2d ed. 199 I). For a few of the recent additions to the literature. see. T. Alexander Aleinikoff. A Case for
Race-Consciousness, 91 COLUM. L. REV. 1060 (1991) [hereinafter Aleinikoff. Rac~-ConsciousnessJ;
Paul D. Carrington. Diversity!. 1992 UTAH L. REv. 1105; Michael S. Paulsen. R~v"se Discrimination
and Law School Fflculty Hiring: The Undiscovered Opinion, 71 TEX. L. REV. 993 (1993). My
impression is that a broad consensus existS about the desirability of increasing the academic. economi~,
and polilical status of African Americans; the debate centers on whether these goals justify race
conscious means.
4. This Article will not consider affirmative action programs based on gender, sexual orientation,
or other characteristics. For. the purposes of this Article. affirmative action encompasses any race·
conscious selection system designed to increase minority representation. Thus. it includes college
.admissions programs, hiring or promotion preferences by employers. and. somewhat more broadly, the
use of race-conscious districtingin order to facilitate the election of minOrity politicians. It does not
include recruiting or retention programs.
1994)
THE OUTMODED DEBATE
895
demic programs. If the current standards of merit are invalid. employers
and schools easily could find many qualified African Americans to partici
pate in affinnative action programs. Consequently, the number of qualified
individuals taking advantage of affinnative action programs could be
greatly expanded. Alternatively, and perhaps preferably, the current dis
criminatory qualifications could be scrapped and replaced with inclusionary
ones, eliminating the need for affinnative action programs, The goal, in
any event, is roughly proportional representation,
Part II argues that affinnative action has reached its capacity to pro
mote proportional representation. For both political and legal reasons, sig
nificantchanges in the extent ofaffinnative action are unlikely, Contrary to
the CRT view that existing standards are merely artificial barriers to entry,
the educational system has simply failed 'to give many African Americans
the grounding needed for economic success. In addition, affinnative action
cannot address emerging structural problems, such as· the rapid erosion of
employment in the manufacturing sector.' Because of the practical and
political'limits on affinnative action, disputes about its legitimacy are likely
to fade as attention shifts to other problems and remedies. Part ill thus
sketches a few teritative thoughts about the future direction of race
scholarship,
.
It may be best to begin with some disclaimers about the scope of this
Article. First, I will not contribute to, or even discuss, the conventional
arguments over the proper level of judicial scrutiny, the legitimacy of vari
ous justifications for affinnative action. or the legal or moral rights of
whites or African Amencans. My thesis is that these arguments have
already received ample attention; both sides of the debate have evoked first
class scholarship, and I have little to add.
Second, although I will discuss the views of critical race scholars on
issues relating to affinnative action, it is not my purpose to evaluate the
quality of their scholarship either collectively or individually,6 The reader
will have to fonn his or her own views on that score. Although evaluating
the quality of scholarship is important,' it is less crucial than addressing the
nation's racial problems:
5. See James J. Heckman & J. Hoult Vertedce. Raciol Disparity and Employment Discrimination
Law: An Economic Perspective, 8 YALE L. & POL'y REv. 276,284-86 (1990) (discussing impact of
decreased manufacturing employment opporrunities on African American wages).
6. Nor will I perform such an evaluation of the work of the nuijor critics of CRT. although their
substantive views will be discussed where n:levanL
7. For soml! thoughts about this issue. see generally Daniel A. Farber & Suzanna Sheny. Telling
Stories Out of School: An Essay on LAgal Narf'QJivt!s, 45 STAN. L REv. 807 (I 993).
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19941
POLITICAL, LEGAL, AND CRITlCAL PERSPEcnVES ON
;~i
AFFIRMATIVE AcnON
".~
This Part will explore the views of CRT scholars regarding affinnative
,action. As noted earlier, CRT scholars are somewhat divided 'in their views, '
on affinnative action, but are uniformly skeptical of "white" definitions of
merit To understand their views, it is first necessary to understand the
historical context in which CRT emerged. The fonnation of CRT was
sparked in part by frustration with political and judicial developments
linked to the issue of affinnative action. I will begin by reviewing the his
tory of affinnative action as a national political issue, and will then briefly
sketch the evolutio~, of affinnative action legal doctrine.
--A.
Affirmative Action as a Political Issue
The ,federal government's involvement with affinnative action began
in 1967 with the '!Philadelphia Plan," which was intended to remedy blatant
segregation in the construction industry.s To foster integration, the Plan
made the racial composition of the' work force a factor in awarding federal
contracts. 9 The original version of the Plan was highly controversial, and it
w:~s rescinded in the final days of the Johnson Administration. to
Surprisingly, the Nixon Administration resurrected the Philadelphia
Plan. II A revised version required that construction bid invitations include
·target ranges, rather than quOtas. 12 Even with this modification, however,
the Comptroller General ruled that the Plan was iIlegalY The Senate
passed an appropriations rider mandating complianc'e with the 'Comptroller
-General's rulings,14 but President Nixon campaigned hard in the House
against the rider. IS Ultimately, the House and the Senate (the latter upon
8, For an extensive discussion of \he Plan and ilS hislory, see Robert P. Schuwerl<.. Comment.
The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U. CHI. L. REv. 723 (1972).
9. HUGH D. GRAHAM; THE CIVIL RlOHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY
1%0-1972. at 284-97 (1990). As initially implemented. the Plan required the.low. bidder 10 negotiate
over hiring goals with the federal agency awarding the contract. Id. al 289,
10. Id. at 296:
II. See id. at 322.
12. /d. at 327.
13. Id. at 331. Anomey General Mitehell. aided by Labor Solicitor Laurence H. Silberman (later
a Reagan judicial appointee). defended the legality of the Plan. Id. at 330. 333. The Plan was ultimately
-upheld in Contractors Ass'n v. Secretary of Labor, 442 F.ld 159 (3d Cir. 1971). em. denied, 404 U.S.
854 (1971).
14. GRAHAM, supra note 9. at 339·40. Senator Everett Dirksen argued that the Plan violated Title
VII, but died before he could do anything about il Senator Sam Ervin initiated a vociferous campaign
against the Plan. and \he AFL-CIO attacked it. /d. at 335·37. The Comptroller General continued to
insist on the Plan's illegality. /d. at 338·39.
IS. Id. at 340.. Nillon threatened 10 Veto the appropriations bill if it contained the rider.
Schuwerk. supra note 8, at 749. Then, on lite day of the vote, Secretary of Labor Shultz held a news
conference urging the House to defeat it. calling the vote on lite rider "the most important civil righlS
vote in a long, long time." /d. at 749 n.141.
THE OUTMODED DEBATE
lSY7
reconsideration) rejected the rider, with the' crucial votes coming from
Republicans. 16 Thus, Nixon succeeded in saving the Philadelphia Plan.
Although other f~ctors also played a role in his decision,17 Nixon saw
affinnative action as a wedge with which to split organized labor away from
the civil rights movement. 18 The Republican strategy of using racial issues
to separate the white working class from the Democratic Patty proved
highly successful. As later studies show, it exploited a massive schism'
between white and African American opinion regarding afnrmative action:
[A1ffirmative action pits a strong majority of blacks in favor of
preferences ... against overwhelming majorities of whites deeply
opposed to such· programs. In public opinion polls" whites are
opposed to i;llack preferences in hiring and job promotion by a mar
gin of 81 to 11, and are against rese1"'\ling openings for blacks at
colleges by a margin of 69 to 22... , For a Republican party seeking
to divide .the electorate along lines giving the GOP a huge advan
tage, few issues are as attractive as affirmative action, 19
This issue was crucial to gaining the support of the so-called Reagan
Democrats. 2o By 1984, "the defection of white, working-class northern
Democrats turned into a hemorrhage."21
A dramatic illustration can bC found in Macomb County, a white
working~c1ass Detroit suburb. In 1960, John F. Ke<;nedy carried the county
with sixty-three percent of the vote; as late as 1968, Hubert Humphrey
16. GRAHAM. supra note 9, at 340; Schuwerk, supra note 8. al 749 &; nn. 145-46. The
Philadelphia Plan became the mo&:.l for the ellecutive order mandating aflinnative action nationwide in
federal contracting. See GRAHAM, supra note 9. at 341·45.
17. Republican senators facing close elections may have wanted to appeal to African American
voters. See GRAHAM, supra note 9, at 336 (noting that Senator Hugh Scon supported the Plan because
, he was courting "civil righlS forces" during the 1970 re-election campaign). Nixon also needed to
maintain \he support of the liberal wing of his party; be likely hoped 10 recapture the substantial African
American support he had received in 1960. See id. at 302:03. 322_
18. See id. at 325, 340.
19. THOMAS B. EOSAI..L &; MMW' D. EosAU.., CHAIN REAcnON: TIlE IMPACT OF RAcE. RtOHT'S.
AND TAXES ON AMERICAN PoLmCS 186 (1991) (using 1980 survey data); see also DINESH D'SoUZA.
ILUBERAL EDUCATION: THE POLmCS OF RACE AND SEX ON CAMPUS 131 (1991) (surveying evidence on
white attitudes). For a further discussion of African American attitudes. see Lee Sigelman &; James S.
Todd. Clarence 1'hol7lllS, Black Pluralism, aatf Civil Rights Policy, 107 PoL. Sci. Q. 231, 242-45 (1992)
(reporting that African Americans are split as 10 whether preferences should be given 10 offset pasl
discrimination. bul are strongly supponive of quotas to ensure faimess).
Despite the negative attitudes of whites tOward affirmative action, white attitud~ toward African
Americans have shown a long·term favorable shift. A decline in several foims of discrimination over
the pasl few decades reflects this shift.- See John J. Donohue III &; Peter Siegelman. The Changing
Nature of Employmelll DiserinliNllion Liligation. 43 STAN. 1.. REv. 983, 1001·03 (1991). Bu: see
DERRICK BEI..L, FACES AT TIlE BOTlOM OF THE WELl.: THE PERMANENCE OF ~ 5 (1992) (claiming
that virulence of discrimination has not changed).
20. See EDSALl. &; EDsAU.., supra note 19. at 163·65 (noling that a large percentage of Democrats
who voted for Ronald Reagan were seeking 10 reverse a pen:eived "federal government tilt in favor of
blacks and other minorities'').
21. Id. at 170.
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received a comfoI1able fifty-fivepercent. 22 Despite the local impact of the
recession, however, Ronald Reagan carried the county in 1984 by a two-to
one margin. 23 Dismayed by this reversal. the Michigan Democratic Pany
sponsored a study of the county's Reagan Democrats. The study found
these voters bitter about affirmative action. They saw affirmative action as
a "serious obstacle to their personal advancement"; "discrimination against
whites hard] become a well-assimilated and ready explanation for their sta
tus, vulnerability and failures."24 A similar pattern of white defection from
the Democratic Pany continued throughout the country in the 1988
election. 25
Political resistance to affirmative action was also evident during the
passage of the. 1991 Civil Rights Act. 26 SuppoI1ers of the Act avoided any
endorsement of racial preferences or "quotaS.~'27 Indeed, the 1991 Act spe
cifically bans the use of race-norming in employment tests, whereby scores
are repOI1ed only relative to panicular groups, so that the top individuals in
each group receive the same overall score even if their test performances
are quite different. 28
More recently, President Clinton, in an effoI1 to bring Reagan
Democrats back into the fold, went to some lengths in the 1992 presidential
campaign to avoid being perceived as a "captive" of African ,American con
stituencies. 29 This practice continued in the first year of his administration
when he withdrew the nomination of Lani Guinier as Assistant Attorney
General for Civil Rights because of her perceived SUppOI1 for race-con
scious remedies to increase the political power of blacks. Guinier; who was
otherwise eminently well-qualified, evoked strong opposition because of
her CRT-related writings on voting rights. 30 Although she pressed for the
22.
23.
Id. at 181.
Id. al 181·82.
24. Id. al 182 (quoting SWlley B. Greenberg. Report on Democratic Defection (The Analysis
Group. Wash.. D.C.), Apr. 15. 1985, at 13·18.28).
25. Id. at 225·26.
26. Civil Rights Act of 1991. Pub. L. No. 102·166. §106. 105 Sial. 1071 (codified in scaltered
sections of 42 U.S.C. (Supp. IV 1992».
21. For discussion of the quola issue, see Ronald D. Rotunda. Thl! Civil Rights Act of 1991: A
Brief Introductory Analysis of the Congressional Response to Judicial Interpretation. 68 NcmtE DAME
L. R!!v. 923. 924·26 (1993).
28. See 42 U.S.C. § 2000e·2(1) (Supp. IV (992). For an extensive discussion of this issue. se~
Mark Kelman. Concepts of Discrimination in "General Ability" Job Testing. 104 HARV. L. REv. 1158
(1991).
29. See, e.g.. Monte Piliawsky, Blacks & Clinton: Taken For Granted Again, 2:2
RECONSTRUCTION 41, 41·42 (1993).
30. Guinier earned her B.A. from Radcliffe College (Harvard University) in 1911. her 1.0. from
Yale Law School in 1974, and is currently a Professor of Law at the University of Pennsylvania Law
School. Her two more contentious voting rights anicles were published in 1991. See Lani Guinier, No
~ Two Seats: TIre Elusive Questfor Political Equality. 17 VA. L. REV. 1413 (1991) [hereinafler Guinier:
No Two Seats); Lani Guinier. The Triumph o/Tokenism: The Voting Rights Act anti the Theory of Black
Electoral Success, 89 M,CH. L. REV. 1011 (1991) [hereinafter Guinier, Triumph of TolcenismJ; see also
infra text accompanying notes 186 and 189-90 (discussing ponions of these twO writings). For a more
THE OUTMODED DEBATE
1994J
899
opportunity to explain her views before the Senate Judiciary Committee.
Clinton withdrew her nomination before she had the chance to do so. As a
.:"
press' account explained:
Democratic senators and White House officials had been deeply
reluctant to go forward with a hearing in which the prospects of her
winning confirmation were always dim. Moreover, such a hearing
would have focused on affirmative action and race-based quotas.
two notions Democrats in the Senate and the White House would
like to avoid. 31
Indeed, Presidenf Clinton'S concerns about the political consequences of
affirmative action may be well-founded. A recent study of public opinion
found that affirmative action was so unpopular with many whites that
merely mentioning the issue resulted in markedly less favorable responses
32
to other questions involving African Americans.
B.
The Evolution
0/ Legal Doctrine
Just as affirmative action has been a divisive politicl:!l issue. it ~so has
proved difficult for the federal judiciary. The Supreme CouI1'S struggle
with the issue of affirmative action is a frequently told story, one '.vhich I
will only summarize here.
The first major affirmative action cases came before the Burger COUI1.
33
. Regents o/the University o/California v. Bakke involved a set-aside pro
34 Bakke; a' rejected white applicant
gram for minority medical students.
recent article on the same subject, see Lani Guinier. Groups. Representation, and Race-Conscious
Districting: A Case ofthe Emperor's Clothes, 11 TEX. L. REv. 1589, 1589 (1993)(noting that the author
wished to "thank all those who read this article and encouraged me to pursue my ideas, despite the
apparent political costS").
Guinier was one of the original organiurs of this Symposium. Her work is cited in Delgado's
bibliography as having several CRT themes, Richard Delgado & Jean Stefancic. Critical Race Theo'!':
An Annotated Bibliography, 79 VA. L. REv. 461, 492·93 (1993), and press reports discuss her won: in
connection with CRT, see, e.g., Stephanie B. Goldberg. The Law, A New Theory Holds. Has A "'hite
Voice. N.Y. TIMES. Iuly /1, 1992. at A23; see also Ierome M. Culp. Ir•• Toward a Black Legal
Scholarship: Race and OrigiTUlI Undersltl1ldings. 1991 DuKE LJ. 39, 40 n.2 (identifying Guinier as a
CRT31. Neil A. Lewis, Clinlon Abandons His Nominee for Rights Post Amid Opposition. NY. TIMES.
scholar).
Iune 4, 1993. at AI, A18. In view ofits unpopularity. one might wonder why affirmative action has nO!
been drastically curtailed. For further discussion of this question. see infra text accompanying nOles'
144-148. This result was obtained by asldng some randomly selected respondents about affinn31;ve
32.
action prior to raising other racial issues. PAUl. M. SNIDERMAN & THOMAS PIAZZA. THE SCAR Of R."CE
102·03 (1993).
33. 438 U.S. 265 (1978) •.For a more extensive discussion of Bakke and later cases, see generally
IOHN E. NOWAK & RoNALD D. RcmJNDA. CoNSTTnlTIONAL LAw § 14.10 (4th ed. 1991).
34. In 1913. applications indicating that the applicant was "economically and/or educationally
disadvantaged." and in 1974 those indicating that the applicant was a member of a "minority group."
were forwarded to Ii special admissions committee. These "special candidates" did not have to meellhe
2.5 grade point average cutoff applied to general applicants. The special committee evaluated these
candidates and presented its top choices to the general adlllissions committee until a number prescribed
by faculty vote were admitted. Bakke, 438 U.S. at '1.74·75.
)
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with better "paper credentials" than some minority admittees, challenged
the set~aside program as a violation of the Equal Protection Clause. Four
Justices ruled in Bakke's favor on statutory grounds,3s and four voted in
favor of the constitutionality of the program. 36 Justice Powell cast the deci
sive vote in favor of Mr. Bakke. While Powell rejected most of the ration
ales supporting affirmative action programs, he found two acceptable
justifications: remedying the disabling effects of identified past discrimina
tion and creating diversity in the student body.37 Powell concluded, how
ever, that the set-aside program in this case was not properly grounded in
either justification. 38
The next affirmative action case, Fullilove v. Klutznick,39 involved a
set-aside program as part of a federal appropriation for construction
projects.40 Chief Justice Burger's opinion upheld the program on the
ground that Congress, unlike the states, has broad power to remedy past
societal discrimination. 41 Thus, Fullilove presented an easier case. The
boundaries of affirmative action by the federal government were relatively
clear. 42
During the decade after Bakke, however, the Court made some incon
clusive efforts to define the boundaries of affirmative action by state gov
ernments. 43 The Court finally crystallized the constitutional standard for
state programs in City of Richmond v. I.A. Croson Co. 44 by applying strict
~;.
:.4~
35. Id. al 408. ~ 18-19 (Slevens, J•• concurring in the judgmenl in part and dissenting in part)
(joined by Burger, CJ. and Stewart & Rehnquisl. JJ.).
36. Id. al 325 (Brennan. While, Marshall and Blackmun. JJ.• concurring in the judgmenl in part
and dissenting in part).
37. Id. al 307, 311·13.
38. Id. aI319·20.
39. 448 U.S. 448 (1980).
40. The stalute al issue provided federal funds for state and local conslrUclion projeclS and
required thaI al leasl 10% of the money be spenl on goods' or servic~s from minorily business
enlerprises, unless an adminislralive waiver was· granled. Id. al 456-63.
41. Id. al 483-84. For commentary by the Assistanl Allomey General for Civil Rights (and
curren! Solicilor General) who argued the case for the Uniled States. see Drew S. Days, III. Fullilove, 96
YALE L.J. 453 (1987).
42. 448 U.S. at 519 (Marshall. J.. conCurring in the judgmenl) (joined by Brennan & Blackmun.
n.) (Slating that "the question is not even a close one").
43. See United States v. Paradise. 480 U.S. 149 (1987) (upholding a coun order that remedied
blatant discrimination by requiring half of subsequenl promotions 10 be awarded 10 African Americans);
Local 28 of the Sheet Metal Workers' Int'I Ass'n v. EEOC. 478 U.S. 421 (1986) (upholding a race·
conscious remedy against a union thaI had been found guilty of race discrimination in violation of Title
VII); Wyganl v. Jackson Bd. of Educ., 476.U.S. 267 (1986) (striking down a colleclive bargaining
agreemenl that attempted to protecl recently hired African American teachers againsl layoffs).
44. 48g U.S. 469 (1989). The case produced a confusing array of opinions. Chief Justice
Rehnquist, Juslice White, Justice Slevens, and Juslice Kennedy joined Justice O'Connor's opinion as to
Parts I, III.B, and IV. Chief Justice Rehnquisl and Justice White joined Justice O'Connor's opinion as
10 Part II. Chief Justice Rehnquist, Justice While, and Justice Kennedy joined her opinion as to Parts
lILA and V. Justices Stevens and Kennedy each tiled their own opinions concurring in part aod·
concurring in the judgmenl. Justice Scalia filed an opinion concurring in the judgment. Juslices
Brennan and Blackmun joined Justice Marshall's dissenting opinion. In addilion, Juslice Blackmun
filed a separate dissent, joined by Justice Brennan. Despite this confusion. Justice O'Connor acruaIly
scrutiny to the City's program. It is worth noting that Croson .had "bad
facts": the plaintiff construction firm had been required to subcontract to a
minority firm, which charged a seven percent fee for doing little more than
paperwork.~s Justice O'Connor's controlling opinion held that remedying
past discrimination in connection with the City's construction programs
could have been a compelling government interest. In her view, however,
the record contained insufficient evidence of such past discrimination. 46
. Moreover, Justice O'Connor concluded, even if there had been a better
showing of past discrimination in City construction projects, the City's
affirmative action plim was poorly tailored to remedying such
discriffiination. 47
Two cases since Croson also deserve mention. Many observerS were
surprised when a sharply divided Court upheld FCC regulations designed to
increase. the number of minority-owned broadcast stations. in Metro
Broadcasting, Inc. v. FCC. 43 Justice Brennan's majority opinion accepted
diversity as a justification for federal affirmative action,49 and stressed the
greater power of Congress in this area as compared to state legislatures. so
More recently, in Shaw v. Reno, SI a bare 5-4 majority found potential merit
in a challenge to the creation of a majority African American congressional
district. s2 As in Croson, the facts of Shaw were unappealing: one of the
districts at issue was, to put it mildly, "unusually shaped,,,s3 winding
through the state for 160 miles along the path of I~85. in some places being
no wider than the highway itself. s4 Stressing that the district was obviously
created solely as a means to segregate voters on the basis of race," the
Court remanded for a determination of whether the districting plan was nar
rowly tailored to serve a compelling state interest.'6
L-t
had alleast five votes on behalf of the positions taken in all parts of her opinion. because she represented
the "swing" vOlers in the case.
45; III. 488 U.S. at 482-83. This background may explain the Coun's concern that SCI·aside
programs mighi be abused as a form of favoritism for groups with strong local political power.
46. III. at 492. 498·506.
47. Id. al 507·08. Pn!ss reports on Croson have tended 10 exaggerate ilS impacl. See Neal
Devins, Affirmative Action After Reagan, 68 TEX. L. REv. 353. 356-59 (1989) ..
48. 497 U.S. 547 (1990).
49. Because the Coun applied a lower standatd of sc:rutiny 10 federal programs. it is unclear
whether diversity would· also be considered a sufficiently compelling interest to justify state affirmative
action.
50. Croson, 497 U.S. al 563-66 (discussing the need 10 defer 10 Congress).
51. 113 S. Ct. 2816 (1993).
52. III. al 2824.
53. Iii al 2820.
54. Id. at 2820·21. Given these unappeaJing faclS. it is notewonhythat such a bare majority
joined Justice O'Connor's narrow opinion. Interestingly, in Voinovich v. Quilter, 113 S. Ct. 1149
(1993), the Coun unanimously rejected an artack on an Ohio redistricting plan that contained majority.
minority districts.
55. Shaw, 113 S. CI. at 2827-28.
56. Id. at 2832.
.
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903
law review articles,63 CRT began to coalesce through a series of confer
ences. 64 Despite some sympathy with Critical Legal Studies, CRT scholars
rejected theClS "rights critique" because it ignored the importance of legal
rights to racial minorities. 6S They also began to experiment with new schol
arly methodo~ogies such as storytelIing,66
As of yet, no clear consensus exists about the defining characteristics
of CRT. Accordingto Kimberle Crenshaw, "[w]hilc:< rio determinative def
inition of [CRT] is yet possible, one can generally say.that the literature
focuses on the relationship between law and racial subordination in
American society."67 John Calmore believes that the defining charact~ristic
of CRT is its rejection of white experience and perspectives as standards to
be applied to people of color. 68 Richard Delgado has denied that a single·
defining feature exists and instead has identified eight themes characteriz
ing CRT:
(I) an insistence on "naming our own reality"; (2) the belief that
knowledge and ideas are powerful; (3) a readiness to question basic
premises of moderate/incremental civil rights law; (4) the borrowing
of insights from social science on race and racism: (5) critical exam- .
ination of the myths and storil"S powerful groups use to justify racial
subordination; (6) a more contextualized treatment of doctrine; (7)
criticism of liberallegalisms; and (8) an interest in structural deter
To complete the picture. we also need to consider the Court's interpre
tation of Title VII. 51 Although the language and legislative history of Title
VII are more suggestive of a colorblind standard, 58 the Court upheld volun
tary affirmative action plans in United Steelworkers v.' Weber 59 and
johnson v. Transportation Agency.60 Under Title VII. employers may now
use affirmative action to remedy a "manifest imbalance" in their work
forces so long a~ the plan meets' some general standards of reasonable
ness. 6! Because private employers are not state actors and therefore are not
subject to equal protection standards. they rieed only meet this looser stan
dard under Title VII.
.
In a nutshell, then, the Court has adopted an intermediate position
between colorblindness and complete acceptance of affirmative action.
More specifically, the Court 'has given the federal government and private
employers fairly broad discretion to implement affirmative action plans, but
has subjected state affirmative action programs to strict scrutiny. As we
have seen, affirmative action has also been a weighty and troubling issue
for the American political system. These legal and political developments
are linked to one another: political resistance to affirmative action helped
cement Republican control of the .Presidency for nearly f'.vo decades, whicQ
in tum led to the appointment of judges who were skeptical of affirmative
action. Due to this progression. itwas obvious by the end of the 1980s that
a major expansion of affirmative action was not a realistic prospect.
C.
THE OUTMODED DEBATE
The CRT Perspective
'63. Delgado. supra note 62. at 6. One of CRT's most important aspects is said to be its "emphatic
declarations of dissent from dominant nonns." Jobo O. Calmore. Critical Race Theory. Archie Shepp.
and Fire MusiC: Securing an Auzhentic Intellectllal life in a Multicultural World, 65 S. CAL. L. REV.
2129. 2135 (1992).
64. The first workshop was field at the University of Wisconsin at Madison in July 1989: the
second at SUNY Buffalo School of Law in June 1m. the third at the University of Colorado School of
Law in Boulder in June 1991. and the fourth at Yale Law School in June 1992. There was also a public
conference at the University of WisConsin in November of 1990 entitled "Conference on Critical Race
Theory: A Dialogue on the Role of Law in the Maiiitenance and Elimination of Racial Subordination."
Calmore. supra note 63, at 2162 n.107. .
65. Briefly. the "rights critique" questioned wflether the concept of legal rights assisted oppressed
groups. or instead served to mask their oppression by offering the illusion of fair treatment. One catalyst
responsible for the formation of the CRT movement was the dissatisfaction of some CRT scholars with
critical legal scholars' (and traditional Marxist) positions on race. See Riclum:\ Delgado, EMmIOUS
Anomaly? Left-Right Parallels in Recent Writillg Abouz Race, 91 COI,-UM. L. REv. 1547.1548·(1991)
(book review) (finding that CRT scholars "raised objections from the left and have called for a wholly
new approach to racial justice"); Matgarel M. Russell; Entering Greal America: RejlectiollS 071 Race
and the Convergence ofProgressive Legal Theory aNi Practice, 43 HAS11NOS LJ. 749. 750 n.4 (1992)
("It is instructive to recall as well that elements of feminist and critical race theory emerged as explicit
critiques of p&ceived shortcomings in CLS.").
66. I have discussed this methodology allength in a previous article. See Farber & Sherry. supra
note 7.
67. Kimberle Crenshaw. A Bkzci: Feminist Critique of Antidiscriminatioll Law and Politics. in
THE POLmcs OF LAw: A i'ROORESSIVE CRmQUl! 195. 213 n.7 (David Kairys ed .• ·rev. ed. 1990).
What is Critical Race Theory?
As we have just seen, in the p~t twenty-five years, both national poli
tics and the federal judiciary have been inhospitable to efforts to promote
African American interests through remedies such as affirmative action.
Frustrated by the unfavorable political and legal climate, some legal schol
ars, of color began to rethink conventional civil rights strategies. 62 As more
and more minority lawyers became disenchanted with the results of "filing
amicus briefs, coining new litigation strategies," and writing conventional
57. 42 U.S.c. §§ 2000e to 2000e·17 (1988 & Supp. IV 1992).'
58. See Daniel. A. Farber & Philip P. Frickey, Is Carolene Products Dead? Reflections on
Affirmative Action and the Dynamics of Civil Rights Legislation, 79 C"UF. L. REv. 685. 709·11. 718
(1991).
59. 443 U.S. 193 (1979).
60. 480 U.S. 616 (1987).
61. Id. at 631·40. The Agency's plan in Johnson was characterized by the Coun as "3 moderate.
flexible. case·by-case approach ... effecting a gradual improvement in the representation oi minorities
and women in the Agency's work force." Id. at 642. The Court' noted the plan contained "reasonable
aspirations." not "mere blind hiring by the numbers," and was subjected 10 annual shon-term gual
reformation. Id. at 635-36.
62. Richatd Delgado. Brewer's Plea: Critical Thoughts on Common Cause. 44 V,,"!). L. REv. I,
6·8 (1991).
68.
.
.!.~~
.~
Calmore. supra note 63; at 2160.
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minism-the ways in which legal tools and thought-structures can
impede law reform. 69
As an outsider, it would be presumptuous of me to attempt to define
CRT. Nevertheless, from my own point of view, the clearest unifying
theme of CRT is a call for a change of perspective, specifically, a demand
that racial problems be viewed from the perspective of minority groups,
rather than from a white perspective. Thi~ means that arguments about
racial issues should not be subsumed under broader debates about matters
such as the role of the federal judiciary, but should be approached on their
own terms. Even the form in which issues are posed is subject to reevalua
tion. It will not do, for example, to speak of a tradeoff between merit and
affirmative action, because this phrasing. of the problem assumes the valid
ity of current standards of merit. Groups that are disadvantaged by those
standards are unlikely to embrace the assumption of their validity:70
Thus, CRT encourages a useful change of perspective. One barrier to
converting this change of. perspective into a crisp definition of CRT, how
ever, is that terms such as "minority groups" and "perspective" are not self
defining. Fleshing out such terms is one of the major tasks of CRT. In this
sense, CRT cannot be defined in the absence of a completed critical theory
of race.
Fortunately, a clear-cut definition of CRT is unnecessary for present
purposes. Even without such a definition, it is easy to identify a group of
scholars who clearly belong to the movement. This group includes Robin
Barnes, Derrick Bell, IGmberle Crenshaw, Richard Delgado,' Charles
Lawrence, Mari Matsuda, and Patricia Williams. n The views of this group
and its critics are the central focus of this Article. Because the focus will be
on CRT ideas rather than on individual scholars, it is unnecessary to decide
on the status of scholars (such as Lani Guinier) who share similar ideas but,
whose affiliation' with CRT is less clear.72 Among this bordedine group
are also some white scholars sympathetic to CRT,73 as well as scholars .
69, Ric,hard Delgado. When a Story is Just a Story: Does Voice Really Matter? 76 v;" L. REv.
95. 95 n.1 (1990),
70. 'For this reason. in Part II.C I'will attempt to show that many e~isting slandards are in fact
relevanl (0 the abilily 10 perform occupational tasks. rather than simply assuming the standards are valid.
71. See. e.g., Calmore. supra note 63. at 2150. All of these scholars. except Delgado himself. are
listed by Delgado as part of the CRT movement. Delgado. supra note 65. at 1548 n.5.
72. On Guinier's connection with CRT. see supra note 30.
73. Richard Delgado states that CRT "is a loose knil coalition of scholars. moSt of color, who
e~plore new approaches to problems of race." Delgado. supra note 65. at 1548 n.5. Other writers seem
to imply that CRT is limited to minOrity scholars. Robin Barnes states that "the personal and political
experiences of Critical Race scholars force them to contend with the comple~ intersection of race and
other characlerislicsthal form the basis for oppression." Robin D. Barnes. Race Consciousness: The
Themo.tic Content ofRacial Distinctiveness in Critical Race Scholarship, 103 MARY. L. REv. 1864. 1868
(1990): see also Crenshaw, supra note 67, al 214 n.7 (identifying various scholars of color who are
influential 10 the CRT tradilion). On the other hand. Alex Johnson believes Ihal whiles like Professor
Gary Peller can contribute 10 CRT schOlarship, though Johnson declined 10 address ''wbether whites can
be critical race theorisIS." Johnson, New Voice, supra note 2, al 2030 n.99.
1994)
THE OUTMODED DEBATE
YIJ;)
of color whose works attack white "mindsets" or advocate a "voice of
.
colo r."74
Ironically, some CRT ideas are shared by its sharpest critics. For
example, the sharp debate betWeen Randall Kennedy and CRT scholars
over the intellectual standards applying to scholarship7!! masks some impor.
tant areas of agreement. Citing a study showing that .. 'blacks and whites
are 'worlds apart' in their perception of race relations,' .. Kennedy appar
ently agreed with his CRT counterparts that "appreciable differences exist
in the prevailing opinions and sensibilities of various racial groUpS."76 Sim
ilarly, Stephen Carter, also an ardent critic of CRT views regarding scholar
ship. agrees that "people of color are marked and tied together by a shared
history and, to a lesser extent, by a shared presence of racial oppression.'m
As we will see 'in the next Section, views concerning affirmative action also
correlate imperfectly with CRT affiliation.
2.
CRT Positions on Affirmative Action
The relationships between CRT. its critics, and affirmative action' are
quite complex. As one might expeCt, some CRT scholars strongly Javor
affirmative action programs. Other CRT scholars have serious misgivings.
A similar divergence exists among minority scholars who criticize CRT.
Thus, scholars of color generally and CRT c~;:holars in particular hold differ·
ing views about affirmative action. This Section first discusses the views of
CRT scholars who support affirmative action and then discusses the con
cerns of CRT scholars who are less enthusiastic.
Patricia Williams is representative of CRT scholars who favor affirma
tive action. 78 . She "strongly believe[sl not just in programs like ;¥firmative
74. Se'e. e.g., Roy L. Brooks, The Affirmative Action Issue: lAw, Policy, and Morality, 22 Co,,~.
L. REV. 323, 351·69 (1990): Johoson, New Voice. supra note 2.
75. Randall L. Kennedy, Racial Critiques of Legal Academia. 102 HARv; L. REv. 1745 (1989). In
Ihe following issue of the Harvard 1mv Review, three Critical Race scholars and "a white male
sympathizer" responded to Kennedy. Delgado, supra note 63, al 2 n.7 (citing Colloquy: Responses to
Randall Kennedy's Racial Critiques of Legal Academia. 103 HARV. L. REv. 1844 (1990) (ihe Colloquy
contained articles by Milner S. Ball, Robin D. Barnes. Leslie G. Espinoza. and Richard Delgado».
These articles, in addition 10 others such as Calmore, supra note 63, at 2172-78, provided a unified
allllCk on Professor Kennedy's article. See infra note 220 (noting that many Critical Race scholars
viewed Kennedy's criticisms as a "betrayal").
76. Kennedy. supra note 75, at 1816 & n.299 (quoting Johoson. Poll Finds Blaclcs and Whites
"Worlds Apart," N.Y. TIMES. Jan. 12, 1989. al 18).
77. STEPHEN L. CARTER. RER.=r!Ol<S OF AN AmRMATIVI! AcnOl< BAilY 195. 197 (1991)
[hereinaf\er CAI<TER. RER.=r!Ol<S): see also Stephen L. Carter, Academic Tenure and "White Male"
Standards: Some Lessons from the Patent lAw, 100 YALE LJ. 2065. 2070. 2078 (1991) [hereinafter
Carter, Academic Tenure] (clarifying his views fw:ther). For a discussion of Carter's views, see Robin
D. Barnes. Politics and Passion: Theoretically a Dangerous liaison, 101 YALE .Ll. 1631. 1635·37
(1992) (reviewing CARTER.. RE:fLEcnOl<S, supra, and PATlUClA J. WILL1AMS. THE ALcHEMy OF RACE
AND RIGHTS (1991». Bames notes that although Carter recognizes the influence of racism in shaping
consciousness. he also criticiu:s individuals who respond to iL ItL at 1655.
78. Barnes. supra note 77. at 1647 (characterizing Williams as a ~strong proponent of affirmative
action~').
�CAUFORNIA LA W REVIEW
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action, but in affirmative action as a sociidly and professionally pervasive
concept."79 Her writing reflects this enthusiasm:
[A]ffirmative action is an affirmation; the affirmative act of hir
ing-or hearing-blacks is a recognition of individuality that re
, places blacks as a social statistic . . . . In this sense, affirmative
action is as mystical and beyond-the-self as an initiation ceremony.
It is an act of verification and ,of vision. It is an act of social as well
as professional responsibility. 80
Robin Bames similarly supports affirmative action. She believes the
benefits of affirmative action "clearly outweigh" its costS. 81 In her view.
these benefits include: "a measure of reparation (albeit small) for past
injustice; greater economic efficiency by providing poor. working poor,
middle class. and upper middle class Blacks educational, employment, and
business opportunities; and improved opportunities for integration and
diversity."82 Bames asserts that affirmative action might even be "abso
lutely necessary,"83 because "Yomen, people of color, and the disabled "are
entitLed to the preferences not only to remedy past discrimination and abate
th~ effects of today's exclusionary practices, but also to stem the tide of
perpetual domination that has been the prerogative of the 'normal' white
10ng."84
, male for all
Enthusiasm about affirmative action is not limited to CRT scholars.
Randall Kennedy. who clearly is not a member of this group, has argued in
favor of affirmative action,8S as have other civil rights scholars. 86 Kennedy
argues. for example, that affirmative action has "strikingly benefited blacks
as a group and the nation as a whole" by enabling blacks to attain much
, better economic and educational positions. 87 This improved status, he con
cludes, has produced permanent gains: "the accumulation of· valuable expe
rience. the expansion of a professional class able to pass its material
. advantages and elevated aspirations to subsequent generations, the eradica
tion of debilitating stereotypes, and the inclusion of black participants in the
making of consequential decisions affecting black interests."88
.00
THE OUTMODED DEBATE
1994)
In contrast, Derrick Bell, although seemingly supportive of affirmative
action, is skeptical of its motives and effectiveness.89 He expresses some of
his concerns, through a dialogue between himself and an extra-terrestrial
90
named Xerces. who is studying America's race problem. 'There is no
mystical attraction to affirmative action," he tells Xerces, "only a commit
ment to try to alleviate racial disadvantage through means that are legal and
in keeping with deeply moral standards.'t91 Bell believes that affirmative
action has been instituted "to give blacks the sense of equality while with
holding its substance: t92 In Bell's view, affinnative action programs serve
93
white interests far more than their supposed beneficiaries. Thus, although
he supports affirmative action, it is with little enthusiasm. "For now
[affirmative action programs] must be defended; but as we defend them,
we should not forget that the relief these programs provide is far from
ideal."94
9S
Richard Delgado is also ambivalent toward affirmative action. Like
Bell, he feels that "[aJt best ... affirmative action serves as a homeostatic
device, assuring that only a small number of women and people of color are
hired or promoted."96 ije also criticizes the diversity argument for affirma
tive action:
89. See Derrick Bell. Xerces and the Affimw.tive Action Mystique. 57 GED. WASH: L. REv. 1595.
1595-96. (1989) [hereinafter Bell. Xercesl; Detrick A. Bell. Jr.. Bakke. Minoriry AdmissiOllS. and the
Usual Price of Racial Remedies, 67 CAUl'. L. REv. 3.7 (1979) [hereinafter Bell. Mirwriry Admissions].
Although his Bakke article was written over a decade ago, Bell's views of !he case do not seem to have
changed in !he meantime. See Bsu.. supra note 19, at 102·03.
.
90. Bell, Xerces. supra nOIe 89. at 1598.
91. ld. at 1607.
92. ltl. at 1598.
93. Indeed. affirmative-action remedies have flourished because they offer more benefit to
the institutions that adopt them !han they do to the minorities whom they're nominally
intended to serve. Initially. at least in higher education. affirmative-action policies represented
the response of school officials to the considerable pressures placed on them to hire minority
faculty members and to enroll minority students.
, DERRICK Bsu.. AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 154 (1987). Bell
thinks the true purpose ~f affinnative action plans is to pacify minorities:
The nation is struetured to support !he powerful and suppress !he powerless. The law will
seldom deviate from this patlern. On occasion. it may anticipate socielal reform and seem even
10 lead or to command change. But it remains a represenlation. and will not change because it
cannot stray
far from the pattern Set by the societal reality that racial equality for African·
Americans is at best an empty promise thai. cannot be fulfilled until !he masses of whites
realize that their investment in whiteness has brought !hem only the semblance of superiority
in their subordinate status.
Bell. Xerces. supra note 89. at 1613.
94. Bell. Mirwri;Y Admissions. supra note 89, at 19. For a similar .view of the limited role of
affinnative action. see CORNEL WEST, RACE MATTERS 64·65 (1993).
95. Illustrative of his sometimes more favorable attitude is Richard Delgado, Rodrigo's Chronic/e.
101 YAU: LJ. 1357 (I 992)(reviewing DINESH D'SouzA, IlLIBERAL EDUCAllON: THE POLITICS OF RACE
AND SEX ON CAMPUS (1991». Delgado suggests thai. preferential hiring may be warranted because
people of color, due 10 multiple perspectives. have an advantage in discerning and comprehending post·
modem thought. ld. at 1365-68.
96. Richard Delgado. AjJi/TlUltive Action as a Majoritarian Device: Or, Do You Really Want To
Be a Role Model?, 89 MICH. L. REv. 1222, .1224 (1991). Delgado states that "[nlot too many,
'00
79. WIUlAMS. supra nOle 77. at 121.
80. ltl. at 50.
8I. Bames. supra note 77. at 1638.
82. ld. at 1647. The reparation rationale for affinnative action is more prominent in CRT than in
mainstream SCholarship.
83. ltl. at 1649.
84. ld. (emphasis added).
85. Randall Kennedy, Persuasion and Distrust: A Comment on tM Affimwtive Action Debate, 99
HARV. L. REv. 1327. 1329·34 (1986).
86. See. e.g., LAURENCE H. TRIBE., AMERICAN CONSTrruTlONAL LAw § 16-22 (2d ed, 1988).
87. Kennedy. supra note 85, at 1329.
88. id.
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[Vol. 82:893
r
In law school admissions. for example, majority persons may be
admitted as a matter of right, while minorities are admitted because·
their presence will contribute to "diversity." ... The assumption is
that such diversity is educationally valuable to the majority. But
such an admissions program may well be perceived as treating the
minority admittee as an ornament, a curiosity. one who brings an
element of the piquant to the lives of white professors and
students. 97
The "role model" justification for affinnative action is also problematic for
Delgado because of the strain it creates for scholars of color. 98 As he puts
it, "[b]eing a role model is a tough job, with long hours and much heavy
lifting. "99
.
In short, Delgado believes "that affinnative action "is at best a mixed
blessing for communities of color."loo He seems even less approving than
Bell. proclaiming at one point that "[alffinnative action ... is something
no self-respecting attorney of color ought to support,"IOI Delgado advises
people of color to "demystify. interrogate, and destabilize affinnative
a program "designe~ by others to promote their purposes, not
action"
ours."102
Concerns similar to those of Bell and Delgado are shared by some
non-CRT scholars having serious reservations about affinnative action. For
example. Stephen Carter has argued that affinnative action stigmatizes
African Americans, whom whites believe have attained their positions with
out meeting the usual standards of merit. Carter refers to this as the "best
black" syndrome and links it with affinnative action:
This dichotomy between "best" and "best black" is not merely
something manufactured by racists to denigrate the abilities of pro
fessionals who are not white. On the contrary, the durable and
demeaning stereotype of black people as unable to compete with
as
(minorities will be selected). for that would be terrifying. nor too few. for Ibat would be desllIbilizing."
Id.
97. Richard Delgado. The Imperial Scholar: Reflections on a Review of Civil Rights Uterature.
132 U. PA. L. REV. 561. 570 n.46 (1984).
98. The role model argument. io simplest form. holds that affirmative action is justified in
order to provide communities of color wilb exemplars of success. without which they might
conclude that certain social roles and. professional opportunities are closed to Ibem. Role
models are expected to communicate to ~ir communities that opportunities are indeed
available and Ibal hard worlc and perseverance will be rewarded.
Delgado. supra note 96. at 1223 n.5 .. Delgado questions whelber Ibis message is accurate: "I am
expected to tell the kids Ibat if !hey study hard and stay out of trouble. they can become a law professor
like me. That. however. is a very big lie: a whopper.» ItL at 1228 (footnote omitted).
99. Id. at 1226.
100. Id. at 1230..The good role model also must "be an assimilationist. never a cultural or
economic nationalist. separatist. radical reformer. or anything remotely resembling any of !hese.". ItL at
1227 (footnote omitted).
101. Id. at 1225·26.
ui'z. Id at 1226.
1994)
THE OUTMODED DEBATE
9UY
white ones is reinforced by advocates of certain fonns of affinnative
action. It is reinforced, for example, every time employers are urged
to set aside test scores (even. in some c~s, on tests that are good
predictors of job perfonnance) and to hire from separate lists. one of
the best white scorers, the other of the best black ones. 103
.
Robin Barnes rejects this·suggestion that "racial preferences have
caused a rise in anti-Black sentiment in the couritry and feelings of stigmati
zation and insecurity among Black professionals."I04 Prejudice against
African Americans; Barnes argues, has no link to affinnative action. lOS In
contrast, Bell contends that affirmative action programs do contribute to
anti-African American sentiment. Such programs, he asserts. "further the
interests of a relative few at the cost of growing hostility borne by
. many."I06
Clearly, CRT schOlars do not share a "party line" of enthusiaSm
toward affinnative action. Indeed, Bell and Delgado's misgivings about
affinnative action are akin to Stephen Carter's 107 and diverge sharply from
the enthusiasm expressed by Patricia Williams and Robin Barnes. In some
respects, this division among CRT scholars is itself a notable intellectual
event. Outside of CRT circles. the debate over affirmative action has been
ideologically polarized, with the Right opposed and the Left in favor.· CRT
writers may help us trans,~end that polarity. As we will see, they also have
a somewhat distinctive view on one aspect of the debate-the extent to
which affinnative action conflicts with conceptions of merit.
3.
The Critique of Standards 'of Men't
Mainstream scholars typically view problems such as affinnative
action or acceptance of minority scholarship in tenns of "merit,"108 In con
trast, CRT scholars question the standards· used in determining merit. 109
103. CARTER, REA..EcnONS. supra note 77. aI 49·50.
104. Barnes, supra note 77. at 1638.
. 105. "Opponents argue that advocating affirmative action as a social necessity sends Ibe message
Ibat Blacks cannot compete wilb.whites on a level playing field." Id. at 164!. Barnes argues Ibai. •...·hile
"some will presume Ibal Black professionals have advanced because of affirmalive action•... it is
doubtful that affirmative action has augmented Ibe degree to which !hey are scrutinized and unclear that
it weakens Ibeir chances of being named among Ibe best. ItL Ra!her. Barnes believes. Ibe "nation's
longstanding ideology of white supremacy. aod not affirmative action" explains any such sligmatization.
Id. at 1638. To Ibe saine effect. see Aleinikoff. Race·Consciousness, supra note 3. at 1091·9~
(questioning extent to which affirmative actioo increases white racism or stigmatizes African
Americans).
106. Bell. Xerces. supra note S9. at 1601; see also Bell. Minority AdmissioTlS, supra note 89. at IS
(''[nhe cost in exacerbating Ibe fears of lower" and middle-class whites negates Ibe benefits of
retaining a system Ibat. regardless of its constitutionality. remains seriously suspect in society."). As we
saw in Pan I.A. supra. Bell is com:ct about !he white response to affirmative action.
107. See. e.g., CARTER. REA..EcnONS. supra note 77. all·8.
lOS. See. e.g .• Kennedy. supra note 75. at 1772 (discussing Ibe "meritocratic" model. under which
"all that is relevant is !he relative merits of Ibe worlcs competing for recognition"):
109. Delgado. supra note 62. at S-9; see also Johnson, Quotos. supra note 2. at 1068-71. For
similar views by white scholars. see Aleinikoff. Race-CoTlSciousness. supra nOle 3. at 1067·68
ft
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CRT scholars generally reject the argument that affinnativ~ action involves
a lowering of standards, primarily on the ground that the standards them
selves are implicitly geared to whites. As Delgado says, "[Critical Race
Studies] scholars envision racial justice quite differently. In their vision,
persons ofcolor would not need to resemble successful whites to fit in, but
would achieve success without sacrificing what is distinctive about them
selves."llo Thus, instead of minorities changing to fit "the system," CRT
envisions the system changing to better accommodate people of color. I 1I
For example, Derrick Bell questions the standards used to evaluate
minority candidates and disputes those who claim that there are a very lim
ited number of qualified minority candidates. 112 He complains that "whites
in the leadership classes" pretend to support affinnative action, but then
claim to be 'unable to find enough quali6ed minorities, even knowing that
"the qualifications they insist on are precisely the credentials and skills that
have been long denied to people of color." I 13 Those credentials, Bell con
tends, "are often irrelevant or of little importance and therefore serve
mainly. as barriers to most minorities and a great many whites as well."114
He also believes that whites at the lower end of the socioeconomic scale are
acting against their own best interests in opposing affinnative action, since
"those plans remove artificial qualification barriers and thus further their
interests as well as those of blacks."1IS
Despite their somewhat different attitudes toward affinnative action,
Richard Delgado and Patricia Williams share similar doubts about current
standards of merit. Delgado contends that societal standards are skewed. I 16
(implying thatl.Q. tests may be invalid because of the failure of test designers to ensure equal scores for
African Americans and whites); Alan Freeman. Racism. Rights and tM Quest for Equality of
Opportunity; A Critical Legal Essay. 23 HARV. C.R.-C.L. L. REv. 295. 324. 381-85 (1988)(arguing that
merit has been defined and used as a vehicle to rationalize class·based hierarchies): Gary Peller. Race
Consciousness. 1990 DUKE LJ. 158. 118. 803. 806-01 (arguing that supposedly objective standards are
crealed by white cullure); see also Duncan Kennedy. A Cultural Pluralist Case for Affirmative Action in
Legal Academia. 1990 DUKE L.J. 705. 732·34 (arguing that distribution of scholarly opponunity in law
schools is grounded in power. not merit).
110. Delgado. supra note 62. al 12 n.58.
Ill. Id.
112. Bell. Minority Admissions. supra note 89. al 8 ("Although the debl'te over the validity of
traditional admissions criteria continues. there is impressive evidence that grades and test scores cannot
predict success in the practice of law Or medicine."): see aho 'd. at 17. In Bell's view. "the chosen
solulion-simply recognizing minority exceptions to traditional admissions standards based on grades
and test scores-has served to validate and reinforce traditional policies while enveloping minority
applicants in a cloud of suspected incompetency.~ It! at 8.
113. Bell. Xerces. ,upra note 89. at 1605.
114. It!; see also BELL, supra note 19. al 6 (continuing the attack on "standards
115. Bell. Xerces, supra note 89. at 1605: see also Bell, Minority Admissions. supra note 89, at 14
(noting that while Opposilion to affinnative action oflen is self-defeating).
116. Affinnalive action enables members of the dominant·group 10 ask. "Is it fair to hire a
less-quaJified Chicano or black over a more-qualified white?" . This is a curious way of
framing the question. as I will argue in a moment, in pan because those who ask il are
themselves the beneficiaries of history's largest affirmative action program....
M
).
1994]
THE OUTMODED DEBATE
911
He sees affinnative action as a tool to divert attention from the invalidity of
merit standards, 117 and argues that "fundamental fairness requires [a] real
location of power."118 Instead of affinnative action, Delgado favors "an
overhaul of the admissions process and a rethinking of the criteria that
make.a person a deserving law student and future lawyer:'119 Delgado
believes such a retooling will lead to "a proportionate number of minorities.
whites, and women gaining admission."12o
Patricia Williams also rejects contemporary merit standards. In her
view, H[s]tandards are nothing more than structured preferences."121 She
favors restructured merit standards that are
for rather than against-to like rather than dislike-the participation
of black people. Thus affirmative action is very different from
numerical quotas. that actively structure society so that certain
classes of people remain unpreferred. ~'Quotas," "preference,"
"reverse discrimination," "experienced," and "qualified" are con
words, shiny mirror words that work to dazzle the eye with their
analogic evocation of other times, other contexts, multiple histories.
As a society, we have yet to look carefully beneath them to see
where the seeds of prejudice are truly hidden. 122
The CRT view openly challenges conventional ideas about standards
of merit. As such, it is substantially different from mainstream arguments
in favor of affirmative action, which generally accept the validity of,
existing standards while advocating special consideration for African
Americans. The critique of standafds penneates CRT and provides CRT
with a sense of radicalism by challenging fundamental social understand
ings about qualifications and merit. It also suggests that the crucial obstacle
to the solution of raCial problems is the absence of the necessary political
wilL The implication is that African Americans could readily attain eco
nomic and academic equality if only society would eliminate the standards
that limit their access to desirable positions. Part II will address the feasi
bility of creating proportional representation in major American institutions,
either by expanding affirmative action or by changing merit standards.
M
. . . Our acquiescence in treating it as "a question of standards is absurd and self·
defeating when you consider that we took no pan in creating those srandards and their fairness
is one of the very things we want to call into question.
Delgado. supra note 96, at 1224-25 (footnotes omitted).
111. Id. at 1224-25. Delgado considers merit standards to be "like white people's affinnali\'e
action .... A way of keeping. their own deficiencies neatly hidden while assuring that only people like
them get in." Delgado. supra note 95. at 1364.
t 18. Delgado. supra note 96, al 1225.
119. Delgado. supra note 91. at 572.
120. lit
121. WIlliAMs. supra note 77, at 103; see aho id. at 99 (standards are merely "mind funnels").
Bul see Harris, supra note I. at 1110 (recognizing that merit should be comprised of factors other than
test scores. bUI that scores and GPA "are undoubtedly imponant factors").
122. WIU.IAMS. supra note 11. at 103.
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1994]
[Vol. 82:893
A.
II
THE DECREASING RELEVANCE OF AFFIRMATIVE AcnON
Opponents of affirmative action advocate its reduction or elimination.
Proponents argue it should be maintained, or better yet, expanded.
Although the debate itselfis complex, the ultimate issue simply is whether
to change the magnitude of affirmative action in our society. My thesis is
that this issue has ,diminishing relevance to today's racial problems.
Prompted by CRT's emphasis on the overall status of minorities in our soci
ety, this Section evaluates affirmative action at the macro-level, taking a
panoramic view of American society as a whole.
The argument proceeds in several stages. Section A, examines the
overall societal level of affirmative action in order to provide a baseline. ,If
affirmative action has already had dramatic effects, on African American
representation, further expansion might make a significant difference. On
the other hand, if affirmative action has had little effect, neither expanding
nor restricting it seems as likely to matter much. 123
Sections B and C consider possible changes in the present levels of
affirmative action. Because of legal, political, and economic constraints, it
is unlikely that affirmative acdon will be eliminated, and even less likely
that it wiil ever lead to proportional African American representation in
major institutions. In particular, the educational disadvantages of many
,African Americans sharply limit their ability to benefit from affirmative
action by employers.
Moreover, our racial problems are changing in ways that make affirm
ative action less relevant Although conventional methods of racial exclu
sion are being rectified, the prominence of other forms of discrimination is
rising. Rather than directly blocking African Americans from competing
for jobs or electoral offices, these new forms of discrimination may relocate
employment opportunities or political power so that African Americans are
no longer part of the pooL For instance, as whites abandon Northern indus
trial cities for distant suburbs or the Sun Belt,l24 affirmative action is likely
to give African Americans'only a larger share of a Shrinking economic and
political base. Alternatiyely, African Americans may find that "presence"
does not necessarily entail fu'll institutional participation. Furthermore,as
discussed in Section 0, affirmative action can do little to combat the grow
ing level of African American alienation.
,
In short, CRT scholars like Bell and Delgado rightly question the
transformative potential of affirmative action. They are wrong, however, to
think that changing current standards of merit would be substantially more
e~fective in increasing African American representation.
'
".
913
The Baseline: The Current Scope of Affirmative Action
To evaluate the affirmative action debate, it would be helpful to have
some concept of scale. Are we talking about thousands of positions nation
wide, hundreds of thousands, or millions? Given the extent of the contro
versy, one might assume that affirmative action has had a major impact.
with many African Americans receiving better employment, educational, or
political positions, perhaps at the expense of an equally large number of
whites. As we have seen, however, some CRT scholars are skeptical of the
benefits of affirmative action. 125
With respect to employment, a number of econometric studies have
reviewed the iinpact of affirmative action. 126 Most of these studies focused
on the federal executive order requiring government contractors tei adopt '
affirmative action programs. These studies suggest ,that affirmative action
has modestly increased the number of African Americans employed by
these contractors (in the neighborhood of .15% annually), a significant gain
over the long term. 127 However, while an early surge in wages apparently
occurred when employers were bidding for a limited pool of African
American employees, affirmative action has probably had little long-term
effer.t on wages. 128
In the educational sphere, the effectiveness of affirmative action is dif
ficult to gauge for several reasons. First, the number of African Americans
in college has fluctuated greatly for unknown reasons.129 Second, educa
tional institutions generally do not publicize the statistics necessary to mea~
125. See supra text accompanying notes 100-06.
126. For a careful review of the literature. see George Rutherglen. After Affirmative Actio.n:
Cenditiens and Consequences 0./ Ending Preferences in Employment. 1992 U. ILL L REv. 339.
. Rutherglen begins by considering the overall effeCt of anli-discrimination laws. The most sophisticated
. and careful studies conclude, contrary' to some CRT views. that federal regulation has indeed been
successful in reducing discrimination in employment. Ill. at 347·48; see also. Michael K. Bras~eU ei al.•
Affirmative Actien: An Assessment 0./ Its Co.ntinuing Ro.le in Emplo.yment Discriminatio.n Po.licy: 57
, ALB, L REv. 365. 431·35 (1993) (finding positive effectS of affirmative action requirements fOT federal
contractors in the '19705. but with tapering benefits in the 1980s); Harris. supra note I. at 1788 n,329
(discussing benefits of affinnative action); Heckman & Verkerke. supra note 5, al 278·79; 297·98
(noting that civil rights laws raised black wages, especially in the South between 1965 and 1975. but
concluding that the civil rights laws have accomplished little since then). But see Donohue &
. Siegelman. supra note 19. al 1015. 1024. 1027 (suggesting thaI current discrimination litigation centers
around firing decisions, which may result in a small net incentive againsl minority hiring).
127. Rutherglen. supra note 126, at 349·50; see also A COMMON DES'I1NY: BLACXS AND
AMERICAN SOCIETY 316·17 (Gerald D. Jaynes & Robin M. Williams. Jr. cds•• 1989) (hereinafter A
COMMON DEsTINY J. Affirmative action seems t,o have led to a sharp increase in the number of minority
law professors. See Carrington. supra note 3, at 1126·27.
128, See James P. Smith. Affirmative Action and the Racial Wage Gap. AM. EcoN. REv. 79. 83
(May 1993) (separately paginated Papers and Proeeed.ings issue). For a review and methodological
critique of'the econometric studies, see John 1. Donohue III & James Heckman. Continuous Versus
Episedic Clumge: The Impact e/Civil Rigltts Pelicy en the Economic Status 0./ Blaclcs; 29 J, EcoN. Lrr,
1603. 1630-35 (1991).
129., A COMMON DESTINY. supra note 127. aI338-45. One possible factor is the'contraction in the
availability of scholarships since 1980. Another may be the amactiveness of the militaty as a career
path for black: men. Ill. at 343-45; see also infra note 169.
123, 'Whatever the level of effectiveness of affirmative action has been. it has been enough to spark
strong white opposition. Su supra Part tA.
124, Su infra note 178.
~
":.'.
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[Vol. 82:893
1994]
sure the impact of affirmative action. Finally, even if the number of
preferential admissions at any given school were known, we would also
have to know whether .those students would have been admitted to some
less competitive school under a colorblind program. This information is not
publicly available. 13o
At the time of Bakke, only a handful of African Americans nationwide
had the type of LSAT scores and GPAs required for admission to the
nation's most selective law schools. 131 African Americari test scores and
grade averages may well have risen in the meantime, miling race-con
scious admissions less important Nevertheless, it is plausible that a sub
stantial number of African Americans have received significant educational
opportunities as a result of affirmative action. The increased education, in
tum, may have translated into improved employment prospects.
In the political arena; modem civil rights laws have had dramatic
effects. African American political presence, particularly in the South, has
THE OUTMODED DEBATE
915
increased radically. 132 Even more so than within the educational sphere. it
is difficult to identify the specific effect of race-conscious redistricting.
Such redistricting has been used to create districts where minority groups
form the majority of voters. A good argument can be made that this type of
districting has resulted in an increase in the number of African American
legislators. 133
Thus, affirmative action probably has had an impact on African
American employment. education, and political power. Legal scholars,
however, concern themselves less with this empirical question than with the
normative question of whether the present level of affirmative action should
be expanded or contracted .. To the degree that changes in the current level
of affirmative action are infeasible! however, the debate loses much of its
practical value.
B.
Legal
and Political Constraints on Changes in the Scope of
Affirmative Action
130. Indeed. a law student at Georgetown was threatened with discipline for allegedly releasing
data on the subject. According to the student. !he average LSAT for white students at Georgetown was
43 out of a possible 50, while the average score of black students was 36. The student also reponed a
difference in undergraduate grades. The Dean of Georgetown described the student's article as a
"misleading mix of opinion and data." ·Michel Marrioll. White Accuses Georgetown Law. School ofBias
in Admitting Blacks. N.Y. TIMES. Apr. 15. 1991, at AI3 .. His anicle was. however. consistent with
available information about the size of the gap at the national level. In 1988. !he mean LSAT was
roughly 33 for whites and 24 for African Americans. David B: Oppenheimer. Distinguishing Five
Models of AffimllJtive Action. 4 BERK.El..EY WOMEN·s·LJ. 42. 58 n.64 (1988).
) ,
The Supreme Coun's aj>proach to affirmative action probably has contributed to this situation by
discouraging full disclosure of the operation of affirmative plans. thereby limiting public discussion of
their design. As Solicitor General Drew Days points out:
[Many affirmative action programs] have nOI been openly adopted and administered.
Consequenlly. they have not benefited from the scrutiny and testing of means to ends assured
by public deliberalion. Programs that cannot survive the light of explicil consideration are
highly susceptible to abuse and unlikely to have a stable existence. In a society in which we
place such imponance upon "uninhibited. robust, and wide-open" debate of public issues, il is
difficult to justify the idea of privately adopted programs using racial criteria 10 allocate
resources.
Days. supra note 41, at 458-59 (footnote omitted).
131. Brief Amicus Curiae for the Association of American Law Schools at 27-32. Regents of the
Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (No. 76-811) (Citing F. Evans. Applications and
Admissions to ABA Accredited Law Schools: An Analysis ofNational Datafor the Class Entering in the
Fall 1976 (Law' School Admission Council 1977»; see also Kennedy. supra note 85. al 1329 n.4
(noting Ihat from 1970 to 1974 only one of twenty-six African Americans who were admined to the
University of California at Davis Medical School would have qualified for admission under the
"regular" standards).
Several constraints would confine efforts at any major change in the
current level of affirmative action. One such constraint is the federal judici
ary. To the extent that expansion of affirmative action would violate pres
ent legal standards, it could succeed only if tile Supreme Court substantially
changes prevailing legal doctrine. On the other hand, reduction of the pres
ent level of affirmative action could occur if the Court adopts colorblind
ness as a norm. Neither outcome seems likely.
Putting aside the effect of future judicial appointments, the present
Court is unlikely to move toward a substantially more favorable position on
affirmative action. Justices Brennan, Marshall, and Blackman voted in
fa~or of affirmative action in many of the cases discussed in Part I.B. They
have since retired. Likewise, Justice White, who voted in favor of affirma
tive action in Metro Broadcasting v. FCC t34 and Shaw v. Reno, m was
replaced by Justice Ginsburg .. Her presence on the Court is not expected to
significantly affect the Court's stance.
Similarly, it is unlikely.the present Court will shift drastically toward
colorblindness. Of the current Justices, only Chief Justice Rehnquist 136 and
132. (n the two years following passage of !he Voting Rights Act. signed inlo law by President
Johnson on August 6; 1965. !he percentage of African Americans registered 10 vote in Mississippi
increased by a factor of nine. By 1980, !he number of elected African American officials in !he South
rose from under a hundred 10 over eighteen hundred. ABtGAIL M. TIlERNSTROM. WHOSE VOTES CouNT?
AFFIRMATIVE AcnON AND MINORITY VOTINO RIOHTS 2·3 (1987).
133. The effectiveness of this type of redistricting is currently in dispute. See Randall Kennedy,
Blacks in Congress: Carol Swain's Critique. 2:2 REcoNSTRUCTION 34. 35-36, 39·40 (1993) (reviewing
For some more recent statistics about racial differences in grade points and test scores in
·undergraduate programs. see D'SOUZA, supra note 19, at 3. According to D'Souza:
(n 1988. nearly 100.000 blacks took the [SAT] test. Only 116 scoted over 699 (out of 800)
on the verbal section of !he test: only 342 scored as high on the math s~tion. Fewer than
three thousand blacks nationwide scored over 599 on either the verbal or math SAT.
CAROl. SWAIN. BUCK FACES, BuCK
1N'mREsTs:
THE REPREsENTATION OF AFRICAN AMEucAN
IN1O.RESTS IN CONGRESS (1992».
134. 497 U.S. 547, 552 (1990).
135. 113 S. Ct. 2816.2834 (1993) (White. J .. dissenting).
136. See Fullilove v. K1utznic/t, 448 U.S. 448, 522·23 (1980) (Stewart., J., dissenling) (joined by
. Rehnquist, J.).
Id. at 41. Even among individuals with family incomes between $50,000 to $60.000 per year. the
average African Amencan combined score on the SAT was over 150 points lower than the average
white and Asian American scores. Andrew Hacker, "Diversity" and fts Dangers, N.Y. REV. BOOKS,
Oct. 7. 1993. at 21. 23.
N~¥?~
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THE OUTMODED DEBATE
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presidential candidates since 1968,,43 Because of the political significance
of this issue, even Democratic presidents are unlikely either to support fed
eral legislation sharply expanding affirmative action or to appoint outspo
ken advocates to the Court. Thus, no realistic likelihood exists fora major
expansion of affirmative action based upon political forces.
.
If anything, it is surprising that affirmative action has survived politi
cally as well as it has. However. efforts to roll back affirmative action pro
grams have also failed. For example, Reagan Administration proposals to
eliminate much of the federal government's affirmative action program
were unsuccessful. in part because of opposition from the business commu
nity:44 Beyond the business community's resistance, three reasons seem to
explain why affirmative action has survived the sometimes intense white
opposition. First. as to existing programs. the burden of inertia is upon
challengers to affirmative action. Supporters of existing programs often
only need to block unfavorable measures. which is easier than proactive
measures in our political system. 14!! Second, affirmative action has become
embedded in American society, so that eliminating it would impair a group
"entitlement." Harvard sociologist Nathan Glazer. originally a strong oppo
nent of affirmative action. conceded by 1988 that "uprooting affirmative
action would be very difficult," ~ shown by the failed efforts of the Reagan
Administration, which was "as determined an opponent [of affirmative
action] as we are ever likely to see_"I46 The reason, Glazer asserted. was
that affirmative action had created firm expectations and institutional struc
tures, so that abolishing it would cause major disruption. 147 Finally, given
the almost inevitable use of statistics for enforcement and compliance pur
Justice Scalia 137 have ever fully endorsed colorblindness, but Rehnquist
may have backed away from his position. 138 Justice Thomas is another
possible vote for colorblindness. 139 Thus, at most, three votes for a color
blind Constitution may exist on the present Court. Moreover, as the abor
tion controversy illustrates, the moderate conservatives on the Court have
little taste for radical changes in constitutional doctrine. l40 In short, given
the Court's present make-up, affirmative action doctrine seems likely to
remain relatively static. 141 The longer current doctrine remains in place, the
more solidified it becomes as a matter of stare decisis.
Political constraints also limit the likelihood of change in the status of
affirmative action. The· possibility that either major party will exercise
political dominance long enough to produce a run of either highly conserva
tive or highly liberal judicial appointments seems doubtful. Adopting a col
orblind standard would require several strong conservative appointments.
net of any retirements by conservatives or appointments of liberals by
Democrats. 142 At present, this scenario seems unlikely.
However. any ·major expansion of affirmative action also seems
unlikely. As we saw in Part I. affirmative action is extremely unpopular
with large blocs of white voters, contributing to the defeat of several liberal
137. See City of Richmond v. J.A. Croson Co.• 488 U.S. 469. 521 (1989) (Scalia. J•• concurring in
the jUdgment). Justice Kennedy indicaled some sympathy with this view as well. but declined to
embrace it. ld. at 518-19 (Kennedy: J•• concurring in part and concurring in judgment).
138. Justice Rehnquist chose to join Justice O'Connor's opinion in Croson. which affinned that
Congress has broad authority to "adopt prophylactic roles" to address situations where principles of
equality are threatened, id. 8t49O, rather than Justice Scalia's partial concurrence, which relied upon the
colorblind approach, id. at 521.
II is noteworthy that Justice O'Connor's opinion left open the possibility that even state or local
entities could act to remedy identified discrimination. id. at 509, whereas Justice Scalia's concurrence
would deny states the authority to remedy the effects of past discrimination, id. at 521.
139. Justice 1bomas was on record as opposing affirmative action before his appointment. See
Sigelman & Todd, supra note 19. at 242-43. Whether this remains his view is not entirely clear. See
Uniled States v. Fordice. 112 S. Ct. 2727, 2744-46 (1992) (Thomas. J•• concurring) (arguing that cenaii.
remedial race-conscious reforms would be acceptable in the university context).
140. In Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). Justices Souter, O·Connor. and
Kennedy frostraled years of efforts by conservatives by reaffirming the central holding of Roe v. Wade,
410 U.S. 113 (1973). and stressed the importance of adhering to precedent. Casey, 112 S. Ct. at 2808
09.
141. Of the recent opinions, Metro Broadcasting seems most at risk because it allowed Congress
broad leeway on affirmative action even when Congress was not utilizing its special Fourteenth
. Amendment power to enforce equal protection in the realm of civil rights. See Neal Devins, Metro
Broadcasting. Inc. v. FCC: Requiem/or a Heavyweight. 69 TEx. L. REv. 125. 128 (1990).
142. On the other hand, even if Democratic appointments resulled in liberal dominance of the
Coun, the resulting shift in doctrine would nOllikely be radical. A liberal coalition would be unlikely to
adopt a test any more favorable· to affirmative action than that espoused by Justices Brennan and
Marshall. Those Justices applied th,e same, intermediate level of scrutiny to affirmative action programs
thai the Court currently applies to statutes discriminating on the basis of gender. See NOWAK &
ROTIJNDA. supra note 33. at 681-83, 696,-698. Although this is a somewilat more lenient standard than
the strict scrotiny applied in Croson, it would still place a substantial burden of proof on proponents of
affirmative action. See id. § 14.23 (discussing application of the intennediate scrutiny test in gender
discrimination cases).
143. See supra text accompanying notes 20-25; seeoJso supra note 17; teXt accompanying note 29;
WEST, supra note 94. at 6 (finding that the Republican Party since 1968 has played the "race card" to
appeal to popular xenophobic images).
144. See Devins. supra note 47, al 354-55 (noling thai while the 1980 Republican platform
challenged Caner's affirrruitive action programs. Reagan, once in office. failed 10 repeal most of those
same programs); Note, Rethinking Weber: 'TIte Business Response to AffimuJlive Action, .102 HAllv. L.
REV. 658. 662 (1989) (discussing business community opposition ''10 the Reagan Administration's
attempts to tum back the clock on affirmative action").
145. See DANIELA. FARBER & I'HIuP P. FRICKEY, LAw AND PulIucCaolCE 106-07 (1991). In the
relatively few situations in which Congress has supporled affinnative action, there has usually been a
detour of some kind around the normal legislative process. Set! Farber & Frickey. supra note 58, at
713-16.
146. Nathan Glaz.er. The Affirmative Action Stale~te. 90 PuB. iNTEREST 99. III (1988). Social
.Security provides the most obvious example qf the difficulty of modifying "entitle~ents."
147. ld.; if. Harris, supra note I, at 1767-68. 1776·(stating that the Supreme Coun treats white
expectations and privileges as protecled property interests); Samuel lssacharoff. Poltlrized Voting and
tile Political Process: 'TIte Transfonntl1ion o/Voting Rig/lls Jurisprudence. 90 MICH. L. REv. 1833.
1879-80 (1992) (suggesting that preexisting white expectations in employment provide basis for
criticizing affirmative action plans). Once affirmative action has been in place for many years. white
expectatiOns presumably reftect the resulting change in employment opportunities.
\.
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PQses under emplQyment discriminatiQn law, it WQuld be difficult to. prevent
their infQrmal ,use as targets. 148
PQlitical predictiQn is always hazardQus. Nevertheless, barring SQme
unexpected development, the current PQlitical equilibrium will continue and
affirmative action will remain more or less the same. As we have seen, any
effQrt to. change the status quo probably will have to. Qvercome a cQnsidera
ble amQunt of inertia Qn the part Qf the federal judiciary. As a result, the
PQlitical and legal cQnstraints already discussed are mutually reinfQrcing.
Radical change is unlikely to come frQmthe federal judiciary, in part
because the PQlitical situation is likely to remain stable, so that judicial
apPQintments are unlikely to result in a sharp change in affirmative actiQn
law. Even if the politiCal situatiQn shQuld becQme mQre liberal, expansiQn
Qf affirmative actio!1 WQuld enCQunter resistance frQm the bench. unless the
views Qf the Justices also. became mQre liberal thrQugh new appointments. .
Thus, fQr the next decade, if nQt the next generatiQn, sQmething c1Qse to. the
status quo is likely to. endure. 149
In the longer run, the political situatiQn is QbviQusly less predictable.
'BeyQnd PQlitical and legal constraints. however. affirmative actiQn is sub
ject to. Qther inherent limitations. As discussed belQw, these limitatiQns are
likely to. reduce the relevance. of the debate. Affirmative actio.n has limited
PQtential fQr addressing Qur mQstpressing racial problems, at least in its
cQnventio.nal fQrms. First, affirm~tive actiQn is inherently incapable of
expanding African American access to. academic, political, and ecQnQmic
institutio.ns significantly beyQnd currerit levels. Second, access is nQt nec
essarily the answer, Qr is, at least, far frQm being the whole answer.
C.
The "Pool" Problem' in Education and Employment
As we saw earlier, CRT schQlars believe that many African Americans
are fully qualified fQr jo.bs and educatiQnal QPPQrtunities but are excluded
by invalid standards. Thus, they assume that many qualified African
Americans can be found in the pool Qf PQtentiai emplo.yees or students.
Under this view, it sho.uld be easy to. increase greatly the number o.f African
American emplQyees and students through affirmative actiQn, assuming the
desire to. do. so. exists.. A better approach, according to CRT schQlars, would
be to. change the standards themselves so. that the selectiQn process
better represent the applicant Po.QI. UnfQrtunately. as we will see, the CRT
assumptio.n abo.ut the cQmpQsitiQn Qf the PQo.I is far tQQ optimistic.
will
148. See Daniel A. Farber. StatUlOry interpretation and Legislative Supremacy, 78 Gro. W. 281.
305-06 (1989).
149.. This is primarily intended as an empirical prediction rather than a normative evaluation.
However. it does have some possible normative implications. It suggests thai any sharp change in the .
level of affirmative action would increase racial polarization, Opponents of affirmative action should
lake inlO account the fact that aholition of affirmative action would increase black alienation.
Proponents of affirmative action. on the other hand, should consider the possibility thai expansion may
lrigger a bacldash.
1994)
-,_.
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THE OUTMODED DEBATE
Part of the CRT PQsitiQn o.n standards seems CQrrect. In so.me situa
tio.ns, African Americans have beef! excluded fro.m emplo.yment or promo.
tio.n. by emplo.yment criteria unrelated to. actual ability to. perfo.rm the job.
Affirmative action prQvides Qne PQssible remedy; the o.ther Po.ssibility is to.
replace unjustified requirements with better ones. RevisiQn Qf job qualifica
tiQns is a superiQr remedy to. affirmative actio.n since it avo.ids any implica
tion that African Americans are o.btaining jo.bs despite deficient
qualificatiQns. Indeed, this preference for improved emplo.yment standards
over affirmative actiQn is essentially the law today. Under Title VII case
law, nQW codified by the 1991 Civil Rights Act. emplQyers must shQW a
strOng business justificatiQn if a test disproportio.nately disadvantages
mino.rity applicants. ISO Such a showing is required even if the employer has
an affirmative action plan that co.mpensates fo.r the disparity in pass rates. lSI .
Thus, emplo.yers may nQt use affirmative action prQgrams as a shield to.
protect invalid hiring standards.
The CRT argument, hQwever, is nQt simply that this approach is pref
erable. but that it can be implemented o.n a wide scale. 152 Iii o.ther wo.rds.
CRT argues that current cQnceptiQns o.f "merit" are invalid and African.
Americans are as' well qualified as whites for mQst Po.sitio.ns.
UnfQrtunately, as I will show in a mo.ment, this is nQt true, and in fact is
becoming less accurate due to shifts iii the eco.no.my.
One prQbable reaso.n for CRT skepticism abQut merit is that mQst CRT
writers are law professQrs, and therefore mo.st familiar with emplo.yment
standards fo.r lawyers and law professors. In fact. CRT schQlarship (like
other writing o.n affirmative action) Qften draws Qn examples within the law
schQo.I co.ntext to support arguments cQncerning standards o.f merit. I 53 The
co.ncept o.f "merit" is particularly problematic in the legal setting, in part
because there is no clear CQnsensus as to. the nature of the task: exactly.
what does a good lawyer or a good law teacher do.? Witho.ut that co.nsen
sus, it is o.bvio.usly mo.re difficult to. 'agree on qualificatio.ns.
To. get a broader perspective, it may be useful to. cQnsider disciplines
where qualificatiQns are less cQntestable. Scientific occupatio.ns pro.vide a
sharp co.ntrast with law schools. Science magazine recently presented a
150.
See Rotunda, supra note 27. at 928-38. The leading case is Griggs v. Duke Power Co.• 401
U.S. 424 (1971).
151. Connecticut v, Teal. 457 U.S. 440 (1982).
152. See supra teltl accompanying notes 110-22.
153. See, e.g•• BELl-. supra note 19. at 142·45; Jerome M. Culp. Jr.• Diversity, Multiculturalism.
and Affirmative Action: Duke. the HAS. and Apartheid. 41 DEPAUL L. REv. 1141, 1156 (1992)
(discussing law school hiring practices); Delgado. supra note 95, at 1359-60 (discussing the LSAT);
Kennedy, supra note 109. at 731·35 (discussing con teStability of standan:fs of merit for legal
scholarship); Charles R. Lawrence III. Minority Hiring in MLS Law Schools: The Heed lor VolUlltaf)l
The Word and the River:
Qllotas. 20 U.S.F. 1.. REv. 429. 432·37 (1986); Charles R. Lawrence,
Pedagogy as Scholarship as Struggle. 65 S. CAL. L. REv. 2231. 2260·64 (1992). Perhaps not
coincidentally, law school faculties typically have the best minority statistics within their universities.
See BELl-. supra note 19. at 129 n.t.
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special report on minority scientists. I.54 Of sixty thousand full-time science
professors, only one percent were African American in, 1987. 15S
Affinnative action among current recipients of Ph.D.s in science and engi
neering can have only a limited effect, simply because African Americans
constitute less than two percent of that pool.IS6 Sadly, the percentage of
African Americans pursuing graduate degrees 'is declining. ls7 In some
fields, such as mathematics, the situation is even worse.
IS8
The racial composition of science faculties is not likely to change
through affirmative action. 159 Nor does there appear to be an obvious way
to modify standards to achieve that goal. For example, even if universities
required only a bachelor's degree instead of a Ph.D. for new science profes
sors, African Americans would still account for only five percent of this
expanded r'ool. 160 The problem, in short, is not a contestable hiring stan
dard, but a lack of African Americans with the education needed for scien
,tific jobs. Neither affirmative action nor a redefinition of hiring standards
154, First Annual Report (special section). Minorities ill SciellCe: The Pipeline Problem. 258
SCIENCI! 1175 (Elizabeth Culotta & Ann Gibbons eds .• 1992).
155. Walter E. Massey, A Success Story Amid Decades of Disappoilltment, 258 SCIENCE 1177.
1178 (1992). ihe situation in engineering schools is similar. Id.
156, Id. at 1178 (1990 statistics); see A COMMON DIlsnNY. supra note 127. at 345 (finding that in
1980-81. African Americans comprised 3.90/0 of all Ph.O. recipients). In conlraSt, the percentage of
Ph.D.s awarded to Asian Americans has risen steadily since 1975. Massey, supra note 155, at 1180.
157. A COMMON DESTINY, supra note 127, at 375; BEll., supra note 19. at 131; HENRY L GAlES,
JR.• looSE CANNONS: NoTES ON mE CUL'I'lJRE WARS 107 (1992) (finding the number of full-time
African American professors declining). Consider the following:
In 1987. new black PhDs included: one in computer science; three in chemical engineering;
fourteen in economics; three in political science; nine in anthropology; two in philosophy; four
in religion; and eleven in American literature. Recenlly published data for 1988 show that
there were no new black PhDs in the United States in the fields of astronomy, astrophysics.
botany. oceanography, ecology. immunology, demography, geography. European history,
classics, comparative literature, German. Italian, Russian, Chinese, Japanese or Arabic
literature.
D·SOUZA. supra note 19. at 168 (footnote omined). According to D'Souza, half oflhe doctorates
awarded to African Americans in recent years have been in education. Id. at 167.
More recent data is consistent with O'Souza's. In 1992. African Americans earned only 3.7% of
doctorates (down from 4.5% in 1977), and 48% of those were in education. Denise K. Magner, BiI1cks
Earned Fewer Doctorates in 1992 Thon in 1991, Stady Finds, CHRON. HIGHER EDUC., Sept. 29. 1993, at
A18.
158. Rice University has granted the most mathematics Ph.DoS to minority-race U.S. citizens of any
school in the country, a distinction attained by awarding Ph.D.s to less than two minority students per
year. Paul Selvin. Math Education: Multiplying the Meager Numbers, 258 SCIENCE 1200, 1200 (1992).
In 1991. nationwide. only ten African Americans were awarded mathematics Ph.D.s. Id. at 120 I. This
is an increase from the four African Americans awarded mathmatics Ph.D.s in 1988, one of which was
in mathematics education rather than mathematics. See D:SOUZA, supra note 19, at 168.
159. I do nOl want to imply that this problem is hopeless. The Science repon contains extensive
discussions of promising programs, as well as case studies of successful African American scientists.
See generally Minorities in Science: The Pipeline Problem. supra note 154.
'160. Massey. supra notc 155. at 1178 (finding that in 1989, only 5% of bachelor's degrees in
.
, science and engineering were awarded to African Americans).
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THE OUTMODED DEBATE
921
provides much hope for meaningful change. Thus, the challenge is to
increase the size, of the African American pool. 161
Unfortunately, scientific occupations are merely an unusually clear
example of a common situation. The educational disadvantages of African
Americans begin far earlier than at the elite level of post-graduate stud
ies.l62 For instance, the mathematics gap begins at an early age. Only half
I63
as many African Americans as whites get as far as algebra in school.
Correspondingly; the percentage of whites taking more advanced mathe
matics courses is twice as high. l -64 Even controlling for parental occupa
tion, education, and income, African Ainerican children are still at a
disadvantage on tesis in vocabulary, reading comprehension, arithmetic rea
soning, and computational skills.16s Additionally, prior to beginning
school, African American children do not perform as well on LQ. tests, 166
167
perhaps for cultural reasons that may relate to discriminatioll.
Although
some aspects of the education gap are beginning to close,168 other recent
changes are discouraging. After an earlier rise, the percentage of African
Americans entering college in' recent years has dropped substantially, while
169
the percentage of whites has risen somewhat.
161. See D'SOUZA, supra note 19. at 167-68: cf. WIll.IAM J. WILSON. THE TRUl.Y
DISAOVANTAGED: THB INNER CITY. THE UNOERCLASS, AND Plrnuc POUCY 115-16 (1987) (linding that
lower class African Americans. who lack educational credentials and other resotII'Cf!S, receive litlle direct
or indirect benelit from affinnative action); Kenoedy, supra 'note 109, at 714 (acknowledging the
seriousness of the "pool problem"). II is no surprise that Duke University's ambitious effort to double
the number of its minority faculty was quite unsuccessful. See Culp, supra note 153. at 1162·64.
Richard Delgatlo suggests that the "pool" can easily become iI "river" or an "ocean" when faculties feei
a sense of urgency. Richard Delgado, Mi.tuJser and Merapiror, 103 HARv. L REv. 1872. 1876 (1990).
However true Iltis assessment may be in the law school setting. it is clearly inaccurate in more teChnic~
lields.
162. For example. aecording to a recent study: "[A]mong college-bound seniors, the median blade
student scores at the eighth percentile of white srudents in the Iife'sciences and at the 18th percentile in·
algebra." Smith. supra note 128, at 82: cf. EDSALL & EDsALL, supra note 19. al251 (describing similar
findings regarding employmenl tests).
163. A CoMMON DESt1NY. supra note 127, at 351.
164.
Id.
165. CHRISTOPHER JENCKS. RsnnN1ONO SocIAL PouCY: RAcs, PoVERTY, AND nn;'UNDERC1..ASS
138-40 (1992); cf. REYNOLDS FARLEY. BLACKS AND WHI1'E1S: NARROWING nn; GAP? 22 (1984) (noting
that African American children score lower on standardized achievement tests).
166. JENCiCS, supra note 165, at 140. Bill see Aleinikoff. Race-Consciousness, supra note 3. at
1067-68 (implying that I.Q. lests may be invalid because of the failure of test designers 10 ensure equal
scores for African Americans and whites).
167. A COMMON 1>Es'nNY, supm note '127, at 370-n. For a contrasting cultural case study, see
Nathan Caplan et aI.• Indochinese Refugee Families and Academic Achievement, SCI. AM.• Feb. 1992. at
36.
168. A COMMON DESt1NY. supra note 127. at 342 (finding rising African American achievement
scores): JENCKS, supra note 165, at 117-81 (finding lowered droPO[l1 rates and other improved
educauonal indicia for African American students); Donohue & Heckman, supra note 128. at 1606
(linding "sustained improvement in black status in employment ... and SChooling" since 1964).
169. A CoMMON D£snNY, supra note 127. at 338-44; EosAU. & EDsALL, supra nOle 19. at 245.
There also seems 10 be a gender disparity in educational paths: African American WDmen outnumber
African American men by 2: 1 among high school graduates proceeding direclly 10 college. GARY
ORFtELD ANI) CAROLE AsHlClNAZE. THB CLosINO DooR: CoNSERVATIV6 POUCY ANI) Bl.ACK
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It is tempting to dismiss test scores or overall education as the kind of
. artificial qualifications we ought to be eliminating. This is true in some
occupational settings, as shown by disparate impact litigation under Title
VII. 170 . But on a macro-level, African Americans face seriously limited
opportunities because of a lack of. skills and knowledge measured by these
qualifications. As Stephen Carter points out, standardized tesis tend if any
thing to overpredict African American job perfonnance, thereby acting to a
slight extertt as a fonn of affinnative action. t7I Disparity in skill levels has
also, been found in tests of "simulated real-world behaviors and activities"
such as writing a letter, balancing a checkbook, or reading a map. t72 These
basic skills have 'obvious relevance to a broad range of jobs.
The ramifications of th~ education gap are likely to get worse. Despite
some improvements, t73 the remaining disparity has an ever increasing eco
nomic impact because of changes in employer needs in the United States.
In the face of international competition, good-paying, low-skill jobs are dis
appearing because of the comparative advantage of low-wage countries. 174
In a world mark~t, the only way to secure high wages is to have high proOPPORTUNITY 19.21 (1991). Offield and Ashkinau also note that predominantlY'black high schools
offer fewer advanced, college preparatory courses. [d. at 129.
One'might think that the problem of declining black enrollment could be solved by more vigorous
affirmative action at the admissions stage. Unfonunately, as Henry Louis Gates points out:
[TJhere'S an even bigger problem than getting these students. and that's keeping them.
The attrition rate is depressing. At Berkeley, one in four black students will graduate. The
fact is. according 10 the National Center of Education Statistics. that of freshmen blacks in
1980, only 31 percent had graduated by 1986. And while financial pressures explain some of
iI, they don' I explain all of it.
GATES. supra note 157. at /07. Gales is Chairman of Afro-American Studies at Harvard University.
Culp. supra nole 153. at 1164,
170. See. e.g.. Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that aptitUde tests required
for power company employees seeking job transfers were nOl,related to performance on the jobs sought
and thus were prohibiled under Title vII); Contreras v. City of Los Angeles. 656 F.2d 1267. 1280 (9th
Cir. 1981) (holding that tests wilh discriminatory impact are impermissible unless they predict or
cOJrelate with imponan,t working behaviors). cerro denied. 455 U.S. 1021 (1982).
171. See CARTER, REFLEcnONS. sl/pra note 77, at 92·94; see also STEPHEN'P. KLEIN. SUMMARY OF
REsEARCH ON THE MULTISTATE BAR. EXAMINATION 38·39, 61 (1993) (noting that multistate, scores
correlate well with LSATs and law school GPA; race and gender have !inle additional explanatory
power); June O'Neill, The Role of Human Capital in EDmings Differences Bl!lWeen Black and White
Men, J. EcON. PERsP., Fall 1990. at 25, 32. 40.41' (using regression analysis to demonstrate that
standardized achievement test scores account for a significant pottion of the wage disparity between
African American and whiie males).
172. A COMMON DESTINY, supra note 127. at 353. About 20-25% of the difference can be
accounted for by divergence in family background and education level. There is also some reason 10
hope thaI these differences are beginning to decline. [d. at 354.
173. See supra note 168.
174. Michael S. Knoll. Perchance to Dream: The Global Economy and Ihe American Dream. 66 S.
CAuF. L. REv. 1599. 1603-05 (1993); LEsTER THUROW, HEAD TO HEAD: THE COMING EcoNOMIC
BATTI.£ AMONG JAPAN, EUROPE. AND AMERICA 52 (1992). Even a decade ago, it was becoming clear
that the increasing economic reward for college attendance had the potential to disadvantage African
American workers, who were less likely to have this backgrouud. See FARLEY. supra note 165, at 19
(finding that in 1982. 25 percent of white men had completed college in comparison to 12 percent of
black men).
1994]
THE OUTMODED DEBATE
923
ductivity: , such productivity typically requires a higher level of education
and skill.m
The shift in job markets has been especially devastating for younger
African American men without a college education. Between 1973 and
1986. labor force participation by African Amencan high school dropouts
fell dramatically, and even high school graduates without a college educa
tion suffered substantially increased unemployment. 176 Moreover, a ,recent
~ND study concluded that "the sharp rise in the income returns to school
ing ... favored the more highly educated white worker" over the average'
African American worker in tenns of wages. t77
Other econ<>mic changes also impair the future effectiveness of affirm
ative action. Geographically, the movement of jobs from the Rust Belt to
the Sun Belt has left many northern African' Americans behind. 178 Finally,
as major companies spin off work to fonner subsidiaries or networks of
independent firms, it becomes harder to define or enforce affinnative action
obligations. We' are accustomed to comparing the composition of an
employer's workforce or new hires to some pool of potential employees,
but this comparison becomes increasingly difficult as the functional bound
aries between finns become 'unstable and penneable.
175. A COMMON DESTINY. supra note 127. at 7-8; see ,CHARLES L. SCHULTZE. MEMos TO THE
PRESIDENT: A GUIDE THROUGH MACROECONOMICS FOR 1liE Busy POLICYMAKER 291. 295 (1992)
(discussing the imponance of education for productivity and world competitiveness); JIM SL.EEPER. THE
CLOSEST OF STltANGERS: LIBERALISM ANI) 11m POLITICS OF RACE IN NEW YORK 223 (1990) ("[Plrowess
and precision are demanded today not by 'elile' or 'white' culture, but. as the Japanese and others are
demonstrating. by a new, universal culture enveloping the globe."); THUROW, supra note 174. at 160.
255 (noting, for example, that to use statistical methods of quality conrrol. pruduclion workers must
know algebra). On the abysmal state of American education generally, see GATES. supra note 157, at
112 (noting that "(olne in seven American adults cannollocate the United States on a world map").
176. EDSAU. &. EDSAll. supra nOle 19, at 241.
177. Smith, supra note 128. at 84. The wage gap belWeen white and African American men
possibly would have narrowed 10 six percent by 1990 if (a) Ihe rale of improvement in African
American schooling had continued. (b) the i~come rewards to education had remained consLant. and (c)
the general wage spread belWeen high and low income workers had remained in place. Why lhe Erosion
in Black Wage Gains? 17 RAND REs. REv. 1.4, (Summer 1993); cJ. Frank Levy &. Richard J. Murnane.
U.S. Eamings Levels and EDmings lneqUQ/ity: A Rev""w ofRecent Trends and Proposed ExplaMtions.
30 1. EcoN. LITERAlVRE 1333, 1371-72 (1992) (documenting the declining position of young, less
educated men).
178. A COMMON DESTINY, supra note 127. at 296. Similarly. in their study of Atlanta, Orfield and
Ashldnaze found that the economic boom in the suburbs did linle for African American employment
and that while suburban politicians made deliberate efforts to isolate the suburbs by limiting public
lransponation from the city. ORFlELD &. ASHICINAZE, supra note 169. at 56, 62-65; see also JENCI<S.
supra note 165. at 123 (citing 1968 paper that found that the trend in manufacturing jobs moving out of
the central cities and exclusionary housing policies "contributed significantly to black joblessness"), As
Aleinikoff has observed with respect to the design of aflinnative action programs, "there will always be
an upper limit on minority panicipation established by the overall nonmajority population of a locality."
Aleinikoff, Race-Consciousness, supra note -3, at 1099. If. firms relocale to areas with low minority
popUlations, such as a predominantly white suburb. then affirmative action plans will have minimal
effectiveness, as African Americans in the city will either notleam of the opponunity, or will live too
far away to take advantage of il. 1ENCJ<S, supra nOle 165 at 123.
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181
controversial:
Moreover, there are several significant limitations on its
ability to increase minority political power. By definition, the technique
does not work for statewide offices. While African Americans have
increased their representation in state and local legislatures, they have not
done as well in gubernatorial or U.S. Senate races. 182 These offices are
beyond the reach of creative redistricting. If Mrican American representa
tion is to increase, other methods must be identified.
&edistricting is also a setting in which distinctions between minority
groups may be particularly important. For example, significant differences
between African Americans and Mexican Americans reduce the utility of
redistricting for the latter. First, cohesion often is lower among Mexican
Americans than African Americans: about half of all Mexican Americans
identify themselves on the census as "white:'183 Second, the response of
whites to Mexican Americans is quite different: while whites usually move
out whenever any substantial number of African Americans move into their
neighborhoods, they show a greater tolerance for Mexican Americans. 184
Finally, redistricting to match theMexican American population is hindered
by the fact that Mexican Americans are far more dispersed residentially. A
federal court, for example, constructed an "Hispanic seat" on the five-per
son Los Angeles County Board of Supervisors by combining almost all the
districts with Hispanic majorities, but collectively those districts contained
only about a third of the county's voting-age Hispanic population.18s
A related problem is that redistricting may favor: one minority group
only at the expense of effectively disenfranchising another. Lani Ouinier,
whose work has strong ties to Critical Race Theory, explains this phenome
non as follows:
These findings concerning both the education and the impact of the
changing job market for African Americans should lead society to address
the causes. Because misunderstandings abound on these issues, it should be
emphasized that there is no reason to believe that these differences in skills
and training are innate. Nor can they be rationalized as purely the result of
poverty l79 or parental neg~ect, for studies show that African American par
ents often emphasize the value of schooling. 18o Perhaps some will be
tempted to say that African Americans have no valid complaint if their eco"
'nomic circumstances are due to "lower qualifi(;;ations." Rather than being a
basis for white complacency, however, the findings show the extent to
which African Americans are at a disadvantage.
As we have seen,. this educational disadvantage is often severe.
Relatively few African Americans have obtained the educational back
ground needed to function effectively in technical. fields. Even more seri
ously, although some aspects of African American education have
improved, African American workers are apparently chasing a moving tar
get, because the level of skills and training needed in the global economy is
rising everi more rapidly. CRT literature on affirmative action rarely con
siders the hurdles African Americans face due tei educational disadvantages·
or the impact of the changing economy, in part because, like most other
legal scholars, CRT writers have focused too much on the law school con
text. In the law school setting, one can argue about the relative capabilities
of African American applicants or employment candidates, but both clearly
have the basic relevant qualifications, an undergraduate degree 'or a J.D.
Thus, the argument in law schools is about relative, not minimal, compe
tence. Unfortunately, the law school setting is atypical in many respects.
I wish that the "merit" standards were less valid than they have proved,
because our race problem would then be more tractable.. To be simplistic,
the implication of CRT is that our society basically has an "attitude prolr
lem" caused by ingrained, destructive habits of thought. But the quest for
racial justice is beginning to hit more tangible bamers-barriers that would'
not disappear with even the most dramatic enlightening of racial attitudes.
Those barriers, in part, involve the increasing mismatch between African
American educational attainments and the direction of economic growth.
We will have to look beyond affirmative action for answers, and they will
not be easy to find.
'
[T]he effort to draw districts that have enough members orany one
minority group to exert the most influence may dilute the voting
<.
181. See Philip P. Frickey. Book Review. 5 CoNST. COMMENTARY 451 (I988) (reviewing ABIGAIL
M. THERNSTROM. WHOSE VOTES COUNT? AFFmMATlVE. AcnON AND MIN~RITY VOTING RIGHTS);
Guinier. Triumph. of Tokenism, supra nole 30.
t
182. See generally Raph8/!1 Sonenshein. Can Black. Candidates Win Statewide Elections?, 105
POI.. SCI. Q. 219 (1990) (discussing the problems African Americans f8.ce in statewide elections).
183. See Peter Skeny. Not Much Cooking: Why tM Voting Rights Act is Not Empowering Muican
Americans. BROOKINGS REv.• Summer 1993. at 43. 43 (using figures from the 1990 census). Skerry
also reports that "[wJhile blacks rarely many outside their group. Mexican Americans frequently do.
Indeed. exogamy rates for Mexican Americans have long been at least as high as those for European
immigrant groups earlier this cenlUry.~ Ill. Asian Americans lI1!Iy be more like Hispanics than they are
like African Americans in these respectS. See also Hacker. supra noo: 131. at 21. 22.
184. Skerry. supra note 183. al 43.
D. Limits on the Effectiveness of Racial Preferences in Redistricting
185. Ill. Another problem is that l1llIIIy Me~ American residents cannot VOle since they are not
citizens. See RudoIfo O. de la Garza & Louis DeSipio. Save tM Baby, Change tM BathwaJer, and
Scrub the Tub: Latino Electoral Participation After Seventeen Years of Voting Rights Act Coverage. 71
TEX. L. REv. 1479. 1499-501. 1502 0.179. ISIS (1993) (explaining thai about 38% of Latino adults are
non-citizens-a total of 5.2 million non-citizens in 1990-and. as a result of this and low panicipation
r.lles. equal population districts composed of Latinos have fewer registered voters). Consequently. while
politicians may not view Mexican American office·holders as having many VOles to deliver in other
. conteslS.
In the political arena, the analogy to affirmative action is the creation
of voting districts with a firm majority of minority residents, devised to
assure the .election of minority political representatives. This technique is
179. Some discrepancies remain even when researchers conlrol for parental income and social
class. JENCKS. supra noo: 165. at 138-40.
. 180. A COMMON DE.s1TNY. supra noo: 127. at 371.
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strength of other minority groups in neighboring districts. District
ing provides no clear theoretical justification for resolving-and
may instead exacerbate-conflict between the interests of compet
ing minority groups. For example. subdistricting may set qff a
"political land grab" in which each minority group has a legitimate
but potentially unfulfilled claim to representation. 186
Even assuming that African Americans can attain legislative represen
tation equal to their population ratio. twelve percent 1S? is far from being a
majority. To be effective. African American representatives must form
coalitions with other minority and white legislators who share their inter
ests. ISS However. it may be difficult to develop coalitions· jf African
Americans are realigned to form new majority-minority districts since the
representatives from their former districts will have less motivation. based
on present constituents. to consider African American interests. Whether
the net result would be an increase in African American legislative power is
unclear.
Moreover. the creation of majority-minority voting districts is usually
prompted by concerns over polarized bloc voting. But if the same polarized
voting carnes through to the legislature itself, the small faction of African
American representatives . will be consistently outvoted. As Guinier
explains:
-'Black activists have long recognized that blacks cannot become
an effective political majority without legislative allies. Yet, elect
ing black representatives may simply relocate to the legislature
polarization experienced at the polls. Indeed. some political scien
tists studying "the new black politics" in Cleveland, Chicago, and
Atlanta have challenged the working assumption that black electoral
success will ultimately reduce polarization. Based on empirical
studies of local black officials and city council members, these
scholars argue that black representatives often become an ineffec
tive, "seen but not heard" minority in the legislature}S9
The risk. then, is that African Americans will obtain a presence in the legis
lature, but no power. Thus, legislative access is not enough. New solutions
are needed if African Americans' interests are to be effectively
represented. 190
1~~"'J
Even where African American presence equals full participation in an
· institution. the effectiveness of affirmative action can be limited because the
institution is losing political or economic importance. In those situations.
participation is a. hollow victory. Changes in population patterns create the
risk that African American political power at the state and city level will be
increasingly irrelevant. Historically, most government services have been
funded and provided either by central cities or by the state and federal gov
ernments. The 1992 election marks the first time that suburban voters have
become a national majority}91 The residents of these suburbs have a high
demand for government services such as education. health care and recrea
tional facilities. They do not, however, have a strong desire to pay taxes to
provide these services to inner-city residents. One result is a growing ten
dency for services to be financed and provided at the suburban and county
level, 192 rather than by the federal or state government. Thus, an increase in
the political voice of Afric~ Americans in central city and state gO\'ern
ments may be counterbalanced by the diminishing resources of those gov
ernments. As the Edsalls observe. "[w]ith a majority of the electorate
equipped to address its own needs through local [suburban] government,
not only will urban blacks become increasingly isolated by city-county
boundaries, but support for the federal government, a primary driving force
behind black advancement, is likely to diminish."193 As with employment,
· changing the process for selecting representatives has only a limited ability
to address emerging racial problems.
'.
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E.
Cultural Alienation
As Richard Delgado points out, there is often a disparity between
minority and white views of what constitutes racism. His discussion is
worth quoting at some length:
. To take· an everyday example. students of color frequently
complain that the university is a racist place. Liberal white sympa
thizers are distressed; they want to know what the blacks hll-ve in
mind-what .' .. race-based mistreatment the students have suf
fered... " .But when the blacks explain what they mean when they
say "the university is a racist place." the whites are surprised-it
turns out the blacks mean one thing. the whites another. The whites
had formed a mental picture of physical assaults, exclusion from
186. Guinier. No Two Seats. supra note 30. at 1453 (footnotes omitted); see also United Jewish
Orgs. v. Carey. 430 U.S. 144 (1977) (upholding a redistricting plan thai split a Hasidic Jewish
community between two assembly and senatorial districts).
187. See supra note 2.
188. A CoMMON DESTTNY. supra note 127. at 251. With the rapid expansion of the Asian and
Hispanic populations. the need for African Americans to enter into such coalitions is likely to increase
sharply. See B~ckley. supra nole 2.
.
189. Guinier. Triumph o/Tokenism. supra note 30. at 1116 (footnotes omitted).
190. Guinier and others have examined a number of alternative approaches. See id. at 1134·53
(examining and criticizing proportionate interest representation); Katluyn Abrams. "Raising Politics
Up"; Minority Political Participation and Section 2 0/ tire Voting Rights Act, 63 N.Y.U. L. REv. 449
(1988) (focusing on political participation rather than mere representation for minority voters); Pamela
S. !Carlan, Maps and Misreadings: The Role 0/ Geographic Compactness in Racial Vote Dilution
Litigation. 24 HAltV. C.R.-C.L. L. REv. 173 (1989) (discussing the proper role of geograpbic factors and
· the meaning of effective access 10 the political proceSs).
191. EDSALL. &. EDSALL, supra note 19. at 227.
192. It! at 227·28. Structural reallocations of government authority are not covered by the Voting
Rigbts Act. See Presley v. Etowah County Comm·n. /12 S. Ct. 820. 831·32 (1992).
193. EDSALL &. EDsALl.., supra note 19. at,231.
....
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housing, slurs. badgering, and denials· of service at restaurants.
What they hear may include some ofthis. to be sure. But the blacks
will also go on in some detail about the lack of black professors and
fellow students. "This place is so white!" Other complaints may
point out the lack of courses on black literature or African-American
history and language. They will mention that there is no black
theme house or student center; the cafeteria does not offer soul
food. 194
In the words of a leading white sociologist. "[w]hen blacks assert that
racism is endemic in American society, they usually mean that whites
assume white culture is superior to black culture."19.5 It is precisely this
assumption that African Americans perceive as discriminatory.
In my experience, many whites tend to dismiss this sort of com
plaint-after all. the food in the cafeteria is usually terrible anyway, sowho
cares· what dishes are served? In my view this is a mistake: even the cafe
teria complaint should be taken seriously, as a minor symptom of a serious
problem~ . To pursue Delgado's example, in complaining about the lack of
soul food in the school cafeteria, African Americans are really complaining
of a lack of full citizenship: if the cafeteria were really considered "theirs"
as much as it is the white students', then it would serve their foods as
well. l96 The lack of soul food is not a significant problem in itself; the real
problem is the feeling of exclusion.
Perhaps this appears to be an overly serious response to complaints
about matters as insignificant as cafeteria food. but such complaints are
only a tiny indication of the alarming level of alienation in the African
American community. For example. focus groups on crime reveal a wide
spread view among African Americans that the flow of crack cocaine into
their communities is the result of a white conspiracy to keep them down. 197
Among African American New Yorkers, only thirty percent view the crimi
nal justice system as fair, and an overwhelming majority believe that a bias
uniformly exists in favor of whites.1 98 Additionally, surveys show that
194. Richard Delgado. Recasting the American Race Problem. 79 CALlI'. L. REv. 1389. 1395
(1991) (review essay) (fOOlnotes omitted); see Barnes. supra note 73. at 1866 ('Throughout our lives we
receive a pervasive message communicating that we do not truly belong."). Delgado may. however. be
underestimating the extent of more blatant forms of discrimination. See T. Alexander Aleinikoff. The
Constitution in Context: The COn/inuing Significance of Racism, 63 U. Cow. L. REv. 325. 330-50
(1992) (discussing American discrimination and racism in various contexts).
195. lENCKS, supra note 165, at 129. In lencks' view, this is an accurate description of white
attitudes. Furtbennore, he doubtswbether true multicultwalism can be made to work in our society. Id.
196. Since this is a rather stylized example. I do not consider various factors that might be relevant
to assessing the validity of this claim in a concrete situation, such as wh~tber the students actually came
from backgrounds where such foods are commonly served.
191. See EDSALL & EDsALL, supra note 19, at 231 (describing the African American belief tIutt the
white power structure has permitted, if not actively encouraged, the flow of drugs into African American
communities).
198. Id. at 239.
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THE OUTMODED DEBATE
929
alienation is widespread, that it is not strongly conn~ted with sociai class.
and that it may be growing.199 Frightening evidence of this alienation is
provided by a poll of African Americans in ~ew York about whether AIDS
was "deliberately created in a laboratory to mfect bluck people:' Ten .per
ce~t of the respondents a~~ with this s:,ement completely, and another
nineteen percent thought It mtght be true.~
The significance of African Americans' experience of exclusion is iIlu-'
minated by neo-republican thought. and particularly by its stress on the
importance of civic community.20t Because repUblicans and other com
munitarians view participation in the community I\S a basic element of
human thriving, being exiled or marginalized is a gmve injury 10 individu
alS. 202 It also weakens the community by undermining the civic bonds that
unify it. while eroding the political process by converting what should be a
dialogue between fellow citizens into a repressive hierarchy. Thus, com
munitarians seek.more than formal ac~ss by marginalized groups-they
seek full participation in the life of the community.
Affirmative action riright play some role in combatting alienation.
Presumably. having at least some African American races in major institu
tions is less alienating than "lily white" institutions. 203 Yet, affirmative
action to date has not prevented a high level. of alienution, and it is doubtful .
that future. increases in affirmative action could make any difference.
Affirmative action is not structured to increase the number of African
Americans in key institutions abo;ve their ~roportion in the general popula
204
tion, approximately twelve percent.
This means Ihat even in a best-case
scenario. institutions will be overwhelming non-African American.20!5
Being out-numbered approximately nine-to-one will do little to combat the
problem of alienation. Furthermore, if the road to su\,;c~ss is thought to be a
199. A COMMON DEmNY, supra note 121, at 131-36. For examl,le. 81% of African Americans
surveyed thought thai an African American generally wou!d ~OI receivo the same wage as an equally
qualified white. with over 30% thinking ~. wage ~uaIlty IS a1m~t never true. Id. at 132. Even
middle-class African Americims me skeptical of the fauness ofAmencqll society. id. at 212.
200. CARTER, R.eJ::t..EcnONS. supra note n, at 21S. On the harmful effects of this IIlienation. see
WEST. supra note 94, at 12" 11-18. 63-61.
:
201. A few of the complex connections between republicanism lind nrfinnative 8Cti,m are explored
in Daniel A. Farber. Richmond and Republicanism. 41 FLA. L. REv. 623 (1989).
202. See generally Kenneth 1... Karst. Citizenship. Race. and MargiHIIlity. 30 WM. & MAlty 1... REv.
I (1988).
.
.
203. See Carrington. supra note.3. at 1150-52 (asserting tbaI unles~ there are a significant number
of judges and lawyers of color. people of color may reasonably question Whether theidnt~rests are given
due weight). For suggestions tbaI aflinnative action may instead accentuate the per!:eplilln by African
Americans tIutt they are victims of .discrimination, see David P. Bry<lcn, 0" Rm:e and Diversity, 6
CONST. CoMMENTARY 383.423 (1989); SLEEPER. supra note 115. at 31. 116.
204. See supra note 2.
205. The remaining faces. almost ninety percent, will ncit be exclu~j~ely "white~; they will also be
Mexican American and Asian American. a presence tIutt may increase ill coming years. See Bucldey,
sUpra note 2. But despite the rhetorical a1I~ of tile phmse "people of color,~ the", are major
differences between African Americans. MeXIcan Amencans. and A~jan American.. Hence. the
presence of these other groups may nOl have the desired reassuring effect for African Americans.
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[Vol. 82:893. '
betrayal of the African American community, alienation within that com
munity will not be diminished by an increase in the number of successful
African Americans. 206 Therefore. until attitudes change. increasing the
number of "successful" African Americans will have little effect on the
alienation of other African Americans. In short, affirmative' action is
unlikely to reduce feelings of African American alienation. The solution. if
there is one, will have· to be found elsewhere.
III
TENTATIVE THOUGHTS ON FUTURE DIRECTIONS FOR RACE
SCHOLARSHIP
Recent race scholarship has often focused on the issue of affirmative
action. Building on some commentary by CRT scholars, I have argued that
this attention has been misplaced. To begin with, affirmative action pro
grams are quite likely to remain stable. neither growing nor shrinking in any
significant way. Both detractors and supporters of affirmative action have
enough political leverage to prevent their opponents from'making major
advances. Moreover, the Supreme Court has settled on a compromise
between unrestrictec affirmative action and colorblindness; this compro
mise may yet be subject to some 'significant fine tuning. but there is little
likelihood of any radical shift in the Court's approach.
Furthermore, as several CRT scholars have suggested, affirmative
action cannot effectively address important emerging race issues. Because.
the educational system has failed so' many African Americans, they have'
been denied skills that are increasingly necessary in the global economy.
Affirmative action in hiring cannot address this critical, problem.
Additiomilly, affirmative action in the political arena, in the form of race
based districting. has limited potential for increasing African American
political power. At best. affirmative action can provide only a partial solu
tion for African American alienation and marginalization.
206, Recenl ellmographic work by Fordham and Ogbu (1986) suggests thai black student peer
culture undermines the goal of striving for academic success. Among eleventh graders at a
predominantly black high school in Washington. D.C.. many behaviors nssocialed with high
achievement-speaking standard English, studying long hours. striving to get good grades
were regarded as "acting white." Students known to engage in such behaviors were labeled
"brainiacs," ridiculed, and ostracized as people who had abandoned the group. Interviews
with a number of the high-achieving students-who showed a conscious awareness of the
choices they were making-indicated that some had chosen to put "brakes" on their academic
effon in order to avoid being labeled and harassed.
A COMMON Di!STINv. supra note 127. at 372 (citing other studies as well); see also P!lller, supra note
109. at 834 (finding that in black nationalist analysis. "the very success of the black middle class in
American society might .•. betray the aspirations of the black community"); Walter E. Williams. Why
Urban Problems Persist, 66 S. CAL, L. REV. 1665, 1670 (1993); Man: Eirich. Divided by Diversity: Why
My Students Don't Buy Block History Month. WASH. POST NAT'L EDmON. Feb. 21-27. 1994. aI 2S
(finding that a group of African American high school students believes the negative stereotype thai
"(blla'ck kids who do their school work and behave want 10 be white").
'
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The affirmative action debate has centered almost exclusively on ques
tions of legitimacy. As a result, legal scholars. both mainstream and CRT.
have invested their energies on the single question ofwhether race is a valid
consideration in hiring employees. admitting stUdents, or drawing electoral
districts. Framing the issue so narrowly diverts attention from what hap
pens before and after affirmative action. For instance, the debate on affirm
ative action in hiring overlooks the crucial question of whether African
Americans, can get the education they need to enter the relevant employ
ment pool. Advocates for consideration of racial factors in college admis
sions. on the other hand, seem to think the problem ha,s been solved when
the proper proportion of African Americans gain admittance, without
attending to the high attrition rates of African American, college students.
As both examples illustrate, we need to broaden our focus if, we want a
society in which no racial, group is permanently relegated to the bot!om.
A broader focus should include a careful look at institutions that seem
to be relatively effective in meeting African American needs. These institu
tions are not always among the expected sources of cutting-edge social
reform. One such institution is the United States Army. There is some
reason to believe that the Army is the nation's most successfully integrated,
institution. 207 General Colin Powell is only one example of a broader phe
nomenon: "[t]he U.S. Ariny has become one of the few sect~rs of
American life in which large numbers of blacks are in positions of authority
over whites."208 Careful study of the Army's success might provide a use
ful model for other efforts to remedy historic discrimination.
Another. institution that deserves closer attention by legal scholars is
the historically African American college. A recent study of minorities
majoring in scientific fields found that these colleges graduate about twice
their expected share of African American scientists. many of whom go on
to receive advanced degrees,209 In rethinking the role of these colleges,
we may need to reconsider the Supreme Court's ruling in United
States v. Fordice. 210 which poses a possible threat to their continQed
.S
19941
THE OUTMODED DEBATE
See A CoMMON DESTINY, supra note 127. at 11.71·74,
ld. at 72.
209. Black Colleges Cultivale Scientists, 2S8 SCIENCE 1216 (1992). A variety of questi~ns about
these colleges needs to be addressed. For elWllple, it is not clear why they are apparently more
successful with African' American women than with African American men. See. e.g.• Daniel Goleman.
Block Scientists Study the '·Pose" of the Inner City. N.Y. TIMES. April 21. 1992, (Science runes
section). at C I. C7.
.
210. 112 S. Ct. 2727. 2743 (1992) (holding that implementauon of facially race neutral policies
does not necessarily fulfill the Stale's obligation to affirmatively dismantle a de jwe segregated college
system); see also Knight v. Alabama, 14 F. 3d 1534 (11th Cit. 1994) (appplying the Fordice analysis to
a desegregation action involving Alabama's historically black institutions). In his concurring opinion in
Fordice. Justice Thomas commented thai "(iJt would be ironic, to say the least, if the institutions thai
sustained blacks during segregation were themselves destroyed in an effon to combat its vestiges."
Fordice.1I2 S.Ct. at 2746 (Thomas, J•• concurring). Apan from coastitutional issues. there are other
matters of federal policy involVed, For example. the federal government is largely responsible for
207.
208.
ell
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existence. 211 Whatever the ultimate legal verdict on these institutions, we
CanDot assume that affirmative action at previously all white universities
has rendered historically African American colleges obsolete.
Race scholarship also needs to be more attentive to diversity within
and between minority groups. Much of the current scholarship is writien as
if all groups of non-whites were fungible. CRT writings on "intersectional
ity" have begun to challenge aspects of this stereotyping by addressing the
relationships between gender, sexual orientation, and race. 212 However,
with the noiilble exception of Roy Brooks' work, class divisions among
African Americans have received little attention in the legal literature. 213
Furthermore, the differences between African Americans and other minority
groups214 too often have been ignored. We need a more sophisticated
understanding of divisions between and within racial groups.
, This inattentiveness to group differences reflects a general tendency to
approach racial issues only on the plane of high principle. Obviously, racial
justice does involve profound moral considerations. But then, so does
health care. Indeed, health care involves some of the same moral considera
tions, inasmuch as providing care to the disproportionately nonwhite poor is
a central policy issue. Nevertheless, we all realize that health care involves
difficult tradeoffs and complex empirical questions. We ne,'!d to' pay more
attention to those aspects of racial issues. 2Is
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We also need more of a dialogue between scholars of color and white
scholars. Richard Delgado may be right in arguing that some white .legal
scholars, have reacted to minority scholarship in discrimination law either,
by brushing aside their work or by leaving the field. 216 ' I am not suggesting
that minority scholarship enjoys an entitlement to a favorable reception.
Given the history of race relations in this country, however. white scholars
should be careful before deciding that a substantial body of work by minor
ity scholars should be ignored rather than critically engaged. 217 Moreover.
whites should not vacate the field and act as if only scholars of color have
reasons to want to understand and r:c::solve racial problems.
Finally, discussion. of racial issues must be as hopest and open as pos
sible. 21s This point should be completely trite, but unfortunately it is not.
There are serious pressures operating against free discussion of racial
issues. 219 One example of such pressure was the efforts by scholars to pre
vent Randall Kennedy from publishing his critique of Critical Race
Theory.220 Another example was the shabby treatment received by Lani
Guinier, whose innovative writings on voting rights led President Clinton to
withdraw her nomination as Assistant Attorney General for Civil Rights/21
The last thing' we need to do is to repress fresh thinking about the difficult
problem of race.
• • • • •
funding Howard University. See D·SOUZA. supra nOle 19. at 108. Perl1aps Congress should increase
funding in targeled areas.
.
216. See Richard Delgado, The imperial Scholllr Revisited: How to MargilUJlize Outsider Writing.
Ten Years Later, 140 U. PA. L. Rev. 1349.1353·61 (1992); see also Culp. supra nOle 2. at 1100 n.12.
1112 (decrying the "Woody Allen blues" in which whileS feel incapable of dealing with racial issues and
calling for open discussion of racial problems).
217. Two further clarifications are necessaty al this poinL First. 1 emphatically do not mean thai
minority scholarship should reCeive an uncritical response. Bad scholarship ,should be crilicized.
regardless of the ethnic identity of the scholar. Second, I do nOI believe that while scholars should rna.Ice '
any effon 10 decide which minority scholars are presenling the "authentic" Views of their group. Apan
from other possible problems (such as what, if anything, "authenticity",means in this context). il seems
the height of presumption for while scholars 10 lell minority groups whose voice truly' represents them. ~
See ,generally. WEST. supra nOIe.94. at 25-27 (critiquing the concept of black authenticity). See also
Carter. AcademiC Tenure, supra nOle 77. at 2075 (censuring Alex Johnson for claiming thaI Carter has
adopted white views).
218. See Culp. supra ROle 153. al 1171·72 (stressing need for lolerance and diversity among
scholars rather than un~imily).
219." See EDsALL & EDsALl.., supra ROle 19. at 259.
220. See Kennedy. supra note 75; at 1811·12, 1818·19. Aa:ording to a newspaper account:
[Kennedy' 51 decision 10 go ahead with his criticism was regarded as a betrayal by many
minority professors and some liberal while law professors. After seeing a draft of his article.
many urged him nOi 10 publish iL
"There was a sort of 'lynch Randy Kennedy' mind·set." said a ~hite professor, speaking
on condition of anonymity. Since the article was published. he said. some academics have
made attempts to exclude Mr. Kennedy from professional forums where he could express his
views.
.
Charles Rothfe1d. Minority Critic Stirs Debate on Minority Writing. N.Y. TlMiiS. January 5, 1990. 81 B6.
1be hostile response of CRT scholars 10 Kennedy is discussed in Scott Brewer. Choosing Sides in the
Racial Critiques Debate. 103 HARv. L REv. 1844, 1845·47 (1990).
221. See supra lext accompanying notes 29·31.
211. For a fuller exploralion of-Ihis question. see Alex M. Johnson. Jr.. ' Bid Whist. Tonk. and
Uniled Slales v. Fordice: Why integrationism Fails African.Americans Again. 81 CAUF. L REV. 1401
(1993). A relaled. imponanl topic is the advisabilily of instituting black-orienled high schools. See
generally. Michaei J. Weber. Comment. Immersed in an EducatiolUJl Crisis: Altemotive Programs for
African·American Males. 45 STAN. L Rev. 1099 (1993) (discussing the issues surrounding programs for
improving the academic performance of African Al1)erican males); Susan Chira.. Rethink.ing Deliberately
Segregated Schools. N.Y. TIMES. July II, 1993. § 4 (Ideas and Trends). al 20 (discussing the
advisabilily of segregated schools in Iighl of the failure of inlegrated SChools to reach minority groups).
Of course. there is also a worrisome possibility of resegregation. For a discussioll of both black
academies and histOrically black colleges. see Drew S. Days 111. Brown Blues: Rethink.ing the
Integrative Ideal. 34 WM. & MARY L REV. 53. 60·74 (1992).
212. See IGmberle Crenshaw. DemJJrgilUJlizing the Intersection of Race and Sex: A Billd Feminist
Critique ofAntidiscrimination Doctrine. Feminist Theory and Antiracist Politics. 1989 U. CHI. LEOAL F.
139; Angela P., Harris. Race and Essen/wlism in Feminist Legal Theory, 42 STAN. L REv, 581. 584·85
(1990). The interactions between race and gender can be quite complex.. For' example. employed
African American women now earn on average as much as employed while women. and African
American women with coliege degrees earn more than white female college graduates. See Reynolds
Farley. The Common Destiny of BlIlcks and Whites: Observations About the Social and Economic Staius
ofthe Races. in RACE IN AMIlRICA: THE STRUOOLC FOR EqUALITY 197.204-07 (Herben Hill & James E.
Jones. Jr. eds.• 1993).
2 I 3. This is one of the major themes developed in Roy L BROOKS. RETHINKING TlfE AMERICAN
RACE PRoBLEM 34',128 (1990); see Johnson. New Voice. supra nOle 2. at 2038·39 (criticizing CRT
scholars for confusing race and class issues).
214. See supra lext accompanying noleS 183-185.
215. For a notable exception. see Donohue & Heckman. supra nOie 128 (engaging in an empirical
, analysis of African American economic progess as influenced by federal civil rights policy). '
"
THE OUTMODED DEBATE
'~-f"
_.'':''i.'':'''-"~
�934
CAUFORNIA LAW REVIEW
Despite some hopeful signs such as the growth of the
American middle class, many aspects of the race situation remain
We face serious problems with no obviouS solutions. Rather than lose
in the face of these difficulties, however, we would do wen to recall
Myrdal's classic observation about the American racial situation:
m3
t
is irredeemable until it is pas :
Enduring Principle: On Race, Pro
and Constitutional Law
Barbara J. Flaggt
INTRODUCTION
When President Clinton withdrew his nomination of !.ani ··UL
Assistant Attorney General for Civil Rights, he said it was becau"
her writings "lend themselves to interpretations that do not repre~
,ieWS that I expressed on civil rights during my campaign and view
hold very dearly ... :'1 Asked to elaborate on the portions of her'
thai he found troublesome, the President singled out Guinier's pre
:onceming proportional representation and minority veto. He comm
··the whole thrust of that kind of argument, it seems to me, is inc~'a~
with the arguments that I tried to make to members of all races all C
.
"2
IllY campaIgn.
, As I interpret the President's explanation. he seems to believe the
race·conscious. outcome-sensitive remedial measures proposed in
Guinier's articles violate a principle of colorblindness-the view that.
,hould not matter in assessing an individual. and so government should
lake it into account in official decisionmaking. 3 If this rewing i.s corr
Iben withdrawing her nomination demonstrated that the President was v.
Ing to impose very significant costs on a black woman and on the pub:
I'lf the sake of a principle. Ms. Guinier suffered all the pain associated w
pring in the position of a silenced political target. 4 The public lost
"pportunity to have the Civil Rights Division headed by an exceptiona;
Jole, experienced. and committed civil rights attorney, It seems a \'e:
!feat deal to endure for the sake of an abstraction.
Ix'
:,f
W
R~.
,Af"'~ ....."1._··--'
222. See. e.g.. Wf.S'f. supra nole 94. at 35-36; see gener ' , r--
~
Racial Despair?, 24 CONN. L REV. 533 (1992). Bur see Derrick Bell. Rac.a.
""~
",. " . , , " " " ' ' ' ,. . . . . " " " , , - , . - '"
'"'~
0 .... , " , , _ ' ..
Sliding.
,,,.
SCI.
DIl.EMMA
, .... _
",,'"
n_""·
v_ Grim ",,'.'-' Ufo " , , - <f ..... '
AM., & ",..,.. al 33. """ . . . . ' " ,...... ",,,,, M..... ' ""
Mar- \991. ....
997 (pantheon Books 1972) (1944»·
.
Copyright © 1994 California Law Review. Inc.
t AssOciate Professor of Law. Washington University. SI, louis. I thank Susan ,-'\ppletor.
:'''"3 Deck. Kathy Goldwasser, Richard Lazarus. Dan Kealing, Roben POSI. and Pete~ Wieder-Deck fo
·.-ipfu! comments on earlier drafts of this Anicle; any remaining errors are enlirely r.ly own,
I. Remarks Announcing Withdrawal of the Nomination of Lani Guinier and an Exchange Wi
.. :portet1l, 29 WEl'lKLY COMP, PRES. Doc, 1027, 1027 (June 3, 1993).
2. Jd. al 1028.
3. Presidenl Clinlon's position may be only that one should nol talce race into =ounl in Ih
-'oome-oriented manner Guinier suggested. but I extrapolate to the broader ::oncoption 0
!,lIblindness because thaI principle is widely accepted in society al large.
4, An inmguing account of the way the Guinier nomination was targeted by the -righl wing'·
·CJ of the administration'S delayed and inadequale response 10 the campaign-can be iound in Kare
fArt; Gu;nier: 11t.e Anaromy of" Betrayal, Ms•• SepL.OcI. 1993, al 5 J.
·"an.
935
�934
CAllFORNIA LA W REVIEW
Despite some hopeful signs such as the growth of the African
American middle class, many aspects of the race situation remain grim.212.
We face serious problems with no obvious solutions. Rather than lose hope;
in the face of these difficulties, however, we would do well to recall Gunnar
Myrdal's classic observation about the American racial situation: "Nothing
is irredeemable until it is past."223
Enduring ·Principle: 'On Race, Process,
and Constitutional Law
Barbara J. Flaggt
INTRODUCTION
~::'G~:;
:::::;.::
'-:..."
,.::~~
::~
,;;<;,
,:...
222. See. e.g.• WEST. supra nOle 94. al 35-36; see generally john a. powell. Racial Realism or
Racial Despair? 24 CONN. L. REv. 533 (1992). But see Derrick Bell, Racial Realism, 24 CONN. L.
REV. 363, 370 (1992) (discussing the "precipilous collapse in [African American) economic staluS").
On the undeniably negative' side. see Philip Yam. Grim frpectation.r: Ufe frpectancy of Blacks is
Sliding, SCI. AM•• Mar. 1991. ai 33.
223. EDSALl. &; EDSALL, supra nole 19. al 286 (qUOting GUNNAR. MYRDAI.., 2 AN AMBR.ICAN
DILEMMA 997 (Pantheon Books 1972) (1944».
When President Clinton withdrew his nomination of Lani Guinier- to
be Assistant Attorney General for Civil Rights, he said it was beca:use some
of her writings "lend ·themselves to interpretations that do not'represent the
views that I expressed on civil rights during my campaign and views Hut I
hold very dearly ... ,"\ Asked to elaborate on the portions of her writing
that he found troublesome, the President singled out Guinier's proposals
concerning proportional representation and minority veto. He commented:
"the whole thrust of that kind of argument, it seems to me, is inc.onsistent
with the' arguments that I tried to make to members of all races all during
,my campaign."2
As Iinterpret the President's explanation, he seems :0 believe that the
race-conscious. outcome-sensitive remedial measures proposed in Lani
Guinier's articles violate a principle of colorblindness-the view that race
should not matter in assessing an individual. and so government sbould not
take it into account in official decisionmaking. 3 If this reading is correct,
then withdrawing her nomination demonstrated that the. President was \\ill
ing to impose very significant costs on a black woman and on the public,
for the sake of a principle. Ms. Guinier suffered all the pain associated with
being in the position of a silenced political rarget.4 The public lost an
opportunity to have the Civil Rights Division headed by an exceptionally
able, experienced, and committed civil rights attorney. It seems a very ,
great deal to endure for the sake of an abstraction.
Copyright ~ 1994 California Law Review. Inc.
t Associate Professor of Law. Washington University. SI. Louis. I thank. SIIS2.tI App!;::ron,
Dayna Deck. Kathy Goldwasser. Richard Lazarus. Dan Keating, Raben Post. and Peter WiedenbecA.: for
helpful comments on earlier drafts of this Article; any remaining enurs are entirely my c·wn.
I. Remarks Announcing Withdrawal of the Nomination of Lani Guinier and an Echange With
\
Reponers•. 29 WEEKl..Y CoMP. PRF.s. Doc. 1027, 1027 (June 3, 1993).
2. 111. at 1028.
3. President Clinton's position rnay be only that one should not take race into accounl i:l the
oUlcome-oriented manner Guinier suggested, but· I extrapolate to the broader cooceptiOD of
colorblindness because that principle is widely accepled in society at large.
4. An intriguing account of the way the Guinier nomination was targeted by the "f.gl!t wing"
and of the administration's delayed and ittadequate response 10 the campaign--<an be found in Karen
Branan. lAni Guinier: 1M Anatomy of 0. Betrayal, Ms.• Sepl.-Oct 1993. al51.
935
�':- ....
........< - -
"
166
NEW YORK UNIVERSITY LAW REVIEW
[Vol. 69:162 '
April 1994]
any number of issues) has to confront the fact that, in general, we
refuse to limit private actions that produce consequences in both the
private and public sphere. Proponents of colorblindness call for re
strictions on the legal use of race in public policy, even tliough they
know that private actors will continue to use race for negative pur
poses. IS In short, race-neutra,l principles cannot prevent covert, op
pressive uses of race. 16
This Essay argues that the colorblind principle is not a moral.re
quirement, but rather a poliCy argument resting on several invalid as
.:t
In a society that all too often confuses "slim" with "beautiful" or "gqod," morbid
obesitY can present formidable barriers to employment. Where as here, the barriers
transgress federal law, those who erect and seek to preserve them must suffer the
consequences.
Id. It is, of course, not possible to be neutral about everything. Most commentators stop
at culture or some other limit that they would like to enforce. These limits raise the ques
tion of how to define panicular categoriesJike race or gender when they intersect. Femi
nists have been raising the issue of this intersection in important and powerful ways. See"
e.g., Caldwell, supra note 8, at 374-76 (arguing that intersec:!~on of race and gender is im
ponant but has been given little credence by judges or antidiscrimination hiws); nina
Grillo &. Stephanie M. Wildman, Obscuring the Imponance of Race: The Implication of
Making Comparisons Between Racism and Sexism (or otber -Isms), 1991 Duke U. 397,
401,10 (describing how racism and sexism perpetuate pattc,rns of racial domination); An
gela P. Harris, Race'and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 592
(1990) (arguing that monolithic feminism ignores the black woman's voice). The complex
interaction of race, culture, and gender has recently been raised in an interesting way by'
Manba Chamallas, Racial Segregation and Cultural Domination: A Rubin Trilogy on Title
VII, 52 La. L. Rev. 1457,1475-76 (1992) (observing that Judge Rubin's recent employment
discrimination decisions indicate his inability to see cultUral oppression as form of race
discrimination).
'
IS Despite changes in societal attitudes, race is still likely to be used for negative pur
poses. See, e.g., Howard Schuman et aI., Racial Attitudes in America: lTends and Inter
pretations 74-75, 118-19 (1985) (finding that 66% of white Americans still opposed
intermarriage in 1982 and that more whites had positive views of the Ku Klux Klan in 1979
than in 1965); Thomas F. Pettigrew, Advancing Racial Justice in Opening Doors: Perspec
tives on Rilce Relations in Contemporary America 173-76 (Harry J.-Knopke et a!. eds.,
1991) (describing how racial prejudice has changed from oven bigotry to subtle~ indirect, '
and ostensiblY- nonracial resistance to racial change).
16 See, te.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 Stan. L
,Rev. 1,16 (1991) (arguing that colorblind model for governmental decisionmaking actually
allows racial discrimination to Continue). Feminists have been among the first to challenge
the traditional public/private distinction in law. See, e.g., Katharine T. Banlell, Gender
and the Law 48-69, 527·29 (1993) (surveying cases and essays on relegation of women to
the private sphere); Ruth Gavison. Feminism and the PubliclPrivate Distinction, 45 Stan.
L Rev. 1, 1 (1992) ("Although my main purpose is to discuss the specific feminist chal
lenge to this distinction, feminists have not been the only critics of this distinction."). This
issue, however, has been raised previously. See, e.g., Ira Nerken. A New Deal for the
Protection of Founeenth Amendment Rights: Challenging the Doctrinal Bases of the Civil' '
Rights Cases and State Action Theory, 12 Harv. C.R.-C.L. L Rev. 297 (1978) (rejecting as
outmoded contractual distinction, introduced in The Civil Rights Cases, between public
and private sphere and advocating analysis that looks at scope of private power enforced
by state).
\11
,
,x':,; _.COLORBLJ,t;'D-REMEDIES, .:;..:':,:
167.
surilptions. In particular, I want to advance the seditious idea that we
will not change the racial present until we adopt an effective program
, of race-conscious policies. for. only race-conscious policies can alter
the racial status quo in.thiS country. I contend that the argument for
colorblindness ultimately argues,in favor of _a racialized status quo
that leaves black people and,otheI'racial minorities in' an unequal po
sition,l7 By the phrase "racial statuS quo,'~ I mean the economic real
ity that African Americans are twice as likely to be unemployed1S and
are more Iik.ety to be fired than are white ~ericans.19 They are also
less likely to be employed. in positions that provide status or higher
income.20 Despite the many antidiscrimination laws passed since
1964, black~Ameri~,,~~L~~substantially. less income than
whites.21 : Ihdeed;' even in pure market transactions 'where the race of
the purchaser would not seem to matter-suchas the purchase of an
automobile-there is significant evidence that it does: _black purchas
ers are treated ,:ery: differently ,tha~ are, white purchasers by sales
staff.22
" ' , j : . . ,: ';',,:,"-,"
" ,> ..-:
.
' •• '\
- . _Several other scholars and at least one Supreme Court Justice
seem to have embraced, at least partially, the notion that race-con
scious policy,is necessary to rectify this situation: None. however. has
examined the, full implications of. this truth. " For, example. David
if
Ii,
I
t··
Ii
I
I
I
n
I
I
I
I
17 See Committee on the Status of Black Americans, National Research Council. A
Common Destiny: Blacks and American Society 269-324 (Gerald D. Jaynes & Robin M.
,
,"
[qhanges in family structure have not been II major Cause of continuing high poverty
rates since the early to mid-I9705; rather, lower real wages of men and women have
increased the difficulty of rising from poverty through employment.•.. After the
early 19705, black gains in relative earnings and incomes slowed and then deteri~,
rated for 'many indicators ofaverage status..•. In particular, men's earnings and
, other aggregate measures of black income were, relative to wbite measures. lower in
tbe mid·1980s than in 1970 and in many cases no greater than tbe levels reached in
the 1960s.
' '.
'
Id. at 323.
18 Id. at 310.
,19 See Bureau of Labor Statistics, U.s. Dep't of Labor, Employment and Earnings.
May 1992, at 23 wI. A·14 (reponing that, as percentage of civilian labor force in April 1991
and April 1992, blacks were nearly twice as likely to have lost their jobs as whites).
20 A Common Destiny, supra note 17, at 312 ("[L)arge occupational differences remain
[between wbites and blacks), and black5'are stiU greatly overrepresented in low-wage; low-
skill jobs.").
' '
21 See Richard B. Freeman, Black Economic Progress after 1964: Who Has Gained
and Why? in Studies in Labor Markets 247. 251 (Sherwin Rosen ed., 1981); see also Je
rome M. Culp &. Glenn Loury, The Impact of Affirmative Action on Equal Opportunity:
A New Look. in Bakke. Weber, and Affirmative Action 124 (RockefeUer Foundation
Working Papers, Dec. 1979).
22 See Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotia·
tions; 104 Harv. L. Rev. 817, 819 (1991) (discussing study sbowing that retail car dealer
ships offered substantially better prices on identical cars to wbite men than to bIacIc men).
Williams, Jr. eds., 1989) [hereinafter A Common Destiny):
:.,.
~,
. ~.
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.~ .
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"'.
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I:
it
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------..
Ii
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168
NEW YORK UNWERSrrY LAW REVIEW
[Vol. 69:162
Strauss has called colorblindness a "slogan" and "myth"'and has ar
gued powerfully that one cannot attack discrimination without hurting
"innocent" people and drawing attention to race.2J Professor Strauss
argues persuasively that the antidiscrimination principle is, a double
edged sword and, properly understood, may require some race-con
scious hiring to get around the economic and legal difficulties of en- .
forcing antidiscrimination legislation.24 Kathleen Sullivan has arglJed
that we _
ought to focus race-conscious policies on remedying future
inequalities that are likely to exist rather than look for past "bad"
actors. 25 Louis Michael Seidman has made the interesting observation
that Brown v. Board of Education 26 and Miranda v. Arizona2? both
enforce a false sense 'of equality by suggesting that people have con
- sented to their oppression.28 Professor Neil Gotanda has argued that
colorblindness is a multifaceted thing when used by the' courts, but
that it cannot, as presently formulated, achieve its goal of equality.29
None of the_se important and thoughtful scholars has attempted to
deconstruct the widely accepted notion of colorblindness as morality.
When Justice O'Connor laments that "[w]e ought not delude our
selves that the deep faith that race should never be relevant has com
pletely triumphed over the painful s,ocial reality that, sometimes,' it
23 See David A. Strauss. The Myth of ~Iorblindness. 1986 Sup. Ct. Rev. 99:
The prohibition against racial discrimination prohibits-and must necessarily pro
- hibit-the use of ac:curate racial generalizations that disadvantage blacks. But to
prohibit, accurate racial generalizations is to engage in something very much like af
firmative action. Specifically. a principle prohibiting ac:curate racial generalizations
'"
has many of the same characteristics as affirmative action; and the various possible
explanations of why accurate racial generalizations are unconstitutional lead to the
conclusion that failure to engage in affirmative action may also sometimes be uncon
'stitutional. ... I am not suggesting at this point that it is_ impossible to draw a com
mon sense distinction between affll1lllltive action and nondiscrimination. But critics
of affirmative action attack it on the ground that it causes innocent people to suffer:
and that instead of enforcing colorblindness. it draws attention to race..•. (T)he
prohibition against discrimination has precisely these characteristics as well.
Id.at 100-OL
'
2A See id. at 100. 118-34; Strauss. supra note 8. at 1654-56 (arguing for race-c:onsclous
. hiring through use of numerical standards).
25 See Kathleen M. Sullivan, Comment: Sins of Discrimination: Last Term's Affirma
tive Action Cases, 100 Han. L. Rev. 78, 80-81 (1986).
26 347 U.S. 483 (1954).
Z'1 384 U.S. 436 (1966).
28 Louis M. Seidman, Brown an,d Miranda, 80 Calif. L. Rev. 673, 752 (1992) ("Brown
and Mirandp created a world where we need no longer be concerned about inequality
because' the races are now definitionally equal and a world where we need no longer be
concerned about official coercion because defendants have definitionally consented to
their treatment."). '
, 29 See Goranda, supra note 16, at 63.
-;.~, - .,'. ,COLORBUND REMEDIES,
April 1994]
169
may be,"30 she seemS to assume both that colorblindness is the moral
imperative-our long~term goal-and that it is simply human foible
that prevents such a, glorious eventuality. Even though Justice
O'Connor's assumption is. shared across the political spect~, I be
lieve her conclusion concerning the moral status of colorblindness is
not only wrong, but dangerous, because it removes whole questions
froin the legal discourse, questions that we desperately need to ask.
In addition, I want to emphasize that racial oppression is constituted
of multiple oppressions that exiSt in our society-including gender.
class, sexual orientation, and ethnic' oppressions-aU intersecting to
create a complicated reality that simplisti~ dictates of "race-neutral
ity" can never hope'to address. ;;~;.,_, ,~i ,,- - _ _ ,,_,
•
Accordingly, I' conclude' that /oo(orbliildness-far flom a moral
principle that ought to govern everywhere-:-is an inadequate policy
prescription for altering the racial status quo. In Part.l. I discuss his
torical treatment. of tl)e concept of colorblindness and distinguish
moral arguments from policy arguments. In Part II, I ~xamine the
major public policy, arguments made in defense of colorblindness and
argue that there are better Y{ays to ,pursue racial justice. I also con
tend that, for reasons that are understood elsewhere but not applied
against the race-neutral argument, it is generally impossible to attack
racism without dealing. with race. - In Part III, I t~rn to the Court's
recent decision in Shaw v. Rtln0 31 to show how the application of col
orblind principles is· itself often -an impossible proposition in a world
where the temptation to "peek" at race is, compelling,
.10:-."
I
-i·:
:.;:'
A
BRIEF HISTORY OF THE CoLORBLIND PRINCIPLE
'"i·
~~h
,.t:
. [The question is simply how to create a legal system that considers
blacks to be] white men with black skins,' nothing more and notbhtg
less.n
30 Brown v. Nonh Carolina, 479 U.S. 940, 941 (1986) (O'Connor,
J., concurring in de
nial of certiorari).
31 113 S. Ct. 2816 (1993).
:12 Kenneth M. Stampp, The
,"):
Peculiar Institution viii (1956); This phrasing of the issue
_.
caused some contmversy among historians. Stampp notes,
I did not, of course, assume that there have been, or are today, no cultural differ
ences between white and black Americans. Nor do i regard it as flattery to Call
Negroes white men with black skins. It would serve my purpose as well to call Cau·
casians black men with white skins. I have simply found no convincing evidence that
there are any significant differences between the innate emotional traits and intellec
tual capacities of Negroes and whites.
Id. at ix.
')
�170
NEW YORK UNIVERSITY LAW REVIEW
April 1994]
[Vol. 69:162
I would lik~ to distinguish between policy arguments, which make
claims about the impact of a particular decision upon concerns mea
surable in some particular way, and moral arguments, which make
claims about justice. The statement in the Declaration of Indepen
dence that aU men are created equal is a moral claim based on notions
of justice embedded in Jeffersonian language.33 The argument for
market economies in Eastern Europe is a. policy argument based on
the "failure" of communism and the "success" of capitalism.34 The
claim by Justices Marshall and Brennan that the death penalty is im
moral is obviously a moral claim, as is the claim by Justices Scalia and
Rehnquist that some crimes are so heinous that they require the state
to respond by taking the offender's life.3s · The argument that the
death penalty will reduce the number of murders is a policy argument
about the efficacy of capital punishment that is used to enhance the
moral claim for the penalty's necessity.
Neither side of a moral debate is likely to be persuaded by proof
that the policy claims support or discredit their moral positions. Policy
arguments can be disproved by empirical evidence and chaUenged by
showing that in some situations the policy does not work or has con
trary results. To refute a moral claim, however, first requires som~
agreement on the moral framework. Only then can one discuss
whether the moral policy advocated conforms to the agreed-upon
framework.
.
Of course, these two different kinds of claims are connected.
People enhance their moral claims with arguments about the social
efficacy of a particular policy. And policy arguments presume some
implicit moral c<?defor valuation. Those in favor of free markets ar
13 See generally Charles L.GriswoJd, Jr., Rights and Wrongs: Jefferson. Slavery. and
Philosophical Quandaries. in A Culture of Rights 144 (Michael J. Lacey & Knud Haakon~
ssen eds.• 1991) (examining contradictions between language of Declaration of Indepen
dence and Jefferson's life and writings).
34 This is a comparison made of the relative worth of the two systems of government
and economic activity. It is possible that both are failureS or successes when measured
against other systems.
15 See. e.g.• Furman v. Georgia, 408 U.S. 238. 360 (1972) (Marshall. J•• concurring)
(W[E}ven if capital punishment is not excessive. it nonetheless violates the Eighth Amend
ment because it is morally unacceptable to the people of the United Slates ...."); id:at 296 .
(Brennan. J•• concurring) (U AlthOUgh pragmatic arguments for and against the punishment
have been frequently advanced •... faIt bottom. the battle has been waged on moral
grounds. "); Simmons v. South Carolina, 114 S. a. 2187. 2202-03 (1994) (Scalia. J•• dissent
ing) ("I am sure it was the sheer depravity of [the crimesl. rather than any specific fear for
the future. which induced the South Carolina jury to conclude that the death penalty was
justice."); Roberts v. Louisiana. 431 U.S. 633, 648 (1977) (Rehnquist. J.• dissenting)
CU[ C]ertain crimes are themselves so grievous an affront to humanity that the only ade
quate response may be the penalty of death.'" (quoting Gregg v. Georgia, 428 U.s. 1S3;
·184 (1976».
I
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, COLORBLIND REMEDIES
171
gue that theyhave'produced and will produce a more moral society
because individual economic freedom supports the general ability of
individuals to become "complete" citizens.36 Here, the moral argu
ment reinforces the policy claim for the efficacy of markets.
It is because of the differences between the two types of argu
ments that policy claims masquerading as moral claims can be so pow
erful. Since the only way to refute a moral claim is to question the
framework of valuation, these policy claims tend to force their oppo
nents to argue with and lose to strawmen. It therefore becomes im
portant to distinguish oetween the moral arguments and the policy
argumentS embedded in social. discourse.
: The genuine inoralgoal associated with race is to end race-based
. oppression. Colorblindness may sometimes accomplish this moral
goal, but it is not the goal itself.' Therefore, the colorblind principle in
modem cOl;1Stitutional discourse must be seen as a policy argument
and not a moral precept.
'
It is easy to, see that .the colorblind ideal is not sufficient to pro
tect us from moral dilemmas if one examines early efforts of our citi
zens to be colorblind. The white men who adopted the Constitution
refused to put the words "race," "color," or "slavery" anywhere in its
text,31 The Constitution was thus formally "neutral" toward race,
slavery; and color. This conscious decision to be colorblind, of course,
did not prevent the creators of the American constitutional order
from accepting the pernicious American fonn of slavery. The Consti
tution was, in modem consti~utional parlance, facially neutral while
protecting racial subjugation by private parties and even governmen
tal entities.
.
Moreover, the Constitution is Colorblind in a particularly· inapt
and improper way. A1though'the text's silence on race might allow
the superficial appearance of racial "equality," in fact the colorblind
ness serves to enroree the racial present. By denying the law the
36 See Friedrich A. Hayek, The Road to Serfdom 147 (1976) ("The principle that the
end justifies the means is in individualist ethics regarded as the denial of all morals. In
collectivist ethics it becomes necessarily the supreme rule." ).
37 The Constitution does refer to "Indians not taxed"'to denote Native Americans re
siding on tribal lands., See U.S. Const. art. I. § 2. cl. 3 ("Representatives and direct Taxes
shall he apportioned among the several States which may be included within this Union.
according to their respective Numbers. which shall be determined by adding to the whole
Number of free Persons, including those hound to Service for a Term of Years. and exclud
ing Indians not Thxed, three fifths of all other Persons. "). See generally Jerome M. Culp.
Jr., Thward a Black Legal Scholarship: Race and Original Understandings. 1991 Duke LJ.
39 (discussing history of legal scholarship and its exclusion of, and need for. a black legal
scholarship); Anthony Cook. The Temptation and the Fall of Original Understanding. 1990
Duke LJ. 1163 (reviewing Robert H. Bork, The Tempting of America: The Political Se
duction of the Law (1989» (critiquing Bork's originalist constitutional philosophy).
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power to take account of and, therefore, to rectify the status quo, col
orblind morality sustains a racially subordinate present for African
Americans.
When courts and commentators argue for colorblindness, they
implicitly are making both a public policy claim and a moral state
ment. The policy assertion is that colorblindness' will achieve social
goals effectively, and t~e moral.claim is that the society so produced
will be an objectively good one. If we understand, however, that the
public policy claim ultimately reinforces the status quo of a society
that is racially oppressive, then it is clear that the moral claim actually
defends the white supremacy reflected in existing social arrangements.
In such a "race-neutral" world, subordination of black people be
comes the natural state unchangeable by public policy or other efforts
by governmental agents. 38
I want to acknowledge at this point that there are reasons for
wanting to protect the status quo. For the white majority in this coun
try, the status quo may seem to represent powerful property and sta
tus rights that are difficult to forsake. 39 I have some stake in the status
quo as a member of the middle class, a tenured law professor who .
owns a house .and an automobile and enjoys a well-paid, highly re
'garded job..While it may be morally right to provide some level of
stability and protection to interests such as these, stability itself does'
not represent universal fairness. In a system of racial inequality, the
moral claim of colorblind ness is, in reality, an enforcement and de~
fense of a status quo that leaves blacks and many other racial minori
ties at the bottom of the economic ladder.
38 The Supreme Court's decisions in Croson, Wygalll, and Bakke may be understood
only as pursuing this colorblind status quo. See City of Richmond v. J. A. Croson Co., 488
U.S. 469. 505-06 (1989) ("lb accept Richmond's claim that past societal discrimination
alone can serve as the basis for rigid racial preferences ... would be contrary to both the
letter and spirit of a constitutional provision whose central command is equality. "); Wygant
v. Jackson Bd.. of Ed.• 476 U.S. 267, 276 (1986) (plurality opinion) ("Societal discrimina
tion. without more, is too amorphous a basis for imposing a racially classified remedy.");
id. at 274 ("This Coun has never held that societaJ discrimination alone is sufficient to
justify a racial classification."); Regents of the Univ. of California v. Bakke. 438 U.S. 265,
310 (1978) (Powell. J.) ("[T]he purpose of helping cenain groups [who are] perceived as
victims of 'societal discrimination' does not justify a classification that imposes disadvan-.
tages upon persons ... who bear no responsibility for whatever harm the beneficiaries of
the program ... are thought to have suffered.").
.
39 For a discussion of the propeny interests attendant to racial status, see generally
Derrick Bell, Does Discrimination Make Economic Sense? For Some, It Did and Still
Does, 15 Hum. Rts. 38 (1988); Derrick Bell, Racism: A Prophecy for the Year 2000, 42
Rutgers L. Rev. 93 (1989); Culp. supra note 37; Barbara J. flagg, "Was Blind and Now I
See"; White Race Coosciousness and the Requirement of DiScriminatory Intent. 91 Mich.
L. Rev. 953 (1993); Cheryl L Harris, Whiteness as Propeny, 106 Harv. L. Rev. 1709 (1993).
.j~"'"
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COLORBLIND REMEDIES
, 173
When I speak of the status quo, I do not mean an absolutely fixed
. relationship between blacks and whites, but rather a range of positions
responsive to the relative, power of blacks and whiteli in American
society. At various points, African Americans have made progress
relative to whites in various ways (though not as much as some be
lieve).40 Their progress has been greatest during periods associated
with race-conscious public policies such as the activities of the Freed
man's Bureau during Reconstruction and the race-conscious policies
of the government during World War II and the Vietnam War.41.
One remaining question is ~hether I have minimized the benefits
that colorblind morality can produce. Take. for example. Loving v.
Virginia,42 the 1967 decision which struck down a Virgin!a statute
prohibiting interracial marnages becaUse the statute violated the due
process and equal protection clauses of the fourteenth amendment.
Proponents of the colorblind principle would certainly contend that
the advantages black citizens gained from the elimination of a race
conscious statute (prohibiting all nonwhites from marrying whites
with the exception of descendants of Pocahontas,43) are a direct result
of the Court's implementation of the colorblind principle. Many
would say that colorblindness served the goal of equality and morality
by freeing interracial couples from the threat of criminal prosecution..
- Unfortunately, this view of the racial reality is stunted and inex
act. The real moral duty in Loving is not simply to permit those who
wish to marryinterracially to escape criminal prosecution. but rather
to be able to choose whomever they wish to marry, free from social
and political violence. The Court's overturning ofthe Virginia statute
did not make yirginia safe for the Lovings (a black woman and a
.40 See A Common Destiny. supra note 17.
41 See, e.g.• Freeman, supra note 21, at 269-84 (attributing changes in relative position
of blacks in late 1960s to advances partially wrought by government policy); see also Wil·
liam Cohen, At Freedom's Edge: Black M.obility and the Southern White Quest for Racial
Control, 1861-1915. at 48-49 (1991) (discussing Freedmen's Bureau's function as equalizer
of labor supply and labor demand, "assisting planters who wanted labor and freedmen who
needed jobs"). I would contest the'largely unsupponed theory of market-driven raciaJ
progress advanced by Thomas Sowell. See Thomas Sowell, Markets and Minorities (1981).
Rather. I believe that the market provides relatively narrow opportunities for economic
progress outside of race-conscious effons of individuaJ groups and corporatioos.
42 388 U.S. 1 (1967).
43 See id. at 5 n.4 (quoting §§ 20-54 of the Vuginia Code, prohibiting whites to marry
"any save a white person, or a person with no other admixture of blood than white and
American Indian. " and attributing this exception to, in the words of the Registrar of Vir
ginia's State Bureau of Vital Statistics, "the desire of aJ1 (Virginians] to recognize as ao
integral and honored part of the white race the descendants of John Rolfe and Pocahontas
....").
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NEW YORK UNIVERSITY LAW REVIEW
[Vol. 69:162 .
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white man),44 nor did it change the racial status quo in which an indi
vidual's status is changed because of a mixed marriage. 4S The Court
could not truly believe that it would be safe for an interracial couple
to seek to marry in Virginia after this decision. 46 The Court could
have adopted a racially conscious policy that would truly protect the
interests of people in racially mixed marriages,47 but it. did not, pri
marily because the colorblindness principle does not aim to change
the status quo; it simply asserts that colorblindness is morality. Black
people who marry white people gain status, and some envy, both
before and after the constitutional change. Whites who marry blacks
continue to lose social status and family inheritances. Nothing in this
~
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17S
principle of colorblind treatment alters the stereotypes associated with
the miscegenation'taboo. Rather, those rules have changed, to the
extent they have,primarlly as a result of concerted eff9rts of individu
als to attack· the racial stereotypes directly. In short, the colorblind
principle does not eliminate the problem of' racial subordination in
our society or its social and economic consequences for African
Americans. ' ~'''c''
,,
.
Some proponents contend that colorblindnesS is the appropriate
p.ublic policy given the: traditional roles of the state and the private
sector; This view holds that the government's job is to do no harm,
and colorblindness fulfills this function because discrimination perpe
trated by:govemmental: ~tion is more. pernicious and beCause the
44 See id. at 3 (noting trial judge's statement that God "placed (the races] on separate
government will alwayS have difficulty detenriining what is correct or
,
continents" because "he did not intend for the races to mix").
4S See. e,g., John F. Dovidio & Samuel L. Gaertner. Changes in the Expression and
appropriate. 'Under this diVision of labor, the private sector is then
Assessment of Racial Prejudice in Opening Doors: Perspectives on Race Rela,tions in
free to create a'new and different racial status quo if it wishes. The
Contemporary America .119, 126 (Harry J. Knopke et aL 005., 1991). Dovidio and
problem is that like most evolutionary processes, private individuals
Gaenner found that:
'
Nationwide polls also indicate that personal acceptance of blacks is far from com'
can produce change, ,but that change may not. produce justice_ What
·plete. Relatively high proponions of respondents continue to show racial biases on
colorblindness does 'in the case of interracial couples, for example, is
items involving some degree of intimacy between blacks and whites. A Harris Poll in
to assert a'moral claim but nevertheless. allow private parties to. dis
1978 revealed that only 35 percent of whites favored full integration (another 42'
percent favored integration in some areas). In 1981,31 percent of whites surveyed'
criminate against people in both legal and illegal ways. Therefore,
preferred not to have blacks as neighbors; in 1988, one-third of white respondents
although colorblindness may be the correct policy in an appropriate
preferred to live in "a neighborhood with mostly whites. ~ Although in 1982 the ma
situation, the proponents of colorblindness cannot simply "assume"
jority (66 percent) of whites opposed laws prohibiting interracial marriage, in 1983, the
that race-neutrality is synonymous with morality. Rather, 'they must
majority of whiles (60 percent) personally did not approve of interracial marriage.
Id. (emphasis added) (footnotes omitted).. '
,
'
"
.
convince us ofa moral result.
46 Virgbiia. after all, is the place where Nat 'furner's and Gabriel Prosser's rebellions
Some of you 'who kDowyou~ history' better tium the average law
took place. See generally Stephen B. Oates, The Fires of jubilee: Nat 'furner's Fierce
Rebellion 16-18 (1975). Notably, the black female/white male miscegenation presented in
student and law professor will protest at this point that the colorblind
the Loving case did nothing to dislodge the, patriarchal "defense" of white womanhood '
argument was used' most forcibly before' the Civil War by "free"
that was so central to the construction of racial politics in Vrrginia and many other south
. blacks seeking to eXtend the rule of law to themselves and others.48 I
ern states. See, e.g., Calvin C. Hernton, Sex and Racism in America xi-xii (1988), Hernton
stated:
believe that their claims support rather than defeat my point, for ulti
[T)he abusive insults'and violent acts committed against interracial couples in our
mately what these early advocates argUed for and what they got-in
daily lives on a local level are seldom brought to public attention. One learns of such
the limited instances in which they were successful-is protection of
happenings by word of mouth, from friends and acquaintances, or by chance, from
their own privilege, with little change in the racial order. Racial sub
being on the scene when they are perpetrated. In Chattanooga, Tennessee, a white
"
woman was horse-whipped by white men for "carrying on" with a black lover.
,Id. Thus, even after Loving, interracial couples would still be subject to potential threats
and private harm for breaking the miscegenation taboo. Was it an accident that the
Supreme Court ruled iii a ~ involving a black woman and a white man? This situation
was least likely to inflame the passion of southern society.
47 For example, the Coun could have granted some direct remedy, or at least ordered
the state affirmatively to protect the interests of interracial couples. After all, the State of
Vrrginia had helped to create this very climate of fear and danger for such couples. The
trial judge in Loving, for example, had suspended, their one-year prison sentence on the
condition they leave the state for 25 years. See Loving v. Commonwealth. 147 S.E2d 78,
82-83 (Va. 1966) (vacating sentence and remanding to trial coun); see also Howard Schu
man et aI., Racial Attitudes in America: 'Ii'ends and Interpretations 83 (1985) (reponing
that fewer tban 50% of white res,idents of the South opposed laws against intermarriage).
:;
..
48 See Celeste M. Condit & lobo L. Lucaites, Crafting Equality. America's Anglo
African Word 69-98 (1993) (discussing public rhetorical efforts of African Americans in
antebellum period to expand usages of concepts such as equality and liberty in order to
fight against their status as a politically constituted people). Such efforts were only pan of .
the discourse of African Americans iii the antebellum period. Some of the arguments for
abolition were deemed too radical to publish, and some people, like David Walker who
publisbed such ideas, subsequently disappeared or were killed. ,See lane H. Pease & Wd
liam H. Pease, They Who Would Be Free: Blacks Search for Freedolll, 183()..1861, at 1~
11 (1990).
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(Vol. 69:162
ordination did not end in Massachusetts just because blacks were fi
nally admitted to the railway car.49
,
In thinking and talking about how to deal with race, courts and
commentators often .confuse the notion of colorblindness-the re
moval of race from' the legal and governmental discourse-with the
antidiscrimination principle-the elimination of deprivations based on
race. so The antidiscrimination principle can be read in a colorblind
way; i.e., we could have written TItle VII to require, for example, that
people be hired on production and merit-based grounds. The statute
would not mention race, but would implicitly eliminate racial choices
in an employer's "meritorious" and "production-based" decisions.sl
However, Congress did not adopt this approach in passing .the four
teenth amendment and TItle VII of the 1964 Civil Rights Act. In
stead, the Reconstruction amendments and the Civil Rights Acts of
the modem era mandated the elimination of social and economic race
privilege.s2
This aspect of the antidiscrimination principle is explicitly color
conscious. Thus, race is a. salient issue for courts when deCiding
whether the thirteenth or fourteenth amendments apply in constitu
tional interpretation. The antidiscrimination principle aims to change
the present by enforcing different norms on some decisionmakers.
However, the antidiscrimination principle cannot fulfill this aim when
it is colorblind, precisely because it cannot then acknowledge the ra
cial present. Although a colorblind antidiscrimination principle would
perhaps prevent an increase in racial subordination, it cannot hope to
COLORBLIND REMEDIES'
171
. change the status quo. S3 The antidiscrimination principle therefore.
loses its power to effect real societal change when it becomes
colorblind.
II
COLORBLlNDNESS AND MULTI-OpPREssIONS: THE PUBLIC
POLlCY DEFENSE OF CoLORBLlNDNESS
...: .
.
, '
Even the proponents of colorblindness must acknowledge that
the raciai status.quo is at present unfair to black Americans. Accord
ingly, the policy argument most frequently advanced in defenSe of the
colorblind principle is that race is a poor proxy for addressing eco
nomic inequities,Proponents argue that there is always a different,
indeed better; proxy'thatwill be coiorblind while permitting the gov
ernment or decisionmaker to move us closer to a just society.
This view of the power of colorblind remedies is held by a wide
spectrum of people. Judge Richard Posner, for example, argues that
race was the wrong measure in DeFunis v. Odegaard/54 a pre-Bakke55
challenge to' affinnative' action i~ university admissions. 56 Posner
states:
',. .
Furthermore, the impact of eliminating racial preference is easily
exaggerated. The preferred groups [who would benefit from affirm
ative action] could be redefined as the underprivileged, the de
prived, etc.--classifications not based upon race or ethnic origin.
The constitutional objection to preferential treatment would
thereby be removed, '!ithout substantial impairment of the pur
poses of such treatment. 57
Likewise, Paul Brest, a leading liberal thinker and scholar, argues
in his influential article on the antidiscrimination principle that "[rJace
is, at best, a weak proxY for need; there are more direct and accurate
ways of identifying needy people. "58 The Supreme Court ultimately
took this same approach when it "solved" the problem of affirmative
action in Bakke. In the opinion for the COurt, Justice Powell wrote
that the use of race as a facJor in admissions decisions might be valid
as long as its use merely effectuates some neutr~ policy of diversity
49 See Louis Rucbames, Jim Crow Railroads in Massachusetts, in Blacks in White
America Before 1865. at 394, 4fl6-07 (Robert Haynes ed., i972) (describing end of segre
gated railway cars in Massachusetts).
S() See Paul Brest, The Supreme Court 1975 Term, Foreword: In Defense of the An
tidiscrimination Principle, 90 Harv. L. Rev. 1, 53 (1976) (arguing that tbere are more direct
ways of identifying needy people than by race).
51 This proposal assumes,of course, that such race-neutral standards exist and that
there are no hidden racial considerations buried within the choices made through the use
of production and merit.
n The thirteenth amendment states that "[n)either slavery nor involuntary servitude
... shall exist within the United States, or anY'place subject to their jurisdiction." U.S.
Const. amend. XIII, § 1. The fourteenth amendment states that "[n)o State shall make or
enforce any law which shall abridge .the privileges and immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV, § 1. Title VII of the Civil Rights Act of 1964 states that
. "[i]t shall be an unlawful employment practice-for an employer ... to fail or refuse to bire
or to discharge any individual, or otherwise to discriminate against any individual witb
respect to his compensation, terms, conditions or privileges of employment, because of
such individual's race, color, religion. sex or national origin." 42 U.S.C. § 2000e-2(a)(1)
(1988).
53 See Jerome M. Culp, Jr., Diversity, Multiculturalism and Affirmative Action: Duke,
the NAS. and Apartbe·id. 41 DePaul 1.. Rev. 1141, 1144-52 (1992) (arguing that racial 0p
preSsion is a box created by the way we define ourselves and the way in which we aIe
defined by others).
54 416 U.S. 312 (1974) ..
55 Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978).
56 See Ricbard A. Posner. The DeFunis Case and the Constitutionality of Preferential
1reatment of Racial Minorities. 1974 Sup. Ct. Rev. 1.32.
S7 Id.
sa Brest, supra note 50. at 53.
.......
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NEW YORK UNIVERSITY LAW REVIEW
178
, not directly connected to racial justice.59 Justice powell's indirect sup
port for this "Harvard Plan" approach.has embedded within it a policy
argument that the current racial status quo will eventually, if slowly,
produce parity in educational admissions. Justice Powell's opinion
seems to argue that, by implementing the kind of multiple-factor bal
. ance of Harvard's admission program. the neediest, most underprivi
.
leged individuals wiD make it to medical school.
In fact, educational affirmative action plans often take from the
pool of minoritie~ those applicants with the smallest intersection of
race and poverty because such choices require the least investment in .
seeking out and preparing people to be students in these i,nstitutions.
We could find students from among those with more diverse back
grounds to admit to our schools, but ultimately we choose not to be
cause this brand of race consciousness is financially and ideologically
expensive. We prefer the mildly race-conscious policy because it is
cheaper and likely to change us the least. I think such efforts are :im
portant in order to break doW£', stereotypical views about race and
performance, but I do not want to suggest that such efforts will elimi
nate intraracial class disparities. Most affirmative action policies are
blind to t~e interseCtion of race and poverty and thus support this
intrarace version of the status quo. Unfortunately, colorblindness in
no way addresses this particular problem. Nonetheless, the critique of
race-based affumative action and defense of colorblind ness on this
point endures.
For example, in City of Richmond v. I. A. Croson Co. ,(:lJ Justice
O'Connor reiterated this familiar policy argument. She wrote:
I.:
Even in the absence of evidence of discrimination, the city has
at its disposal a whole array of race-neutral devices ·to increase the
accessibility of city contracting opportunities to small entrepreneurs '
of all races. Simplification of bidding procedures, relaxation of
bonding requirements, and training and fmancial aid for disadvan
taged entrepreneurs of all races would open the public contracting
market to all those who, have suffered the effects of past societal
discrimination or neglect. . . • Their eliMination -or modification
would have little detrimental effect on the city's interests and would
serve to increase the opportunities available to minority business
61
without classifying individuals on the basis of race.
S9 See Bakke, 438 U.S. at ·320 ("In enjoining petitioner from ever considering the race
of any applicant. the courts below failed to recognize that the Slate has a substantial inter
est that legitimately may be served by a properly devised admissions program [like
Harvard's] involving the competitive consideration of race and ethnic origin.").
60
488 U.S. 469 (1989).
61
Id. at 509-10.
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179
Justice O'Connor assumes, as did Judge Posner and Professor Brest,
that race is an empty box into which other things, like poverty and
oppression, are added and that if we take out those other attributes no
important difference connect~ to race remains.
This assumption is overly simplistic for two reasons. FITSt, the
issue of race derives much of its importance from what other thingS
are added to the box. Taking the most obvious example, in our society
. being poor and black ,is extremely different· from being poor and
white. Not only ~,poor whites likely to start with greater wealth,
they are. also less likely to remain, in poverty as long as poor blacks
do.62 Similar results emerge from data on the employment and other
experiences of. w.or~ers, .i~ !b.ej9b_..~ar~~t'?,:i J1lese data indicate that
race is not simply' a' proxy for'something else. Poverty, unemploy
ment, and even' social status are often poor estimates of the costs im
posed on blacks. by differ~ntial treatment, as indicated by the high
degree of imperfection in'all of our social scientific measures of pov
erty, income; r.lass, and disadvantage.64 Therefore, although efforts to
solve the problem' of racism .by reducingM poverty are bound to
achieve some admirable goals, they will almost never "resolve" the
issue of race. Racism can be destroyed only by attacking the system
that produces it. If we do not .alter that, system,. racism will return
again and again to plague our ~fforts.
:. .
62 See Culp &. Loury, supra note 21, at 125·26 (concluding that blacks have lower per
,manentincomethanwhites). ' ;.,.;: .. :,.i ~ ,'. :""" ' , : , •
63 See Bureau of Labor Statistics, supra note 19. at 20 tbt A-ll (reporting that unem
. ployment rates of blacks age sixteen and over is more than twice that for whites age sixteen
. and over for years ending April 1991 and 1992).
,
64 This is an issue th~t can be thought of as a problem in mCasure~ent. Assume that as
a Court or legislature you want to know the value x, but that you cannot measure x directly.
For example. it is difficult to measure disadvantage. Income, wealth, social background.
education, and a host of other factors enter into this equation, but there is no direct mea
sure of disadvantage: In order to make the claim that race-neutral pOlicies are most effec·
tive. one must show that the error associated with race is always larger than the error
assOciated with other variables. This is an almost impossible; task. In this situation we are
measuring race, and any estimates of race, whether by measuring income. size of businCS1.
or personal background, are always likely to have significant errors associated with their
use. See generalJy Edward E. Leamer. Specification Searches 226-59 (1978) (discussing
extent of possible infer~nces about theoretical parameters when hypothetical variables are
measured with.error).
.
' .. ".; .' '
6S It might be possible to remove all income differences 'Of importance and therefore
eliminate the racial differences. but no policy that is being discussed plans to accomplish
that task. Indeed, it may be the existence of racism that prevents our society from imagin
ing strategies which would truly eliminate poverty and social differences. But See Paul M.
Sniderman &. Thomas Piazza, The Scar of Race 21·22 (1993) (reporting that white Ameri
cans favor programs to ameliorate racial difference until mention' is made of affirmative
action).
ill
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180
NEW YORK UNWERSITY LAW REVIEW
[Vol. 69:162
Second, in trying to use something other than race to create
'change, the practitioners of colorblindness have assumed that all ,op
pressions are parallel; i.e., that these oppressions do not intersect· to
alter and change their individual natures. We know from empirical
data, however, that these oppressions often overlap. The interaction
of race and poverty is so great that it creates a separate and distinct
existence for many African Americans.6<S Worrying about class in
such situations does not eliminate the intersections between race and
class. As I have argued, even worrying about class as a subset of race
may be insufficient to deal with the subordination and oppression cre
ated by these intersections.
'
,.",,~The claim made by the'proponents of colorblindness ultimately
becomes an argument about the worth of race relative to other cate
gories of oppression. Those who believe that colorblind policies will
be effective are contending that these other categories {class, income,
age, status, etc.} are better measures of disadvantage than race. ' I
would argue that this contention is generally not true. If we ~liminate
poverty, we will not eliminate racism for the precise reason that ra
. cism was not the focus of the attack. Indeed, we will not even elimi~
nate the intersections between race and class in such situations,
because they are likely to be resistant to purely class-based attacks.
Programs to eliminate poverty, for example, may reach "poor" 'peo
ple, but may not always help the truly disadvantaged in the inner
cities.
..
Indeed, every time the Supreme Court has argued that a race
conscious policy was incorrect, it has done so in ways that support the
continuation of the racial status quo. When Justice Powell's concur
ring opinion became the opinion of the Court in Bakke, the Justices
enshrined in the public discourse the view that the race-conscious
remedies adopted by the University of California were unconstitu
tional and incorrect. Subsequent adoption of the Harvard muJtiple
factor approach,67 however, has produced (and continues to produce)
" opportunities for precisely the kind of white people who, had they
.been black; would have been described as undeserving or not among
the truly disadvantaged; i.e., students with paralegal backgrounds who
have, at the moment, nothing in their bank accounts: The Harvard
policy only changes the current opportunity structure if,the operators
of the system are, in fact, race-conscious. Because of the income and
.
April 1994)
'W;~~"':COLORBLlND
REMEDIES" .f,;,,"~"
IB1
ciass factors;
i
,
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there are always many white people who will appear to
be disadvantaged but who are not, "truly disadvantaged."68 .
Take; for example, Justice O'Connor's assertion in Croson that
the City of Richmond could have a.ddressed the problem of too few
minority contractors by trying, among other things, to help small busi
nesspeople obtain credit.69 This suggestion sounds good, but pro
grams making cred~t .more ,obtainable, az:e likely to help
disproportionately' those white contractors who, for all of the reasons
that race matters; are better able to take advantage of such programs.
Moreover, past experien,ceand economic constraints suggest that
many governmentalprogiams lack the. r~sources needed to influena:
enougb:blac~;,s~~''?.l!Sinesses to~eate meaningful change. like
every other governmental endeavor, such programs have limited
funds. The more. money that is allocated to white contractors, the
fewer resources' that wiiL be spent changing the c~rcumstances of racUd
minorities. The,program that Justice o.'q:,nnor urges will effect little
change in the relative posrtiori of black- and white-owned businesses.
Although those who oppose ~ace-conscioUs policies acknowledge this
point, they contend that race-conscious. polic::ies suffer similar
problems because only "wealthy" \":Ir ~suburb~n" blacks will benefit
from such programs, while those who are "truly, disadvantaged" will
be ignored.7°This critique of affIrmative action is widely heard, but
its implications for colorblind policy are generally ignored.
In the end, almost all policies create change through imperfect
instruments. AS a resuJt, there is an error in. measurement associated
with their imph;men~tion. Nevertheless, I would ~ontend that race is
-:
H~' _~. . •
;'t
68 The Court failed in a similar way to deal with the issue of "the disadvantaged" in
Wygant v,1ackson Bd. of Ed.• 476 U.S. 267 (1986), In Wygant. the 1ackson school board
had negotiated a collective bargaining agreement that provided superseniority protection
for newly hired black teachers who had been recruited with great difficulty to the school
district. See id. at 270 (plurality opinion). A plurality of the Court concluded that tbc
greater protection for the recruited black teach,ers violated the equal protection rights of
the white incumbent teachers despite the fact that the Jackson school district had many .
black children but few black .teachers. See id. at 283-84 (plurality opinion). In contrast,
when a court eliminates a negotiated protection for black teachers in a union contract, the
beneficiaries of the race-neutral seniority policy will most likely not be deell\ed. the ~truJy
disadvantaged." but rather white representatives of the status quo. ".,,'"
69 See City of Richmond v. 1. A. Croson Co.. 488 U.S. 469, 509-10 (1989).
70 . See Christopher 1encks. Rethinking Sociat Policy: Race. Poverty and the Underclass
57-58 (1992) (suggesting that affirmative action will not increase the number of jobs for
blacks but will only raise wages of those who have jobs); Thomas Sowell. Civil Rights::
Rhetoric or Reality? 51-52 (1984) ("Those blacks with less education and less job experi
ence-the truly disadvantaged-have been fa1Iing farther and farther behind ... under
affirmative action, during the very same years when blacks with more education and more
job experience have,been advancing economically .. : ."),e'
..~.,~
'-""';
.".
(j(\ For the groundbreaking study in this field. see generally William 1. Wilson. The nuty
Disadvantaged: The Inner City, The Underclass. and Public Policy (1987),
67 See text accompanying note 60 supra.
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�PRINTER FONT 12 POINT COURIER
. PRINTER FONT l2-POINT-COURIER
Affirmative Actiori Must Be Done the Right Way
"Affirmative action has been good for America. But
that does not. ,.mean'·'i t'< has always been perfect.
"That goes not mean .that it should go on forever.
,-Affirmative action should be retired when its job
is done -- and' I am resolved that that day will
come. But the job is not done."
President Clinton, Wednesday, July 19, 1995
Our Central Challenge. As we approach the 21st
ceritury, the President believes we must restore the
American Dream of opportunity; find Common Ground amid
our great diversity of opinion and experience;
strengthen the American commitment to Equal Opportunity
for all, special treatment fornorie.
.
Presidential Directive to Ensure Affirmative Action is
Fair. Affirmative action must pe consistent with our
ideals of personal responsibility and merit. On July
19, 1995, the President directed all federal agencies
to comply quickly with the Supreme Court's decision in
Adarand and to apply four standards to make sure that
all affirmative action programs are fair:
o
No quotas.
o
No reverse discrimination.
o
No preferences for unqualified individuals.
o
No continuation of programs that have met
their goals.
'
Any program that does not meet any of these four
principles must be eliminated or changed.
"Set-Asides" Need Reform.
In some cases, "set-asides"
have been misapplied, misused or eveninteritionally
abused. Therefore, the President Clinton has ordered
that
we:
o
Crack Down on "Set-Aside" Fraud and Abuse. Make
sure "set-asides" go to businesses that need them
most. No permanent "set-asides" for any company.
o
Comply with. the Supreme Court's Adarand decision.
Limit set-asides to areas where serious
discrimination remains.
o
Do More to Help Disadvantaged People and
Distressed Communities. The President has
directed the Vice President to develop new ,ways to
use government contracting to help businesses
locate in distressed areas and hire workers from
those areas.
\
�""
Done Right, Affirmative Action Works. President
Clinton ordered a review of the government's
affirmative action programs. That review concluded
affirmative action is still an effective tool to expand
economic and educational opportunity:
o
o
o
o
The military's approach, ensuring it has a wide
pool of qualified candidates for every promotion,
has given us the world's most diverse and best
qualified military leadership.
Education Department programs targeted at
minorities do a lot of good with a small
investment -- about 40 cents of every $1,000 in
student aid.
The goals and timetables first instituted by
President Nixon for large federal contractors have
prevented discrimination and fostered fairness-
without quotas or mandated outcomes.
"Set-asides" have helped build up firms owned by
'minorities and women'who were historically
excluded from the "old boy" network. They have
helped a new generation of entrepreneurs to
flourish, fostering self-~eliance and economic
growth.
We Have Made Progress Toward the Ideal of Equal
Opportunity:
We have passed major milestones:
Emancipation, women's suffrage, civil rights, voting
rights and equal rights~ That progress, won by hard
work and countless acts of conSCience, has allowed
millions of Americans, once on the fringe,to
contribute to our democracy and prosperity:
o
o
o
o
A true black middle class is emerging.,
Women are now major earners.
I
Higher education is now more open to women, racial
and ethnic minorities.
Police departments across the country reflect
diversity of their communities.
We Cannot Retreat While Discrimination Continues. We
must not become the first generation of Americans since
the end of Reconstruction to narrow the reach of equal
opportunity. We must continue the struggle toward
equal,opportunity for all and special treatment for
none. America cannot afford to waste a single person
as we confront new challenges. Affirmative action has
closed many gaps in economic opportunity, but we still
have a long way to go:
�o
o
o
o
o
o
•
Unemployment rate for African-Americans remains
about twice that of whites.
Women still make only 72 percent as much.as men.
Average income for a Hispanic woman with a college
degree is les~ than that of a white man with a
high school degree.
The recent Glass Ceiling Report found that women
in the ~ation's largest companies hold less than 5
percent of senior management posts. The number is
lower for African-Americans, Hispanic and Asians,
who hold less. than I percent. each of those
positions.
In1994, federal government received more than
90,000 complaints of employment discrimination
based on race, ethni.ci ty and gender.
Hate crimes and violence are still ugly realities
in the lives of many Americans.
Those Whb Would Divide Us Threaten America's Future.
Those who prey on our worst instincts and sow' division
cannot succeed. America will survive and prosper as a
society if we are confident and united. Today in
America, 150 racial and ethnic groups co-exist in
harmony -- an achievement unmatched in human history.
President Clinton believes we have a responsibility to
renew and strengthen the ideals that foste~ed that
unity.
Last Updated:
July 19, 1995
�MFlY-29-96
WED
Tha Diversify Coalition brings
together ethnically, racially, and
politically diverse groups and
individuals who share a com
mon interest in reducing
immigration into the United
States to a sustainable level.
1 1 : 2 1
THE
D I V E_R S J T Y
CO FI LIT ION..
41 5
788
5259
p.e!
-J
The Diversity Coalition for an Immigration Moratorium
220 Montgomery Street, Suite 1040
San Francisco, California 94104
. Phone: 41 S·788-5257 f Fax: 415·788-5259
National Representative
YGh
LinQ~Ling
National Board of Advisors·
M.J. Anderson
Presld9nt, National Alliance of
BlacK Organizations
May 29, 1996
Jagdeep S. Bhandari. Ph.D.
Duqv8Sn9 Univ8rsify
Nibolaas Bloemb€irgen. Ph.D.
A~tn:
Stephen ~arnath
c/o The WhIte House
NobBII.,~ureafe,
Harvard Univt.rsity
JimBfady
BY FAX:
State Chair, Unit&d We
Starld AmriJrica'Wyoming
James Coleman
F=ormer member,
Black Education Commission.
L:A. School District
Maria !'isia Chang, Ph.D.
Unillef'$ity of Nevada, Reno
Benny Chien
(202) 4567028
Dear Stephen:
Former Pre$ident. Califomiens for'
'Population S/Bbilizarion
.
Susan Croley
ChfJroki1e Nation
JlfSSt! laguna
Sponsor. Proposition 187
DeMili Lambert
Ch/pptiWa Tribe
I hope you'll find the attached article in today's L.A.
Times of interest. It was written by Terry Ander6on, ~
black American of Central Los Angeles.' The article
conveys in very simple terms the impact of immigration on
black Americans.
S~~1~~'
Yeh \Ling~Li
Vishwas Morn
Pmsident, Board of Govftmors,
g~C__ .
Founder & N tion 1 Repre6entative
California Community Collegf;s
. Angie Morfin
Found9r. Latino America.n CoalirfOl'l
for Immigration Control
Frank L. Moms, Ph.D,
F..oriner Dean of Gredvale S1vdies
and ReSB;}rch, MorgM Slat@
Univet$i~
Pet.. r K Nunez
Former AssisTant Secretary of the
TffJ3SUty
Billy E, Reed
p,,.sidenl. American Engineering
Association
L6ea White leather
Founder, Washington Cirizcms
(01
.Immigration Control
Gil Wong
Chairman, A!;lsn Americans for
Border Control
S, MifeSWc.od, Ph.D.
ReD'red Professor Emeritus,
.
Chemi~try
·Partial tiS-iii',!;); aOiilations provld~d
lor Idanrltlcalionpurpos(':s only
,
The Divt":rsityCoalition lor al') Immigration Moratorium is an at/iliat.. of Carrying CapacitY NetvJor1<:
2000 P Street NW Suite /f24(): WashIngton. DC 20036 (2(2) 296-4548
{phonal I (202) 296-4609 (fax)
�!
,..
MAY
29-96
WED
1
~1
1:~
THE
DIVERSITY COALITION
4 ..~,5 . 788 .525.9
P.02.
LOS ANGELES ,TIMES, IVEDNF;SDAY, M11Y 29, 1996
.~
. "'The Culture Clash·
.
in South-Central L·.A.
40-year-old immigtants~lOO% Spanish
speaking and probably 90% from Mexico.
Americans are seeing.everything
W~ have schools here that used to be
they've struggled for being taken 80% 1090% black and now,after a period of .
10 years, are 80% to 90% Latino. As this
over by new.comers.
trend spreads. blacks eith(~r can move to
other neighbOrhoods Or watch their chil
dren stuck in schools listening to Spanish
By TE,RRY ANDERSON
all day. Yel nobody speaks up for our chil
Pro-immigrant· groups say the jobs
dren the way the pro-immigrant organiza
immigrant,; are t..)king <lrG jobs th,lt black
tions do for immigrant children. As a result,
Amel'icans don't want. Why is it, then, that
our children are getting the equivalent of
when you go outside Southern California or
half a day of schOoL Why should our chil
1'ex':!s~to Phoenix.. say, or Washjngton~
dren be deprived?
you sec black people holding the same jobs
My lwo:bedroom house near the Coli
they Ilsed to hold here in Los Angeles'!
B!ack people want to work, But the jobs seum is worth about $100,000, A compara
bit: house two doors away sold for $135,000
they used to have, paying $5 to S7 an hour
and the buyers put Clve Immigrant families
for unskilled labor. now go to immigrants
in it. A black family can't pay that and can't
for $3 an hour, .
live lIke thaL In the American culture, we
In the late 1970s, I used to sell parts to
have one family to a house. Each of my
body shops, and I knew Americans who
immigrant neighbors has seven or eight
were making $20 an hour repairing dented· children. while we Americans have tWo or
fenders. Now 95% of South-Cenlral L.A.
three. Before long~ all these children arc
body shop job::; are held by- r(;cent immi
going to need a place of their own. Does a
black h(Jmeowner h;lV€ to put four fam1lies
in the house and a fifth in the garage in
order to survive? A for-sale sign in our
'Immigration is not an issue of
neighborhood cau;,es panic. We know who
race; it's an issue of numbers,
will get that house. There will be 20 to 30
people living in it, they will keep goals,
and they must be drastically
they will grow corn in the fronl yard, they
reduced,'
. will hang their wash on the front fence. It's
a culture clash.
If you speak up, you're called a racist. I
grants making 'S7 or $8 an hour. People
am an AmE'rican; ] happen to be black.
(!;;Iim thCise savings are pussed on to the
cor,wmu, but in mOGt c,{ses the savings go Immigration is a problem for all Americans.
whether Latino, Asian, white or black. We
in the ~hop owr.€r's pockH. In the rn0<1n
are all adversely affected.
time, t~zpayers are footing the bills for
servicel) to immigrants. including educa
In a New Yorker magal-ine poll published
tion, which Costs on oYEnge $5.000 a year
!;.Ist month, 58% of blacks surveyed say
pJr child ir, California.
.
conditions for,bla"ck Americans are gelling
worse, and 59% agree that the American
Pro-imm(gl';jnt gro\lps avoid the subject
dream has become impo;,sible for most to
ofr.e'll Jobs like those at body shops. They
invari()bly bring up the.que~tion of who. ·achiev~. This situation can only worsen
passing day under our prescnt
with
will pick the grapQs if you stop immigra
.
im.rhigration policy.
lion. It's truE; that Americans won't do that
work for slave wages. if We tightened up
Immigration is not (In issue of race; it's an
. the welfare system and poid Am€fican;s
issue of number.:;. and they mw;t be drasti
deceM wages, t/'10Se immigr~nts ",,'ould nol.
cally reduced. The only way to accomplish
he; \'e to be brOught in at all. The:re would b,;
thi!; is through an immigration moratorium.
plE'nty of Arw;rJeans who v.'ould either
WJ.nt thos0 jobs or h~veto t,,!,c {hem.
reTry 1\ 'oae ".,on. is I) scli - ~lmplOllcd
To',l:l,y, tC:E:I1,'1ge:rs card get ~it'2r -sdinol . rrL(:chOllic u71d u. member of the nariolllll
or entry-leVel jobs-;;omNhing.to put on il
(!dvi50ry bO(ird oj' the Dive-rsity Coalition {or
!'(;,Wmc. When I w3316 and 17, r·h;,djob;; ilt
lin. f-rnmi'p-ul'irrn. M()rl1to)'i~,m, 1m ofjilillf( 0/
}.IcDon~ld·s. BlIrg.:r King, Jack in the BOK. .. the WU.5!(·iTlylr;r1.-0asca C().'r'fying CfJrJl1city
. .'\·'JW the;;c jobs in L.A. (lre hd,j by .30· or
Network.
• Immigration: Urban black
every
_ _ _ _..;;.;0._""-'"--"''__-'-_ _ _.....
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V I _IN_T_H_E_LOO_P.-
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APolitical Bent at the Archives
·
P
By AI Kamen
~·.1 .. tIlO"on POit
Sr.ff ""net:r
resident Clinton may be having troubles
.
finding a national archivist. but members of
the White House staff appear to have had no
'. troubling filling other jobs at the National Archives
and Records AdnUnistration.
.
. Until now, the agency, once part of the General
Services Administration, has been relatively free of
political appointees.
An Archives spokeswoman can remember only
one pre\;ous political appoint~ in the past 10.
years-an official .....ho .....orked In the congressional
liaison office during the final 18 months of the
Reagan administration.
.
But accordmg to Rep. Frank R. Wolf (R.Va.),
there have been at least six political types who have
been glven jobs at the Archives since Clinton took
office, and at least four got their jobs after working at.
the White House.
Yesterday Wolf held a news conference to decry
~'hat he called the politiclZation of the agency and to
demand an investigation into the personnel actions .
approved by arting archi\;st Trudy H. PetersoD.
Among thol'oE' who have secured newly created
political JObs are: public affairs director Shirley .
ClarksoD. White House liaison BriaD TbompsoD,
special assistant MariUDe Smjth. senior ad..; ser
William H. Gilcher, senior adviser Marc H.
MODheimer and personnel director Howard.
Keraodle.
None of these positions was held by a political .
appointE-e in pre\'ious administrations.
The Archives spokeswoman said that three of the
six alreadv have left the agency.
·We .....ould welcome any investigation that would
al/o..... us to gE't back to work," Clarkson said in an
intfn;t'w after Wolfs news conference. "It would be
healthy, and the sooner the better."
Breye,'s Confirmation T.I..
• The administration "team" assembled to help steer
Supreme Court nominee StepheD G. Breyer through
the pt;'riJous Senate confirmation ~rocess includes
associate White House counsel Cliff'Sloo,
Washington la'4'yer and fonner judiciary Committee
counSt'1 CarolYD OsoliDik and Washington Iobb}/'lSt
Mike &emaa. a former aide to Waher F. MoDCIaJe.
So far. it looks like a shon-tenn, very pan·time
. assignment. In fact. tht're' 5 talk on Capitol Hill ~f
tn'inf,l to wrap up the judiciary Committee hearings
bffore july 4 rather than mid-July, as had been
oflf,linally foree;!"r.
Required reading around town these days is
Breyer's riveting thriller on the federal regulatory
process: "Breaking the Vicious Cirde-Toward
EffE'<'tive Risk Regulation:
While Sen. Boward M. MetuDbaum (D-Ohio) has
been blasting Breyer for being too pro-business, no
less than Naderite Alu MorrisoD. director ofthe
Public Citizen Litigation Group. weighs in with a
book jacket blurb calling Breyer's book a "tour de
force.~
Another endorsement on the jacket is from fomer
Reagan director of the Office of Management and
Budget, now Virginia senatorial candidate. JUles C.
Miller III.
.
The Breyer love fest spins out of control.
Flllln,ln 'usttee·s eM. RiPts Sbiff
• At the justice Department, civil rights chief Deval
Patrick has been putting together his senior staff.
The lineup sent over to the' White House so far has
I.abelle Katz PiuJer, now with the American Civil
Liberties Union in New York. and Kerry SeaaJoD,
now at the NAACP Legal Defense and Echacationa)
Fund Inc. here. in the deputy slOts for litigation in
housing, employment and other areas.
.
Stuart J. la_aN, late of the U.S. Commission on
Civil Rights, and Juuita RenaUdel, most recently a
special assistant in the office of the Texas attorney
general, will be counsels to Patrick for policy and
legislation.
A third deputy was to have been SberriJya Irill.
formerly at the LDF in New York and more recent Iv
. teaching law at the University of Maryland School
Law in BaJtimore, but she turned down the job. It's
00( clear that slot will be filled right away~
Meanwhile, a new'career deputy needs to be
picked to replace longtime deputy JUl. p, Tamer.
who is retiring.
of
• Speaking of shOJNimers. White House COW1Se1
lJo,cI N. Cutler, who siped on as a SpeciaJ
GoYenunent Employee-meaning for 130 days-has
about 70 working days left before be turns into a
pumpkin. sort of.
Actually. a senior White House official said
yest.rday. '1t's not qWte like Cinderella's coach at
nactJy midnight." The l3O-day limit is not that
preclSt'.
�The feeling is now that Cutler will probably
complete his tour sometime in early September and
. the intention is that he will work about 130 days and
not attempt a formal extension of his tour.
The. real problem for him, of course, is that if he
stays too long, he's going to have to start cleaning up
. after himself, rather than his predecessor.
Labor Official RHians
• MartiD J. Ma.aIey. assistant secretary of labor for
the American workplace. resigned yesterday. citing
family reasons. Manley, a California business
consultant. had been commuting back and forth to
.California where his wiJe. a professor at
UC·8erkele\·, and his famil}' remained.
Meanwhii~. Tilobaru.icle, who had worked at
Labor during Jimmy Carter's administration and
worked with Sen. John F. Kerry (O-MilSS.), is in lint'
to bE> assistant serrE-tary for policy. which was the'
la,;t vacant assistant secretary post-until Manley's
resignation.
�Jlos An1\ete~_ mimes ::: 0_-r
7
( Comment
.......... ... .... ...... .
ON TH E N AllON
Property
Owners Have
Rights, Too
By MICHAEl M, BERGER
he l',S. Supreme Court stuck a
sharp pm Into land· use regu·
lators. In Dolan vs. City of
Tigard. the court placed severe re
stMCtlons on the abillt.:- of local gov.
ernment agencies to demand "gifts" of
land as conditions for permission to
develop other land.
Although the case mvolved a small
town In Oregon. the ruling in late
June will have far greater impact in
Cahfornla. \I.·here this practice of ex
torting (the Supreme Court's word for.
it) property is rampant. Aggressive
government agencies and a strident
envIronmental movement have creat·
ed a vigorou1= and inSistent system of
land· use regulation in California that
IS legendary throughout the country.
Callfornla's courts have sho\l.·n great
deference for whatever the regulators
want to do. Years ago. the dean of,
governmental land· use lawyers sug·
gested that a California property
o\l.'ner. in$tead of challenging a regu
lation In a state court. should simply
silt his throat. It would be quicker.
cheaper and easier-and lead to' the
same result.
Florence Dolan wanted only to
expand her electrical and plumbing
supply store. Instead of 'occupying
10.000 square feet of her 70.000
square-foot lot. the store would COVer
17.000. The city agreed to issue the
permit. but only if Dolan gave the city
.7,000 square feet of land to increase
the capacity of a crftk. install a
"arreenway" along the crftk and build
a bike path. The city's justificatiOns
were that the increased size of the
store could increase traffic and the .
need for flood control. which these
improvements might alleviate:
The Supreme Court concluded that,
if a city IS going to take someone's land,
ftmler justification than that is needed
in order to avoid the constitutiOnal .
command to pay ,ust compensation.
Pragmaucally. the court affirmed the.
basic rule that property cannot be
taken Without payment. To permit
government to do othel'WUle. the gov.
T
emment mUBj. satisfy the bunsen of
proVlng that the prOJeCt proposed by
the property owner would actually
cause SIgnificant problems for the rest
of SOCiety. which the land demanded as
a "gift" would actually. alleviate. The
city had not proved that its justifica.
lions were genuine.
.
A spokesman for the Audubon Soci.
ety probably best captured the impact
of the new decision when he com·
plained that "lhls is an extraordinary
intruBion by the COUrt into the author·
ity of local goverrunen!.. It elevates the
interests of property owners over the
interestS of the community as a whole."
Actually, what the decision does is
enforce a protection that has been part
of our constitutional heritaBe. The Fifth
Amendment has always "elevated" the
interests of individuals Over those of
lOCiety-that's what the Bill of Rights
is all about The First Amendment. for
example. has been used to protect the
rights of nude dancers, flag burners and
political protesters of all stripes. What
the Supreme Court said expressly in
this case is thaL the Fifth Amendment
rights of property owners are entiUed
to no less protection than the First
Amendtnent nghts of adult theaters.
draft protesters and newspapers. If that
"elevates the interests of property
owners over the interests of the com·
munity as a whole," it is high time. (
Local governments and environ
mental activists have gotten used to
treating property owners who need
development permits as convenient
fish m a barrel. The property owners'
deSire to do more than stare at Lheir
land has emboldened regulators to
extract increasin,lj' pilniUve. "gifts"
of property (orcuh in lieu of proper
ty I in exchange for development per·
mits. Oflen. the price demanded as
ransom bears little. if any. relation·
. ship to the project. proposed by the
property owner. The proc:ess has been
Used widely by local governments to
obtain substantial parcels of property.
Without payment.
.
It is this game which the Supreme
Court has Aid must end. The rights to
life, liberty and property are protect~
ed by the Ame constitutional provi
lion. None can cavalierly be to.ssed
Uide because it has suddenly become
politically or environmentally correct
to preserve lOme parcel of swamp,
desert or shrub land. The issue is ends
and means. Most Bill of Ri,hts cases
are reduced to that common denomi- .
nator. Our Constitution proc:laims that
the property of private citizens will
not be taken from them unless they
receive compensation. Re,ardless of
the reuon for the seizure. The Su
preme Court has reaffirmed the con·
tinuing force of that concept. It is now
up to the rest of us to respect it.
.
£05
U the city of Tigard wants Dolan's
land badly enough. It can buy it. The
same goes for Cahfornia communities
that have acted in Similar fashion.
.
.
MachiJel .M. Be'rge'r IS a 14nd·v.se
&aW1l~ In. Sa71Ul Monaca who ~ argued
~ftuUhonal ca.ses In the U.S. SupreTM
Cl)urt on IHlhalf of prC1p'-'rt fl owner.~ ..
•
�~~e lfaG~ingtott ~imeG
DATE:
;x, tIi'- 70/'
PAGE:
tf-rt
'BRUCE FEIN
week the U.S. Supreme
Court in Holder vs. Hall and
Johnson vs. DeGrandy
[
renounced twin interpreta
tions of the Voting Rights Act that
lerenaded ugsome racial stereo
typing and political polarization.
Coupled with its ruling last year in
Shaw vs. Reno (1993) frowning on
prrymandering to ensure a quota
of racial minority electoral tri
umphs, the high court seems
resolved to halt the nation's sinister
slide toward a first cousin of politi
c:aJ apartheid.
As Justice Clarence Thomas elo
quently remonstrated in a concur
ring opinion in Holder: "The basic
premises underlying our system of
safe minority districts and those
behind the racial voting register are
the same: that members of the racial
group must think alike and that their
interests are so distinct that the
group must be provided a separate
body of representatives in the leg
islature to voice its unique POint of
view.... [Flew devices could be bet·
. ter designed to exacerbate racial
tensions than the consciously seg
regated districting system current·
ly being constructed in the name of
the Voting Rights Act. ... [It]
destroy[s1 any need for voters or
candidates to build bridges between
racial groups or to form voting coali
tions."
At issue in Holder was a single
commissioner form of county gov
ernment in Bleckley County. Ga.,
adopted in 1912. The commissioner
exercised all executive and legisla
tive functions of county govern
ment. Blacks comprised approxi
mately 20 percent of the county's eli
gible voting population, but no black
bad ever run for commissioner.
A bandlul ofblaclt registered vot
ers and a loc:aJ chapter ortbe Nation
al Association for the Advancement
or Colored People assailed the sin
gle-commissioner system under
section 2 of the VRA. It prohibits
any "voting qualifk:ations or pre
requisite to voting, or standard.
practice or procedure ... which
results in a denial or abridgment of
the right of any citizen of the Unit
ed States to vote on account of race
or color."
The complainants accepted that
black voters in Bleckley County
were treated evenhandedly regard
ing ballot access. registration and
vote counting. Their grievance was
A tum away from
racial spoils
the single-commissioner system
that handicapped their ability to
elect a black; voting in the county
was allegedly racially polarized. A
five member commission elected
from five single member districts
one to be politically dominated by
blacks - was demanded to attain
proportional racial representation
in the county government.
.
A federal appeals court sustained
. the demand, but the Supreme Court
reversed by a narrow 5-4 margin.
Writing for a plurality ofthree, Jus
tice Anthony Kennedy explained
that section 2 does not reach chal
lenges to the size of a governing •
authority that illegedly dilutes the
political potency of racial minori
ties. Such dibitic:in claims necessi
tate arbitrary choices of bench
marks to compare with the si;e
assailed that would leave the law in
chaos. For instance. blacks in a
jurisdiction where they comprise 5
percent of the voting population
might insist on a benchmark of 20
single-member districts - one
overwhelmingly black - to show a
single commissioner system diluted
their potential politic:aJ clout. But
nothing in the.VRApnwides guid
ance regarding selection of a bench
mark,suchasone~pro
portional racial representation;
indeed. the statute speCifically
renounces a II'OUP .right of racial
minorities "to bave membera ...
elec:ted in numbers equal to their
proportion of the population."
Justice Kennedy underscored the
outlandishness of the racial dilution
theory championed by the com
plainaDtl in Holder. It would permit
VRA attacks on the political bound
aries of local jurisdictions by alleg
ing that the annexation of aur-
rounding land ~ould enhance a
racial group's \IOtlng strength. and.
that the failure to annex thus
resulted in an abridgement of the
right to vote on account of ~ce.
The Holder decision is no lice~
for overt or subtle electoral ractSm
characteristic of Jim Crow: The
court emphasized that the smgle
commissioner system would be
unconstitutional under the 14th or
15th Amendment if ado~ted. or
maintained with a racially discnm
inatory purpose. The case asto~sh
es only because four Justices
embraced a VRA interpretati~n ~t
would have catalyzed an epldenuc ,
of racial politics overseen by feder
aljudges.
The Johnson case illustrates that
infatuation with racial representa
tion has no stopping point for the
privileged beneficiaries. Hispanics
in F10rida broulJht suit under sec
tion 2 in,veighing against that part of
a districting plan for the state House
of Representatives largely covered
by Dade County.· Of the 18 House
districts predominantly located
within the county, Hispanics consti·
tuted super-mlijorities in SO percent, the same Hispanic percentage •
ofthe county voting-age population.
A group of Hispanic voters.
joined by the Clinton administra~
tion, clamored for more than pro- .
portiona! ethnic representation;
they demanded 11 mlijority-His
c,J'1J
�panic House districts in Dade Coun
ty because that might be accom
plished without eclipsing the voting
punch of blacks, In other words,
they urged an interpretation of the
VRA that would generally require
.districting that maximized the like
ly victories of racial or ethnic
minority candidates beyond a num
ber that reflected the proportion of
their racial or ethnic cohorts in the
voting-age population.
. A federal district court agreed,
but the Supreme Court re,'t:rsed,
Writing for the court, Justice David
Souter observed that "equal politi.
cal opportunity" was the mandate of
section 2, He expressed bafflement
at the contention that district lines
yielding Hispanic political effec
tiveness in proportion to voting-age
nWlibers·nevertheless diJltted His·
paniC votes, Indeed, that theory of
section 2would condemn a district
ing«heme to elect 10 representa
tives that neglected to manipulate
electoral boundaries to ensure that
a racial minority comprising but 40
percent of the voting-age population
constituted ~orities in 70 percent
of the districts, thus conferring
effective political power 7S percent
above their numerical strength.
Such absurdities, however. are
replete in contemporary voting
rights law and jurisprudence. lbe
U.S. Supreme Court is the last seri
ous impediment to a descent into
omnipresent racial quotas.
Bruce Fein is a lawyer and fru
lance 'II1r'iter ,tpeCi4JizirrI in legal
iss~s.
•
�THE WALL STREET JOURNAL.
'Prudential Securities Is Dealt Setback
As Judge Rejects Plea to Disallow Suit
By
MICHAEL SICO:-;OLFI
Sroff Rrporrl'r of Trll' "" ALL
STIlf:r.T JOt'RN4L
SEW YORK - Afederal judge dealt a
setback to Prudential Securities Inc. In an
unusual lawsuit brought by several Inves
tors who say the brokerage firm gave them
unauthorized legal advice.
Suz.anne B. Conlon. an Illinois federal
judge. rejected Prudential's request to
disallow the suit. which was filed by four
Michigan investors and widely watched on
Wall Street. The investors allege Pruden
tial improperly forced them to accept a
settlement involving a portfolio of Pruden
tial real-estate limited partnerships.
rather than advising them of other legal
options ..
The deciSion is a clear signal that
Prudential's partnership headaches aren't
over - e\'en for cases the firm already
has settled. Last year, Prudential set up a
S330 million reparations fund as part of a
settlement with federal and state regula
. tors. Prudential has been accused of mis
leading investors mto buying SS.l5 billion
of partnerships, about ~ billion of which
were real·estate transactions.
Sow, the Manhattan U.S. attorney's
office is investigating whether Prudential
systematically gave out improper advice to
investors in class-action suits, as part of a
broader criminal investigation of the firm.
people familiar with the matter $ly. Fed
eral prost>cutors say they can't comment
on the nature of the investigation, but
some formt>r Prudential brokers say they
have been quizzed on the class-action
matters.
class-action settlement. But Judge Conlon
disagreed.
"The release provision of the final_
[VMS] judgment does not preclude -the
Michigan class members' Michigan court
action," Judge Conlon wrote in a 14-page
decision, "The release provision of the
final judgment does not release Prudential
from all.class members' potential claims;
Prudential is only released from claims
regarding the securities fraud that is the
subject of the settlement," the judge
wrote.
"The Michigan court aClion involves
Michigan class membes' reliance on al
leged assurances by Prudential's agents
that they would be adequately compen
sated by the class action or that they
should not opt out," Judge Conlon added.
D~TE:
PAGE:
;.(.-9'Y'
A:y
separately, Judge Conlon granted t"ru
dentia!'s request to bar another investor
• from pursuing a separate VMS action,
after participating in the class-action set·
tlement. That investor, Maximos Mar·
delli - an 81-year-old Roman cathOlic
priest-gained some measure of fame ear
lier this year, when he sued his former
Prudential broker on the matter. That's
because the broker, Jeffery Daggett, had
starred in the firm's new "straight talk"
advertising campaign.
Father Mardelli contends he didn't re
ceive a notice of his right to opt out of the
-VMS settlement But Judge Conlon said:
"Whether Mardelli actually received the
notice is irrelevant since Prudential com
·plied with the notice proced ures authOrized
by this court."
ReeouslderatioD Sought
Prudential disagreed with tile decision,
and-bas asked the judge to reconsider. In a
statement, Prudential said literature it has
.sent·oorto brokers since 1991 has expressly
told them not to make any class-action
recommendations to clients. "We believe
they have followed those guidelines. and
that's the end of the matter," a Prudential
spokesman said.
But documentation from some inves
tors suggests Prudential brokers at times
urged clients simply to accept the VMS or
other class-action settlements. For in
stance. Salvatore Russo. _a Van Nuys,
cam.. investor. says he received a form
letter from his broker in October 1991 that
spelled out his VMS partneship IrIdlng
history. "You should submit this letter
VMS Settlement
together with the Proof of Claim form," the
At issue is a 1991 class-actiOn settle malling said. offering no other option.
ment of VMS Mortgage Investment Fund
Another lDvestor. Helen MoskoVitz of
real-estate partnerships. in which inves Pasadena. CaJjf.• complained that her br0
tors received just pennies on the dollar. ker. when asked about a proposed class·
Some' investors contend their Pruden action setUement of a Prudential. energy
tial brokers told them their only option to
recover money from the failed VMS part partnershlp. replied: "He said to do noth
nerships was to participate in the class ing and I would receive a cbect in the mati
action. These class members were particu at a later date." Mrs. Mostovitz said she
larly furious because many investors whO and her husband "are surprised and disap
instead opted to pursue private arbilrltJon pointed to find out" that the broker's
cases ended up faring far better.
advice was "misleading and was designed
The Prudential 1DSUrUC'e Co. 81 to force us into the class-action suit...
America unit argued in the case that the
class members were precluded from filing
suit after agreeing to participate in th'tJ
.'
�€bt
DATE:
PAGE:
Nt\lf Uork bnt1i
€
5-\$5'1
9-1
40 Years After Brown, Segregation Persists'
--WILLIAM CELIS
about race, and the rampant unemployment
whose children will likely
By
s,w.<l11 10 The:
3d
t<.f''lIto
~:~-~-
YUI),. 11mrs
TOPEKA. Kan. - Topeka Boule
vard. a nine-mile·long stretch of
commerce, fulfills most needs of
. the 120,000 people in this cit:t on the
plains. But the four·lane thorough·
fare also serves an unintended pur·
pose: dividing the races. Whites
live to the west. blacks to the east.
Therein lies the problem for the
city's public school system. The
elementary schools, which were
once deliberately segregated on
school board orders, are segregat·
ed still, 'only now it resulls from
housing 'patterns, not laws.
Those nousmg patterns have
proved to be the Implacable foe of
school desegregatiOn here and in
some 1,200 school districts nation·
wide that are under Federal court
desegregation orders.'::'·Such pM
terns have withstood busing pro
grams that transported black chil
dren into. predominantly white.
schools; they have withstood the
creation of theme or "magnet"
schools designed to lure white !!tu·
dents from the suburbs to inner·
city schools. and they have With
stood the one·two punch of school
consolidallons and . closings to
achieve raCial balance in the class·
Still Separate
A speCIal report.
rooms that remam.
Forty years have passed since
the United States Supreme Court
decided tht' landmark. case, Brown
v. the Board of Education of Tope
ka, Kan., that outlawed segregated
education and marked this city as
thE! cradle of the school desegrega·
tion movement. The board no long··
er designates which schools white
students' should altt'nd and which
are set aSide for blacks. But II of
Topeka's 26 elemenlary schools, a
middle school and one high school
are still as segreitaled as the neigh·
borhoods that feed them.
Nationwide. ncarly 70 percenl of
black students atlend segregated
schools. thai IS. schools with mostly
black and HispaniC enrollments. In
1968, the fIrst "t'ar In which educa·
tional dala we'rt' coll!"cled: somp 78
percent of black stud!"nt!; and 54
percent of HispanIC students at·
tended predommantly mn;ority schools. The
only differenct' the Intervening years have
made is thai mlnorllles are nov.. more likely
to at1end segregated schools In the Northeast
and the Midwest than In the South.
Other force~ have also undermined the
desegregallon of schools' stubborn altitudes
.............
...... "" ,., ...
and underemployment that condemn many
minorities to inner cities. Also blunting the
effort, civil rights workers say, is the absence
of a national will to embrace aggressive
solutions like raising taxes or redistributing
tax dollars to bring the budgets of poor
districts up to those of rich ones.
"School desegregation was not supposed to
be a cure·all," said Gary L. Orfield. director
of the Harvard Project on School Desegrega·
lion. "There was supposed to be a housing act
and job opportunities. Most of them have
been beaten down. School desegregation is
one of the lasl legs standing. although it is
bruised and bealen."
But there are glimmers of hope. Mr. Or
field and other policy analysts said. Among
them are these: Palm Beach County, Fla.,
which is encouraging homebuilders to racial·
Iy mix their housing developments; Char
lotte-Mecklenburg County. N.C., which has
harnessed the diversity and financial
. strength of· its large, countywide school dis
trict in the development of magnet schools.
and Dade County, Fla., which has opened
schools at the integrated sites where people
work, not in the segregated neighborhoods
where they live.
Topeka
Still Trying
To Achieve Goal
In many ways, Topeka's experience is a
microcosm of the history of desegregation
nationally since 19M. Over the dec!ldes. the.
city became more integrat~ as ,employers
offered good·paying jobs to black men and
women. enabling them to enter the middle
class and move their families intO tradition
ally white neighborhoods. But whole neigh
borhoods were still inhabited by low-wage
earners - blacks and, inCreasingly. other
minorities, too.
In 1979. the American Civll Liberties Union
reopened the Brown suit, lnertlnl that the
existence of 13 racially segregated schools on
eJlher side of Topeka Bou~ard violated the
. 1954 High Court ruling. Slgnlnl on to the suit
was Linda Brown Thompson, who was 11
when her father and otMr black parents
brought the first Brown IUlt.
After years of legal ma~rinL in 1993 a
Federal court agreed With the A.C.L.U. Now
the Topeka district is propoama todose some
of the segregated schooU. bul more of its
15,000 students acron Mllhborhood lines
and create magnet schools, aU 11'1 the name of
integration.
.
But while several polls MW ihown that
people support desegrt'P'''' efforts nation
aUy, they tend to fightll locally. Topeka is no
exception . .The school suptnfttendent, Jeff·
rey W. ~'eaver. says Iw .... rwnrved anony
mous l€'tters and calli .... I'KW slurs from
whites and blacks ~ the proposed
plan. which was unvelMod .. rtte, this school
year. He says the attlluOP .mong parents
be affected by
closings and busing is, "Why me?"
This was not the vision of Oliver L Brown,
a minister, or the 12 other parents who went
to court in 1951 in an effort to end the city'S
system of segregating elementary school stu
dentS by race. They had long recognized that
separate was not equal. that the aU-black
schools their children attended were educa·
tionally inferior to the all·white schools down
the road. They reasoned then, as research
has now shown. that if black children, espe·
cially those living in poverty, were sent to
well·financed, solidly mlddle<lass schools.
they were more likely to adopt middle-clasS
values and get a better education.
"It was unrealistic to expect that we could
overcome all these entrenched problems.
even in 40 years." said Ted Shaw. associate
director-counsel of ~he NAACP Legal De
fense and Education Fund. "But it's not too
late to turn this around. The question is
whether the commitment is there."
Housing
Tackling Root
Of Segregation
The Civil Rights Act of 1968 gave members
of minority groups the right to buy and sell
property wherever they warlted. The nolion
was that creating integrated neighborhoods
would lead to integrated schools.
More than 25 years later. the legislation
has still not delivered on all its promises, in
part because the Government has repeatedly
subverted the plan. Even as Congress was
approving the bill. the Department of Hous
ing and Urban Development was building
large public housing projects in iMer cities,
effectively concentrating huge numbers of
minority families there. In the 1980's, the
MOLD 01fT0 TNE u
..... CWffO.. UIIGII
Observing the anniversary of 8rown v.
Boord of EducatiOn, PreSident Clinlon urged
young people not to squander the gains Ihat
have been made in desegregatIon. Pagr AZO.
Reagan Administration's Justice Depart.
ment allowed hundreds of complaints against
. biased real estate agents and landlords, filed
under Federal fair-housing laws. to languish.
Battling against this. hiStory. the Palm
Beach County district decided to attack
school segregation at its roots. In 1991. the
district unveiled an innovative program,
which called on home builders to devise
strong advertising campaigns for black
newspapers and radio stations, wllh the aim
of selling houses to a greatfr raCIal mix.
SOme of the county's 37 incorporated com.
munities also altered their buildml codes,
allowing builders to erect more modestly
sized and priced homes in areal that previ.
ously restricted housing to lar,t' loti and.
�structures.
'
In return for making these changes and
anracting minority families, the school dis
trict rewarded bUilders by lellmg children
living in the new developments attend neigh
borhood schools rather than be bused to,
achieve integration.
'
While 29 of the> count\,'s communities have
sIgned agr('(>menls wlih the school district,
which has 110,000 students across 2,500
square miles, success has been unev~~. "tn
some commUnities, it has helped us, said
Murray Harris, a district spokesman. "But
over all, it has not helped us In the way we
thought II would."
'
The percentage of minoruy reSidents ,in.
communities has increased, somellmes sig
nifiCantly. In Crestwood, it rose to 12,3 per
cent in 1994 from 3.1 percent in 1991; m
Riverbridge, it increased to 11.5 percent this
year from 2.3 percent In 1991. But hOUSing
prices in some commumlles rema~n too high
for many black and Hispamc families.
Palm Beach County, however, is no longer
alone in taking aim at segregated housing
patterns, The Department of Housing and
Urban Development will embark thiS sum
mer on a S70-million model program, Moving.
to Opportunity, that will Involve 6,200 fam
ilies in New York City, Baltimore, Boston,
Chicago and Los An~eles.
The program will assist families as they
search for new housmg in suburbs and other
neighborhoods where the\' would ordinarily
not look. The Inlent I~ to break up concentra
tions of poverty.
But the pro~ram m~y also bto a boon to
educallon, Since sJudles indicale that concen
trations of poor fanlihes with children place a
hea\'y burden on the> local ~chools that must
serve their educallonal. medical and emo
tiona I need S.
Magnet S~_hools
A Powerful Lure
But Mixed Results
Build a curriculum around a special
theme, like math or health. Lure the best
teachers in tho~e subjects to that school and
invite students from all over the city to enroll
in The result b a type of pu bl'IC SC h00, a
it.
J
magnet that hJ.s been widely· used to draw
white ,~tudents to predominantly black
schools and black ~tudents to predominantly
while ones Such magnet schools are increas
ingl)' vit'wt'd 'as thl' most't'(fective means to
ilitegrallon, because they gIVe stude.nts and
. parents the freedom of chOice. SulI, they
havt" a mixed record. .
,
Kansas City, Mo., ringed by predominantly
while suburbs. is Sl ruggllng to make Its mag
nets attran Sy contrast, Montclair, N,J., has
, successlull\' used magnt'ls 10 integrate Its
school.ajl.e populallOn. New York Clly, the
natlon's large!'! schuo! svstem and the home
of Ihe large>sl runsrellallor. ,of magnets, has
also effeC'ti\'('ly used Ih('m as lures,'
,
So !\as Cha rloue.Mecklenburg, the nation's
29th largest school· district, which has been
dE'Segreg3ted larjl.ely as a result of magnet
schools But th(·SE'..~'ere.:map,nets established
in a large and diverse countywide school
district that sprawls over 527 square miles
and serves 82,000 students, Twenty-seven of
the North Carolina district's 115 schools have
been turried into magnets since the program
began in 1991 with 9 schools.
The percentage of blacks attending mostly
black schools in Charlotte-Mecklenburg fell
to 29 percent this year from 31 percent in
1991. WIthout magnets, district offiCials say,
the percemage would have risen to 34 per
cent this year.
Suburban white parents in the Charlotte
area say they embraced magnets because of
'the strong coursework it offered, even though
attending a. magnet school can sometimes
require a bus ride of I. hour and 45 minutes.
"I am more concerned about the quality of
their education than who they are Sitting
' beside at school," Brenda Emmons, a white
parent, said of her children's participation in
the program.
Still, the introduction of magnets there has
not been· tension free. As white students
enrolled this year in Marie G, Davis Middle
School, an inner-city magnet program with a
communications theme and advanced classes for high-achieving stl-'dents, "the~ was
some wariness among the parents, said
Gwendolyn Johnson, who is black and wbose
II-year-old son attends the schooL
SUI black and white parents have worked
closelv with each other this year. and next
year Mrs. Johnson will share the presidency
of the DaVIS P,T.A. with a white parent,
Deborah Holmes.
Charlolte, however. stands apart from
much of the nation. Its enrollment mix of 60
. percent whiles and 40 percent minority has
remained essentially unchanged for two decades primarilv becausp people can move to
urba~, rural and suburban areas without
ever leaving tht" school district.
By contrast, the Kansas City district,
which has labored under court-ordered desegregal ion sinC'e 1986, extends only as far as
the cit\' itself and its 3i,000 students,
Kansas Citv has become increasingly
black and Hispanic because of white flight to
ils' suburbs and despHI> an expenditure of $1.2
billion - half from the ·state, the rest from
the city - to improve curriculums, and tum
58 of its 78 schools into magnets. A new
Central High School was built ata cost of $32
million and old school buildings were upgraded bur the dist ricl 's, white enrollment has
remained virtually un'changed at 24 percent.
The city's superintendent of schools, Walter L. Marks,who devised successful desegregation plans in Montclair and Raleigh,
N.C" says Kansas City schools: were so. academically and structurally Impovenshed
that it has taken more than SI billion to right
their' course. Some $400 million, was used
simply to bring buildings up to code, Mr.
Marks said.'
"Progress IS slo"·... he added, noting that
Ihe district's dropout rate, tumbled to 39
percent this year (rom 52 percent in 1991 but
remains far above the II percent natlOl'l8l
..'
average.
Ultimately. the success of the Kansas Ci.ty
desegregation plan will depend upon the diStrict's ability to persuade suburban parents,
like Srenda Gann 01 L('(>'s Summit, Mo., to
transfer her two children from the Raymore-
Peculiar School DISI rlct south of the city Into
the city district. That will take quite a selling
job. Raymon;-Pecuhar has a new high school
and a rigorous curnculu,m, and the com mum-
/0
-.
ty offers a swim team for Mrs. Gann's .14
year-old daughter, Aubrey, who begins high
,;
school next fall.
"There's not much city schools can of(\!r
us," Mrs. Gann said, "We have everything
we rieed OUt there~"
Workplace Schools
Miami and Bases
Point the Way
On the edge of the Miami JntemaUonal
Airport is an elementary school for students
from kindergarten through second grade. It
is also integrated without the compulsion of a
court order, The secret: the 78 pupils are
children of the airport'S employees, who are
white, black, Hispanic and Asian,
By locating schools in or near work Sites,
some school systems, like that of MiamiDade County, are having an easier time of
integration tban those whose educational In.
stitutions remain anchored ln neighborhoods.
The airport school and four others at workplaces were conceived seven years ago by
Joseph A, Fernandez, who was then county
Superintendent of Schools.
Financed by the Dade County public school
system, the workplace schools were not designed to achieve raCial integration but to
encourage Miami's bUSiness community and
parents to participate in the education of th~
young. As a side errect, though, all flv~ Insututions have produced a lustrous ethniC and
racial tapestry of students.
.
Nationwide, the 67 public schools operated
on 16 military bases also have a rich student
mix, thanks to both integrated workplaces
and integrated neighborhoods.
At Fort Benning, Ga., an Army base with
23592 residents, half of whom are families
with children, Lieu\. Col. Bruce Grant and his
wife, Pat, both white, their three daughters
and 3-year-old son live on Lumpkin Road,a
street with 22 homes. Seven neighboring fam
ilies are black; the rest are white.
This environment "teaches tOlerance,"
Mrs, Grant said, "because we Jive next to one
another, work with one anothe~ and go to
school with another."
If the military is colorblind. so are some of
the students in schools on bases, parents say.
"When I talk to my children about their
friends, I must admit the only way I know
their color is when I see them," said Mrs.
Grant, whose daughters attend Fon Benning
schools, "I'm kind of proud of that."
Man'y others, parents as well as policy
makers, remain hopeful that the task of
school desegregation is coming 10 its slow but
inevitable end,
"I'm not depressed because I've come
from a long, long way," said Melba Pattillo
Seals, who wrote the recently published
"Warriors Don't Cry" (Pocket Books), her
memoir as one of nine black students who
desegregated Central High School In lillie
Rock, Ark., in 1957, "When you have fought
your way up the stairs al Central High
School, you know it can be w,orkeod ou!."
,
�40 Ye.rs Since
A Landmark Decision
1854 Brown v. Board
of Education. Topeka.
Kan. The United States
Supreme Court rules. 9
to O. that segregated
schools are unconstitu
tional. overturning an
1896 Supreme Court
decision. Plessy v.
Ferguson. that said
separate but equal
facilities were constitu
tional.
standards of the
Charlotte case to Northern states, rulIn& that
they must desegregate schools when segre
gation was created by the school board.
I,',
1874 In
', ..<'
Boston, rioting
,
and burning of
. .... "
school buses
. '"".' ~ ,,:'
....
over coUrt
ordered busing
Ulustrates the
nationwide
unpopularity of
.buslnl as a
means to
desegregation. In Boston. bus windows
were shattered in busing
1874 MlIJlken protests. 1974.
v. Bradley
(Milliken I). In first substantial defeat fOf'_
cIVil rights In more than two decades, the '
Supreme Court severely limits lower
courts' ability to order suburbs to join with
Inner cities In school desegregation plans. ,
;
Linda Brown
in 1952.
1857 Gov. Orval Faubus of Arkan,sas
orders the National Guard to prevent black
students from enrolling In Central,HIgh
School in Little
Rock. President
Dwight D.
Eisenhower coun
ters by ordering
paratroopers to
escort the stu
dents.
1964 Civil Rights
Act of 1964 is
approved by
Congress. The
Federal troops escort
legislation
includes Title VI. students into Central
allowing the
High. Little Rock,
Federal
1957.
Government to
withhold educa·
tion money to districts that fail to desegre
.gate schools.
.
1968 Green v. New Kent County (Va.) Board
of Education. The Supreme Court rules that
desegregation applies not only to students
but also to faculty assignments, extracumc
ular activities and transponatlon.
1877 Milliken v. Bradley (Milliken II). The
Supreme Court rules that if sdIool districts '
are unable to Integrate because of houstns- :
patterns. increasing resources to Inner-clty
schools with mostly minority enrollment Is'
a satisfactory remedy.
.:
1871 In Topeka. the American Civil
Liberties Union reopens the Brown suit,
arguing that vestiges of segregation rem~
1880 Board of Education v. Dowell
.' (Oklahoma City). The Supreme Court rules:
that districts under deSegregation alders .'
can be released from court superviSion once
they have taken all practical s1epS to eUmio ;
nate the vestiges of le&islated segregation.
1968 Civil Rights Act
of 1968, or Fair Housing
Act. gives minorities
the right to buy and sell
property where they
want.
1871 Swann v.
Charlotte-Mecklenburg
County (N.C.) Public
Schools. The Supreme
Court rules that all
approaches to school
desegregation, includ·
i.ng busing, must be
, used to integrate
schools.
Studenta bused in Dekalb COunty, GL
L
Ita Freemanv. Pitts (Dekalbc:ounty,
Ga.). In a rullni that civil rtabts advocates .
. aa.Id further eroded the Brown decisIOn. the r
Supreme Court ruled that Federal judges .
could stOp supervislnl court-ordered schooL
detelregatlon that they conSidered to bave
been ac.hieved, even though full integration .
had not been achleve4. . .
•
1973 Keyes v. Denver ' Busing in
Charlotte. 1970..
School District The
Supreme Court applies
·1/
�DATE:
PAc:!::
wrong, and we knew that, those of us
who were white, knew that il was
hurting us, that we were being de
prived of the opponunity to know
people, to share their feelings, to
share their life experiences, to share
their musit, their culture, to deal with
• people. We were just being cut off."
President Urges Building .
On School Desegregation'
.
.
'
.
Ms. Reno is froin Florida, Mr. Rilev
from South Carolina and Mr. Clinton
from Arkansas.
.
Mr. Green, who returned last week
from South Africa where he wit
nessed the inauguration of Nelson
Mandela as President, said there was
a clear line between the Brown deci
sion that changed his life and the free
elections in South A.frica.
StressesRoleoF'54 Ruling in World Change
.
.
I
By GWEN IFILL
Defense and Educational Fund Inc.
on Monday in which he attacked the
"new segregationism" that he said
was tliking root in American society.
WASHINGTON, May 17 - Presi
dent Clinton, who attended segrellat
ed public schools until he went to
college, said today thai young people
Because of the influence of Louis
"If it hadn't been for the Brown
·should not squander the gains of de . Farrakhan, minister of the Nation of
cfecision, we wouldn't have the Voting
segregation and should work to cur Islam, and others, Mr. Clinton said,
Rights Act," Mr. Green told tM stu
lail violence and rebuild families.
"We're having trouble living with
dents. "The Voting Rights Act
.
Brown and living by Brown,"
Speaking in observance of the 40th
wouldn't have had this expansive
anniversarv of the Supreme Court
number of African-American mem
"We must celebrate Brown with
decision in 'Brown v. Board ofEduca· the realiz.ation that a lot of folks have
bers in the Congress. state- and local
lion. Mr ChnlOn said he would not be a mood that threatens to sever the
government types who helped put the
PreSident loda\' if the 1954 desegre- ties that bind us," Mr. Clinton said.
squeeze on sanctions and the bond
business and the pension business. All
"And we must confront a new segre
of this is related to opening up a
gationism that is tearing us apar't,~·
oountry, opening up a world, empow
.
ering people.".
Mr. Clinton said crowds were
drawn to people "who preach sepa
Mr. Clinton said Violence was the
ratism in a negative way," because a
newest challenge for people striving
sense of alienation had taken root in
I;.
broad segments of society.
for a society of equals. "The whOte
future of America is riding on whe;~
"There are," he added, "too many
er we can have young people who are
extremists of all kinds across the
well educated, well disciplined, ho~
entire political and racial spectrum
ful about the future and more int. . ·
who think the only way they can
ested In helping each other than hutt;
advocate their own ideas and build
ing each other. more interested,,"",
themselves up is by pUlling other
books than guns, more interested nt
gallon order had nOI paved the way
people down, sometimes in the most
five years from now than five secon~
for the Voting and Civil RighlS Acts devastatingly vicious way."
from now," he said. "You have to 411
thai allowed blacks to vOle for him in
that.. Your country is counting "1
large numbers.
Mr. Clinton was joined at the King
..
you." :.
school by Education Secretary Rich
-.I
"This generation faces a' whole lot ard W. Riley; Ernest G. Green. an
of challenges Ihat are part of the investment banker who was one of
After Mr. Clinton nominated Jurut
unfinishE'd busint'ss of helping' us to. the nine students who helped desegre
Stephen G. Breyer to succeed Julttte
livE' togE'ther as one people," Mr. Clin· gate Central High School in Little
Harry A. Blackmun on the Supre..".
ton lold a gymnasium full of students Rock, Ark., in 1957, and Thurgood
Coun, Hispanic Americans in part~
at the Rt'v. Dr. Martin Luther King Marshall Jr., an adviser to Vice Pres
ular complained that the Presldeltt
~r. Middle School in Beltsville, Md.
ident AI Gore and the son of the late
should have broken ground by ell
Supreme Court Justice.
panding the diversity of the wtItl
-Confront a Ne~' Segrel8tlonlsm'
Court. It confirmed, Judge Breytt
The four taught a class about the
would be one of six white men on tbe
.. And we need some more miracles Brown·decision and were later joined
ColIn.,
• :
likt' Brown v. Board of Education. by Attorney General Janet Reno in
.
t
And tht'v ha\'e to begin, however, the al.ldressing the entire ,tudent body.
The White House said today thartfJ
same w'ay Brown did, by individual
"A lot of us who were Southerners,
percent of the candidates whom Mt.
AmE'rtCans' making choices."
Clinton has nominated to the Fede;r,41
who grew up in the SOuth. really knew
bench have been women or mln0l!b'
Mr. Ch~n .began his observance
better," Mr. Clinton told the students.
members. Officials also said the Gov
in a sPjllch to Ihe NAACP Legal
"We knew that sqregation was
ernment had increased Us falr-hous·
!
ing cases 35 percent over 1992.
Clinton attacks 'a
new segregation ism
that is tearing
us apart.'
. "There is a new minority in the
nation," Mr. Clinton said at the legal
. fund's dinner. "A minority of those
who have been appointed to the Fed·
eral bench are while men."
/P?
�CA"l'E :
PAGE:
CLARENCE PAGE
H
ow much progress have we
made since the Supreme
Court's landmark Brown
vs. Board of Education
decision 40 years ago this week? I'm
glad you asked.
When Brown was decided. we
Americans of black African descent
were called "colored people." 1bday
we're more likely to be called "pe0
ple of color."
.
Is that progress or what?
When BroWn was decided. black ping so slowly "it wilJ take another
people were so rare in the main
40 or 50 years for blacks to reach
st.r'eam (which is to say "white") levels ... now observed among Lati
media that any member of our nos and Asians," says Qne of the
household who spotted one (usual
study's authors.
ly a singer or dancer) on the new
Is that progress? Then, what?
In the 19505, we had segrega
piece of furniture known as "TV"
would callout to everyone else. just tionists who excused segregation on
to let them know that somebody the basis of black inferiority. lbday
"colored" was on the air.
we have neoconservatives who
Today. America embraces the excuse segregation on the basis of
likes of Oprah Winfrey. Bill Cosby, . b:ack cri.'!lP.
Ed Bradley. Carol Simpson. Colin
'~eric8ns would not object to
Powell and the tv:o Michaels, Jor
Denzel Washington or Whitney
dan and Jackson. in ways that would Houston moving in next door,"
have been unimaginable in the early James P. Pinkerton, President
195Os.
Bush's domestic policy aide, writes
Is that progress or. what?
in the Los Angeles Times. "But they
How about school segregation, would have a problem with'IUpac
Brown's major thrust? Before Sbakur or Snoop Doggy Dogg."
Brown. "separate'" schools were OK
Right. And J would rather have
as long as they kept up the pretense Robert De Niro or Julia Roberts liv
of being "equal." lbday's schools, ing . next door to me than 'Dlnya
unfortunately, have only dropped Harding or Axel Rose.
Is that progress or what?
the pretense.
. A Harvard study reported last
I usually respect the views of Mr.
fall that de facto racial segregation Pinkerton, now a bright young
in·America's schools has increased empowennent conservative at the
to its highest level since 1967. "The Manhattan Institute. But I have the
civil rights impulse of the 1960s is same problem with his reference to
dead in the water," declared Gary Sbakur and Doggy Dogg, two rap
Orfield. a longtime supporter of pers who have had serious run·ins
with the Jaw, that I had with the
school busing who directed the Har
vard study.
1988 Bush campaign'S use ofWiUy
Later in the winter, a University Horton to arouse white·backlash
of Michigan study published in voters or D. W. Griftlth's use of a
American Sociological Review white man in blackface makeup
showed blacks are still more likely chasing a fair young white woman
to live in segregated neighborhoods in "Birth of a Nation," .
than Asians or Hispanics, even . It is a sad, persistent dirty little
though most blacks teU poUsters secret of American race relations
they prefer to live in an integrated that whites tend to expect us blacks
to judge them by their bighest
neighborhood.
Residential segregation is drop- achievers while too often whites
Lapses in
the Brown
legacy
tend to judge blacks by our lowest.
Blame it on white conscioUsness.
Conservatives and monocultural
ists often get upset when black pe0
ple talk about "black conscious
ness;' but white people in America
have a racial consciousness, too,
whether they notice it or not.
As a child in Southern Ohio, I
began to develop a consciousness
about race the first time my parents
told me I could not go to a nearby
amusement park because "that park
is just for white kids." The more
questions I asked, the more I devel
oped the conscioilmess of a penon
on the losing end of American
apartheid.
White Americans similarly devel
op a consciousness, although it gen
erally is considered impolite to talk
about it, since it sounds like some
thing the old undiluted David Duke
or some other white supremacist
would say.
.
Also, members of dominant cul
tures don't talk about it mUCh, since
.theY take their status for IJ"IIlted.
Only blacks and other minorities
who must meet the standards ofthe
mainstream need to be conscious of
it.
The legacy of Brown vs. Board of
Education is a legacy of desegrega
tion and considerable assimilation.
but not necessarily integration.
Desegregation knocks down laws
that separate the races. Assimilation
invites a select number of blacks
into white society who pass the test
of white consciousness. then dis
misses the rest as so many Willy
Hortons, 'IUpac Shakurs and Snoop
DoaYDoegs.
'Ihle integration, unlike the one
way acceptance of aSSimilation.
brvolves more of a cultural sharing
between members of different
racial groups. Cultural sharing is
too sopbisticated of a process to be
Ie8islated, although antidiscrimina
tion laws can make it occur more
easily,'
. Cultural sharing helps all to
understand that the problems of one
group are everyone's problems in a
pluralistic society. As long as some
have bad schools, for example, we
all suffer. It's a lesson most Ameri·
cans have yet to learn, I hope it
doesn't take another 40 years for us
to figure out. All of us. 1bgether.
Clarence Page is a nationally syn
dicated columnist.
�DATE :
PAGE:
ernment's sending them extra money
· to bring them up to par. Despite the
end of Jim Crow, the assumption was
that most of these impoverished
schools were in the South; with the
as a miraculous accomplishment.
Watts riot still a year in the future,
And it is no accident that the Mar
the nation as a whole was amazingly
tin Luther King phase of the civil
unaware of the problems of the
rights movement began on the heels'
Nonh's urban ghettos.
of U'le Brown deciSion, with the Mont
. But the study, by the University of
gomery bus boycott in 1955: once the
Chicago sociologist James S. Cole·
Supreme Coun had declared school
man. found that black students' per
segregation unconstitutional, the oth
formance was most strongly affected
er forms of American apanheid
by their family background, not their
separate accommodations, denial of
schools' budgets. If any external fac
voting rights - became vulnerable in
tor seemed to ht!lp, it was whether
a way that they hadn't been before.
they went to an integrated school.
The 11 bloody years from the Brown
By the late 60's, everyone realized
decision to the Voting Rights Act of'
that the seareaated and unequal
1965 stand as the greatest pe~iod of
school wasn't just a Southern prob
racial progress in our history.
lem. Mass migration had almost
But if Americans are disappointed
overnight made blacks America'S
in the legacy of Brown, there is a
most urban ethnic group. Because
reason. It lies in the way the case
most publiC schools serve neighbor
framed the issue of segregation.
hoods and most urban neighborhoods
It was by design that Marshall and
are segregated; most blacks went to
his colleagues chose schools, ·among
all-black public schools (and still do).
all the venues of segregation, as the
Because public education is locally
one to attack, The way to get the
controlled and mainly financed by
public to change its mind about raCial . propeny taxes. white schools were
issues is to draw attention to the
not only separate but wealthier. Be
contradiction between raCial injus
· tween the two most obViOUS remedies
tice and the core national ideals
for the low quality of black Inner<ity
especially the ideal of universal op
schools - Integration and more mon
, port unity.
ey - the Coleman repon tipped the
By the 1950's, education had be
balance in favor of Integration .
come Closely identified with opponu
Integration meant busing. And af
nity, so school segregation could be
ter Brown. liberals assumed that the
presented as denial of opponunity: a
place to go for race-relations vic
fundamental violation of .the coun
· tories was the Federal couns, not
try's compact with its citizens. Mar
Congress. For a While - up through
shall took pains to do this in makina
Swann v. Charlotte-Mecklenburg
his case to the Coun, and the decision
Board of Education (1971), the .Su
was couched in the language of equal , preme Coun's last unanimous school
opponunity: "In these days it is j integration decision - the strategy
doubtful that any child may reason
worked.
ably be expected to succeed in life If
But now that the Issue was nation
he is denied the opponunity of an
al. the 'opposltlon was Immeasurably
educatiOn. Such an opponunity ... Is.
stronler, Richard Nixon won the
a right which must be made availabl,
Presidency In 1968 in pan because of
. to all on equal terms."
his fierce opposition to busing; he
then appointed Justices who also op
ce the Government had
posed it; and by 1974, in a crucial5-to
embraced that idea,
4 decision, the Coun ruled in Milliken
the natural question . v. Bradley that Cities and their sub
W81 what do to about
urbs couldn't be forced to set up
inferior
all·black
cooperative busln. plans. '
.
.
IIChools outside the
With that decision. the Supreme
South, where legal segregation was
Coun bowed out of the lead ~Ie an
n't the issue. Thll II the question that,
school Intearation. Six years later.
unanswered, still haunts the country.
the election of Ronald Reagan
The' Civil RIgnts Act of 1964 or
brought to an end the execullve
dered the Government to undenake
branch's involvement in busing.
an ambitious lIudy of the issue of
equalizing eduntlonal opportunity
y 1994,ll's fair to say.
between the r.en. Liberals thought
integration is not on the
the study would sIIow thaI black
national agenda. It
schools were worfuJly underfinanced,
hardly ever comes up In
. which would k'ad 101M Federal GovPresidential or. Con·
gressional campaIgns
··Brown, Now
By Nicholas Lemann
PELHAM. N.Y.
lf an inch beneath
the surface of this
week's triumphant
rhetoric about the
40th anniversary Of
the Supreme Coun's
ruling in Brown v. Board of Educa
tion is a prevailing view that Brown
has a mixed, even disappointing lega
cy - that it engendered dreams of
racial integration that have failed to
come true.
.
That assessment is grossly unfair.
The Brown decision was meant to end
H
legally segregated public school sys
tems. and It. did so, in a way that
forever chang~d the racial conscious
ness of the nalion.
In 1954, there could hardly have
been a more daunting task than abol
ishing segregation in the public
schools of the South, which had suc
cessfullv maintained Jim Crow' laws
since short I\' after the end of Recon
·struction. . Thurgood
Marshall's
. NAACP Legal Defense Fund spent
the bellel' part of two decades, trying
casE' after case under the most diffi
cult conditions, to get the Justices to
hear a direct challenge to the 1890's
doctrine' of "separate but equal."
The Court itself, proba~ly couldn't
navE' arri~ed at the Brown deCision if
hadn't been for the death of Chief
Justice Fred Vinson in 1953 and his
r~placement by Earl Warren. who
was more sympathetic to the cause of
ending segregation and had the politi·
cal skill to bring the Court to unanim
ity. And having made the decision. the
Justices were so worried about its
enforceability that a year later'lhey
told the South. that it did not have to
desegregate immediately but "with
all deliberate speed."
Many lawsuits, demonstrations and
armed confrontations later. the deci·
sian was finally obeyed, The South
todav has the country's most inte
grated. public schools, which stands
II
a
B
�DATE:
.",
PAGE:
.
_
I
In America,'
, The fight against legal segregation
There will never be equal justice in
was both extraordinarily tough and the United, States as long as the races
extraordinarily successful. But mat _ are separated. But It is not enough to
ters of race in this country are so win court rulings, as in Brown, or
~omplex and debilitating that after 40
stirring legislative victories. like the
years a profound victory like Brown ~ Civil Rights Act of 196<1 or the Voting
can be viewed by many as ultimately RightS Act of 1965.. Such victories,
disappointing,
while sweet, are not ends in them·
For many reasons (paramount selves. They are opponunitles, tools
~ong them the bad faith and racism
to be used in the next phase of the
.of enormous numbers of white Amer struggle for libeny and equal oppor·
iCans), the goal of Brown to integrate .lunity.
'the . public schools has remained ., With racism still rampant, the fight
taTgely unrealized. But state"sanc- against discrimination in schools
"housing, employment and all othe~
. facets of life in America should be
intensified, using decisions like
Brown and all other tools to the maxi·
: mum extent possible. And the herOic
effort embodied in the Brown decl
. sion st.ould be a soUrce of inspiral ion,
nOI discouragement:
0
BOB HERBERT
After
BrolVn,
'What?
One of the many witnesses who
testified in the Brown v. Board of
Education case' as it made Its way
to.....ard the Supreme Court and histo.
ry .....as a sociologist named Louisa.
Pinkham Holt. She .....as among the
experts chosen by the plaintiffs to
support their contention that en·
forced school segr.egation damaged
black children.
In her testimony, Mrs. Holt got·
quickly to the essential problem of
I('"al segregation. She said, "The fact
thai it is enforced. that it is legal, I
think. has more importance than the
merE' tact of segregation by itself
does becau,se this gives legal and
official sanction to a policy which is
ine\·itabJy interpreted both by white
people and by Negroes as denoting
the inferiority of the Negro group."
In its ruling on May J7, 1954, the
SupremE' Court echoed Mrs, Holt: Ra·
cial segregation IS bad enough, but it
IS worse "when it has the sanction of
law,"
Brown. of course, was abOut so
much more than school desegrega.
tion. It ..... as about the real lives of real
people degraded by the state. It was
about the hOI Stified rage and the ICe"
cold shame of moving to the back of
the bus because the man with the '
..... hite face. told you to; it was about
the dread and the disgust of entering
the slimy toilet facilities beyond the
, door marked "colored," which was
Just across the way from the well·
maintained facilities for whites; It
was about the contemptuous "Get
ClUtta here, boy" that would greet you
jn so many places jf you so much as
lried to vote. '
Brown was the crUcial opening
wE"dge In the struggle to dIsmantle
legal segregation ,in the United
Stales, The deCision, said Jack Green
, berg, one of the lawyers on the case,
. de-legitimized the fact that the state
can create a second-class caste. It set
forth that E'verybody is morally on an'
equal plane.",
The state
of race
relations
,since 1954.
.rloned, school segregation is gone:
And, as Anthony Lewis pointed out on
Monday, the Brown deciSion meant
that "from now on the constitutional
guarantee of 'the equal protection of
'the laws' would mean just that."
, .. Mr. Greenberg tries, to imagine
what the United States would be like
. without the Brown decision. Congress
~tn the early 1950's was unresponsive
to black Americans. It wouldn't even
'pass an anti·lynching law. Most
blacks in the South lacked the vote,
and much of the power in COngress
.. was in the hands of Southern and
'b!atantly racist committee chairmen.
., "People wouldn't stand for that in'terminably," said Mr. Greenberg.
. ·'They would go into revolt. I think
·;A.merica would be a country like
:'Northern Ireland is today, We would
-'have kidnappings. terrorism, bomb
-1ng5 and riots." ,
.. The question to explore on the 40th
'''anniversary of Brown v. Board of
Education is not what went wrong,
_
but where we 10 now.
When the Brown decision was an
nounced, many thought that the civil
_ rights strugle had been, won, that
__ blacks and whites would put aside
their hostilitIeS and move into a re
',spectful, If not fond. embrace. It was
'an absurd notIOn. Frederick Douglass,
had written nearly 100 years earlier
that "power concedes nothing with
OUt a demand. It never did and it
never will."
r
�The least successful busing plan in
the country. in Boston. is also the one
best known by the opinion-making
class of the East Coast, so busing is
assumed to be finished forever.
School integration. with its implica
tion that black students will Jearn
more if they're around whites, isn't a
culting-edge cause for black leaders
either.
As for spending-based remedies to
the inferiorily of all-minority public
schools. they attract such intense p0
litical opposition -: having recently
put away Gov. Jim Florio of New
Jersey, for example -. that they are
often assumed to be impossible, too.
The favorite conservative solution,
government vouchers, has no mo
mentum in Washington. What's left is
a Southern-style, casual acceptance
of a well·known injustice.- as some
thing impossible to correct, some
thing we just have to live with.
t. the situation· should.
not generate so much
. despair. All inenews
about school integra
tion isn't bad. It is the
much more limited phe
nomenon of all-poor, all-minority'
schools that should be thought of as a
real crisis.
The main positive development in
school integration over the past two
decades has· been the growth of
"choice" programs in urban school
districts. in which parents are al
lowed to choose ",;here their Children
go to school Forty-one of the nation's
. 45 biggest school systems have these.'
programs; total enrollment is 1.2 mil
lion in nearly 2.500 .. magnet schools."
These schools generally have a speci
fied focus - SCience, the arts and so
.on - but .their real purpose is to keep
middle-class, especially white, stu
dents in the public schools by giving
them especially good and not over·
whelmingly minority schools_
There are controversies surround
ing magnet schools' favored status
and selecth'e admissions. but what is
amazingly uncontroversial is the idea.
of students' traveling outSide their
neighborhoods to go to schools expllc~
. itty set up to have a racial mix. Most
magnet schoolS have waiting lists.
BUSing still goes on all over the
country. in cities like Springfield. Ill.,
Charlotte, N.C., and Louisville, Ky;,
without generating Boston·like resist·
ance or wholesale flight from. the
public .schools. In polls. solid major·
illes of black parents still support
busing. and white opposition to it is no
lon,er overwhelming. Nor is spend·
H
.
It wasJim CraW'S
death sentence.
But it didn't kill
unequal education.
It couldn't.
ing equalization as dead an issue as it
may appear to be. The policy debate
over whether it does any good is
finally showing' signs of consensus
around the idea that spending does
produce results if it goes directly to
classroom instruction rather than ad·
ministration.
Extra money ii available for poor
districts:'" from the Federal Chapter
One program, and from the states as
a. result of a 1977 Supreme Court·
· deCision that local schools could be
ordered to :provide remedial pro
grams to make up for the effects of
past segregation. New Jersey, Michi·
gan and Texas have been wrestling in
the political arena with the issue of
unequal spending.
hat should
outrage us
today is the
condition of
the bottom
of the Amer·
ican public education system, which
is almost entirely reserved for' minor
ity students - children whose par
ents have been unable or unwilling to
get them into magnet schools. Gary
Orfield. a Harvard professor of edu·
cation who is a veteran crusader for
· school integration, says all urban
schools that are mostly poor are also
predominantly blac;k or Hispanic.
These schools, especially in big cit·
ies,. not only are deteriorated PhySi·
cally but also have the air of penal
institutions: metal detectors at en·
trances, armed guards cruising the
hallways. burned-out teachers and
administraton whose' main goal In .
class is to in.mtain order. angry and
fearful stl.ldents ...,ho usually leave
when they pc the chance.
Only miraculous kids can use these
schools to 1ft anywhere worthwhile
· in society; for the !"Ht. opportun,ity
doesn't exist. Hardly any whites go to.
schools like ""... T1le raCial injustice
iN> InJustice that led
is on a par\
to the Brown cue.
It is not. ~. a situation 'at
whose be~lIna /Wart 11ft a law that is
unconstitutianal. .nII therefore it is
not one that wtJJ . . lftOived by cOurt.
decisions. Tht four~ aftermath
01 Education demo
of Brownv.
WI""
"I'd
/3 -f!-.
onstrates not jusl the power of the
Supreme Court to right wrongs but
alsoits limits: if the Court gets very
far ahead of the electorate, the elec.
torate will remake the Court. We
have to come to some public, political
resolution of the issue of race and
education, using the range of tools
now ayailable to find a way to make
our worst schools decent.
. This will be difficult and take a long
lime, But progress on our raCial prob
lems never comes without Sustained
intense engagement. What bodes weJi
now is what also made the Brown
decision possible: the country still
believes in equal opportunity, and ap
peals to that belief have a way of
prevailing in the end.
Nicholas Lemann. a national corre
spondent 'or The Atlantic Monthly, is
author
"The Promised Land,"
0'
�DATE:
PAGE:
:->;..,
-,2
Combatting Hate
• Bias: Crimes against
minorities are increasing. with
gays now victimized the most.
The majority of incidents will
go unprosecuted as the violence
. extracts a heavy personal toll.
By DENISE HAMILTON
TIIIIES 51 AFF WRITER
ichael Floyd thought it would
never happen to him.
But soon after the 28-year-Old
gay man moved into a Van Nuys apart
ment complex In 1993. hiS life became a
nightmare. It started when his building
manager called him "fag" in f~ont of
other tenants. Someone scratched a huge
"F" into his car. He found excrement
smeared on his front door. One neighbor
shoved him. and another threatened to
kill him.
"Why are you doing this:" a shaken
Floyd asked.
'
.
The answer came back loud and clear:
Because he was gay,
Floyd called the police seven. times
during 1993 but declined to file charges
after the assault. mistakenly believing
that the torment would stOp. After other
inCIdents. police told him it was tough to
solve anonymous acts of vandalism and
that they could not act on threats unless
accompamed by an Illegal act.'
"I felt so helpless." recalled Floyd. who
moved to West Hollywood in January
because he feared for hiS life. "I thought:
'00 I have to get killed before the police .
will do somethmg:' I'd heard about'
homophobia and harassment. but I never
thought it would happen to me. I thoUght
people would treat me as an indIVidual."
Floyd's case is not unique. Last weelt,
Los Angeles County released its annual
hate crimes report, which recorded 783
such crimes in 1993. a 6," % jump over the
preVIous year, For the first time since
1980. when the county began tracking.
gay men supplanted African Americans
.. ' as the primary target.
Hate crimes are increasing. and they
are getting more violent. Although the
stereotypical act of hatred may be a
spray -painted swastika or scrawled racial
epithet, almost one-third of hate crimes
in 1993 were assaults. 105 with deadly
weapons, according to the study,
M
The' majority WUJ go unprosecuted.
According'to .the county Commission on
Human Relations, only 12 hate crimes
came to trial last year. Trials in two more
cases, in which people were killed, are
pending.
.
. .
Floyd's c:ase illustrates the difficulty
U-:at victims and law enforcement agen
.clesface in recogniZing and proaecutirig
iuch crimes. Los Angeles Police Depart
ment officials will not comment on how
many hate crimes lead to arrests, and the
district attomey's office cannot break out
hate crimes on its computers.
."We st.ruggle With overwhelming odds
at ~very leve!." said Kay Shafer, the hate
crimes coordinator for the district attorney's office.
.
Many victims. including Floyd, say
they did not know .there was a law
against hate crimes. Others are not lUre
what qualifies as a hate crime. The
Human Relations Commission says lean
ing out of a car window and calling
someone a racially chqed name would
not qualify. Spray-painting a swastika on
a synagogue would. Obscene or threaten
ing phone c:alls that cbntain ra~ial, ethnic,
religiOUS. homophobic or sexist. slurs are
_ hate crimes. But a fight between a white
man and a black man would not be lOlled
as a hate crime unless .racial epithets
were exchanged.'
.
Community groups monitor the filUJ'eS
closely, A spokesman for the American
Jewish Committee noted that Jews are
victims in disproportionate numbers;
they constitute ONY 5,. of the Los
Angeles County population but account
for 89.5,. of all religiOUS hate crimes.
Frank Berry. a spokesman for ~. Na· .
tionaJ Assn. for the Advancement of
Colored People, aid pya may have a
hilher profile this }'ear but that the
number of hate crimes against African
Ameri~ isltill alarming.
Consider Robert LH JohnlOn•.who is
African American. John8on said he and
his family were the t.atpt of a Latino .
atreetpnl.
t Itarted with radaJ LlunLL Hildaugh,
I
ten were . . .ulted Oft the way to the
market. In February; JohnIOn wu shot as .
he watched TV in his Hvme room. Two •
weelts later.someoM t.hJ"l'w a pipe bomb
into his rented NOrwalk home, which
burned down. The family. which included
1,/
children Ind grandchildren, lost every
thl.ns they had. Now livmg in Compton,
John8on is t.ryinB to put the trauma
behind him.
However, be said. "We deal With it
every day. It's always there. It' Will
probably always be there."
JohMon is frustrated by the limits of
lbe system. JrutialJy. be said, the Sherifrs
Department "did a lot of hesitating. When
we called. it' was like 'No one's hurt.'
They lOt offended when my son told
them it was a Latino gang. They said.
. 'How did you know it was a Mexican?
What was the motive?' Suspicion's being
tUrned on me. We haven't committed any
crime,"
.
Shanon Hodges, a gay African Ameri
can, reca.IJB the diffICulty he had persuad~
inI police that he was the victim .of a hate
. crime in 1989. Hodges had gone .to !lee
about renting a Silver Lake apartment
and was walking down the street about
9:30p.m.:
Three white skinheads between the
ages of' 17 and 19 approached. and'
Hodges • .who sensed trouble, began to
run. One youth yelled, "Nigger faggot.
I'm going to kill you," Hodges said. and
. stabbed him in the back With a jagged
six-inch knife.
Hodges staggered down the street and
fell into .the first open door. It was a gay
bar. whose manager called police and an
ambulance. When police arrived. Hodges
said, they pulled on his earrings. called
him names and told him thl' attack was
his fault Hodges said he spent eight
hours at County-USC Medical Center
waiting to be treated. The usa.ilants were
never caught.' .
An LAPD spoltesman declined to com
ment on the c:ase, saying that "if conduct
lilte that [by the officers] happened. it's
inappropriate. and we have a process for
dealing With that, if (Hodges] wants to .
fLle a complaint"
Hodges' scars, both physicai and emo
tional, remain five years later He
dropped out of art school. He became
estranged from friends. He broke off with
his lover because, he
he felt ugly. 'He
tried cOun8eling, but it did not help. He
tried draWing. but the pictures were 10
angry, he tore them up.
As With the attack on Hodges. many
hate crimes occur at night. AssaJlants use
a hit-and-run approach that leaves few
clues. Victims, whether gays In the
closet. African Americans dlsaffKted
with law enforcement or Immlgnnts
. fearing deportation. often do not cill the
police.
.'
said:
�Cmcir, John White. the LAPD's hate
crime coordinator, dIsagrees,
"A lot of people go around buhing the"
police, but I don't think there's a police
, department in the country that hal a
system as efficient as us for handling hate
,crimes:' White said.
Compiling Hate
Crim.ina.l threats and assaults were the mOlt
prevalent forms of hate crime reported in Los
, Angeles County in 1993. according to an annual'
study of hate crimes in the region. Here is how
often types of hate crimes occurred.
E
ach LAPD division has a hate crimes
coordinator, White said. AU rookies
, study. the wue at the' police academy and
241
'30.8%
Criminal threats
receive in-serVice training, inc::luding pe
riodic memos from White. When a hate
Assaults
233
29.8%
crime repon is filed, follow-up caJJs are
' 130
Vandalism
16.6%
made to the victim's home.
, "We try to find a nexus, a connection
Assaults with deadly weapon
105
13."%
between the crime and the person . . ,
Gl'aftIti/Y8t'ld8lism
2.8%
22
but often there's not enoUlh evidence. If
, . the IUlpeCt didn't say anything Iracist or
Hate literature'
17
2.2%
homophobic), it's hard to c::lassify it as a
'4.5%
Otners
35
hate crime," White said.
'
Hate crime. are up, experts say, be
....;LaI"""~eomn- CfI
cause Americans, seek, scapegoats for
their, ,declining liVins standards. Hate'
crimes between minority groups are ris
Immigrants' rights groups' say their
ing as well as crimes against Whites.
clients can be deported if they report a,
"When you get this fear and frustra
hate crime and an investigation shows
tion, people reven back to their in-group
that they are here' illegally. Some argue
and want to find a target for their anger:'
.that California needs to amend Its laws so
LeVin said. "We still harbor stereotypes .
that Victims cannolbe deponed or kicked
and they're the trigger that someone who ,
out of the military for reponing hate
is Sick or angry or frustrated can beat up
on."
crimes.
Even when victims step forward. com
Society also suffers because hate
munity activists say. pollce do not always
crimC-j breed fear and distrust among
groups, dividing people into either vic
log the mCldent asa hate crime. a charge
tims or perpetrators. Levin said. Hate'
the police deny, And if arrests are made
croups recogniZe. the, fragility of the
and charges filed. the district attorney
inter-group bond and how easy it is to
must prove that the defendant committed
disrupt. They, hope that a hate crime
the ,crime and that it was motivated by
might cause a riot.
hatred.
. Vet most perpetrators are not members'
are among the most underre
of organized groups. About 85% are male, .
in their early or mid-teens, and lead a
ported and underprosecuted
crimes around." said Brian Levin, a' marginal eXistence, said Jack Levin. a
professor of sociology and criminology a~
visiting scholar at Stanford Law School.
who is legal dIrector for the Center for
Nonheastem Univer,sity, who co-wrote
"Hate Crimes, the Rwns Tide of Bigotry
the Study of EthniC and RaCial Violence.
Even county statistics are incomplete
and Bloodshed.'"
"'
because only nine of about 40 law 'en"TWenty years ago they might have
forcement agencies provided data. West \ stolen hubcaps: now they beat people
Covina logged 12 hate'crimes last year . up," Levin said. ''They ~ unremarkable
that were nolincluded in the countywide
types, the kids down the block. Very few
total of 783. West Covina poJiee crime
wear sheets or armbands or hoods."
analyst Anne Gray said the county never
The boy next door,terrorized John Ruiz '
I'fquested information on hate enmes; the': and his family in Arleta for. two years.
county said it conta'cts each agency.
i . Paul M. Downinl, who mistakenly be.
Shafer. of the dIstrict attorney's office, I 1ieved that Ruis was JeWiah, spray
said that thanks to massive media atten
painted anti-Semitic araHiti and lWuti
tion and education programs by commu
kas on the walla, set fU'eS in their home
nity groups and law enforcement. aware·
and rlted thots into the window;
ness about hate crime is growing. But she
RWI, • Catholic of Spanish inc:ettry.
likens it to the status of domestic violence laid he had ". ".eat deal of, difficulty" in
and sexual assaults 10 or 15 years ago.
,ettln, police Interested. Detectives
turned up notlUnl. Ruiz turned to the
Anti-DefamaLiorl Leque, who persuaded
, Levin estimates that ,half of all hate
the FBI to pUJ"llUe It .. a ~vtl rights
crimes still go unrepOrted; in the gay,
Violation. Downm, pleaded piltyto
community. he believes, the figure may
be as hIgh as 90%. Only about 1 % are , eight feJoniel and' wusentenced to 10'
prosecuted. he said.
,
"
, ~ars in prillon in 1991.
But the fight 1f!f1. PfOf'ound scars. After
"Gettmg the lme officer. who is the
spendins 120.000 on fiTt' repalJ'S. Ruiz sold
most cymcal and least trained. to under
his home,of 15 ye""; where he had hoped
stand what constltutes a hate crime is
to retire. He lOll has )Obas a national sales
very dIfficult:' saId LeVin. a former i>Ohce
manqer becaUil !W was afraid to leave
officer who now runs hate crime traming
his family to go on buIlnea trips.
programs for various Police deoartments.,
. - ' 1I'IICIIrr_
w.--....
"These
I
I
, Today. RWI lives in a sec::urityb\.wdins.
in a place he will not reveal. He no 10i'IBer
registers to vote because he fears that
Downins'c::ould obtain his address. He and
his Wife flinch each time a mot.oreY(.le
passes becaUM the hatemonser once
harUIed them from his motorcyc::le.
. ''This hal been sueh a trauma in our
lives that we just can't shake it:' Ruiz
laid "I am an Everyman. I believe in live
and let live. I love my country. And it's
horrifyillB to me that thiJ can be happen
ing In America; But you can't let acme·
tlUnI like thiJ consume your Janity ,
because then he won. To a degree he won
anyway. This will always be With us."
�,"'" '--r
.
I,:
• I,",
"'"t
,"
,',"
"
DATE:
PAGE:
. i .
Jury considers
Rodney 10111 suit
LOS ANGELES - With 53.8
million in compensatory damages
assured, Rodney King listened
yesterday as his attorney asked a
jury for more money. Some of the
people he sued arRUed Mr King
is the one who should pay. •
Jurors began deliberations on
whether to award Mr. King puni
tive damages from six current
and former police officers over
his videotaped beating in 1991.
. Mr King's attorneys want be
rween 53.8 million and SIS mil
lion in punitive damages from de
fendants Theodore Briseno,
Stacey Roon, Laurence Powell,
Timothy Wind, Rolando
Solano and Louis Thrriaga.
..s·/'-'f
'A-s
�THE WALL STREET JOURNAL.
V'Disabilities Dissenter Crushed
De\'al Patrick has made his first
$tand at the Justice Department's civil
rights di\ision, upholcting litigious use
of the Americans with Disabilities Act.
Attorneys. start your meters running
on U.S. schools and businesses.
It was Mr. Patrick's option to call
off the zealous lawyers in his shop who
were intent. in the face of an unfavor
able court finding. on pursuing Becker
CPA Reyiew of California for not leap
ing to hire individual translators for
hard·of·hearing enrollees in its part·
lime courses. Instead. he let them
bro\l:beat Becker into a settlement
nearly fi\'e months after a trial judge
r,ad questioned the basis for theal·
ready year·old case.
So last week. 66-year·old Newton
Becker. out hundreds of thousands of
dollars in legal costs against an ad·_
q')'san with limitless resources. fi
l;ally gave in. His firm avoided paying
(Iutrighl damages to the acthists for
the deaf who sought out the litigation.
but agreed to provide the translators
(In demand. at a cost {'xceedil1g the
"jill'S!' (llilioll. (Before the action was
filf'd on Christmas Ew 1992. Becker
had gone most of that way. seeking
only 1(1 ha\'e the students try a tran·
scripl of the lectures firsu
As in most lawsuits. the details of
1l1t' case are disputed. But the essence
··f the suit was abundantly clear: It re
lIf'oed the belief of partisans for the
hearing-impaired. both outsidf:: andin·
side the Justice Department. that in
structional entities are going to have
to accommodate those with a defi
cienc\'. whatever the cost. And not just
\\·fth the basics of the lessons, but so
that handicapped persons can enjoy
the experience "fuJly and equally"
with their counterparts. a phrase de·
signed for lawsuits.
The people who wrote the ADA.
some of y.;homare now busy enforcing
it. included language about sweet rea·
son to gain congressional approval.
Where is the reasonableness for
Becker CPA Re\'iew and those next in
linf' 1(1 lose money on each disabled
party they must 'serve? Where are the
members of Congress and the jiJdge5
to insist that the law not punish in or
der to assist? Are they now too afraid
to antagonize the hancticapped lobby
by challenging the ADA's enforce·
ment axis?
Becker CPA's settlement puts the
company on what amounts to a three·
year probation, which subjects it to in·
tensive scrutiny and is therefore
somewhat of a gag order. Mr. Becker,
who used his own early troubles pass·
ing the accountancy exam to build the
premier prep course over more than 30
.years. has made clear his unhappiness
at his legal predicament. But it will fall
to others to make the case for at least
a "safe harbor," by which a school
would beob1igaied to pro\ide no more
than the tuition's worth of special ser-,
vices. Under such an arrangement, it
would still have to swallow the over
head for each disabled student, but not
the marginal cost. Might we see such
a legislative clarification of ADA's
"reasonableness" standard?
As it is. the Beckers of the world
are fair game for every lawyer infused
with a cause. And though the federal
crusaders seemed to have it out for
this firm, don't think they need stop at
the profit·making world. A bounty
doesn't matter to zealots as much as
the chance to rearrange society on be
half of aggressive egalitarianism. Just
wait till the concept of "learning dis·
abilities" is fully fleshed out in court.
We have said from the beginning
that few Americans any longer would
resist common-sense adaptations to
the needs of those impaired. What
business and other institutions have to
fear. by contrast, is legal extremism.
In the case at issue, organizationsfor
the deaf could have acted to group
CPA·candidate clients so as to make
the expense of a translator, if that is ..
what they really wanted, affordable at
no loss to anyone. Instead, they darn
aged an enterprise to score a point. Is
this the standard Mr. Patrick intends
to maintain at civil rights?
17
DATE:
Sllft/;:L .
PAGE:
/1-'1/
�.
/'5 -CIt{
DATE:
j
PAGE: _ ...
1_ __
.
..
.
IUS Seeks,-,to' Oust Prm·c)·pal
•
•
,
I
'I
.
,hrt989. Jastice
Detlmblleflt civil
ripts offidaIs aod the Education De
JIII1me:Ot determined that RmdoIph
Action Ci~es Racial Remarks at Alabama__ _ _ atm&;eep-epted IdIooI ...... Back
School: ~~=,:~in:'
.
By Pierre Thomas
.,.........""",. !iI.atf Wi'll"
The Justice Department yesterday
asked a federal court in Alabama to
ordt'r school officials to explain why a
rural high school principal should not
tit fued or reassigned for allegedly
making rada1ly derogatory remarks.
In an unusual, move singling out a
local school official for punishment,
t~ Justice Department claimed that
Iht> principal's alleged statements are
rt'flt'rtl\'t'of a school s\'stem that con
tlnUt's to discriminate' against blacks
dt':.pitt' t\\'o court orders prohibiting
II. Seruor Justice ofhrials said privateIy last night they elMot recall ever
rt'qut'sting that an official be fired for
di:.rnmlnaton'remarks.
Randolph County High School Prin
npal Hulond Humphries threatened
to ranct'l the high school prom if in
;::::"'raclal couple!'> attended and said
that a student who is the child of an
interracial couple was a "mistake," ac
cordlnl'! to Justice motions filed in fed·
t'ral court in Monlj!!omerr on the 40th
anni\er~ry of tht- Suprt'me Court de
CISion outlaWing public school segre
~JtIi.J.iJ"
In addition. thdustice Department
rh3rJlt'd !'choolofflrlals in new mOo
h()l1~ In a lonJl·~t.1ndmj!! dt'Sf'gregation
!'ultwn!'l \'Iolatmg rourt orders by
-dl:>nphnmlZ bliid.: !-t·udenh more
h.1f~hl~· I han whllt's and failing to re
cruit or hirt' black tto'arl\t>rs and staff,"
-Thi" ra:.t' j" not just about one
m~1l who madt' ;II dt-rogatory remark,
but an t'ntirt' IOthnol s\'stt'm that we
bt-ht'H' ha" allowt'd an 'atmosphere of
dl",rimillation 10 persist: said De\'al
Patrick, a~)i!'tant attorney Ileneral for
cMI rights, w:hose otfit;:e initiated an . i students and parentlay the practices .
investigation after COUlltlaints from . hive bepn apin. deIPte IIIIUI'u:es
county residents, the NMCP and the thlt they would ce:ue. .
Southern Christian LeacIership Con- ' . NAACP offx:iaIs ap:! Ile~ U1iIfac
ference. -Today's action demon- DaD that Justice .... requesting that
strates that some of tM problems the ~ order IdIooI oificiIIs to aJb.
thlt once haWlted u.s are ItiII with us." .. nut within 30 days a cIetaiJed plan to
Bruce Fein, a c:onstitutDaaJ lawyer compl~ ~ ~ aut orden lan
I. and ,former ~eagan administration· IUDg discriminatIOn.
JUlt-ce offiCial, called tH depart-We do not e:spect our educatimal
lIIII!ftt's action • "'heavy bm:Ied" Ie- 1e8de:n, t.be people eab'uIIted with our
sponse to a highly pubbc:ized cue that cbiIdren. to treat them like thlt: taKt
"took OD a Jill' eX its'own.",
Au~rey Clinton-Filher, NAACP
"They are doing it both for potitical Soe.ltheast Rqiaa edul..tion specialist.
reasoftS and to provide comfort to the
black community by Jetting them .
know that their concerns 1Ij.U DOt be
ianored," Fein said.
Humphries and school officials.
COUld not be reached for comment.
The principal's defenders !lave said
that he meant no offense, but was
simply trying to avoid racial confron
tation, according to published reports.
FJlhts had enlpted on c:ampIS when
interracial couples were seen togeth
er, they said.
In February, Humphries ISRmbled
all upperclassmen and informed them
that the prom would be c:anceled "if
any interracial student couples
planned to attend," the Justice motion
charges. "One student tclenti6ed her
~If as havinl biracial pareats and
asked for Iuidance'- the Ilotion
"'Mr. Humptu;ea stated to the
~ that this studeut's fUeIlta
bad .... a 'niatake' and that he did
not want any otbers to make the
same 'mistake.' •
His cledantian was later I1IICinded
by the IChooI superiDteocient, t.ut the
~ board his -expn!ISIy dediDed
to take disciplinary action IDd other
corrective JD9I&II1lS," Justice officials
1IDd. The alIqed remarka led to a
boycott by biacb IDd calls for Hum
pftries'l retipaticIn.
I
Ita.
I
�~
(!!br ~r\lfUork(!!bnr~
11.s. Moves to Oust Principal
In Furor on Interracial Dating
By RONALD SMOTHERS
s,.c.. IIO Thf ""' y .... Timet
ATLANTA., May 17 - After a prin
dpal's attempts to discourage inter
racial couples from attending the
high school prom in Weedowee, Ala.,
the Justice Depanment today re
opened a 24-year-old desegregation
case and asked a Federal court to
remove the principal.
. In the action in Federal District
Coon in Montgomery, Ala., the Office·
of Civil Rights asked that the Ran
dolph County School District be found
in violation of a 1970 order barring
the district from discriminating in its
extracurricular activities, in its disci
plinary practices and in its hiring of
facultv and staff members.
· But'the new action also seeks the
"termination or reassignment" of
Hulond Humphries. the principal at
Randolph County High School:
Mr. Humphries touched off a brief
· school boycott and awakened racial
antagonism," the community when
he threatened at a school assembly to
cancel the prom to prevent interra
cial couples from attending. He pub
licly told a siudent who is the child of
an interracial marriage that she was
a "mistake."
Statements Criticized
"Mr. Humphries's statements at·
thE' assembly created· unnecessary
and substantial racial discrimination
in the conduct of extracurricular ac
tivJlles at the high SChool," the Jus
tice Depanment's motion said.
.
The depanment asks the court to.
order the school district to explain
why Mr. Humphries "should not be
terminated or reassigned to duties
that do not involve contact with or
supervision of students."
Nathaniel Douglas. head of the edu
cation opponunities section of the de
partment's civil rights division. con
firmed the filing of the motions today
and said that technically the district
was still coveted by the the 1970 order
against a variety of racially discrimi
natory activities.
The depanment's recent investiga
tion of the district at the request of
black parents had found substantial
problems with compliance with that·
.
order. Mr. Douglas said.
Dr. Audrey Clinton-Fisher, the edu
callan spedahst in the Southeast re
gional office of the National Associa
· tion for the Advancement of Colored
People, who has been working with
black parents in Randolph County.
called the JuStice Department action
"a giant step toward eliminating the
vestiges of discrimination in Ran
dolph County."
Interviews aad Inquiries
Dale McKay, the school district's
Superintendent, said he had not ;seen
the coun motions and had only heard
about It from news organizations.
"You never know what the next
step will be in an investigation .like
thiS.:~ Mr. McKay said, adding that
Justice· Depanment offiCials had
been interviewing people and poring
over records in the district in the last
few weeks.
Mr: Humphries. who has repeated
ly refused to comment on the school
prom inCidents, could not be reached
for comment.
Last Feb. 24 Mr. Humphries sum
moned seniors and juniors at the 700
student school to an assembly at
which he asked who was planriing to
attend the prom with a student who
was not of the same race. When sev
eral students indicated that Lt!ey did
he said that the prom, which was
scheduled to be held on April 23,
would be canceled to prevent violence
and disorder.
ReVonda Bowen, a junior whose
father is white and mother is black,
then asked Mr. Humphries about the
decision and what it meant for her.
He reponedly said that her mother
. acial remarks
R
about a high school·
prom bring aJustice
Dept. respOnse.
and father had made "a mistake" in
having her, and added that it was a
mistake he hoped to prevent others
from making.
.
CIvil laWSuIt Flied
. Miss Bowen and her family 'have
filed a Federal ciVil suit against Mr.
Humphries and the school district.
Although the pnnclpal rescinded
the cancellation of the prom the next
. day, his comment. led 10 demonstra
tions by black pamltl Who urged that
he be dismissed. and to counter-dem
oastrations by white pamlts praising .
him and supponma lUI stnCI discipli
narian approach II the school.
The county school boArd did sus
pend him with pay for I shan time
but, at a raucous ~ma In March,
theyrelected Mr NcKay', recom
mendation for I full IftVfltigation of
. the incident and I'Hlored the princi
pal. .
DATE:
'Acat:
The prom was held as scheduled on
April 23 but was closed to all except·
students and chaperones. An alterna
tive prom sponsored by protesting
bl!lck pa~ts· reponedly went off
Without inCident, with at least one
interracial couple attending.
�IHf NAliON
~ NIW~PAPl.
DATE:
PAGE:
. ustice Dept. enters
J
Alabama prom furor
u.s.
The
Justice Departmeat Tuesday stepped lido tile
cootroYersy over an Alabama prIDctpaJ's attempt to ban an
IDterradaJ proM, asIdD8 a federal Judae to order tbe local
scbool board to BIlow wby tbe prtndpaJ sbouJdn1 be Ired or
reassigned. The department cItar'Bed RaDdoIpb County
I
Rf&b School PrtodpaJ BuloDcI BumpbJ1es wItb Ylo&atiD8 a
. 1970 federal desegreptIoD order by caIIiD8 miDd-race !Jlu.
dent ReVooda BoWeD a "m1staIr.e," and for tIu'WfMIq to
cancel tbe April prom It IDtem.daJ couples atteDded.
The court adIoD, and a mardi ap1DSt racism ID cou.aty
scboo~ came 00. the 40th anruversary ot tbe Us. SUpreme
Courfs Brown \IS. Board of Education ru.IiD8 ID a Topeka.
KBD:., case that led to DBUoo..aJ scbool d~
.
The JusUce Depart
mears IDD8 ID A1a
bama accuses tbe
scbool d1'!Itrtct of DOt
b1rtna eDOUIb black
teachers aDd "dlsJCI. '
PIlDiD& black students
more barshly tban
wbItes."
More thaD 100 stu
dents In Wedowee
bave boycottea cJas&.
es sIDce the 8dlool
board reinstated
BumpbJ1es ID April
wItb DO fU.rtber diad- '
pllDe plaDDed.
Audrey Clinton
F1sber of the reatoaaJ
NAACP, WbJc:b com
plained
about
Wedowee, said tbe
JusUce Department
request Is a "1IBDt
step towanJ eUmlDatlDa d.t:9crtn'IJDat to RaDdoIpb C0un
ty" and "bad to be done ID order to e.asure acca to equal
opportunity and quality of educatioD tor aD dIUdreD."
CoDsemldve JeaaI 8dlolar Bruce Fein .,. tbe .,..,.,..
.meat stngted out Bu.mpb.r1es to ''geDd a sip) tbat 1bIs kIDd
of b~, even If UDwitt1D& wUJ DOt be tole.rlted...
School oflldals dec.UDed to commeot .
... A ooce alJ.black 8dloolAD Topeka, Kan.. at tile ceater
ot the IaDdmark desegreptioD case may SOOD be a D8UoDaJ
park. The bu.DcllD8 is "a mooumeat to a trlumpb of tile bit
mansplrtt" ottboaewbowOTUd from tbe 18OO1totbe 195GB
to ObtaIn equaIJty, aid (beryl Brown BeDdersoo., wboae llli
tei' was a plalDtUr AD the c:ase. (a1a_ teacIIeI, W
- SIuJdnI SadIea'
·3
61~.qq
3-11
�5- \<6:sti
DATE:
g ;..~
PAGE:
'U. s. seeks principal's ouster
. '
.
Justice Dept. applies pressure in ·prom racism case
ASSOCIATEO PRESS
.
The Justice Department asked
I federal court yesterday to pres
sure an Alabama school board to
fire or reassign a high school prin
cipal who was accused of threat
ening to cancel a prom if inter
racial couples attended.
Papers CUed in U.S. District
Court in Montgomery, Ala., also
said the Wedowee school district
violated two court orders by disci
plining black students more
harshly than whites and failing to
recruit or hire black teachers and
staff.
The school has 680 st\!dents; 38
percent of them are black.
On Feb. 24, Hulond Humphries, '
the principal of Randolph County
High School in Wedowee, told a
school assembl)' that he would
cancel the prom if interracial cou- '
pies tried to attend.
ReVonda Bowen, a biracial st\!
dent, said she asked Mr. Humph- '
ries after the announcement who
should attend with her. She said he
replied only that she was a "mis
take" bec:ause her mother is black
and her father is white. The 16
year-old junior has CUed a civil
rights lawsuit against Mr. Humph
ries.,
'
The prinCipal withdrew the
threat to cancel the prom the next·
day and has said his comments'
were misunderstood: The event
was held as planned April 23.
Mr. Humphries was suspended
March 14 pending an investiga
tion, but the six-member school
board - made up of five whites
and one black - voted 4-2 March
31 not to fire the 55-year-old prin
cipal, thus reinstating him to the
position he has held for 25 years.
. At least 60 black st\!dents boy
cotted classes May 4 to protest Mr.
Humphries' reinstatement. The
st\!dents sPent the day at two
churches discussing multicultural
issues and nonviolent protests.
Many wore black-and-white rih
bons.
The Justice Department doc
ument filed yesterday asks that
the federal court require the
IICbooI board to explain why the
prinCipal should not be dismissed
or assigned to duties not involving
contact with St\Idents.
The document also says school
officials should implement a non
discriminatory 'hiring procedure
and establish a fair, impartial dis
Ciplinary code for St\Idents.
"Forty years ago today the Su
preme Coun's decision in Brown
vs. Board of Education changed
the landscape of this nation's edu
cation system," said Deval L. Pat
rick, assistant attorney general for
civil rif{hts, in Washington yester·
day.
·
�DATE:
-
,.
'~~.,
PAGE:
€bl'~l'\l' Uork €iUll'S
VA rguments B· at TJria I
•
egln
· J I's lYlal.e rO l·
II I D
ley
~:~~~i==ti:~~~:Sa~~[~~
On Cltaae
....
.
.
-
Legal Themes ofEqual Rights liS. Diversity
.yCATHERINE S. MANEGOLD
test case for the equal protection
clause of the 14th Amendment.
. The Citadel is South Carolina'S only
public college that serves a single
sex. 'nother South carolina college
that. formerly served only women.
Winthrop. staned admitting men in
the early 1970's in response to declin·
ing enrollment and the general ch·
mate, at a time when many women's
colleges were opening their doors to
men.
The Citadel's lawyers are trying to
show that South CarOlina had a
system of education that allowed for
colleges thai would be separate but
equal. They are pushing the notion
that Winthrop voluntarily selected co
education while The Citadel opted to
follow tradition. "They decided to go
co--ed:' said Maj. Rick Mill, a spokes
man for the college. "The Citadel
should not be penalized for that."
From the start of the trial Monday,
school lawyers have set out to show
CHARLESTON, S.C., May 1.7
Lawyers this week began arguments
over Shannon Faulkner's right to at
tend The Citadel, one of IWO remain·
ing state·sponsored, all-male military
.colleges in the country, in which she
is enrolled. The first two days of
testimony have been used to sketch
the case as a matter of equal rights
guaranlE.'ed by the Constitution ver
sus the benefits of academiC diversity
in South Carolina's educallonal
system.
Ms. faulkner was admitted to The
Citadel last year after she intention
ally deleted all references 10 sex in
her application. Her place al Ihe col
lege was canceled when Citadel offi
cials realized she was a woman.
Ms. faulkner sued in federal Dis
trictCourt here. Judge C. Weston
Houck granled her a preliminary in
junction and she began classes in
Januarv. She does not live in the
barracks. however. and she is not
allowed inlo the mess hall.
In a case that will to some extent
weigh the benefits of male-bonding,
single·sex education, feminist thear;
ar:d '.hr: limits of equal protection
under the 14th Amendment, a specific
argument is emerging as the center
piece: Whether lawyers for the de
fensecan .prove that The Citadel per·
formsa .unique function in a. state
commilled to providing students with
options in their education.
Lawyers arguing for an 'open ad· that the inclusion of women would
missions policy say that argument irreparably harm a state treasure,
ignores one glaring fact - that the weakening a tough military environ
option applies only to men.
ment that mingles academic studies
The Citadel, which has sent thou with a culture of discipline, self-con·
sands of graduates on to some of the trol and Spanan physical amenities.
most pretigious positions in business;
Rele of Public InstltuUons
law and pohtics around the country.
has been so opposed to the inclusion
Ms. Faulkner's attack on that view,
of women that last year it closed one while in keeping With the long battle
prog~am entirely rather than open its
of the women's rights movement to
doOrs to three female veterans.
open more doors for female students;
. comes at a time of divil)Oft over the
Seeklnl an Equal Place
benefits of single-sex education.
Now. that attitude is being chal· Some women have argued that sup
Ienged in court by Ms. Faulkner. a pon for all-women's schools should
determined 19·year-old who wants an be naturally extended to men .. well.
equal place in the corps of cadets, the Lawyers for Ms. Faul.ltner counter
college's prestigious main student that while that may be true. It Ihould
body. Her case has been taken up by apply only to private institutions, 001
the American Civil Liberties Union colleges that are heavllywpponed
and the Department of Justice as a Wi!-h tax mOlley.
.
Does a male-only
military college
perform a unique
function?
Lawyers for the Citadel tried to
drive a wedge among women. howev
er, calling on Elizabeth Fox Geno
vese.a professor of women's history
at Emory University in Atlanta. to
testify that single-sex education is
and "separates the story of mating
and dating with the purpose of educa
tiOn. tt
'
Judge Houclt Interrupted that testi
mony by com menting that the merits
of single-sex educatiOn had already
been determined. He called on both
sides to restrict their arguments to
why South carolina should not be
bound by the United States Court of
Appeals for the Fourth Circuit'S re
cent decision that the Virginia Mili
tary Institute's policy of excluding
women was discriminatory.
That college, known as V.M.I.. is
not being forced to admit women but
has been required to insure that wom·
en can have access to Similar training
at an alternate site. In the V.M.l. case,
Judge Jackson Kiser of the Federal
District Coun in Roanoke ruled thaI
women can attend a new program
being set up at Mary Baldwin College
in Staunton. Va.
The Depanment of Justice an·
nounced Monday that it will appeal
the decision.
Two Basic Issues
At issue here is the question of
whether South Carolina's educational.
landscape is so different from Virgin·
ia's that the basic discrimination rul·
ing should not apply. That has led the
judge to restrict argument to. two
basic issues, whether the college can
justify its single-sex role within the
context of the state system and, fail·
ing that, if they can provide a remedy
like that proposed by V.M.!.
To make their case, lawyers for the
defense have so far called on former
Gov. James Edwards. a black gradu
ate of The Citadel and a former presi·
dent of Winthrop College's alumni
association to make their case that
South carolina's edUcational system
would be diminished If The Citadel
became co-educaUOllai.
At every turn. however,lawyers for
Ms. Faullcner have tried to undercut
The Citadel's aU-mail' mystique
while bringing the argument back to
the Issue of fairness. They have ar·
gued In coun and in comments made
outside that the college has welcomed
women into Its auxiliary programs
while barring them access to the ca·
det corps which confers the most
prestige and benefits.
to 1M Videotape
The lawyers have also complained
that a 3D·minute videotape prepared
as evidence shoWing cadets in a world
of shaved heads, high pressure and
grand camaraderie is a misrepresen
tation of a campus that is awash in
women from the library to the gy~.
GoUI.
C{)nf'O
�\
Ms. Faulkner's lawyers maint'lin
that the college's exclusion of women
is a straightrorward matter or dis
crimination and lhey suggest that the
issue should be as clear as exclusion
based on race. They have added that
South Carolina has no equivalent al
ternative program available and that
.thererore no remedy exists other lhan
Ms. Faulkner's inclusion in The Cita
del's main program.
�DATE:
PAGE:
President, Others Recall Their Pll3ts
To leach P.G. Qass About Segregation
By Retha Hill
WasIung!Oft 1'0$1
SuI! Wn1~r
The eighth-grade students in teacher Robin J.
Wiltison's histol)' class have read about segrega
tion. studied Jim Crow laws and interviewed their
parents and other relatives about life before inte
gration.
But yesterday. on the 40th anniversary of
Brawn II. /JoQ,do! Edl4C4tion, the students at
Manin Luther lUng Jr. Middle School in Prince
George's County got their ttistory from key play
, ers who lived through the era,
President Clinton and Ernest Green, one of
... nine black students who braved racist attacks to
mtegrate the Little Rock, 'Ark.• school system,
told the students how much Brown had changed
their lives and this country.
Thurgood Marshall Jr.. son of the late Supreme
Court Justice who represented the plaintiffs in the
Brov;n case before the Supreme Court. and Sec·
retary of Education Richard W. Riley. whose law
yer fatherhelpE'd implement the desegregation
plan in South Carolina. also spoke to the class.
"Those of us who were wttite knew that it was
hurting us. that we were being deprived of the 0p
portunity tn know people. to share their feelings,
10 share their life experiences. to deal with .,eo. ,
" ple.~ said Clmton. who attended wttites-only public
schools in Hot Springs, Ark.
~I thin..k it is virtuaU\' inC'onceivable that I would
havE' ever bt-come president of the United States
had it not befm for the Brown decision because of
tht' relationships that subsequently I developed
,\\ith African Americans in my state ... and with
"
people around the country, who made me prest.
dent.· Ctinton said. .
Green told the claD that the nine students who
integrated Central High School in Little Rock
were frightened by the white mob that tbreateoed
them with violence.
"'We had a lOll-the goal was to try to open up
opportwlities in Little Rock,· said Green. now a
managing'director for a Washington investment
finn. "While we didn't know for sure what the fu.
ture was going to be, we knew we didn't want to
go back to the past, and we wanted something a
little better than what we were seeing.·
Later, Clinton. Green. Riley and Marshall joined
Attorney General Janet Reno and Maryland and
county officials in the BeJtsviBe school's gymnasium
talk about education aod personal responsibility.
Several of Wiltison's students &aid they had not
realized bow radic:al their everyday actions would
have been at one time-studying and playing
with friends who are black, white and Asian. The
762·student Martin Luther King Jr. Middle School
is 48 percent African American, 43 percent white
and g percent Asian, &aid PrincipaJ Bette L. Lewis.
It is a magnet school with I trlditioDal classical cur
riculum that draWl students from IS far away as
Bowie and Lanham.
MJ never realized it before. but because of
Brown versus the Board of Education. I can relate
to aU groups of people," said Kevin Barrow. 14. of
Mitchellville;
Nandi DiD. ']3. of Bowie. said the visit "brought
new life to" ttistOl)' lessons. Her twin sister. Ani
kat said the lesson gave her "'hope for the future
... that people can get together and be as one."
to
�Q:tc tUtl5~ington Vost
.Ruling's Promise
Unkept in Topeka
.&hools That Spawned Brown Still Divided
Last June, after the Supreme Court
declined to hear further arguments.
the 10th Circuit in Denver upheld its
earlier ruling that Topeka schools
TOPEKA, Kan.• May 17...,While
were still segregated and ordered the
tflt> rest of the nation today observed
the 40th aMiversary of the landmark ' district court to craft a remedy.
Over the years. the school district
case Brow" v. &lard of Edlllation of \'
dosed and consolidated some 'schools.
Topeka. many of this city's public
mostly in the high-mirlOrity neighbor
schools are still largely segregated by
hoods aroWld east Topeka.' and re
race ,and the Supreme Court ruling
drew attendance zones in an attempt
rernams more VISIOn than reality.
to achieve racial balance, It also au
Brown outlawed assigning children
thorized, but refused to 'pay for, vol
to nt'ighborhood schools here solely
on the basis of race. But. because the
untary transfers between. schools
nt'ighoorhoods themselves were seg
when they would improve the racial
regated-:-the result of housing dis
nux of the receiving schools.
Crlmmatlon, economic factors and
The 10th Circuit. however ruled iii
pers,onal choice-many of the dis-' ]989 that theae measures had not ac
tnet s schools have remainedracia1ly
complished enough.
identiflable,
According to the district's figures,
"We feel disheartened that 40
there ar.e 10 schools in Topeka that
years later we're still talking about
ar.e "facIaU}' identifiable~ because the
desegregation.~ said Linda Brown~
numbt;rs of minority students en
Thompson. who was the subject of
rolled m them are at least ·15 percent
the ongmaJ lawsuit. "But the struggle
higher or lower than the district-wide
has to continue.~
, '
average. Six schools are identifiable
Along with her mother and two sis- ' due to high minority enroUment and
ters. Brown-Thompson attended a
four due to high white enrollment.
ceremony this afternoon dedicating . The six minority schools are aD on
Monroe Elementary School. the all
the. east side of the city. the foUr
black Institution she was forced to at
white schools in newer suburbanired
tend. as a National Historic Site. Thf
neighborhoods on the city's west side.
National Park Service plans to turn
. In the early 19605, Kansas un.ified
the school, closed since 1975. into a
Jts school districts and locked their
museum ~ting the history
boundaries in place. Suburban cleve).
of desegregatIOn m the United States.
opments sprouted up west of Topeka
But that history has been Jess than
and upper-nUddJe.class whites flocked
clear-cut here in the city where the
there to escapt urban schools and city
nation's most famous school desegre
taxes. The city could annex the devel
, gatlOn case began.
.
opments. but the school district c:ouJd
, The Brown case was reopened' in
rIOt.
1979 when the American Civil Liber
MeanwtWe. neighborhoods in east
ties Union went back to cOurt c1a.im~ .Topeka reuintd their African Ameri
ing Topeka's public schools were still
can racial identity. Acconling to 1990
segregated. For the last 15 years. the
ce~sus figurn. nearly half of Tope
cast' has ooWlCed back and forth be
ka Ii 12.761 ~ live within three
tWf't'O the federal District cOurt in
census tracu Il'I eaS( Topeka.
Topeka. the 10th U.S. Circuit Court
of Appeals and the Supreme Court.
By Peter Hancock
s...r...1'0 n.,.
p"",
w_,.""
,
'
DATE:
PAGE:
. Black.s make up 8 ptrcent of the
CIty's population and· 22 percent of
the school district's elementary stu
dents. but they account for 43 per
cent of the student body in the four
p'ICIe schools in those three east To
peka census tracts.
Ina vote that split along racial
lines, the district's Board of Educa
tion decided in March to submit a
remedy that called for closing the
four high-minority grade schools. In
their place. the district would build
two new -magnet" sChools designed
to attract voluntary white transfers
using specialiaIed educational themes
such as environmental science and
computer science.
The plan drew sharp criticism from
Topeka's black corrununity. which ar
gued that 'closing only the predomi
nantly black schools would be devas
tating to the black neighborhoods.
U.S. District Judge Richard Rogers
agreed .. He rejected bot h the dis
trict's plan and the plaintiffs' alterna
tive-which called for keeping the
schools openwtWe redrawing the at
tendance zones-and sent both sides
back to the negotiating table.
�:',> ,
.mOe lUas~iltgtollmimes
DATE:
PAGE:
~ dealer gets 51 months. in jail
·after sting selling·weapons to Iran
By Michael Hedges
THE v..sHINGTON TIMES
An international arms dealer
busted in a federal sting was act
ing on behalf of Ii "high-ranking
Iranian official" to buy restricted
U.S. military hardware, including
chemical weapons components,
with money supplied by Thhran,
officials said.
.
In a case that began as a Drug
Enforcement Administration un
dercover probe of a deal involving
drugs and money for weapons,
Manfred Raimond Felber of Aus
tria also sought phony documents
that would allow him to move S0
viet army tanks and fighter boinb~
ers from Russia to Iran, law en
forcement officials said.
Felber, 52, was arrested under a
sealed complaint in Eugene, Ore.,
in March; pleaded guilty to trying
to illegally buy and export mili
tary equipment; and on Monday
was sentenced to 51 months in
prison.
Caught in. an elabOrate sting,
Felber thought he was buying 90
units to monitor the presence of
nerve gas, a weapon used by Sad
dam Hussein during his nearly
decade-long war with Iran in the
1980s, for $600,000.
"Documents obtained during
the course of the investigation re
veal that Felber has previously ar
ranged for the shipment of precur
sor chemicals from countries
, other than the United States to
Iran which are used in the produc
tion of chemical weapons," a Jus
tice Department statement said.
These transfers were to 'be paid
for with money Felber received visory residential agent for the
"after contacting a high-ranking FBI in Eugene, said after Felber
official within the Iranian govern came to Oregon, FBI undercover
ment;' the statement said. Els~ agents brokered a deal with him.
where, a federal agent wrote that The FBI agents were part of a task
he had evidence Felber's Iranian
force along with the DEA, Cus
contact was in the prime minis toms Service and local police.
ter's office.
"I can say he was an arms
"This is ,another clear example broker who was known to have '
of the Iranian government at-· worked in this intemational ann's
tempting to acquire weapons of ,arena," he said. "There was a lot of
mass destruction," a State Depart
gas used in the Iran-Iraq war. Iraq
ment official said yesterday.
hurt the Iranians badly in the last
war with nerve gas."
A person answering the tele-,
phone at the Iranian interest sec
In a series of meetings in
March, a deal was struck in which .
tion in Washington yesterday said
Felber would pay $603,000 for 90
no one ,was available to speak
about the arrest.
CAMs. Felber initially talked
The case began in November about paying half in heroin, which
he could have imported from Iran,
when Felber contacted a man in
o~r and told him he was look-but later said he would pay cash
in
buy "chemical agent mon
for the first anns shipment. ..
itors. . [and] forged end-user cer
Felber was introduced to an un
tifica 8 from another country
dercover federal agent who he be
which would' allow him to get
lieved was a corrupt government
MiG-21 fighters, T-SS tanks, rock
official who could arrange to have
ets and other munitions from Rus
the CAMs shipped to Iran as
sia to Iran;' said Douglas Biales,
bicycle racks. The equipment was
chief of the D~s Eugene office.
to be shipped to the "Fayez 'Irading
Through Felber's sheer bad . Co." in Thhran, which Felber said
luck, his contact was a confiden
was ail Iranian government front.
When pressed for details on how
tial informant for the DEA.
Mr. Biales said the DEA ob
the transfer would be made in
Iran,Felber said Iranian security ,
tained faxes from Felber from
both Austria and Thhran detailing officials would take charge of the
arms he was seeking. "We finally
shipment as soon as it arrived in
told him we could obtain some
Iran, according to the affidavit.
CAMs [chemical agent monitors]
Felber said the money for the
and invited him to Eugene."
CAMs would be wired from
Iranian accounts in banks in Eu
The CAM, designed to detect
tiny quantities of nerve gas, is pro rope to the Bank Melli Iran in
tected technology illegal to eXport
Hong Kong, then to' an account
to Iran. It is manufactured for the Felber set up in Eugene.
Once the money arrived, Felber
U.S. military by Honeywell.
was busted. ' .
Phillip Donegan, senior super-
�'cox
NElflS
·RigntsCases are back
~ti;ilie--froit1:
·i,~~~~ ":.:'::. ~;; :.\'.::
burnet.··-:-.
~u·~~·~~: io~~Yide'~iIif
:""'q
~ BuREAU'. . . ; . lantua,e interpreten and other
" ~!J1. :i;·:~.1., ..: :. .' /.'.~, ""~:": ...;,;., .' .•• ""I~ .......; ........ '~tudents who
· npW;"-hlnJt1.n '~' The'J~~ce . ne7dth;m:--ne ~se 1nvo~!ed ~e
~11tment·8. ,cJvQ rt,htsdlYi- . fint Justice Department .Iult .
~{J~~erIe~s f~t ,~~:.'ftratl~ .: ·ft1ed under the Americans. with .
rftarfiJd of the Clinton adm1riia· . Disabilities At;t... ':.' '.' .. ': .. " ,
· ttltJoCt, 'is
up 'rodoifilme' " : ~ Aaked a leduBIcOUrt' to:
Urrcttl'fDew AsslstantAttomey consider .ordering the"ftrin,or
General Deva!. Patrick. :." ...... ,' .:::- reassl,nmentol an.,"A1abai:ril'.
· ~nilh" federal antl·dJscrimJna· :" )iah schOol principiI who alleg:~.
· \i.,PJ,)IJUt lilnaled JtI.'hift. Into. edly ~is'riminated again.t'b~ck' .
~Iir.~:enror~ment ,ear .,lut ltudents by tbreateninc to c:aJ?ceJ. ':'.
· WUkl!l~ th~ S54lD:'lllOD:,aetde.· .a prom i! interracial couples ,at:-~·
D\~l~ raclalbw .suit ~airiat;tended .. · " " ... .'7.. < ,~,:." .
~ip'~y'~re5taur~~ ~hain· :',;
This case "demon8trates~~ .
eJf,lfJ i.~ ,~e" Denny I.ae~e~" .ome of the' problema tha~. ~~ce: .'
D1fHlti1n~~vetbattbedi~~n .. baunted us. are ltill~thUs,and,
· l{zF.~ to ~ 1Il0re agare&Ilve ~ '. thatwe mu.fneverrelent In .the .'
.aiOUfna'ivil rights vi~la~.rs;an~ .•.•trUnle to. end racJal discrimi•..
mC'~ appi'opria~ ~~,. " nation,"; laid. Patrick..:"WewW.
aaldteci Shaw;' associate director . 'Dot tum back~". ;: .~:' .......'.. ',',
· ..ot.%be.NMCP LegalDe(enSe ind.',· Pitric~'37~:' 'ro~e'r ~cO~
~LJelitlOllill.Fund.~. ,''::;t, '.' f't \ ' ratelaWyerln ~&.stop, slipped,. .
W\,ll~. :in. announclrll:,.that . .Into his new job ~ally .unIlO.· ..
to pay ~ ,tieed' compared to the rUckus
....,....... by Afri· .raised lut Year. over. Lani Guin. :
W:·A!loer1ican, cua~me.r. '. who :ler,C!\nton',1nftial choice lO be.
PIt11C~; . the nation',. top enforcer ofcivil
agency.~~ ~.t~·.rtlhu liwi:Bu~ be. hit the around'.
~ ,.. "..". ;., ,.," :,;, \ ninntn; aild·1W hadabuiy ~t .
ile·D~e.i.qe fa clear: There three !noDtlli on the Job. ~:,.'. '.:
nWtine
high
·topaylorim·.
."
...... : .... ':
"',
lildlgnltles," be said. M And
Justice Department 'Nill ex~ .
that price wbereyer tb~ law. 11 .
tt
..lUIUlU....
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.
':'the .civil Rilhtl'D1~~
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:abOut '20
d1lcrlinination'
IlIVII:OIILJIKa',"'15
'..
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30
DATE:
PAGE:
�DATE:
PAGE:
~inton Irg8d to taCIda civil rights
Saying it's time for President Ointon to respond to at
tacks on minority voting rights, Jesse Jackson urged Ointon
to deliver a major address defending the political redress
that minority voting districts represent
,
"Ointon needs to give a major
civil rights speecb to put some fo
, cus on the legality and the right
ness of sharing power and respon
sibility," Jackson said.
Jackson made the demand a
day after ending a I ().day Southern
bus tour to rally support for ave
minority districts facing legal ch81
lenges. The districts were created
in 1992 to correct the historical dis
,enfranchisement of black voters.
AP, The former' presidential candi
JACKSON: Urges. date, who was among those bon
'sharing of power'
ored during Fox's airing Monday
,
of, the Essence magazine awards
for his contributions, said he traveled from Virginia to Tex
as because of concerns over attempts to undermine black
,political gains. "We must defeat this attempt to undercut
black political power because political rights are preserva
tive of all other rights." Jackson said.-- Desda Moss
Written by Gary FI8Ids. Contributing: Sandra Sanchez,
Gregory Townsend and Steve'Me""'aU
'.,
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�DATE:
PAGE':
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~
,
1udge Cites n.C.Corr~tionsRetaliation
l"
Perjury, Contempt Actions Threatened in Sexual Harassment Case
...
. " "
, sexual harassI'Ilent"':"including, de
, . mands for sex and threats of retalia
WI","",,"" Post SWf Writn
tion for refusing advances or trying
A federal judge' ruled yesterday to "stop' the barassment-is "stan
that D.C. Department of Corrections, dard operatirig procedure"at all lev
officials illegally have tried to reta1i e1s of the department. ", ,
The hearing yesterday c.oncemed
ate against employees who filed a
class-action sexual harassment law-' allegations of retaliation against plain
suit against the department and said ,tiff Tyrone Posey 'and Dennis Brom
some officials lied about it in an at men. a department employee and the
tempted coverup;
.-busband of one of the plaintiffs.
U.S. ,District Judge Royce C.
In papers filed with the oourt, at-,
Lamberth ordered corTections offi tomeys said officials at the D.C. jail
dais to stop the retaliation and initiated paperwork to'declare Posey
threatened to appoint an indepen ,absent without leave. The penalfy
dent prosecutor to prosecute depart- , 'for, that offense is termination. Po
ment officials who commit perjury in' sey, a fOrmer Union 'shOp steward,
his courtroom or in depositions re- had ,been on medical leave and'hOspi
lated to the lawsuit.
.'
t.alized off and on since lastswnmer.
"1 must say that these Department . The leave Was necessary, he sa,id,
of COrrections officials act like they because of stress associated with his
don't know the penalties for perjury," ,-helping female employees file ba·
Lamberth said from the bench. "If th~ rassment complaints;
U.S. attorney doesn't want to proct!ed '
Three officials-Michelle Elzie,
. with a peijl!fY ease, I will undertake a the administrator of the jail; Patricia_
contempt-oC-court action. I will ap Britton, the jail's acting assistant ad
point an independent counsel . .. to ministrator for programs; and Althea
prosecute any perjury thilt occurs in Haynes, the acting head of records
at the jail--alleged)y participated in
my courtroom or in depositions."
The class-action lawsuit, filed in the 'action against Posey. , '
January by eight current' or fQrmer
At one deposition, Haynes said
corrections employees, alleges that 'Posey had been sent 16 notices.
By Keith A. Harriston
~.
,
'
each of them sent out at the end of a
pay period. At a later ~eposition, she
,said that those 16 documents had
, been backdated and that she had for
gotten,abOut that.
,In the other case, Brummen was
written up' for neglect of duty for
missing meeting of which be hadn't
been notified. Assistant Administra-'
torLioyd C. Jones, the supervisor·
who initiated the action. is named as
, an alleged harasser.
The department later dropped the
actions against Posey and Brummell.
Assistant D.C. ~ration Counsel
Carol E. Burroughs argued that the
actions taken by department officials
weren~t retaliatory and said their
'.faulty memories during depositions
'were due to their, working "16-bour
days."
"
Lamberth said be didn't believe
"one bit of that."
' ,
In an earlier ruling. Lamberth Said
the department had tried to retaliate
against Bessye Neal, the lead plaintiff
, in the case, by transferring her from a .'
job downtown to be a unit manager ,at
the Lorton Correctional -Complex' in '
Fairfax County-a position she had
been Supervising.
a
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~'11MfS
.\fERBATIM
Thomas Critiques the 'Rights
Revolution'
It seemed /ike old times: Clarence
Thomas. among ideological soulmates.
delivering a well-crafted critique of the
trIOlhrn civil-rights movement and its im
poet on crime.
What separates this occasion from tiwt
ofmost othe,. Thomos speeches. ofcourse.
is tiwt Thomos is now a Supreme Court
justice-a job tiwt at times iws seemed to
rob him of his tongue, So this May /6 ad
dress. his first mojor address in Wash
ington sin(~ taJcing thp , high court bench in
199/. was the subject of special interest
last wed.
'
What follows is the complete text of
Thomos' May /6 speech. delivered at a
conference on court cases tiwl iwve ex
panded civil and political rights, The con
ference was sponsored by the Federalist
Society and the Maniwttan Institute,
far during this conference. you
have been investigating two aspects
of the "rights revolution "--{hat is.
the legal revolution of the past 30 or so
years in creating and expanding individual
rights.
The fltSt is how the judicial expansion
of due-process rights has affected the abil
ity of communities to manage local in
stitutions such as public schools and
housing projects. Our courts held that
government could not suspend students
from public school or evict tenants from
public housing,without hearings and other'
procedures designed to ensure fairness.
individual dignity, and a sense that justice
has been done. whatever the outcome. The
idea here was that for the poor and minor
ities, govemmentassistance and the ben
efits derived from public institutions were
forms of property that guaranteed well
being. Many, therefore. argued that, to,
expose these benefiC$ to 'arbitrary and un
regulated state power would rob the un
derrepresented in our society' of their one
SOI,!fCe ofdignity and personal security.
The other aspect of the rights revolution
that this conference has been exploring is
S
O
how judicial interpretations of the First
Amendment and of "unenumerated"
constitutional rights have affected the abil
ity of urban communities to deal with
crime. disorder. and incivility on their
public streets. Vagrancy. loitering. and
panhandling laws were challenged be
cause the poor and minorities could be
victims of discrimination under the guise
of broad discretion to ensure public safety .
Moreover, as a consequence of the mod
ern tendency to challenge society's au
thority to dictate social norms, the legal
system began to prefer the ideal of self
expression without much attention to the
ideal of self-discipline or self-control.
What resulted was a culture that declined
to curb the excesses of self-indulgent»
vagrants and others who regularly roamed
the streets had rights that could not be cir
cumscribed by ,the community's sense of
decency or decorum.
Clearly, how these aspects of the rights
revolution have affected those who live in
our urban centers are important issues of '
our day . Young children cannot learn in
schools if they are besieSed by druss and
constant threats of violence. Nor, for that
matter. can they lead norrnaI lives if so
many street comers, sandlots. and apart
ment buildings are fixed places of business
for drug dealers and other criminals. How
can the parents or older brothers and sis
ters of these children lead productive lives
if economic and educational opportunity
are stifled by rampant community violence ,
and disOrder? If they can't wa.lk or drive
down a street without fear of beinS shot or
assaulted? For at least a seneration of
young Americans. tI1a-e can be no hope
for the future if these md ocher problems
are not the object of serious legal and pol
icy debate. From what I ha~ heard about
the mominS's programs. dtis conference is
a good ftrst step.
'Real·Wortd Consequences'
This conference also is important for
another. more general reason. Perhaps
more than in any other area, the juris
prudence of the rights revolution amply
demonstrates the point that what judges
and lawyers do has real-world conse
quences. Providing extensive hearing
rights for the student who carries drugs or
weapons to school, or for the drug pusher
or. gang member who occupies public
, housing, is more than a mere abstraction.
These decisions' have incredibly signif
icant effects on the ability of school prin~
cipals and tenant orpnizations to enforce
standards of decency and conduct, and
they also have enormous impact on the
opportunities that might be available to a
community in constructing solutions to the
problems that plasue the poorest of our
citizens.
There needs to be debate about some
important questions here. What are the
real-world effects of the due-process rev
olution on the self-detennination and well
being of our inner cities? Would the law
yers and judges making these rules want to
live under the conditions that so many in
the inner cities live? Is there a moral basis
for a restrained judiciary that proponents
of the rights revolution have neglected to
.consider? Again. you are helping to give
these and other issues a fair hearing.
However. I think a word of caution is in
,'order. In attempting to allow government
to do its job more efficiently. we should
not make the mistake of giving the gov
ernment a free hand at the expense of the
riShts of the individual. Indeed, in the
,c..o....rT"'"·
�beings. We, therefore, expect one another
. original rights revolution, the people
to be able to distinguish between right and
found themselves pitted against govern·
wrong and to act accordingly. Thus. when
ment. Though many governmental pro
society punishes someone for breaking the
grams could be operated more freely in the
law-when it holds him accountable for
private sector we must remind ourselves
the consequences of his acts--:.-we are rec·
that as good as that would be, it is the
ognizing that only mankind is capable of
government not the private sector, that is
being moral or rational. We are. in short,
DOW in charge. There is a difference! A
acknowledging the human dignity of our
very big difference!
.
fellow man. Indeed. people thrive in our
With that said. I want to talk to you
society because of the expectations we all
today about a different. but equally im· .
have regarding the capacity of the human·
portant aspect of the rights revolution
will to do good. But to disregard this
namely. how the current state of our crim
potenti~o ignore the fact that someone
inal justice system has affected the ideal of
has harmed others b) making the law
personal responsibility. I am convinced
I~ats our fellow man as beings that are
that there can be no freedom and op
.·lDcapable of determining right from wrong
portunity for many in our society if our
· and controlling their behavior. Ultimately.
criminal law loses sight of the importance
our hopes for the future of society can be
of individual responsibility. Indeed. in my
no brighter than the expectations we have
mind. the principal reason for a criminal·
regarding the conduct of its individual
justice system is to hold people account
· citizens.
able for the consequences of their actions.
There are others who believe that the
Put simply, it is to hold people's feet to the
principal reason we hold people responsi
fire when they do sOmething harmful to
individuals or society as a whole.
. ble for the consequences of their actions is
because of our mutual political or social
Why is holding people accountable for
obligations in a civilized. democratic
harmful behavior important to us? Three
society. In accepting and benefiting from
reasons strVe me as especially convinc
the wonderful opportunities of our free
ing: persuaSion or de"errence, respect for
society, we each consent or agree to be
the individual who violates the law, and
bound by the rules and expect government
payment of a debt to society.
to enforce them. When someone breaks
Let's begin with the most practical rea·
the law a fundamental trust has been vio
son for why we hold people accountable.
lated. In effect. the lawbreaker is telling
The law cannoc persuade where it cannot
all of us that there can be no mutual ex
punish. Ale:ltander Hamilton made this
pectation that society's rules will be fol
very point when he observed, "it is es·
· lowed and thereby protect all of us. On
sential to the idea of a law that it be at·
this view. we punish the criminal because
tended with a sanction . . . a punishment
he owes adebt to society for violating our
for disobedience." Most of us. I am sure,
trust. To do otherwise would cheat·ihose
are regularly faced with the deterrent ef
who abide by law. and dilute the threat of
fect of the law. the incentive not to engage
force that the law is supposed to convey.
in conduct that might harm others. To be
And, if our government failed to remedy
sure. we choose to honor speed limits be
wrongs by holding people responsible for
cause such behavior might well save our
their acts, we would be faced with the
own lives. But we just as surely follow the
prospect of vigilante justice and all the
rules because of the legal 'consequencesof
evils that accompany it.
.
speeding-harsh fines and possible loss of
our licenses. In a similar vein. a company
I A Dangerou, Meaoge'
might refrain from polluting a neighboring
For these and other reasons, tben. I
river to avoid harming others who rely on
. think most everyone agrees that we have a
its clean water for drinking and recreation.
criminal.justice system in order to hold
Clearly, though, stiff fines give the com
people accountable. If properly adminis
pany a tangible incentive to avoid such
tered. it stands to reason that the criminal
harmful conduct. As Saint Thomas
law should help to ensure a greater degree
, Aquinas said. "It is not always through
of personal responsibility in our society.
the perfect goodness of virtue that one
Put differently. the criminal law serves a .
obeys the law. but sometimes it is through
signaling function wbeo we hold people
fear of punishment. ••
accountable for their harmful acts. Pun
Some underscore a different aspect of
ishing people is lUI expression of society's
human nature in explaining why holding
resolve that certain behavior will DOl be
people responsible for their actions is cen
tolerated either because it hurts o«hers, is
tral to our criminal-justice system. Unlike
counterproductive. or is offensive to the
any other living creature in the world.
sensibilities of Our cuJrun:. In the absence·
humans are moral. rational, and thinking
of such a signaJ---tf govem.mcnt does not
.punish harmful cooduct-,-we send a dan
gerous message to lOCiecy. In effect. we
,..57J
fall prey to the law of unintended ~
quences-we end up sanctioning harmful
behavior. What are we telling students,
who are trying hard to do well in school
and to avoid drugs, or the upstanding
public-housing tenant who respects others'
property and well-being. when our law
fails to express outrage at those wbo do
wrong?
One must wonder. though, whether our
criminal law is carrying out this signaling
function. Why are so many of our streets
rife with drug bazaars and other criminal
enterprises? Why are so many of our
schools devoid of the discipline that is
necessary for a healthy learning environ-.
ment and instead plagued by lawlessness?
Why is there unprecedented fear of via
lence-or just a plain unwillingness to
cultivate neighborhood unity and spiro
it-amoog so many of our feUow citizens?
One reason. I believe, is that the rights
revolution worked a fundamental trans
formation in our criminal law. The very
same ideas that prompted the judicial
revolution in due-process rights for the
poor and that circumscribed the authority
of local communities to set standards for
decorum and civility on the streets or in
the public schools also made it far more
difficult for the crimirial-justice system to
hold people responsible for the conse
quences of their harmful acts. I want. to
focus on one particular force behind the
rights revolution that in my view had the
most profound effect on the direction of
the criminal law: namely, the idea that our
society had failed to safeguard the inter
ests of minorities. the poor. and oth~r
gr~ps; and. as a consequ~nce: was. In
fact, primarily at fault for their pl~ght: .
Much of the judicial revolution In 10
dividual rights was justified o~ the ground
that the dignity and wel~-belDg.of ~e
segments of our populallon-rru nonbCS •
women. the poor-were consis~tly !g
nored by our social and pohtlc~l In
stitutions. As the victims of centuncs of
disaimination and oppression. blacks and
other minorities could not enjoy the fuI)
benefits and opportunities that society had
to offer. So too were the poor viewed as
victims-uncontrollable forces contri~
. uted to their poverty. and yet. their
"stake" in welfare and other public ben
efits was not insulated from unregulated
stale power in the same way as the pr0p
erty interests of the more fortunate 10
society.
.
These concerns greatly influenced our
courts in requiring that government hold
bearings or comply with odIcr proced~
requirements. before te~tnatlDg publiC
benefits received by mlnontles and the
poorest of Americans. The view was ~t
these entidements were worm protecung
�;.
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becau,se they aid the poor and under
represented in achieving security and weil
being.
,
Procedural protections also were
viewed as necessary to ensure that gov
ernment interference with public benefits
was not arbitrary and unfair. Because mi
nority and disadvantaged students are the
most frequent objects of school discipline,
for example. advocates of greater con
stitutional protections insisted that the
absence of stringent procedural require
ments for suspension could lead to racial
discrimination and other fonns of unequal
tteatment. Much the same arguments were
made regarding limits on the power to
evict tenants from public housing and to
enforce broad vagrancy or anti-panhan
dJing laws-government discretion had to
be curbed in order to ensure that minorities
or unpopular groups were not singled out
for unfair and discriminatory treatment.
We can see, then. how the intellectual
currents of the leg~1 revolution in in
dividual rights affected the management of
community institutions such as schools
and the civility of our streets, parks. and
other common spaces. But how did the
ideas underlying this revolution affect the
functioning of the criminal justice system?
'Factors Outside of One's COhlrol'
Many began questioning whether the
IXJOI' and minorities could be blamed for
the crimes they committed. Our legal in
stitutions and popular culture began iden
tifying those accused of wrongdoing as
victims of upbringing and circumstances.
The point was made that human actions
and choices, like events in the natural
World, are often caused by factors outside
of one's control. No longer was an in
dividual identified as the cause of a harm
ful act. Rather, societal conditions or the
actions of institutions and others in society
became the responsible causes of hann.
These external causes might be poverty,
poor education, a faltering family struc·
ture, systemic racism or other forms of
bigotry, and spousal or child abuse, just to
name a few. The consequence of this new'
way of thinking about accountability and
responsibility-or the lack thereof-was
that a large part of our society could es
cape being held accountable for the con
sequences of hannful conduct. The law
punishes only those who are responsible
for their actions, and in a world of count
less uncontrollable causes of aggression or
lawlessness, few will have to account for
their behavior.
As a further extension of these ideas,
some began challenging society's moral
authority to hold many of our less for
tunate citizens responsible for their harm· '
ful acts. Punishment is an expression of
society'S disapproval or reprobation. In
other words, punishment is a way of di·
recting society's moral indignatioo toward
persons responsible for violating its rules.
Critics insisted, though, that an in
dividual's harmful cooduct is DOt the only
relevant factor in determining whether
punishment is morally justified. The in
dividual's conduct must be judged in rela
tioo to how society has acted toward that
individual in the past. In this regard, many
began appearing hesitant to hold respon
sible those individuals whose conduct
might be explained as a response to soci
etal injustice. How can we hold the poor
responsible for their actions, some asked,
when our society does little to remedy the
social conditions of the iIJ..educatcd and
unemployed in our mbaD areas? In a sim
ilar vein. ochers questioned how we could
tell blacks in our inner cities to face the
consequeJlCCS for breaking the law when
the very legal system and society which
will judge their conduct perpetuated years
of racism and unequal t:reabDent under the
law.
Once our legal system accepted the
general premise that social conditions and
, upbringing could be excuses for hannful
conduct, the range of causes that might
prevent society from holding anyone ac
countable for his actions became poten
tially limitless. Do we punish the drunk
driver who has a family history of al
coholism? A bigoted employer reared in
the segregationist environment, who was
taught that blacks are inferior? The fraud
ulent and manipulative businessman who
was raised in a poor family and who had
never experienced the good life? The
abusive father or husband who was the
object of similar mistreatment as a child?
A thief or drug pusher who was raised in a
dysfunctional family and who received a
poor education? A violent gang member.
riocer, or murderer who attributes his rage,
aggression, and lack of respect for author
ity to a racist society tbat bas oppreued
him since birth? Which of these in
dividuals, if any, should be excused for
their conduct? Can we really distinguish
among them in a principled way?
I A Myriad of ExeuNt'
An effective criminal justice sys
te~ne that holds people accountable
for hannful conduct-simply cannot be
sustained under conditions where there are
boundless excuses for violent behavior
'and no moral authority for the state to
punish. If people know that they are not
goiDg to be held accountable because of a
myriad of excuses, how will our society be
able to influence behavior and provide in
centives to follow the law? How can we
teach fuNre geoeratioGs right from wrong
if the idea of criminaJ responsibility is
riddled with excepboas and our governing
institutions and couns Id: the moral self·
confidence? A society dw,does not hold
someone accountable for harmfuJ behavior
can be viewed as condoning-or even
worse, endorsing-such conduct. In the
Jong run; a society that abandons personal
responsibility will lose its moral sense.
And it is the mbaD IXJOI' whose lives are
being destroyed the most by this loss of
moral sease. ,
'
This is not surprising. A system that
does DOt hold individuals accountable for
their harmful acts treats them as
than '
full citizens. In such a world. people are
reduced to the status of children, or even
worse, treated as though they are animals
without a soul. 1'bere may be a hard lesson
~: In ~. face of iDjustice on the part of
society. It IS DItUraI and easy to demand
recompense or a dispensation from con
ventional norms. But aU too often, doing
so involves the individual accepting di
minished responsibility for his future.
Does the acceptance of diminished re
s~nsibil~ty assure that the human spirit
will DOt nse above the tragedies of one's
existence? When we demand something
from our oppresson;--mor lenient stand
ards of conduct. for example-are we
merely going from a state of slavery to a
more deceptive, but equally destructive.
state of dependency?
less
It also bears DOting mat contemporary
efforts to rehabilitate Criminals will never
work in a system that often neglects to as
sign blame to individuals for their harmful
acts. How can we encourage criminaJs not
to retum to crime if our justice system
fosters the idea that it is the SOCiety that
has perpetuated raCism and poverty-oot
the individual who engaged in harmful
conduct-dlat is to blame for aggression
and crime, and thus, in greatest need of
rehabilitation and reform.
Let me close by observing that the
transformation of the criminaJ-justice sys
tem has had and will continue to have its
. greatest impact in our urban areas. II is
there that modem excuses for criminal
behavior abound-poverty, substaJidard
education. faltering families. unemploy
ment, a lack of respect for authority be
cause of deep feelings of oppression.
I have DO daube that the rights revolu
tion had a DObIe purpose: to stop society
from treating blacks, the IXJOI', and oth
ers-many of whom today occupy our
mbaD ireas-as if they were invisible. not
worthy of attention. But the revolution
missed a Iarpr point by merely changing
'their status from invisible to victimized.
Minorities aod the poor are humans
capable of dipity IS well IS shame, folly
IS weU IS succas. We should be treaIed as
1IUCb.
0
�\
~:5/2.3/q+J~
~'I~
PItGE:
.
2
'Dumping onClinton's Uranium Deal
Critics Say Trade Pact Is
Legally Flawed, Unfair
ay GIlIG RU...'ORD
Aides to Commerce Secretary Ronald
Brown. with a strong assist from the
world's largest uranium-trading company
and its D.C. law fum. Miller & Chevalier.
have devised a novel way of resolving
complaints by U.S, uranium producers
that the Russians are dumping cheap
uranium on the U,So marker.
The innovation: Let the Russians dump.
But the U.S,-Russian deal on uranium
sales is drawing fr.re from a hO~i of critic~, .
that include domestic and foreign uranium
producers, who believe they will be placed
at a disadvantage. as well as Justice De
partment officials and economists who
think the pact is bad law.
,
The innovation has been pegged "har
nessing dumping" by Joseph Spetrini •.
deputy assistant commerce secretary for
compliance. who concluded the uranium
deal with the Russians in March.
Also known as "matched sales," the
deal worts roughly like this: The Russians
may sell uranium at below-market. or
"dumped," prices. as long as buy
ers-U.S. public utilities that operate nu
clear power plants-purchase an equal
amount of newly produced American ura
nium at an above-market price. The
matched Russian and U.S. uranium would
then be sold at a "blended" martet price.
Thus: the dumping of Russian product
on American markels. an activity that
otherwise would have run afoul of U.S.
trade laws. is now "harnessed" to stimu
late U.S. production. The thinking is that
this will create jobs in both countries,
while generating much-needed hard cur
rency for !he Russians.
Commerce officials are proud of the
pact. which Jan Kalicki. the Clinton ~
ministration's ombudsman on trade WIth
Russia. says could serve as a model of
how to do trade deals. as well as help im
prove relations with Russia.
"If we are to work with Russia. we
have no better forum Ihan in,our commer
cial relationship .... We have mad~ a
.brave start. signing a groundbreaklOg
agreement by which the uranium produc
ers in our counbies can now make com
bined sales to the U.S. market," Kalicki
boasted to an academic audience at
Wellesley College last month.
But critics are laking aim at the pact,
appealing to the administration and con
sidering action in court and at interna
tional-Irade entilies 10 overturn the
matched-sales deal.
'Economic Nonsense'
"The bottom line is that the Commerce
Department. is trying 10 jiggle the market.
It's economic nonsense." says Claude
Barfield, director of trade-policy studies at
the American Enterprise Inslitute.
The critics' major arguments against the
matched-sales arrangement include the
following:
• The matched-sales concept may
violate U.S. antitrust laws against pricefixing.
.
Anne Bingaman, the assistant attorney
general who. heads the Justice Depart
ment's Antitrust Division, raised such
concerns in a letter to Commerce's Spe
bini on March 10, the day before the deal
with the Russians was concluded. Com
merce and Justice officials confum.
"The thrust of the concerns Anne ex
pressed to Joe ISpetriniJ were that because
this is so much more complicated than
nonnally. the risks are somewhat greater
than they would be normally. ,. says Diane
Wood, the deputy assistant attorney gen
eral for antitrust.
Wood adds that companies signing on
to the Commerce deal "won'l necessarily·
violate the antitrust laws. but this is some- .
thing we will be keeping an eye on. .. . .
• The pact may violate U.S. inter
national-trade obligations to treat all its
trading partners equally. Canada. Aus
tralia. Namibia. Kaia.khstan. and other
uranium-producing nations excluded from
the U.S.-Russian arrangement maintain
that the deal is tantamount 10 a cartel.
Canada has already beJ'un to challenge
the pact under the North American Free
Trade Agreement (NAFTAI.·C>mer coun
tries say they may file procests with the
General Agreement on Tlnffs. and Trade
(GAIT). the international body that sets
trade rules.
e Matched sales may even violate U.S.
anti-dumping laws.
.
Valerie Slater. a partner in the D.C. of
fice of Akin. Gump. Strauss. Hauer &
Feld, who represents an ad hoc coalition
of roughly a dozen U.S. uranium produc
ers and the Oil, Chemical and Atomic
Workers International Union. has been
talking to Commerce officials about ~r
clients' dumping concerns. On May 3 m
the U.S. Court of International Trade in
New Vork, she filed notice that her clients
intend 10 try to overturn the deal in court
should these talks break down.
Ironically. it was her clients' 1991
dumping case against the Russians that led
to the development of Commerce's
matched-sales agreement. The Russian
Federation, represented by Mark Herlach.
a partner in the D.C. office of New Vark' s
Coudert Brothers. argued that it was vic
limized by a worldwide glut in the ura
. nium industry.
But Commerce ruled in 1992 that the
Russians were indeed selling uranium at
below fair-martet prices and issued a pre
liminary ruling calling for duties of 115
percent on further Russian imports.
Commerce suspended these duties in Oc
tober 1992 and set up a price-tied quota
arrangement under which the Russians
were to continue uranium sales. Vet the
Russians were unable to sclltheir uranium·
under the terms of the suspension agree
ment's quota provisions because a S \3.
per~pound price level essential to bigger
renewed uranium sales was not reached,
'Commercially Unworlcable' ,
The matched-sales arrangement. de·
signed to stop !he uncootrolled'dumping
and help stimulate !he Russian and Ameri
can uranium industries, is "commercially
unworkable," Slater said in papers filed
with !he Commerce Department before the
pact was concluded.
Slater said her clients-fllltls located in
the United States. but owned by French,
Canadian. German. Korean, and other
foreign interests. as well as by Amen
(p I
'
c:. c "'-',...
�cans-lack ties to Russian suppliers and
will be cut out of the U.S.-Russian
matched sales.
Indeed. the uranium deal is already so
controversial that, far from being praised
as a model of trade policy. it has been
seized upon by many in the international
IJ"ade bar as a model of how not to make
trade law.
"My graduate students' hands shoot up
quickJy when I outline the matched-sales
concept and ask if they see any legal and
economic objections." says Bart Fisher, a
trade partner at D.C.·s Arent Fox Kintner
Plotkin & Kahn, who teaches a course on
international-trade law at George Mason
University's International Institute.
And regardless of the legalities, some
economists say the deal is simply bad
economics. since it encourages the Rus-'
sians to join what amounts to a cartel,
rather than .to trade freely on world
markets.
But the critics ~isunderstand the
agreement, says Homer Moyer Jr., the
Miller & Chevalier partner who crafted the
pact on behalf of his client, the Denver
based Nuexco Trading Corp., the world's
largest uranium trading company.
"It's easy to look at this agreement and
misunderstand how it will work," says I'
Moyer. a leading member of the international-trade bar and a former general
counsel of the Commerce Department in
the Carter administration. "We are pre
pared to address NAFTA and GAIT is
sues, but at this point there has not been a
clear public articulation of what they are ...
Moyer adds that antitrust issues were
studied when the arrangement was being
developed. "It's not clear whether the
issues Ibeing raised by critics) are
substantial. ..
. "If it does work, and the Russians and
my client certainly want it to work, it will
generate production and employment that
would not otherwise occur, .. says Moyer.
Interestingly, one of the primary critics
of the uranium deal, Canada, happens to
be a longtime client of Moyer's. A
spokesman for the Canadian Embassy here
says his government is not concerned
about Moyer's work on uranium. since it
is separate from the trade issues the
Miller, Chevalier lawyer handles for
Canada. Moyer says he simply does not
. discuss uranium issues with his Canadian
clients.
.
Moyer's client. NuexCo. which trades
Russian uranium and owns some U. S. ura
nium producers, is positioned to become
the biggest winner of the matched-sales
concept. Oren Benton, chairman of Con
rord Services Inc., Nuexco's parent
company, actually came up with the
matched-sales idea that Moyer sold to
Commerce officials.
In fact, thanks to some deft language
Moyer inserted into the agreement. c~m-.
panics like Nuexco with existing uranIum
stockpiles stand to benefit from the deal no
matter how it turns out. If the Russians
haven't sold at least 2.2 million pounds of
uranium by September 1994-matched
with newly produced U.S. uranium-Nu
exco would still be allowed to enter into a
matched sale involving one million
pounds of uranium from its stockpiles.
Moyer's client, of course, isn't the only
likely beneficiary of the Commerce deal.
Energy Fuels Nuclear Inc., also owned by
Concord, is represented by Lewis Liebo
witz. a partner at D.C. 's Hogan & Han
son. "This (matched-sales) solution was
crafted to make the best of a very bad situ
ation," says Liebowitz. If the Commerce
deal worts, his client estimates that it will·
be able to open four uranium mines, hire
150 miners, and indirectly create 600
other jobs, according to Liebowitz.
Beyond the immediate criticisms, the
Russian uranium deal is being watched
closely by the international-trade bar for
indications as to how policy is being set in
the Clinton administration.
What watchers initially see, t!tey report,
is policy-makers neglecting the details that'
shape high policy. At least a dozen trade
lawyers. who decline to be identified be
cause they represent clients before admin
istrative agencies, fear that lower-level
civiLservants. like Spetrini, seem to have
been given great sway over matters. while
the policy-makers subject to Senate con
ftrmation stand aloof.
Undersecretary for International Affairs
Jeffrey Garten, the department's top for
eign-economic policy official, stayed
mainly on the sidelines as the deal was
hammered out by Spetrini, a c~r offi
cial with virtually no previous high-level
diplomatic experience.
Then acting assistant secrelary for im
port administration, Spetrini negotiated
the deal in Moscow in December 1993. At
the same time, Garten, confumed by the
Senate for his position in November, was
busy in Geneva as a member of the U.S.
team that brought the so-called Uruguay
Round of trade negotiations to a successful·
close.
.
Critics of the Russian uranium deal be
lieve that had Garten stayed on top of the
negotiations to resolve the Russian dump
ing problem. he might have headed off the
matched-sales agreement. In any event,
they say, this agreement effectively
changes the dumping laws and should
have been decided at the highest levels.
"This is another case of a policy
maker, Jeff Garten, who refuses to get his
hands dirty in the messy deWI, of the bu
reaucracy he is supposed 10 run," coo
cludes trade-law specialist William Lash
m. an usociaae law profeaaor al the St.
Louis University School of Law.
Spetrini declines comroenI. Apparently.
Garten is sensitive to charJa he isn't in
control of his area of respoosability: He
abruptly ended an April 26 ~w for
this article after acknowled'ID8 he was
unable to discuss relevant ddalls of sev
era! dumping cases, including the one on
uranium, handled by Spetrini.
..
"Garten gives general policy direction,
and sees himself as a big-picture kind of
guy," explains a Garten aide.
Jan Kalicki was named department
counselor and the administration's om
budsman for energy and commercial co
operation with the Russian Federation
only on Feb~'23 and was unable to provide
guidance early on in the negotiations.
(Wearing his ombudsman's hat, Kalicki
keeps in close touch with such key admin
istration officials as Deputy Secrelary of
State Strobe Talbott, Vice President Al
bert Gore Jr., and Commerce Secrelary
Brown.)
Nor can Garten get any help on Russian
uranium from Susan Esserman, a former
partner at D.C. 's Steptoe & Johnson,
confumed as assistant import administra
tion secretary on March 2S--two weeks
after the deal was signed. AJthough she
has extensive experience in dumping
cases, Essennan recused herself from this
one because a former client, the U.S. En
richment Corp.• is a key player.
U.S. Enrichment, a spinoff from the
U.S. Department of Energy, is another
likely beneficiary of the matched-sales
agreement. Represented by Richard Cun
ningham, a Steptoe partner, the company
has signed a contract with Russia to pur
chase over the ·next two decades nearly
S12 billion of highly enriched uranium
that will be blended from dismantled nu
clear warheads in the former Soviet
Union. .
The uranium taken from the nuclear
weapons will be converted to low
enriched uranium suitable for use as fuel
in commercial power plants. The Russians
linked the dismantling of their nuclear
weapons to the Clinton administration'S
settiinR of the dumping case, which covers
"natural uranium" and not the stuff of
nuclear weapons.
While that goal is a laudable diplomatic
priority, it still leaves the U.S. industry
and other foreign suppliers to confront a
glutted natural uranium industry.
Under the terms of the March I I
agreement signed by Spetrini and Nikolai
Yegorov, the deputy minister of Russia's
Ministry of Atomic Energy (Minalom l.
Russia will be allowed to export to the
United States 3.000 metric tons each year
in 1994 and I99S, provided that the im
ports are matched by newly produced U. S .
uranium. This does not seem to leave
much of anybody's uranium for U.S.
markets. In 1993. for example. U.S. util
ities purchased 3.000 metric tons of ura
nium on spot markets, and entered inlo
long-term contracts for roughly another
S,OOOtons.
�.Kazakhstan Protests
Lawyers representing Kazakhstan, also
a former Soviet republic, have filed public
comments with Corruncrce protesting that
matched sales of U.S. and Russian ura
nium would effectively freeze their client
outofU.S.nuutets.
Robert Herzstein and Thomas Wilner,
partners in the D.C. office of New YorK's
Shearman &. Sterling, told Commerce that
because the matched sales would account
for' 'virtually all market activity in the
United States," it would leave producers
in other countries "unable to compete."
"We would like to see the department
adopt a wiser rather than flawed policy,"
says Wilner.
But Commerce officials firmly reject
suggestions that the deal is flawed.
"We are confident it should go for
ward," says a key Garten aide, who de
clines to be identified.
.
Spe~ni. in a March'speech in Boston.
·startled his audience with a less-than"
.diplomatic attack on the critics. par
ticularly those based in Canada and other
foreign countries.
•'There are those that are whining about
the agreement already." charged Spetrini •.
who was speaking to the Nuclear Energy
Institute. a D.C.-based trade group.
The )9-year career official referred to
the "new-found relationship" between
Russia's Minatom and the Commerce De
panment, which he had worKed to foster.
..And I would say woe to anyone who
wants to get in the way of thai;~ Spetrini
o
warned.
Editor's flote: The full text of the
..Amendment to the Agreement Suspend
ing the Anti-dumping Investigation on'
Uranium From the Russian Federation"
can be accessed electronically over Lexis
Counsel Connect. See Page 45 for
instructions.
�Newsweek
The Last Great Giveaway
Environment: It's the law. Mining companies pay pennies for federal gold.
TonI of Gold
.'Ibe greatest gold
nub in U.S. bistmy
Dwelt. Iftlner, '4ger ••• : Prospectors in tum-ofthe-century Nevada
H. AMERICA. LAND OF OPPORTU
A
nity. Where one enterpnsing com
pany bought 11.000 acres in Colo
rado from the U.S. government for
842.500. then immediately resold
it to oil companies' for $37 million. Where
the subsidiary of a South African finn is on
the verge of buying 1.016 acres in Ne....ada
from the Feds for $5.090 and then mining
the S1.1 billion in gold buried below it.
Where another firm is getting set to mine
82UO million worth of gold on federal land
next to Yellowstone National Park without
paying the' U.S. Treasury a dime in
rovalties.
'If this sounds like the sort of robber
, baron capitalism that ran rampant through
the 19th century. there's a good reason: these
land gra bs are happening under a law signed
by Ulysses S. Grant. The Mining Act of1812,
intended to lure Americans west. allows any
"hard rock" miners (including prospectors
for gold, silver. copper and platinum) to mine
federally owned land for pennies. By con
trast. oil. gas and coal companies pay royal
ties ofas much as 12.5 percent oftheir gross
revenues for the privilege of tapping federal
lands (chart). The IlC1 even allows mining
companies to gain title to the publicly owned .
land and. more important. everything un
derneath it. for no more than S5 an acre,
Companies have bought 3.2 million acres of
federal lands since 1872; every year they
mine $1.2 billion worth of hard-rock miner
als from government pBlTels. according to
Congress's General Acrounting Office. Last
week. Interior Secrelarv Bruce Babbitt
signed over America's richest gold deposit of
�.
\
'7
.'
~~~~~~~~~~~~~~~~~~~l
---~~
all: for $9.765. the Torontorock ores and could never buy to be challenged. The U.S. Bureau of Mines
Let'. Make
the land outright. A Senate ver
based American Barrick Reprojects a loss of 1.100 jobs from an 8 per
sion. passed last May, would cent royalty. The CongressionaJ Budget Of
a Deal
sources took title to 1,949 acres
around Elko. Nev. (map). that . Under the 1872 Min
coUect 2 percent of net profits fice calculates that cleaning up abandoned
sit atop what could be $10 bil
and allow purchase of federal mines, as the reform bills require. would
ing Act, companies
lion worth of gold. The transfer. caD buy federal land
land at "fair market value" for create almost as many jobs as would van
said Babbitt. is "the biggest gold fm IS or less an acre.
six months after the bill be ish when small operators and marginal
heist since the days of Butch
comes law-with that value as
claims fold.
Montana.
Cassidv."
sessed on the land's surface and
Now that America "has long passed the
A company is seek·
To be fair. the difference be
ing title to 2,000
not what lies beneath. Based on point where we have a great frontier out
acres of land, con
tween what Barrick paid the
current revenues,
miners [West) that needs to be settled," as Jim
taining an estimated
Feds for the land and the $10
would pay the Treasury annual Lyon of the reform-minded Mineral Policy
billion worth of gold below will IS billion worth of
royalties of $96 million if the Center puts it. exactly what does the go...
not be pure profit. The company platinum and palla
ernment get out of the 1872 law? Billions of
House prevails.
dium. The price:
estimates it has spent $1 billion less than 110,000.
Lost jobs: Industry naturally dollars in Superfund liabilities. Some com
on equipment and new technol
prefers the Senate bill. The "fair panies that have mined aU they profitably
lEa.. lIoJa.... Calif.
ogy to extract the gold. (While
market value" approach is espe-' can from a site declare bankruptcy. The
A gold-mining
. S4ClO-an-ounce gold has helped
cally sweet: most of the land in . government has to clean up the poisonous
company bas ap
trigger the new gold rush in the
plied for title to 2SS
question is otherwise worthless tailings and other mess. By 1992, for in
federal acres con
American West, so have new
desert that would cost S50 to stance, cyanide used to leach specks of gold
chemical techniques, which taiDi:Dg lS20million
$100 an acre. In contrast, the out of ore at a Colorado mine was contami
make it profitable to mine rock worth ofgold.. The
House bill. charges Keith Knob- nating ground water; Summitville Consoli
containing just· .017 ounce of price: 11.165:
lock of the American Mining dated Mining Co. 61ed for bankruptcy. and
Kayno", Colo.
gold per ton.) The White House In 1988 a 16o-acre
Congress, is "a no-mining bill." the government took over the $40.000-a
and a growing number of re
Its demand for 8 percent royal
day cleanup. The West is littered 'with such
parcel was bought
form-minded
congressmen.
ties on gross revenues-that ghost sites. Many do not pose an immediate
for 1400. Some of
however, say the public is still
the land.. uear the
is, before deduction for ex- threat to environmental or human health.
Keystone s.Ici resort.
being fleeced. For years critics
penses-wouldcost47,OOOjobs but those that do are whoppers. The 08
was later sold for
.. out of about 140,000, acco~g tion's biggest Superfund site is a Mont.a.na
of the mining industry focused
111.000 per acre.
on its environmental sins-tox
to an iriclustry study. Barrick gold, silver and copper mine abandoned in
ic tailings. open pits scarring
alone provides 1.700 high-wage the 19505: 55 others are also Superfund
the earth. But the White House has been jobs at Elko, and has chipped in donations sites. It will cost more than $32 billion to
burned by defeat in. Congress on other for sewer lines and schools in
clean up the old mines.
Western issues such as grazing rights. So toWn. "Mr. Babbitt obviously
What tIM!,..,..
Such expensive messes do
for this battle. Interior is trying to keep the fails to recognize the sizable in... eI'I'Ift'IUt
not help industry's cause. As a
........ fNM
result, this may be the vear that
spotlight on· the bottom linf!!. "People who vestment made by mining comha\'e been getting something for free are panies before extracting a single
utNctloft of
mining reform finally passes.
finally being asked to pay for it," says Bab ounce of gold or silver," says
Thanks in part to the Barrick
bitt. "It's time to stop the gold heist."
.Jack Gerard of the Minerals Re:purchase. Sen. Bennett John·
III!IJOIJIICE 'II. o~~
ston, chairman of the commitCongress is trying. Under a bill passed by sources Alliance, "or the mil~
the House of Representatives last Novem lions of tax dollars and thouOil
12.& .
tee that voted out the industrv
ber, mining companies would pay royalties sands of jobs generated."
Natural Gas 12.&'
friendly bill. is retooling the
of 8 percent on gross revenues for all hardJob-loss estimates are made
Coal.
12.&
legislation. It would require
royalties on a slidirig scale
A 'heist' worthy Butch CusIdy: Barrick's $10 billion Goldstrike mine
':;::Sulfur-;-;- _ _-:::6. based on market price. not the
_
APEUA HA~PING- ELkO DAILY fREE PRESS
-;;Go1;;--d_ _ _---::O
mere 2 percent of net revenues
1...--------------------'--------- Silver·
0
in the original. Much of the
Uranium
0
money would go toward clean
.,.,.... ..........._ ing up old mines. The House
:
and Senate still disagree on
whether Interior should have
the power to declart> some
sites-such as a gold mmt' in
protected grizzly-bear habitat
near Yellowstone-off·limits to
mining. The lawmakers had
better act fast. More than 600
firms. alarmed at the prospE'c!
that the free ride is' ending. are
requesting title to their chums.
In one, Chevron and tht .\Ian
ville Corp. want 2.53:1 acn"s In
Montana containing 53 billIon
to $4 billion worth of palladIum
and platinum. Price Sl:! hI~.1
===....
of
,"
SHARU"" Hr, . ! ~ .. ,I'"
DASlf.l GLlt 10.. If! \\,.',,')1"",1,,11
&.5
I
�n\tt:
PACiE:
VaWlted African-Aid Shop Retools
: IY T. II. GOLlllAN
or ye4I~. :-':,il1 and Co, was comfortably ensconced in the
top tier of the capital's lobby boutiques. a formidable pres
'ence in one of the city's more obscure but lucrative special
ties: representation of Third World gO\'ernments in Washington,
Year after year, countries ranging from Guinea and Cote
d'hoire to Egypt and Morocco provided Neill and Co, with a
steady diet of hundreds of thousands of dollars in annual fees.
Indeed, firm President Denis Neill. who developed a host of
overseas contacts during a live-year stint at the Agency for Inter
national De\'elopment, is "':idely recognized as one of the pio
neers in foreign-aid lobbying,
But in the past 10 months. Neill's firm, which will change its
name to the Washington International Group and e,\pand ils own
ership base on June L has been hemorrhaging lobbyists and
F
dients, From about 35 lobb\ists and·
suppon staff a year ago. Neill and
Co, is d()\\n to l.t: from a list of
some 1\\ (I-dozen publicl~ regi>lered
clients, there are now a mere six,
'The foreign-aid business r Ie '
created has gone away," says Neill.
\\ h,) iounded the lirm in 198 I and
until now has been its sole owner,
Few v.ould dispute that the world
of C.S, foreign aid. which used to
,ee million~ of dollar, earmarked
annually to keep a few dozen (oun
trie\ faithrull~ spinning in a pro
Western orr-it. has changed radi~al
II, Since the fall of communi~m anJ
Pre,idem Bill Clinl0n' ~ de-emphasi,
\In foreign affairs, the military and
humanitarian iorcign-aid budget of
the L'niled State, has been slashed,
"In fiscal, 19<)5, onl\' three coun
Irie;-:-Egypt. Israel. and Jordan
are ,Ial..:d for military aid," says one:
f0r..:ign-aid 10bbyi'l: "Ten years
ago. there ~. ere :20 countries recei\"
mg m,ln..:y,
"Foreign.aid lobby ing i~ no
lunge:r th..: ,urgical strikes it used to
n..:." add, a former longtime N..:ill
an,d C(l ..:mployee, "E,Hmarkmg j,
n0v.' a four-kiter word,"
As for humanitarian aid, nneL!
. ainly the result of lobbying congres
m
sional appropriators, today it depends
more upon me..:tin~ the r..:tjulr,'l1h:llb
of third-party I.'ontrach If".
:In,' r~ J' in l' I ~
s() phi" I H' a Il'd
~m~.!,,\ -t,II'!', ar~ ~I,(l c'ul·
. Wi;; 101;' {h~ "meign Illhh~ - .
ing hu,ine"~, In 'orne cases.
smalkr embassies that once
.9'-)3- Pr"
I
hired lobbyists to do what
many Stale. Department
officiab quietly groused
should be done by the starr~
themselves are reducing
outside costs and slowly
upgrading the quality of
their diplomatic corps.
,
"For years. African
countries did not send their
best folks to Washington.
They sem them to the for
mer colonial powers: Lon
don. Paris, Brus~els. or
Bonn," says Dan Mat
thews, who publishes the
Africa Insider, a Washing.
ton-based newsletter on
U,S,·African affairs, "But
since the end of the Cold War.
there's a smarlening up of the
embaSSies, a better class of diplo
mat coming through."
Aside from the geopolitical
changes, Neill and Co.' s decline
from a large and powerful foreign.
aid lobby shop to a far more modest
operation also hinges on the finn's
own problems.
By Neill's own admission, his
company added too many lobbvists
in the boom years of the 1980s
many of whom. he says, never
brought along the clients they had
promised, Efforts to broaden the
focu~ of the company to include
mon: Irade-de\elopment and dome~.
Ii,' clienb v. ere woefully inadequate,
"\\ c ovcrexpanded sioniti(anth':'
l\~i il ,a:- s, "\\..: brou!:!h7 in a lot' of
b\\ ~ ":1', to lr: \0 change the focu, of
Ih~ bu.siness, and these people didn't
bnng 10 the business."
A federal probe that touched
down on Neill's offices one day last
fall spooked ~ome employees-and
may have helped convince a few
that it was time to look elsewher..:
for work.
And effons to snag new clients
among the collapsing former Soviet
Union and EaSlern bloc states.
~hi'h at the time appeared to be fer
tile: ground. never paid off.
James Shea. a vetL!ran lobbyist at
the finn who left earlier this year .
made three trips to Tirana. Albania
including one with Neill. to try t~
snag the newly democratized coun.
tr: as a client. Albania never signed,
."The mps became son of a jol..:
\\ nhlO the company':' says a former
\elll and Co. lobbyist. ..
.
•
�Hi, own management skills. Neill
admits, fell short. And although he
paid bonuses to his staff. senior
employees were unable to share in
the finn's overall profits because;
. ownership of the company remained .
solely in Neill's hands.
!
All thai will change next month..
when Neili cedes day-to-day man- !
agerial control and gives an equity
stake in the Washington internation
al Group to John Bircher. the only
full-time senior staffer left. Four
junior staffers will also receive an
equity stake. Neill will become
chainnan of the renamed finn.
"I have a lot more confidence in
John Bircher's ability to manage the
company than I do in my own,"
says Neill.
At best. Neill's decision to let
other members of the finn own part .
of the business is a last-ditch effort to
fend off further defections. At worst.,
it could serve to distance the finn
from Neill himself-and from any
possible implications of the federal
raid last Oct. 27 on his eighth-floor
offices at 815 Connecticut Ave.
Details of the search-including
who was involved-are murky. All
a Justice Department spokesman.
John Russell, would say is that "the
matter involves a possible FCPA." .
The Foreign Corrupt Practices Act
prohibits U.S. companies from .brib
ing foreign officials to obtam or
keep business..
.
A!. is customary In FCPA lOves
tigations. the warrant. which
would state the reasons for the
search. is sealed.
But at least three former staffe~
say that Neill and Co. employees
were ordered out of the
building. computer disks
were copied, and a large.
number of files were re- i
moved by federal agents.
I
In a written statement. I
•
I
NeIll says that the warrant i
was issued "in connection I
with a government invesliga- \
tion. relating to a former i
client of the law firm ofi
Denis M. Neill, P.C.... I.
know of no wrongdoing by~
the fonner client or by any
other person.
.
Neill refuses.to elaborate.
except to stress in the state
ment that his law finn and
his lobby shop are two sepa
rate entities "not associated
in any way."·
.
Whatever the real reason behind
the raid, word seeped out and influ
enced life at the lobby finn. "It cer
tainly had an effect on all of us. on I
our ability to solicit new business," ;
says one former employee.
.
I
By last October:however. depar
tures from the finn were already in
full swing. Indeed. Leslie Janka. a
fonner deputy assistant secretary for
defense, had already left in March
1993 to become a principal in Vet1
Associates. a utilities<otl:ulting
unit of the accounting giant Arlhur
Andersen & Co. But Janka, a Mid
dle East expert who was one of
Neill's original hires, took no
clients, and his loss had unle impact
on the ftrm's cash flow.
More serious defections began a
few months later. George Dalley. a
longtime chief of staff to Rep.
Charles Rangel (D-N.Y.) and one of
Neill and Co.' s principal rainmakers,
left in August after a four-year stint
. to become a partner in the D.C.
office of the Rorida law finn Hoi
land & Knight Vicki-Ann Assevero,
a Harvard University Law School
graduate with more than a decade of
international legal experience. left
with him. also for a Holland &
Knight~p.
.
The two took the finn' s Senegal
account. worth several hundred
thousand dollars a y~ar. and suc
cessfully bid for the Trinidad and
Tobago account. which they had
also handled while at Neill and Co.•
and which paid $400,(0) annually.
"We had an incredible run at
Neill and Co.... says Dalley, the only
former employee who agreed to talk
on the record. "It·s awfully hard to
sustain that."
Alongside the lobby shop. Dalley,
Assevero. Neill, and two other
lawyer-lobbyists. Anthony Carroll
and Kevin NeaJer, had also formed a
loose-knit law-firm arrangement.
but Dalley says that business was
inherently limited by the small num
ber of attorneys involved.
"You cou Idn 't gain transactional
work. and there wasn't the expertise
in things like privatization and cus
toms work that law finns can do,"
says Dalley. who received what he
t.enns a "very generous compensa
lion package" to move to Holland &
Knight.
With the departure of Dalley and
Assevero, Neill and Co. started to
ture
feel the pinch. According to the
firm's filings at the Justice Depan·
ment's Foreign Agent Registration
Unit, revenue from foreign clients
appears to have dropped by some 50
percent-from about $1.5 miUion 10
$1 million-between the first and
second halves of 1993.
Lobbyists continued to leave the
ftrm. some involuntariiy. About five
associates were let go around the
end of 1993.
Carroll, the shop's general coun
sel. also left around the end of the
year 10 become a private consultant.
Jennifer Banta, a IO-year veteran.
left in early 1994 to become a vice
president for international and pub
lic affairs at APCO Associates .
Nealer, an APCO staffer before
joining Neill and Co.. and James'
Shea both left on March 3t. NeaJer
joined the Scowcroft Group, where
he is a senior consultant, while Shea
is now a non-lawyer consultant in
the D.C. office of the Chicago law
ftrm Baker & McKenzie.
Bircher. the incoming president,
says that he views the firm's newly
scaled-down quality as a positive
development. ''I'm very pleased
with the size of the finn," he says.
"It's a sufficient number of people
to satisfy the clients we have."
~T
.
�.'
"
Hi, llwn management ,).;ilk i\dl
And ;Ilthnugh hl'
I,,,JJ h;'I1U'I" h' hi' 'i,lfL 'L'ninr
employee~ were unable to share In
the firm' ~ oy'erall rrofi ts oee aw,.:,
owner~hip of the company rerr,ainl'u
suleh in Neill', hanu'
Ail tLJi wiii ~h",nCt' neXi mllnlh,
when l\eill cede~ d~y .to-day man
a~erial control and gives an equity
slake in the Washington Internation
al Group to John Bircher. the only
full·time senior staffer lefl.,Four
junior staffers will also receive an
equity stake. Neill will become
chainnan of the renamed finn,
"I have a lot'more confidence in'~.",_
John Bircher's ability to manage t h e '
company than I do in my own,"
savs Neill.
'At best. Nei II' s decision to let
other members of the finn own pan
,of the business is a last-ditch effon to
fend off further defections, At worst,
it could serve to distance the firm
from Neill himself-and from any
possible implications of the federal
raid last Oct. ~7 on his eighth-floor
offices at 815 Connecticut Aye,
Details of the search-including
who was in\olved-are murk~, All
a Justice Department spokesman.
John Rus'ell. would say i~ that "the
mailer im'olves a possible FCPA."
The Foreign Corrupt Pra(!ice~ Ad
pnthibib r.S:companie~ from brih·
in~ f,',ei!:!n offici;;l, to orlall, or
;jd;~:1", r,i! ,I\,'M
k('~r ru'i~e'<
.. ;. ',' • \.:,1< '!1",,,r~ to
Fep .
.;
iii' (",.
tigations, the warrant. which
would state the reasons for the
search. is sealed
But at lea~1 three fonner ~taffer,
,av that t.;eill and Co, employees
were ordered out of the
building, computer disks
were copied. and a large
number of files were re
moved by federal agents.
In a written statement.
Neill says that the warrant
was issued "in connection
with a government investiga
lion relating to a former
client of the law firm of
Denis M, Neill. p.e ... I
know of no II.'T0ngdoing b~
th'e fonner client or b} any
other pe~on. ,
t.;cill refw,e, to elaborate.
ext'cpt to ~tre~~ in the stale·
ment that his law fIrm and
his lohbl shop are two !>epa
rale entities "not associatetl
inan\ wav,"
Whate;er the real rea,un hchind
the raid. word seeped out ami innu·
en"l'd IIk'··at thL' hlrhy rlml "It eer
winl\ had an dle.:l on all of us, on
our ;hilitliP \o/i.:it new husme,;.,"
'a~' one ronncr employee,
By la~t OCloher. howe\'er. dcpar·
turc, from the firm werc ;.tirl:Ju: In
lull sw lOt:, Inlh:ed, L"llc Jan~a. iJ
fomler de-put) as~istant secretary for
defense, had alreadl left in March
1l)t)3 til hecome a principal in Ven
lUre As,ociate,. a utilitie,-coVull:ng
unil of the accounting giant AnhlJr
Andersen & Co. But Janka, a Miu·
dk East expert who was one of
Neill's original hires. took no
clients. and his loss had lillIe impact
on the finn's cash flow,
More serious defections began a
few months later. George Dalley, a
longtime chief of staff to Rep.
Charles Rangel (D-NY) and one of
Neill and Co:s principal rainmakers.
left in August after a four-year stint
to become a partner in the D.C.
office of the Florida law fInn Hoi
land & Knight. Vicki-Ann Assevero,
a Harvard University Law School
graduate with more than a decade of
international legal c:xperience" left
with him. also for a Holland &
Knight pannership.
The two took the finn's Senegal
account. worth several hundred
thousand dollars a year. and suc
cessfully bid for th'e Trinidad and
Tobago account. which they had
also handled while at Neill and Co..
and which paid $.+00.000 annually.
"We had an incredible run at
Neill and Co.... says Dalley, the only
ronner employee who agreed to talk
on the record. "It's awfully hard .to
sustain that"
Alongside the lobby shop, Dalley,
Assevero, NeilL and two other
lawyer· lobbyists. Anthony Carroll
and Kevin Nealer, had also fonned a
loose-knit Ja\\. ·firm arrangement.
but Dalley says that business was
inherenth limited bl the small num·
ber of attornev~ involved.
"y ou couldn't cain tran~actillnal
work. and there w;~n' t the expeni~e
, In thin!.!, hkl' pri\ alllJlilln and cu,·
toms ~"Ork thaI law firms can do:'
~a~;. Dalk~. who reL'ei\eu whai he
tenns a "leI) generous compensa·
tion package" to mOle to Holland &
, Knight.
. Wilh the ueraf1ure of Dalley and
A~,e\cro, :-;(1\1 "nu Co. staned to
feel Ihe pinch. Accordin~ II) Ihe
firm', filir.,:,:' Jl.the Ju,licc DCpJM.
ment' ~ Foreign Agent Rcgi,lrJlion
Unit. revenue from foreign clienl~
appear, 10 h;;ve dropped by some 50
percent-from about $ Jj million II)
$1 million-between the first and
~el'Ond haJves of 1993.
Lobhyists continued to leale the
finn. some involuntarily, About five
associates were lei go around the
end of 1993.
Carroll, the shop's general coun·
sel. also left around the end of the
year to become a private consultant.
Jennifer Banta. a IO-year veteran.
left in early 1994 to become a lice
president for international and pub
lic affairs at APCO Associates.
Nealer. an APCO staffer before
joining Neill and Co.. and James
Shea both left on March 31. Nealer
joined the Scowcroft Group. where
he is a senior consultant, while Shea
is now a non-lawyer consultant in
the D.C. office of the Chicago law
finn Baker & McKenzie,
Bircher, the incoming president,
says that he views the finn's newly
scaled-down quality as a positive
development. ''I'm Yery pleased
with the size of the finn," he says.
"It's a sufficient number of people
to satisfy the clients we have."
�DATE:
PAGE:
Fill 'Those Judgeships Faster
President Clinton and Hillary Rodham Clinton,
professing strong interest in a fairer, more repre.
sentative judiciary, created high hopes among their
supponers (and concern among their opponents)
thaI they would move swiftly to correct the imbal
ance in the nation's judiciary caused by 12 years of
. relentless :Reagan/Bush appointments of conserva
. tive judges. Politically and philosophically they
were expected to leap to the task.
By some measures the Administration has
performed well, making appointments at a faster
pace than its predecessors did at this stage. Yet the
performance is not up to the expectations the Clin
tons generated, nor does it yet meet the needs of
justice.
•
The While House took four months to swear in
its own Attorney General, Janet Reno,. who in tum
did not have a ~nate.confirmed Assistant Attorney
General in charge of judicial selection until last
summer. Delays have crippled lower levels of the
system. One in eight judgeships Is vacant in the
Federal district and appellate couns, frustrating
and denying justice.
In litigious New York State alone, the Federal
court based in Manhattan lacks 10 of its allotted
28 judges. The Eastern District, which includes
Brooklyn, Queens and Long Island, lacks 5 of its
allotted ,15, and the upstate Nonhern District
has only two of five allotted judges to hear cases.
The Justice Depanment says that help is on the
way. Officials insist they are finally equipped to
choose more nominees than the Senate JudiCiary
Committee so far is prepared to schedule for confir
mation hearings. That will put more pressure on the
F.B.I. and the American Bar Association to make
more, faster background checks.
Officials also note that despite their own notori
ous problems In top management staffing, they
have outperformed the first years of the Reagan
and Bush Administrations. Mr. Reagan named 60
judges in his first year and Mr. Bush 46, compared
with Mr. Clinton's 78.
But merely outpadng the Reagan and Bush
Administrations will not meet the challenge. Given
the. luxury of 12 years, Presidents Reagan and Bush
went a long way toward fulfilling their pledges to
remake the Federal judiciary in a more conserva
tive mold. At most, Mr. Clinton will have eight years
to affect the balance. and that argues for even
SWifter action. .
.
As Mr. Clinton sets out to fill what he calls the
"big shoes" of retiring Supreme Coun Justice.
Harry Blackmun. he also needs to fill. dozens of
other vacancies on the lower bench With qualified
nominees. Sound appointments, made sooner ralher
than later,will be good for the country and for the
Federal courthouses. where backloas of drug and
cri~lnal cases are damalinl morale.
�DATE:
~-I
PAGE:
JACK ANDERSON and MICHAEL BINSTEIN
·1
Justice Thomas Breaks His Silence
upreme Court Justice Clarence Thomas is .
one of Rush Limbaugh's "dittoheads" who
listens to tapes of the controversial radio
host while he exercises at the gym,
Thomas, whose \;ew of the world is through the
lens of the conservative Limbaugh, refuses to read
The Washington Post or the New York Times
because of the "liberal bias in the mainstream
media,"
"They can say anything they want about me," said
. Thomas, in a soon-to-be-released book about the
political career of his close friend, Sen, Orrin G,
. Hatch (R-Utah), "I will never read them again to see
it," .
In MLeading the Charge, Orrin Hatch and 20
Years of America," author Lee Roderick gained
wide access to Hatch's private writings and other
confidential materials. A chapter is devoted to a
behind-the-scenes account of how Hatch and
Thomas teamed up during Thomas's nationally
tele\;sed confirmation drama."At one point,
Thomas's confirmation seemed doomed after
fonner co-worker Anita F. Hill alleged Thomas had
sexually harassed her-a charge Thomas
vehemently denied and Hatch sought to disprove by
suggesting that some of Hill's assertions may have
been lifted from works of fiCtion.
After Hill had made some lurid charges, including
that Thomas had put a pubic hair on a Coke can,
Hatch assembled his staff and said: "I've heard that
Coke can thing somewhere else. Let's find it."
Hatch's staff plumbed published books and
articles for clues. Roderick writes: "His staff dug in.
Several aides tumed on computer terminals at their
desks and began researching data banks....
Others called the Congressional Research Senjce
at the Library of Congress and spread the word to
the White House and friends.•.. Leadr. began
pouring in from a<:ross the country ...
Thomas broke a nearly two-year silence with the
media by cooperating with Roderick. He told
Roderick: "I never would have made it without him
IHatch], , .. He was the one person on the
committee who knew me very well, both
professionally and as a friend."
The publication of Roderick's book.coincides with
another nomination process already underway as
the White House seeks a replacement for retiring
Justice Harry A, Blackmun. Hatch's role as GOP.
S
point man on the Senate Judiciary Committee and
Thomas's experience as embattled nominee have
seemed to change forever the way the process is
viewed by partisans on both sides.
Thomas's nomination had an auspicious start.
President George Bush hailed Thomas at the time
of his nomination as the "most qualified" candidate
in the country, But Thomas's tenure on the court
has fallen far short of that billing. He is far more
conservative and far less compassionate than his
administration and congressional handlers once
portrayed him.
He was marketed as an example of a bootstrap
success story, a fatherless black growing up poor in
Pin Point, Ga" someone who abandoned plans to
become a priest in 1968 after hearing a white
seminarian cheer when he found out that the Rev.
Martin Luther King Jr, had been assassinated.
Instead, Thomas's writings and decisions denote
someone who disdains the downtrodden and is
callous about protecting civil liberties.
For example, the Supreme Court in 1992 ruled
that prison guards violate the Constitution when they
needlessly torture, pummel or kick prison
imnates-even if it doesn't lead to permanent injury.
Thomas, however, argued in dissent that the ruling
perpetuates "the pervasive view that the federal
Constitution must address all ills in our society."
Hatch may have misjudged just how COftset'\'3tive
Thomas would turn out to be. "He is a wonderful
choice," Hatch wrote privately when he was informed
by the White House three hours before the pUblic
aMouncement. "Clarence iu truly good'perSOD..••
I expect he will be more of. centrist than a
conservative, but 1think he will Jean to the.right."
For his part, Thomas says he has found life on the
court to be fun. ·"1 found that I loved it: he said."1fs
a monastic life, and I like that.•.. You feel that the
. people of the country have entrusted something .
special to you.... It's a secular but a sacred trust,"
': In other passages, however, Thomas seems to
confmn the widely reported view that he has
withdrawn into a shell and remains an angry and
alienated member of the high court. "No Klansman
ever did anything that bad to me: Thomas told
Roderick, "I lived 43 years before then .•.. I drew
a line in the sand of time and moved forward....
The next 43 years will be my answer to what .
happened."
.
50
R· S '1
f.-13
�QIbc lUd5bbtgton Vost
. AIUanagement Tool
"
That Managers Control'
.Agencie$ Look to Buyouts to Avert layoffs
By Stephen Barr
.......... 9aiff .....
With Congress's approval of fed
eral employee buyouts, the Clinton
administration has obtained a c:ru
ciaUy needed tool to speed. its ambi
tious effort to streamline the bu
reaucracy. ,
,.
But the administration's success in
removing excess layers of middle
management and cutting back staffs '
devoted to personnel. procurement
and other headquarters functions will
. ot be kriOv.'D for several months. The
n
more complex restructurings being
planned-such as the ~cuJt~e De
partment reorganizatlon-stdl re
quire congressional approval. .. .
For the fllst time, an administra
tion "ill have an alternative to hiring
freezes and Iiyotts. "This is a manage
ment tool that managers control. You
can look at your agencies' mission and
decide ""hat's, not needed anymore,"
said one official.
In the near term, the buyout au
thority may prove most at~active to· .
agencies trying to cope Wlth budget·
constraints or funding shortfalls.
The Office' of Per-soMeI Manage
ment (OPM), which apnounced earJi..
er this year that it would lay off 523
workers this spring because of rising
red ink in a revolving fund, moved im-,
mediately to offer buyou~
OPM Director James B. King said
he would offer buyouts to employees
in grades GS-13 and above. The buy.
out will expire,Thursday, and work~rs
will have to leave government semce
that day, the end of this month.
After the offer expires, OPM wiD
evaluate whether buyouts minimized
the number of jobs at risk in a second
round of layoffs scheduled for later
this year, said Janice R. Lachance.
OPM communications director.
The buyout legislation authorizes
cash bonuses through March 31,
1995, but stipulates that agencies ,fi
nance them out of current appropna
tion&.
AD informal sui-vey or Cabinet de
partments showed that most were
trying to determine the "break even
point for offering buyouts in the six
months remaining in this fisc:a1 year.
The calculation involves determining
bo~ long I person mast be ,off the
payroU for payroll savings toequaJ
the costs of the buyout.
For most Igencies, OPM data sug
gest, the break-even point will fall in
mid·April for GS-14s and GS-15s, two
high·rank white-coUar pay grades.
The break-even date for GS-lls was .
a week ago, the data show.
"We are very pleased with the
buyout legislation," said Deputy Ag
riculture Secretary Richard Romin·
ger."'But It this time of the fiscal
year, we're analyzing which areas it
will still be economically feasible,
and where we will want to defer it to
the first of the next fiscal year;
which begins Oct. 1•.
Rominger's assessment was ech
oed by officials at the departments or
. Transportation, Housing and Urban
Development, and Commerce. The
officials said they probably would tar
get the buyouts at GS-lls and above.
Transportation may use buyouts
to try to avoid layoffs, and parts of
the U.S. Forest Service. also at risk
for layoffs, wiD be one of the first
Agricultw'e agencies to offer buy
outs, officials said.
The buyout authority took six
months to get through Congress be
cause of disagreements on whether
the payroU savings from the adminis
tration's downsiIing plan should be
earmarked for deficit reduction or
anti-ciime initiatives. The bill passed
when a bandtuI of Senate RepubJi..
cans switched their votes and agreed
.to shut down the filibuster led by
SeD. Phil Gramm CR· Tex.), who
wanted the projected savings to be
. used' to finance pending anti<1'ime
legislation.
Jnterestinlfy. Sen. Trent Lott (R
Miss.) did DOt VOle to end debate.
/&'6
DATE:
PAGE:
even though Democrats had attached
a provision that benefited about 200
.laid~ workers in his state. A Lon
spokesman said the senator's vote
was "a· matter or principle. Senator
Lon was concerned about bow the
savings were to be spent."
The timing of the final vote. on
Thursday in the Senate, provided a
boost to Vice President Gore. Gore
embarks on the second stage of his
"reinventing government" effort this
week-what a senior administration
official ca1Jed "campaign to con
vince federal workers that it is da
able, profitable and that you can
really create a government that
works bener and costs less."
Gore is scheduled to visit two
Cabinet departments today and give
I speech entitled "The New Job of
the Federal Executive" on Tuesday.
Federal managers have expressed
anxiety about the streamlining c:hang
eSt since. the administration has said
that at least 10 percent or its work
force reduction would come from the
,ranks or the Senior Executive Ser·
vice. GS-14s and GS-15s.
. Groups representing federal
agers also have complained about
being left out or task forces asked to
propose changes in civil service laws
and revamp labor-management rela
tions. Gore recently took steps to
ease such concerns, inviting a c0ali
tion of management groups to advise
the President's Management C0un
cil. the administration task force
overseeing the downsizing. '.
From 60,000 to 100.000 employ
ees may take the buYouts, according
to one administration projection. But
in offering buyouts. agencies cannot
target individuals; they may only tar
get locations. organizations or occu-
pational groups.
,
OPM.in an effort to get the first
buyout program started smoothly.
produced pidelines within hours of
the bill's approval on Capitol H.iIl.
"A key problem is bow to avoid or·
fering more separation incentives
than an Igency can afford. both in
terms or money and in· terms or kist
talent It is, therefore, critical for
agencies to establish &pecWc targets
for JI'OUPS Of positions with doUar
and staff year savings to be
achieved: the OPM guidelines said.
OPM also said plans shO\lld enSure
that agencies. in shrinking to the
right size, retain the right worken..
a
man
�DATE:
3-;,-,
Alo
PAGE:
I
" ' "
Women, Citing Bias, May Sue the C.LA.
BynMWEINER
"*,,,110 TIlt _
Yon T _
WASHINGTON, March 27· - The
Central Intelligen~ Agency'S opera
tions directorate - where the spies
work - has long been one of Washing
ton's classic "old boy" networks. Butlt
may not be much longer.
Roughly 200 women in the director
ate are saying that they have been
deprived of promotions and power.
They are considering filing a class
action suit, charging that they have
been blocked from posts as coven ~
eratives, case officers and station
chiefs, said lawyers and women in
volved in the case.
The top jobs at the Directorate of
.Operations, the clandestine service
. that conducts espionage abroad, have
always been for men only, lawyers and
former intelligence officers said. Few
er than 10 women hold positions of real
power' in the directorate, which has
more than 2,000 employees, they said.
Women serving as case officers,·re
cruiting and controlling foreign agents,
and as station chiefs, SuperVising C.I.A.
, posts in foreign capitals, are almost as
rare.
.
cers editing raw intelligence. 1 think
there was a glass ceiling."
Another woman who worked as a
C.I.A. spy abroad and now serves at the
State Depanment put the case bluntly.
"The sexiest jobs are the coven jobs,"
she said. "Women's careers on that
side were severely limited."
IIS~ of Secrecy
Any litigation In the case would in
volve issues of secrecy, national securi
ty and feminism., The women at the
C.I.A., as -members of the clandestine
service, could not be named In public;
a suit would have to be titled "Jane Doe
v. Central Intelligence Aaency," law
yers said.
,To be a spy is to
be an 'old boy,' ,
but that could all
•
be changed.
'A Man's Orlanlzatlon'
The agency's Director, R. James
Woolsey, says he wants ta change all
that, but change is a.long time coming.
"There were never any senior wom
en to look up to in any pan of the
agency," said a woman recruited and
trained to spy in Moscow in the 1980's
by the directorate, or D.O. "They never
had a female case officer until the mid
1970's. Historically, it's a man's oraani
&alion.
... D
" T0 me one .0. has a military feel,
and the women there were expected to
be secretaries," said the woman, who
has since left but spoke on condition
she not be identified. "Women do make
"These problems did mst," Mr:.
Woolsey told the House intelligence
committee last October. "Women and
minorities were concentrated in the
lower grades. Promotion rates In the
period 1985-1990 ran higher for White,
professional men than for women or
minorities at the same starting grades.
"This Is nor our Vision of where the
agency should be," Mr. Woolsey said.
After nearly three years of talks with
the. agency's management and, In recent months, with Its Equal Employ-:
ment Opponunlty office, a class-action
suit "ls strongly supponed by very:
pat· 'otic women within the agency," j
\. ont potential buganL "It's not Just I
In the interest of women. It's In the
Interest of the agency."
.
But two C.I.A. officers Involved In the
negotiations, who cannot under law be
identified by name, said the threat of a
suit had led to Increased cooperation
frol'!'l the agency In recent months, rais-I
ing the chances that the case could be
settled within the' agency and without
litigation.
'
FI.tthtIIDIO. Pattera
Mr. 'Christian said the talks were
continuing. "We are currently discuss
ing within the agency's equal-opponu
nity office career concerns raised by
$Ome of our women employees," he
:l~;, "Utigation could eventually reTwo of the lawyers representing the
women, Manln D. Schneiderman and
1
. The complaint, dealing with the in
ner workings of the most secret sec
lions of the C.I.A, would almost cenainIy be sealed by a Federal judge af the
agency's requesL
And the only woman at the top of the
agency's power structure, the general Michelle A. Fishburne of the Washing- ,
counsel, Elizabeth Rindskopf, would ton law firm of Steptoe" Johnson, said
have to defend the agency it the suit is they were "working with the C.IA in
filed.
negotiations to address .concerns ex
The agency Is aware It hasa problem pressed by women employees and 10
and has taken Steps to correct iL
msure equal opponun.lty within the [)I.
rectorate of Operations....
'
Gains 1ft SenIor PDsItJoas
_
A third lawyer,ln the case, Rodeiidc
DaVid Ollistlan, a C.I.A. spokesman,
V. O. Boggs, 'executive director of 'the
sai.d women now 'represented more
Washington Lawvers' Committee for
7
f .J.
'f·
-"
than 3 percent 0 u.e agency s pro es- Civil Rights and UI1>an Affairs. said
slonal employees and that the percent- that the C.1.A:s history of promouon
very good case Officers., But they woul~ age of WOmeJ1 at senior levels of the practices "fits mto a pattern that we'\Ie
channel wc;>men Into being replns off. agency had Increased to nearly 12 per- seen In many oth~r Federal agencies.
.1 cent today from 6 percent five years such as the F and the State Depan
ago.'
menL"
.
The agency's No. 2 administrator Is
Indeed, women at the State Depan
,- a woman; 10 Is Its comptroller. Women ment have pursued a c:lass-actiOn suit
hold some senior analytical positions for 18 years without a final settlement.
as welL lbey Ire heavily recruited at although an agreement on a miljor
dozens of mdvenltieL In the C.I.A:s unresolved Issue.- promotions - Is
intelligence anaIyais and liCience and wlthm sight, said Monica Wagner, who
technology directorates, women now represents the women.
' "The crux of the problem Is that the
, hold third-ranking positions,..
In 1991 the year the women at the foreign service has been essentially
C.I.A. fim raised their voices in pro white, male and Ivy League," Ms. Wag
test to senior offldals, the agency un ner said. "U's the same at the C.IA:
denook wt\at Il called "the glass ceil- when you think of spies, you think of
Ing study" 10 . . at Irtlticial barriers men. Even though we've come • Ion&
against Idvancement existed.
WlY, we still have a way to 10-"
.8.'-
I
-.1
�.
. ... ·..HE NEW YORK
DAILY~'NEWS
DATE:
PAGE:
Join ~~rch f9r foothold
vs. violence
--_.-- ---
The remarkable thing is that too many
people just take all this. We seem ~ be hv
=-:.1.,.·:.:=:..=..:.::..::..=·;.;....------1 ing on the outer edges. Nancy Kemgan and
Some say violence is as American as ap [. the Bobbitts are not a singing group from
the '60s. Violence eat.~ away at our social
pie pie, Like racism.• it lies close to the
fabric as ifit were acid. So even when statisAmerican soul. To talk about it risks misin
Ucs improve, we don'tfeel secure.
terpretation. so it's better to remain silent
I say that unless we can talk about vio
Societies that care about liben;y permit
individuals to decide what's meaningful to
lence. we will never control it It will shock
them and pursue it in their community. Soour communities. wreak havoc on our civic
institutions and fray oor trust in one anoth
c:ieUes that care about liben;y allow peop
er as citizens and in our capacity as a nation pie to exercise ind ividual choice and to as
to live up to our ideals.
'
'.
sociate with each other freely. Ifyou're
In urban America. fear covers the streets afraid to go to a civic meeting at niBllt be
like a sheet ofice. That was true two years
cause you're afraid ofviolence, then that
rear and the realitybebind it strikes at eur
ago when I first said it, and it's true today.
In 1943, the year I was born, there were 44 fundamental freedom.
homicides in New York City. Last year,
. But like so many other issues in publie •
there were 2.000. In New Jersey. murders
life, in the deLate about what to do about vi
by firearms increased nearly4Qli\: from 1983 olence, people don't listen to one another.
to 1992. The No.1 cause of death among
They are frozen in the dichotomy ofcon.ser
vative or liberal, tough or coddling.
young African·American males is murder.
But fear ofviolence is not confined to ur
ban America, It is everywhere. Ask any cor
Those who believe the answer is gun con
porate executive who never drives home
trol ean'taccept theargumentsof'thosewho
the same way two days in a row. Ask any
want much tougher punishments and even
the death penalty, And those who believe in
head of security at a suburban mall. Ask
anyone who uses an ATM machine. Ask any severe punishment can't see.the necessit;y
Japanese tourist if he would knock on a
of limiting the guns that C~II.ise IlOo/« of the
stranger's door for help in Louisiana. Ask
homicides. They refuse to deal with the
any ~rman tourist about getting otT the
f
, acts: In 199i, 14.300 gun murders in the
freev..ayin Miami. Ask MichaelJordan.
United States. In Canada. 186. In Japan. 74.
We alllmow someone who has been a vic· In England, 60. They refuse to acknowledge
tim of\·iolenre. A fell.' weeks ago, a respect·
that as long,as there are more gun dealers
ed New Jersey pol itical reporter left a train than grocery stores or gas stations, guns in
station in Philadelphia and was suddenly
evitably wi \I get into the wrong bands.
confronted by two men who pulled a 9-mm.
Congress is finally considering an anti
crime bill. To get tough with people who
automatic revolver and demanded money.
Disappointed with what the)' found. they
have committed crimes, the lelislation cre
told him to lie face down on the ground.
ates stitTer Penalties for violent otTenses,
Then, cursing the empty pockets, they ran
luch as carjacking. drug trafficking and gun
crimes. It .Iso provides for "boot camps"
away. He was lucky. :
and more regional prison facilities.
There are' also important measures
1\'EEK BEFORE. Police Officer
Kenneth Hogan of the Irvington, N.J••
force \\'as shot in the head. By
aimed at preventing crime. One is atlldea I
chan<'e. the bullet passed through the skull
otTered called community schools. This
but not the brain. Only one in 1,000 people
would provide supervised activities for kids
ages IS to 18 by allowing community groups
\\'ith gunsho\.S to the head has such luck.
to keep school buildings open in the after
Gune; are everywhere. Tht Bureau of AI·
Doon.on weekendland in thelummer.
cohol. Tobac<'o and Firearms repor1.S there
The crime bill also would put 100.000 new
are twice as many gun dealers in Ameriea
tops on American streets. And. despite
today as a decade ago. Treating 8 gunshot
years of National Rtne Association aeare
wound costs. on average. $16.000. The na·
tactics, Congress nnally passed the Brady
tional tab is 53 billion a year, IlOo/« footed by
. Bill last year to male it much more difficult
taxpayers. The violence is not just on the
ror criminals to buy IuDl. .
streets. By the time a kid is 12. he's seen
more murders on TV than he's eaten lolli
. . But neither tM IUD control advocates nor
the tough senteMen see the connect.loDi
pops. Then the local news gives us the real
among poverty. f'Ilmily disintegration aDd
life version: the body count in Washington,
violence. If you taIle the homicide rate per
Detroit. the Bronx. Philadelphia.
'
1,000, you nnd that lodian reservations In
And one half of all women who are mur
South Dakota ..... a murder rate more than
dered are killed by their male partners, Vi·
double that 0/ 1M AnltJes. And poor, rural
olence against women in the home causes
more injuries than rape, muggings and ear
accidents combined. And ft'equentlf the
cbildren are abused too.
By BILL BRADLEY
~.
:
A
1/
velopments? Having the courage of your
ronvictions is a starter.
• UYOIU' U.year-oldis watching a violept.
TV drama or mouthing gangster rap. tum It .
otT. Tell him why you turned it otT. Then
write a letter to each member of the show's
sponsor's board of directors. Tell them you
are boycotting their products and you hold
them personally responsible for the trasb..
Send a copy of the letter to their local
churches and newspaper.
'
• EZPrHS .pprecllllitnJ to law elll'orcement
officials. Every day police omcers like om
cer Hogan risk their lives 50 we can live
with more security. When you hear one has
been injured in the line of duty. contact his
t'llmily. Tell them you respect his etTorts.
• R«oplu ULttwe're al\ in this toIether.
You're not secure just brecalll4! nothing vio
lent has happened to you yet. That's subur
ban illUSion. Take a step to preYent poverQt
and ramily disintegration. Hp'p lrIIit com
munities back together.lfschooll Deed re
lOurces to stay open. in even!np and Oft
, weekends, help them get the money, Or
rommit time to be a role model. ItOI"YU!1Ier
or readi ng teacher. And never forpt that
,the most Important kid is your own. Does
),our schedule renect that a'lli'U"lMU"
• r:1t11lUJ~ly.youroWD aC'tionsart the
most powerful innuence. Ifyou 1uI~ the im
pulse to lash out at someone weaker. pause,
look in the mirror and ask you....lf.hat you
really achieve by it. Violence 11 aU around
us. but it star1.S at home.
Our attitude toward viol~ must be un
fielding and clear. Martin l.utMr KJngJr.
showed us the way. He raced boda \M reali
tr and fearofradal discrimiutiOa. He con
ftoonted both, saying that ifeno. olYa. or
all races, march together, the", II IIiO Deed
ror fear. The cause of freedom is lUll
.
On violence, irenough of us ItOIImaltina
excuses or proposing remedies Ibat are
only halfanswers. ifenougt! of'a atft1)t
our own personal responsibllilJ aad 1M the
stakes clearly, then we can maft'tl ~er,
'lbe cause of freedom. from ~ II just.
�Like racial discriminatiOn, VIolence pre
»ents us from realizing our ideals as Ameri
cans and our potential as individuals. Ra
tial harmony may never be perfect; we maY
never live in a world without violence. But
we can make our world better. less brutal,
more caring and. in so doing. find the bone
that will enrich our lives and hold us togeth
er-as citizens.
U.S. Sen. Bill BI'tlI1Iey.
&hinf·tenn Democrat
fro'rri New Jmt:!I.
haS spoJ.:m out in the
past on issua pertain
ing to t1iolImee in
AmeIica.
�r,
r
DATE:
•
.3-.,'}5 -"
PAGE: /3-~
.
.
'discriminatory'
Sentencing falls most on minorities,- says J~ Jackson
enme and' I~ce bave beVltra.\0
c:ome the cen ISSUes 0f our
time. Around the country, peapie ha bee ocal' th . d
. f ve
nv
In .elr eSll'e or. a respo~ to this rampan~
and Vlolenc~.
. ~n y, .Con~ IS. conS1denng a O'lme bill de51gned
~ ease the pUblic's f~ It's a
bill full of bumper sticker sl~
pns, incl,uding "three strikes
and you re
out," ~d~.
tory mini,
mum san d
66
new
cnmJ
~eath pe~.
ties. The 1mpact of these
~~ an,d pol·
1~les, IS, so
dlscnmlOa· By the Rev.
tory that Jesse Jack·
crime and eon, president
criminal jus- and founder
tice have be- of the Raincome tbebow Coalition
pre-eminent
civil rights ~e of our time.
Most criminal justice ex·
pens agree that the penalty
provisions of this crime bill will
have no deterrent effect on
crime and violence in our cit·
ies. But I can guarantee that It
will bave a discriminatory impact on African-Americans, LatinO$, Native Americans and
poor people in this country. As
either victims or defendants,
people of color are treated unjustly and inequitably in theUS. criminal justice system. .
In 1990,The Sentencing ~
jed issued a report wbich re- ._
vealed a startling fact to the·
American public: one of every
four young black men Is either
In prison, on parole or on p~
bation. Statistics from the Justice Department support the
findings of this report. AI·
though only 12~ of the Amencan population Is African·
American, almost half - 48%
- of the federal prison popula.
tion is African-American.
The United States bas the·
highest incarceration nlte In
the world 455 per 100 000 In
the...... ' Am'
' . .
","canencan commu
nity, bowever, the-average rate
is ~1 300 per 100 000 aDd In
.
y of our Inner dties the
nlte is 3000
100 000 This
nlte is 1'0 tid:!
' .
. -
mari
m~~~re
than the nlte of Incarceration .,
In South Africa.
One of the most blatant ex·
amples of discrimination is the
current penalty for possession
of crack cocaine in the federal
system. Certainly, DO one h::.s
been more outspoken against
' ,illegal drugs and their danger
than me. I strongly believe In
both preventing and punishing
Illegal drug disttibution. How·
ever, I believe that the punish·
ment should 6t the crime aDd
those guilty of the same crime
should be punished equitably.
Federal narcotics law DOW
provides that arst offenders
convicted of possessing five
grams of cnlck cocaine (the
weight of tw~ pennies) must
serve ave years In prison. Fint
offenders convicted of pagsess.
Ing the same amount of pow.
dered cocaine are eligible for
probation. Those wbo pcl9I!II!!IS
powdered cocaine serve 8
mandatory ave-year !entence
only wben they have 100 times
as mucb poWdered cocaine
(500 grams).
The discrtm1natory Impact
of this law becomes painfully
. clear wben, ac:con1ing to a
1992 study by the U.s. Sentenc:
108 Commission, African· '
Americans coinprise 91",* of
those sentenced for federal
crack offenses and whites com
prise only 3~. These statistics
become even more ~cant
wben you consider that accordIng to the Nationalln!R1tute for
Drug Abuse, whites comprise
64.4~ of all CI1ldt users.
----
.
-=-=-C~=~
These stabSbcs Jeaa to !lOme
disturbing conclusions. AI·
though most crack users are
white, most of the people In
federal prisons for crack use
are African·American. Tbe
penalty for crack possession is
100 times greater than the pen
alty for powdered cocaine.
There is absolutely no ~.
cation for this stark disparity In
punishment for two clifferent
forms of the same drug. Sen
tencing disparity punishes peapie for their socioeconomiC Sla
tus: crack Is relatively
inexpensive, readily available
In communities of color and
used more openly by black,
brown aDd poor people. Pow·
dered cocaine Is expensive,
readily available In white, af·
fluent communities, and used
more privately.
.
A report released by the
Fedenll Judicial Center in 1992
concluded that although It was
the intent of the Sentencing Re
form Act to reduce dispaJ1ty
and discrimination In sentence
. in& mandatory minimum p~
visions bave actually Increased
these problems. This report re
vealed that African-Americans.
were 21% more likely and H&
panics 28% more likely to re
ceive at Ieasl the mandatory
minimum tenD.
Sevenll federal government
and independent stuclies have
shown that the death penalty Is
applied in. a nlcia11y c1isc:riJni.
natory manner. A recent study
. by the Genenll AccountiD& Of·
f1ce found that those who IDUI'
der whites are more likely 10
receive the death penalty thaD
those wbo murder Atrtcan
Americans. This same study
found a pattern of nlcial d&
parity In the charp)ng and se&
, tenclng of the death penalty.
We must eliminate race d&
crimination In the aimina1)&
lice system. This effort sboWd
DOt be a movement 10 IreId
�.'
The color counts five grams cA crac:k CDC8ineas
of crime
The federal law that
equal to 500 grams of powdered c:ocaine has been called
racist by eMl rights leaders. Reason: Ilnoe most crac:k
del~nda.nts are bIac.k,.they get longer prison I8I"It8noeII'Ian
whites. Some nurnberstrom 1992;
.
DNg ~D Cocan •
81.5%
CocaIne .... (cnck)
II •
C::Ii, DIA
32%
.1%
- __
D
ft
o.n. D.2%
Whites
Blacks
Hiapanica1
Olher
Minimum federaI _ _ _ for fIrIt-timt "","!din:
DPorind ccaIne •
.
1':"
•
J8Ir
50 grams
':"i.:j.j
.'!". I
tt: .""'11
1 - HIIpericI c:.n til .- q
CnIck oOc.In.
17.5
500 grama
5,000 grams
lIIOI
.SouroI: 8unIeu of JuIIioI SIa1IIIIcI; U.S. a.. -*'0 (\)lllIiIllOIi
. By J.I.. AlbeIt.
USA TODAY
whites wbo commIt Crimes as
unjustly as we Ire8.t Atrican
Americans. It should Involve
addressing the causes of Crime
in a meantngl'ul way and pal&
ing laws that do not destroy
and eliminate our youth. Those
wbo .cbmmit violent, beinous
crimes should be punished. But
. irst-time, Donviolentofrenders
should be given a chance at re
habilitation.
Too many young Atrican
American and Hispanic men
and women bave been de
prived of a chUdbood, an edu
cation and any chance of a Ufe
other than crlme and prison.
When you add the disc:riml.na
tory elect of the laws and
practices of the aiminal JUSo
tice system, the results are
quite predictable - an entire
seneration of young people of
color Is destroyed.
Leadership must bring fair..
De!IS and Justice to a dearly un
jusl stru&tion. We cannot allow
another aeneration of talented,
JOUDa people of color to tall
. victim to unjust poUdes which
do Dotbing to rebabilltate
Ibem. and whicb stand ID the
way of decti~ the truly via
Iea1. WeWW keep bope allve.
!
I
�"
.
DATE:
PAGE:
. COMMENT!
David Link
-Killing off
TV violence
·will. mutilate
good drama
· A t h e debate over violence
on television plods for
. ward, the critics seem
to have achieved a de
cided lidvantage: They have vir
tually no opposition.
.
Everybody decries TV vio
lence. Nobody even plays devil's
advocate.
Some people have tangentially
answered the critics by bringing
up the,First Amendment and cen
sorship..
But that's as far as it's gone.
No one defends violence on tele
vision.
And when Americans aU line
up on one side of an issue, you
know something is terribly, terri
bly wrong.
· I write fiction. While the focus
of my 'dramatic writing has been
theater and movies, like most
Americans I watch television.
And 1 think TV violence can and
should be defended.
The problem isn't that people
pay too miJch anention to the.vio
lence on television; the problem
is they pay too little.
10 begin, this is a debate about
fiction. We are far too much in
love with the real-life violence on
television to want to do anything .
about,it.
'Thlevised football, boxing and
hockey not only depict violence,
they have physical conflict as
their primary purpose. .
And real-life violence domi
nates TV news. Murder. robbery.
drive-by shootings, fires, death.
injury, .accidents on the freeway
Attomey General Janet Reno: Still
too much violence on the TV set.
all are guaranteedih'eir place on
the news whenever they occur;
and the more horrendous the cir
cumstances. the more heated the
coverage.
,
Whether or not the news actuI ally shows the bullet pass
. through the body, as occurred
• earlier this year whel'" the
I Thlemundo network's cameras
captured a man .murdering his
ex-wife at a cemetery, is irrel
evant.
Thething~t~wsusro
these stories time after time is
the fact of violence. its expliCit or
impliCit presence.
When PhiloI' Oprah or "60
Minutes" or "PrimeTime Live"
teU us about Lorena Bobbin cut
ting off her husband's genitals.
'We lean a little closer to the set.
This is not necessarily bad. It
is hard to argue that we shouldn't
know or talk about the real vio
lence ~t occun in SOCiety, its
causes and consequences.
And the ~8 patNer of vio
lent sports speaks for itseU'.
·That leaves Only fictionalvio
lence as the taT'le! :If the debate.
It's much easier to maintain that
fiction writers, who by definition
make things up. Ihould make up
. less that includes the depiction of
violence.
3-;n-9j
0,/
But wlult is it everyone's get
ting so exercised about?
Of all the popular dramatic
fonns, television is by far the
least violent.
It is not just top-rated com
edies such as "Roseanne:' "Home
Improvement:' "Seinfeld" or
"Coach" ~t lack violence. Even
the hourlong dramas are more
like "Dr. Quinn, Medicine
Woman" or "Nonhern Exposure"
I than "The 'Thrminator."
Even "Murder, She Wrote,"
"L.A. Law" and "Matlock"
which purpon to be about crimi
nal behavior - involve no more
blood than a cozy Agatha Christie
novel.
The only violence in TV
drama is found in the few re
maining cop shows, such as
"NYFD Blue;' and in movies,
whether or not made for televi
sion.
On the whole, television today
is less violent than it has been in
more than a quaner of a century.
'Thlevision is the subject of the
current controversy not because
it is the most violent medium but
because it is the most wInerable.
In i978, the Supreme Coun
held in FCC vs. Pacifica Founda
tion that broadcast media that
come into the borne are not enti
tled to the same First Amend
ment protection other
forms
enjoy.
While the reasoning in that
case has undergone some serious
erosion in recent years, it re-·
mains the vehicle that Attorno!Y
General Janet Reno and others
ride in their crusade.
And it is a vehicle ~t is seri
ously overloaded.
The problem is ~t 'We as
sume televised fictional violence
is the same as the impliCit or ex
plicit violence that is the subject
of nonfiction news. But there is a
critical difference between the
two.
When TV journalists report
the latest carjacking or the mur
der of a 6-yeANlld. the repon is
singular, disjointed story among
others ~t bear no relation ro
one another except that someone
decided they constitute "news."
Even on a magazine show such
as "20/20:' stories can be given
only 10 minutes or 12 minutes of
air time, not enough to teD them
an
a
• ••
011"&
C.
�in a fully developed context.
Compare this to fiction, where
every event, including every act
of violence, is presented as part
of a whole story. There is a begin
ning, middle and end. .
'
That fact. almost always left
out of this debate, has conse
.quences.
•••
When we see a completestory,
we are given the material to make
judgments about the characters
and their actions. Every story has
some message, every writer has
an intention and most reasonable
fiction writers expect their audi
ences to make judgments.
, ','While such judgments are pos
sible with nonfiction, we also
know that a news report is not
complete, that the news crew
could only capture a certain
amount of the story's context for
television.
In the debate over TV vio
lence. too many people are rip
. ping fictional acts of violence
from the context their stories
prO\'ide, as though vieWers were
watching those acts like isolated
incidents on the 6 o'clock news.
A recent ad by the American
Family Association laments that
by the time a child has finished
elementary school, he or she will
have witnessed 8,000 murders
and more than 100.000 acts of '
violence on television.
These figures appear to indi
cate that a lot of fictional acts of
violence have appeared on televi
• After all, if .we
forbi,l. artists to write
about human beings,
we will leave behind a '
tepid trail of
catechisms for
simpletons.
sion, at least in the past.
,
, What the figures leave out is
the context in which ,those acts
occurred.
'
Consider the argument,
brought out like a trusty musket;
that fiction too often "glorifies"
. violence. The truth is that it does
not.
On tele\'ision in particular, the
overwhelming number of violent
acts are committed by someone
clearly identifiable as an antago
nist: In cases where a protagonist
engages in violence, that violence'
is either legitimized by justice or
righteousness, or it is a neces
sary response to a violent provo
cation.
TV violence is nearly always
presented in the conventional
moral framework.
When an antagonist commits
an act of violence, it is clear that
~it is wrong. When a protagonist
commits an act of violence, it is
either morally good because it
accomplishes justice, or it is
morally questio~ble, regrettable
but, as a defensive act, necessary
to preserve some greater good.
Even on "Beavis and Butt
head:' any fair reading is that
their violent acts are committed
by vacuous losers, dead-end kids
of the '90s, and in that context
violence is not "glorified" or in
tended to be a model for behavior.
And in the movies shown on
television, conventional attitudes
about violence predominate.
There are a number of movies
that are too full of violence. 'teen
slasher movies and martial arts
films are the most obvious exam
ples.
But far more often than not,
movies do not stray too far from
the conventional moral frame
'work that condemns rather than
exalts any act of violence.
Movies that do violate the ex
pected moral framework about
violence or that come close to the
line ("Bad Lieutenant") generally
will not make it to television.
...
,:
The American Family Associ,
ation is right that over the years
we can see thousands and thou
sands of individua1acts of vio
lence on television.
But anyone who sees a tele
vised movie that exploits vio
lence and who then decides vio
lence is "cool" has to reject the
thousands upon thousanas of
hours of television's moralles
sons to the contrary.
He or she has to be entirely
immune to the context in which
cautious producers present even
excessive violence time after
time after time.
Even the strongest emotional
argument used by violence's crit
ics loses its force if context is se
riously. considered.
r
I
!
t
Assuming that too many chil
dren are raised by parents who
do not teach them a clear rejec
tion of violence, what forces
would cause even the most vul
nerable viewers to reject the re
peated message from television
that violence is at best a neces
sary but questionable solution,
but is more often outright
WTong?
'
, The power of violence must be
so overwhelming that moral les- .
sons to the contrary are irrelevant.
We know that violence is'
wrong. Everything around us re
inforces that conviction and yet
sometimes we become violent.
Why do humans act irratio
nally? That was Mr. Spock's eter~
nal question in "Star 11-ek." It is
the question that lurks in every
romantic comedy or murder mys
tery and it is the grain of sand
that irritates and motivates those
of us who make up stories.
·If everyone acted logically, if
everyone foUowed the rules, we
wouldn't need fiction.
Violence and danger are
among the tools fiction writers
use, alongside sex, religion, truth,
authority, honor and every other
human characteristic,....
strengths and weaknesses alike.
Individually and in combina
tion, these characteristics can
have tremendous effect, can lead
people to laughter, outrage, un
derstanding, cOmpassion.
The answer to TV violence is
not to treat adults like children
but to recognize that children are
capable of learning the lessons
they will need as adults.
Parents must teach their chil
dren at an early age that they are
supposed to read television the
same way they read a book
with care for the meaning.
You constantly. must read be
tween the lines, verify what writ
ers say against your values and
tnlths. Only then can you decide
how to take what we say, to be
lieve us, follow us, or ~ndemn
us.
After all, if we forbid artists to
write about human beings, we
will leave behind a tepid trail of
catechisms for simpletons.
We will have bloodless tales no
one would have any desire to
watch in the fmplace, much
less imitate.
David Link is a Los Angeles
based writer. This is excerpted
from the Original that appeo.red
in Reason magazine .
�--_ ... _-" .~-- .....-~'.. ~,.. .
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DATE:
I
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Where 'ThreeStrikes' has
changed the odds·
sive (we lock up more people than - 100 population, The serious crime
any civilized nation),- ineffective rate has since leveled off 8t 5,9 as
(jail just teaches people how to be -the expected punishment index has
risen back up to 8.5 days,
criminals) or vindictive.
If you still doubt the value t!f
Rep. Kweisi Mfume, Maryland
Democrat. chairman of the House , punishment. consider the expen
of Representative's Black Caucus, ente ofCalifornia and'Iexas dunng
dismisses prisons as "an antiquat· : the 1980s. California, with far more
ed approach tei crime." Strong pun· ! people, began tbe d.ec~de with
is~ment statues, in the words of
fewer incarcerated criminals than
!
former Deputy Attorney General Thxas - and a crime rate that was
Philip Heymann, often "look 28 percent hlgher. But over .the
decade California began~.
tougher ~an tb~'y_are smart." .
i
Even t:Oilis Freeh. cfi.ieCior of the ~ convicting and jai:ling more of,Its
FBI, America's foremost cririle~ criminals. Its pnson populatlon
rose 400 peroent. In 1exaS, ~o~
fighting organization, is an apolo
gist: "The crime and disorder er. fewer criminals went to J~ Its
which Bow from helpless poverty,
prison population grew by 73 per:
unloved children and drug abuse
cent.
can't be solved merely by bottom
By 1991. California not only bad
less prisons, mandatory sentenc
_ almost twice as many prisoners as
ing minimums or more police."
Thxas, but also bad a crime rate that
- But the negative correlati9n
was 13 percent lower than Thxas'.
between crime and punishment is
Raising the cost of crime by rna](.
striking. Criminals make their own
ing sure people go to prison when
rough comparisons ofthe expected
benefits of crime against the - , they commit crimes will not only
get practicing criminals off the
expected costs to decide whether
street, but also deter crime by mak"
crime pays, just as any rational per
ing it clear to prospective criminals
son weighs decisions in other areas
that if they commit a crime, it is
of life. If the anticipated probabili
going to cost them,
ty of punishment is high, fewer
The state ofWashington's' "Three
crimes are commined..
.
Morgan Reynolds, an economics . Strikes Law" is a good example.
professor at Thus AiM Universi· I Enacted by the voters in November,
the law dramatically raises the
ty and a senior feUow ofthe Nation
stakes for people convicted of a
al Center for Policy Analysis,-has
third felony - to life imprisonment·
developed a measure called
without parole.
.
"expected punishment" to gauge
Fbrmer DepUty Attorney Gener
anticipated punishment probabilial Heymann called it "a bad idea
ties.
.
being spread as far and as fast as it
pwiistUnent is calcu
could be." But in Seattle alone, 17
lated by multiplying the probabili
registered sex' offenders have
moved out of state bec:8uSe, as the
ty of being -arrested for .a crime
after it is commined, of bemg pros
author ofthe initiative states.. "their
ecuted if arrested, of being con
next offense [in WashiDgIon] would
be their last."
,
.
victed if prosecUted and of going to
.
prison if convicted.
While there are those who sti1I
don't get it, the rest of us do: Pun·
The result is multiplied by the
•.
median time served for an offense
ishment and the consistent threat of
_ and the resulting figure is the
punishment work. They deter.
crime.
" expected punishment. '
This measuring stick shows that
. as the expected punishment for
serious crimes was dropping from
Pete Du Pont; former governor of
22.S days in 1954 to S.S days in
Delaware, is policy chairman of
. 1974,thecrimeratewasincreaSing
the National Center forPolic;y
from 1.2 to 4.9 serious criines per ; Analysis.
PETE DUPONT
N
0 one would argue that
crime is not a threat to
Americans' daily lives.
,
. lWenty·fC'ur million pe0
ple each year are VlCtims ofserious
crime. A young black male is more
likely to die by violence than any
other cause. And millions of our
children go to bed each night to the
~und of gunfire as vast sectorS of
our cities are effectively controlled
by criminals.
, In too many neighborhoods,
crime overwhelms all else -iiChool,
home and work environments are
often helpless in its grip.
And no one woUld argue that this
violence is not imposing a terrible
cost upon society. in pain, suffering,
trauma and dollars,
But there are those who will
argue it is not really the criminal's
fault, that they are but victims of
various "root causes" of their
behavior - urban decay, poverty,
parental inattention. etc, In the
words of Attorney General Janet
Reno: "One of the principal reasons
for violence is that we have forgot·
ten and neglected our children."
For 30 years, the liberal response
to the rising tide of criminal vio
lencehas been therapeutic: Under
stand. 'help and rehabilitate the
criminal,
But 'rehabilitation is proving a
mirage. We like to think it works,
but a 1975 study by City CoUege of
New York sociology professor
Robert Martinson reviewed the
results; of 200 separate rehabilita
tion programs and concluded·that
the efforts "had no appreciable
effect on recidivism," Punishment, on the other hand, is
. viewed by some liberals as exces-
I
I
- -ExPected
1.
:.
,
3·;(7·""
/3'1
�~bc tuC1sbin~ton tJO£it
DATE: 3-.;13-'71
PAGE: A-t7,;,,, ,
,
School District for Hasidim Is Target
.of High Court Challenge': .:l$~~r!
B)' joan Biskupic·
............. 5adlWMIft
KIRYAS JOEL. N.Y.-MaIka Sil
berstein said that when her mentally
retarded daughter attended a public
school outside of this Orthodox Jew
ish Yillage. she was once cast in a
Christmas-season skit. as Rudolph
the Red-Nosed Reindeer.
: Silberstein, who considered the
episode an affront to her religious
!leliefs, joined with other parents in
this Satmar Hasidic conununity to
Persuade the New York state legisla
lure in 1989 to create a special dis
trict here for the children with disa
bilities. That allowed the dwdren to
Stay in this devoutly religious, iJ1su
Jar community. ",'here Yiddish is sp0
ken, television and radio banned and
the dress distinctive.
But almost as soon as the public
school district .was set up in this
hamlet 40 miles north of New York
City. it was challenged by two offi·
cials of the New York State School
Boards Association· as a breach of
the constitutional separation of
church and state.
... In response. New York's highest
court ruled last year that the legisla
tion produced an unconstitutional
"symbolic union" between the Sat
ina!' and New York lawmakers.
Now the U.S. Supreme Court,
which intervened last sununer to de
iay an immediate closing of the
6chool, will hear arguments on
whether the. Constitution's First
Amendment mandate that govern
fIlent "sh.all make no Ia",' respecting
~ establistunent of religion" was vi
olated. Oral arguments are ached
wed for Wednesday morning.
• The dispute. like so many that
. have come to the court, revolves .
~ound the criteria to be used by
judges ",'hen assessing whether the
state has become too involved with
'eUgion. either by gi..ing it aid or
~referring one church over another•.
"fhe justices themselves complain
ihat prior cases are confusing and
mtficu1t to follow. yet they have been
'unable to muster a majority for a
~w. clear ~tandard.
; In part, that is because a ~ ~
.ften separates respect for a religton
Irom special treatment ,for it. The
:current test for eva!u,atlng govern
ment actions, a~op~ m a 1971 ~
and somewhat mcollSlStently, applied
aince~ says ~t. to pass constrtUtional
. muster legtslatiOn must bave a secu
1ar purpose, its primary effect must
'IIeither advance nor inhibit ~eligjoa
and it must not foster exc::essIV~ ~ov4.!mment entanglement W1th religion.
~ This approach most often has
:raised quite high the wall of separ:a
"ion between church and state.
Some of the more conservative jus
tiees. including Chief Justice Wi.Ilia.m
H. Rehnquist· and justice Antonin
Scalia, say the 1971 standard set.in
the case of /..nMn II. K"rU1f1UJ1I is
more disadvantageous to religious
interests than necessary, for exam
ple, in prohibiting prayer at gradua
tion ceremonies.
Each time the court reviews a .
church-state conflict such as Board
0/ EduaJtitm 0/ Ki"as }MII. Gru
met, legal scholars speculate that the
court may be ready to make it easier
for government to be iDvolved with
religion. But despite opportune cas
. es in recent yean,· that bas not hap
pened. Last year's addition of justice
Ruth Bader Ginsburl, wbo generally
appears stricter about the separation
of church and state than bft prede
cessor, Justice Byron R. White. may·
mean that the court ..,. is less like
ly to slacken its rule.
Advocates for the Kiryaa Joe1.viJ..
tage· district streI1 tbai DO religion
classes are held bae. acne of the tun
time teachers are Hasi4ic and the
one-story brick ICbooDIouse lacks
even the customary ~
manly posted 011 dooIpoIItI in Jewish
bomes and institutiaaI. It is DOt,. they
say. a religious ICboal.
.
Neither is it I tniCIJ ICbooL
A boy standinc·at I ~ckboard
one.f'ecent day, trJina to· speD T-H
E-N, is wearing curled IidrIocks and
a sJrullcap. When be fipreI out the
tricky T-H combiDlbm, be aies out
in Yiddish.
(Among the girls gaily dancing is Sil
berstein's daughter SheindJe. 19•
who has Down's syndrome.) In a
pre-kindergarten class. the teacher's
aide holding up a yeDow circle, like
most of the aides here, is a villager.
And-as her religion demands-she
wears a dark wig and bat over 'a
&.baved bead.
School superintende~t Steven
Benardo. a former special education
superintendent in the Bronx. said
the school lets the c:hiI.dren speak
Yiddish because that is what they
speak at home and, as in any of the
state's bilingual programs, teachers
cultivate both Eng1ish and a native
tongue.
He says the school respects the
students' customs within the bounds
of a public school program: The
lunch kitchen is kosher and older
c:hiI.dren are separated by sex in cer
tain classes. (The dwdren in the vil
lage who are not mentally retarded
or otherwise learning disabled at
tend private yeshivas separated for
boys and girls.)
.
In aD, the $6 million school pr0
gram serves about 220 students in
. the various special and remed.ial edu- . .
! cation classes. An estimated 50 stu
dents are full time.
.
The Satmar roots trace to the Ro
manian City of Satu-Mare. Members
1 of the sect emigrated to the United
States during World War n. cluster- .
ing in the Williamsburg section of
Brooklyn. They began moving to
Mcinroe in Orange County in the
early 19705 to escape the crowding
of the city. They incorporated as a
separate village soon after. report
edly following conflicts with the city
of Monroe·over its ordinances. nota·
bly IOning restrictions against the
huge multi-family apartments where
Satma:r dwell.
.
Kiryas Joel means -community of
joel"; it was so named for the Grand
Rebbe Joel Teitelbaum, the Satmar
leader in the 1970s. The Satmar be
lieve in the literal interpretation of the.
ScriptureS and teachings of the Torah.
LivinS separately from a wger c0m
munity is integral to their faith.
.,.
.CDd'l
i
I
�I
I
1
fIE;'
But the community is not as idyltic
Nathan Lewin, a Washington lawThey say if the special district is up
yer representing the Kiryas Joel
held, it could become a model for as it may appear, according to
group of dissidents who also have
school district, says the New York
other' religious groups that feel dis
submitted an amicus brief in the
, Court of Appeals rejection of the. enfranchised.
school district because of tbe c:ommu
"The Constitution does not permit case. Led by Joseph Waldman, a
nity's religiousness was as wrong as if
government to demonstrate its' re
fifth-generation Satmar' and an un
it had disqualified Kiryas Joel from po
spect for religious diversity by, segre
successful candidate for the Kiryas
lice service or fire protection. .
gating the nation's citizenry along le
Joel school bOard, the dissidents say
The court held that the primary efligious lines," Grumet and Hawk say.
the court should strike down the dis.' .
fect of the legislature's action was to
Dozens of religious and school trict as an Wlc:oDstitUtional entangJe..:
advance religion. But Lewin said in
groups have presented· "1riend-of- . ment of chW'ch and state. They Ji81
court briefs, "Once the (legislative)
the-court" briefs in the ease. The Kiryas Joel religious leaders already'
controversy is over, all that remains is more conservative church groups use their power to control municiPal
'
,
a secular public school located in !Gr.
bave been arguing that the Kiryas affiUrS.
yas Joel. offering a' secular education Joel Village School District is constiThe justices, however, are unliJCe.."
to disabled children."
tutional; the educational and more Iy to look at village rivalries, or even'
. Nev.' York Attorney General G. Oli· ,liberal religious groups have op
the goings-on at the schoolhouse.
ver KoppeU also defends the publicly
poSed it. .
. They fundamentally will be consider.'
financed district, saying New York.
DaVid Saperstein, director of the
"came to the aid of a vulnerable seg· 'Religious Action Center' of Re- ing the legislature's action five years'
ment of its population" after a "stand- fonned Judaism, said: "We are deep- . ago, against the test of the 1971
Le",O,. ,. Kurt.",,,,.
off' between the parents and their for- Iy committed to keeping the govern- some new standard. . or against
. .
mer, regular schOol district over how merit out of religious affairs. With
Justice Sandra Day o'Connor bas.
to handle the cbildren's needs.
government money comes lovern
,advocated a test that asks primarily
Those who challenged the district,
ment rules and regulations."
Louis Grwnet. executive director of
. Lawyers for the Christian Legal whether a government action -en
w
. the New York State School Boards
Society, National Association of dorses religion. Separately, Justice
Anthony M. Kennedy bas said JOY
Association. and Albert W. Hawk,
Evangelicals and other more conserformer president of the association,
vative groups counter in an amicus ernment involvement with church
say the district v.-as constitutionally
brief that New York was allowing activities should be permitted unless
w
...... the free exercise of religion by en- . the authorities -coerce participa
doomed because the state was ....- abling the Hasidic sect in Kiryas Joel tion•
sponding to the closely tied cultural- "to avoid conformity to the majoriSilberstein, 44, and the mother .x
religious needs of the children.
ty's way of life."
12. says what matters is that the
They assert. in papers filed by
This village of 12,000 is indeed a children are learning in a place that
their lawyer Jay Worona. that par- singular sight: The bearded men is not "alien" Her daughter knows
en'ts v.itb objections to public school wear black suits and brimmed hats. the alphabet, some math and can so
practices should' have used regWarThe women, many of th.em pregnant cializ.e with other students, she &aid.
Said superintendent Benardo, "If .
school board grievance channels. and pushing strollers, wear long
dresses and head coverings. Each something operates weD Dow,l dOD~t
know how its birth can be fiawed. w.. •
famjJy averages 10 chiIdreu.
a
I
�DATE:
PAGE:
~,m4.~
I
'
. Church-state Iaw, at r t ·I
. ..
issue ::~::1:~:lG~~~!~
. Cu
,m SUpreme , 0 ' cas
,e
,
'
,
• Provide religious school stu
dents with transportation to and
! ,
Eatabllsbrilent of. N.Y. public
Klaool district for Hasidic
.
~a speak Yiddish as often as Eng
lish. Most of the families' send
Jews "",lYe.. the .,.ument
Glll'er Mparatlon
their children to private Jewish'
schools.
~ndcr New :Vork ~w, disabled
By Nancy E Roman
ch!Jdren - even those who attend
THE _HGTON TIMES .
pnv~te school - are entitled to
. From out of a· village 40 miles
spe~I~1 education. classes. The
north of New York City. where
fa~lhes of Kiryas Joel first sent
7.500 HasidiC Jews live, comes an- ' their disabled children to public
other chance for the' Supreme
schools for those classes:
Coun to refashion church-state
But ,t~e Kiryas Joel children
law.
were ndlculed for their unfamiliar
At bottom, the case asks
dress and religious beliefs' and
whether the government can turn
parents petition~d the state Legis
over a public school district to I
lature for a special school district.
religious group - in this case a
At S a.m.. on . the last day of
group of Hasidic Jews.
the 1989 legislative session, state
Louis Grumet, executive direc
tor of the New York State School
laWmakers created the school dis~
Boards Association. says if the
trict and turned it over to Kiryas
high coun upholds the school dis
Joel. The bill was later signed by
trict in Kiryas Joel, religious
Gov. Mario Cuomo.
school districts - sUPPoMed· by
"Why did the governor of New
tax dollars - will spring· up
York State sign this?" asked Mr.
around the country.
Grumet, who was a special assis
"If we lose ... you will see Cath
tant to the governor. "The man
olic districts and Lutheran and.Or
knows the Constitution, and this is
thodox Jewish districts and Mus
a clear violation of it."
lim districts. You'll see Buddhist
But Mr. McFarland said even re:- .
'districts," Mr. Grumet said. "New
ligious people are entitled to rep
York City alone could suppon a
resentation in government. "Or is
hundred such different districts
that just reserved for the sec
which is precisely 'what the estab
ular?" he asked.
lishment c:lause was put there not
to have."
Later in 1989, the New· York
But Steven McFar:and, counsel
State School Board Association
to th«: Christian Legal Society, says
challenged the law, saying it vio
rehglous communities should not
lated both the New York and US.
be penalized for their religious be
constitutions.
liefs.
.
.
.
The US. Constitution mandates
"The village here is not using
that "Congress shall make no law
tax money to proselytize:- he said.
respecting an establishment of re
"They're not starting their school
ligion, or prohibitina the free ex
day with readings from the 'IllI·
.'
ercise thereof; ..."
mud or the Torah. No one has con
Since 1971. the court has used a
tended that they are not running a
three-pronged test called the
secular school district."
Lemon test to determine violations
The case arose out of' a con
of the establishment clause. Un-·
troversy over whether the govern
der the ruling. a aovernment ac
tion is unconstitutional if it has a '
ment could create a special public 1
religious purpose. endorses reli
school district for the disabled
gion or foSters an -excessiw en
children of Kiryas Joel.
In 1977, a group of Hasidic Jews
tanglement" 01 aovemment and
carved out a little village adjacent
religion.
.
to the New York town of Monroe
Its critics say the criteria are
and named it Kiryas Joel.
. arbitrary, difticu.lt to apply and too .
Devoutly religious. the resi
often yield results hostile to reli
. dents of Kiryas Joel believe in sep
gion. Past ruIinp under the test
aratinK themselves from society,
haw allowed ~ to:
shunning television and English·
language publications. They haw
earlocks and wear special dress,
searegate boys and girls in school,
..
/1/0
but not equipment, such as projec
t ors, tape recorders and maps.
• Enact tax schemes that 'tet
parents write off tuition for the
secular pan of a parochial school
~ucation.
.
Barry Lynn, executive director
of Americans United for Sep
aration of Church and State, said
the Lemon test has worked well to
keep government from becoming
too enmeshed in religion. In this
case, he said the test's prohibition
of an endorsement of religion
\IIo'Ould require the court to strike
down the school district.
But the Supreme Court is
deeply divided over the test.
Chief Justice William H. Rebn
, Quist and Justices Antonin Scalia
and Clarence Thomas have said
. they would scrap the test, but it is
not clear what they would· use to
replace it..
Justices David Souter: John
Paul Stevens and HaJTy Blackmun
suppon the test. and Justices An
thony Kennedy' and Sandra Day
O·Connor. could go either way.
No one is sure where Justice
Ruth Bader Ginsburg, who joined
the coun last fall. stands on the
; establishment clause.
Mr. Lynn said one of the most
interesting things that could come
out of the case would be learning
Justice Ginsburg's views
'
Jay Sekulow, chief counsel to
the American Center for Law and
Justice, would like the court to
adopt a "coercion test," under,
which government· ac.commoda
tion of religion is only deemed a
·breach of tbe establishment'
clause if it "coerces" someone to
practice a particu.lar reli.gion.
,I
. Mr. Lynn said that IIeIt is insutfi
CJent to keep the necessary wall
between church and state.
"Since many C!'Vangehc:al Chris
tians claim that schools are con
trolled by sec:ulat humanism it
wouldn't surprise me at all to find
in suburban areu of the South
where you have many IVanlelical
Christians deciding to to to I state
legislature and gerrymander a
school or a number of IChools" he
said.
'
. Mr. Sekulow said fean of reli
gious school district. springing up
are exaggerated.
But he said the cue will be
close. "This is not an open and shut
case," Mr. Sekulow Mad.
�DATE:~
PAGE:~
Ellen Goodman
Redefining
The Abuse
Of Women
BOSTON-They are sate now. The two
girls. 6-yearo()ld ~ and S-y~-oId, Lara, will
stay with their mother and stay UI their country.
The mother, Lydia OluJoro, will be spared the
choice she described between leaving her daugtt.
.ters lII.ith an abusive father and taking them with
ber to an abusive culture.
An immigration judge resolved Lydia's choice.'
On Wednesday. he lifted the order to deport the
Nigerian woman lII.ilo had been married. giveD
birth, and been divorced in the United States. He
ruled that sending her back 'wouId, in the .iarfJoo
of immigration law, cause "extreme hardship" to
her clUldren, lII.ilo were U.S. citizens.
'The hardship in this case wasn't eConomic nor
was it political. The threat was not from a
government or a leader. The dang~was ~
thing that is almost neVer claimed UI the 'IIDIJDo
grationcourt p~gs: geniW mutilation.
There was the probability, the WtuaJ cer
taint)·, that if these girls were relocated from
Ponland, Ore., to their mother's homeland, they
would De assaulted the way she had been at ..
years old. lndeed, they would .be assaulted t.be
way their mother's mother's mothers bad beeft
for pemaps a thousand years.
Shade and Lara would !lave their genitals
attacked with a blade. One and then the otner.
would have her clitoris cut out, along with ber
labia minor. One and then the other wouJd be
stitched together with barely room for ~
and menstruating. They would be muti.laLed ID
the name of tradition.
I
But Judge KenclaD Wamn ruled to protect
them, saying, "'1"his court attempts to respect.
traditional cultures, but this is auel and aeI"'eI .
.no known medical purpose," .
So, two girls were iaved from I rinIaI did
maims 2 million a year across the workL And
another small step was taken toward r"dt6,ni,.
abuse of women.
Until these last few yean, the abuse of .....
never quite made the world's agenda. Rape . . a
pm'llie assault. Wife-battering was a family ....
Sexual slavery was about sex, not slavery. GeD
der discrimination was CUlsidered a matter fII
tradition-rather like music or dress.
" Now our eyes are ~ and our vocabulary
bas increased. From Bosnia, we saw rape as a
deliberate political act. From Tha.iIand, we heard
. from thousands of Burmese girls tricked into
sexual slavery while the officials winked.. From
Pakistan and India we learned of bride-buming.
And from Africa we bore witness to geniW,
mutilation and the fight to end it.
Slowly the terrible things that happen to
women are being understood as human rights
abuses. At the United Nations Conference on
Human Rights last summer, women's groups
from every culture signed the same petition
saying: "We demand gender violence to be rec:og
nited as a violation of human rights." ADd at last.
the U.S. Sute Department includes women's
rights when tallying the world's records of human
rights abuses.
In our own Cl:JU:ntry, the policy of offering
refuge or asylum on these grounds has been slow
to dlange. In theory, anyone who bas been
II!V'ereJy harassed, persecuted, can ask for asy
lum here. But in practice, it's granted mostly to
people f1eeing communism or to mesI in political '
c
cases.
As Deborah Anker of Harvard's Immigrant
and Refugee Program said, "The kinds of bann
women fare have been traditionally trivialized
and considered private.- Slowly, gender claims
have begun to appear--claims by women's rights
advocates fleeing governments, claims by victims
of political rape, claims by wives battered in
countries that don~t, protect them, and now by
women fearing this female ritual.
Lydia Oluloro's claims were madefilr her
daughters' sake. The judge sidestepped the issue
of asylum. She won the right to stay here on
bumanitarian grounds-to protect two young
U.s. c:itit:ens. But for the 6rst time a case was
wen on the neE!d to protect females &om forced
aenitaJ mutilation.
WiD this open aome vast' new floodgate 'of
refugees? Most girls are all by this blade wbiJe
they art as young as Shade and Lara. Few
5-year-olds will find their way here to beg refuge.
The struggle to uproot this "I:radition" wi11 have
to CXI'ltinue on its own home turf.
.
But if we are to take mutilation seriously in the
world, and in our foreign policy, we haw to take
it eeriousIy in OUT own rules about refugees and
uyIum.. The)' are one way we show OUT vaNes to
the. world, one way we define persecution and
oller protec:tiaft.
.
.The forced genital mutilation of young girts &ts
aD the definitions of persecution we apply to any
refugee.. The brutal as&auIt. by a knife.on the·
.suaJ organ is penecution of the most ex
treme-and the most (emale-sort.
Last week, ~ girls were. rescued by their
1IIiDtba' and by a judge. Just two out of 2 million.
SaMtimes you have to defend human rights two
It a time. '
CUI'IM, ,.".. ...... GioIot ~co.
�DATE
~
PAGE:
3 ·;t/'f~
If/I
......
Key Trial on House Districts to Begin-'
.
~l---------------------------------By PETER APPLEBOME
: mental voting Tights issues that will: could imperil black districts around
'
RALEIGH N C ' March 25 _ A law-I Supreme Court.
i the country. The state argues the 12th
, th
id 'ff" th h
'f Co I North carolina's Attorney General' DistriCt, where blacks account for Just
S
Mike Easley, said
had become ver halfdOfredthe elec torat~e.1!~ halr,dIY,
g ~~tssl:~a~ist~c~C~at~~w~: gOoes ~~ i a vehl'cle for the Sthe case Co rt to use i' 0be consl e a form V1 po It ca
preme
trial here on Monday, when white v o t - . .
.u,
u
: apartheid." The state sa ys that the
ers will argue that North Carolina's' an setUng new gUldehn~s for states in. d' ri
h' h
Du....· the
.
,.
: creatmg mmorlty dlstncts
\ 1st ct, w IC connects
...am In
Congresslon~1 dlstncts are the result: "What this trial will be i~ an effort to' north to Charlotte in the southwest, ha!
Illegal I' gerrymandering.
,
It f
h prepare a record for the Supreme 1 an urban identity that goes beyond
. of Th t' raCial th
e . na IS e resu 0 a muc '. Court to ultimately read and review,'" race and, that it has complied with
debated Supreme Court ruling last 1M E I
'd'
I "Th'
I I Federal dictates to enhance black reI>
June in the case, Shaw v. Reno, The
~. as ey S~I recent y.
IS case ~, resentation.
..
Court ruling that designing' "bizarre'" go1Og to contmue t~ ~ appealed until
P
f th red'"
I'
someone gets a definitive answer from
roponents 0 e
Istncting p an.
dIstricts to Increase black repre~nta· the Su reme Court Ri ht now the say the Supreme Court ruling elevat"!S :
tlon might violate the constitutional h
·rtold
h t't 0
Th .'
IY the subjective' and essentially mean· '
rights of white voters, sent the case: aVde~Th' us ~t a k. , It', keYdvefolnlkY ingless issue of a district'S shape above I
back to a three-judge Federal panel.! sal,
Iswon wor
. s 10 0
e more important issues.
'
The state's task now Is to defend two 'I
i
ne..... majority black districts: the 12th
Maps and Equity
~
District, which snakes across 160 miles:
t
"The main flaw of the opinion is thai.
: of the state, and the First. In 1992, two;
It elevates a nonvalue, Which Is the:
"Democrats elected from those dis-;
{ofoo& &
I pohtlcal esthetics or perhaps mal> ..
, tricts, Mel Watt and Eva Clayton, be- t
t drawing esthetics, to a level where It .
: came the first black members of North!
i eclipses the very important value of an'
. Carolina's Congressional delegation.:
r integrated and pluralized Congress,
since the tum of the century.
I
! that is reflective of the nation," said.
As a result of the Court's ruling, i the monkey who can on!y.classify the: Theodore M. Shaw of the NAACP Legal
challenges have been filed against new: light bulb as a non-c:oconut."
: Defense Fund.
'.
~Iack.majority ~ngressional districts
The North Carolina case began With! Plaintiffs ~rgu~ th~t the law does not I
In Florida, Georgia, loUISiana and Tex-l a suit filed by five Durham voters who: permit carving dlstncts slmp,ly to elect:
as.
j asserted that the rediStricting plan: members of a particular raCial or eth- I
' .
, ' , 1 amounted to a Quota system for black: nI~.group. ,
_
The state argues. that, the districts; legislators. A lower court assented to:
JUStice 0 Con!1 or pretty much an- ~
are the only way to Insure that blaCks,; the state'. request to dismiss the suit,: swered that~ saYing that the st:an.ge, •
.....ho make up about 24, percent of the, on the ground that Supreme Court! shapes or bizarre shapes.4re Signafl' J
North Carolina populatlon,areable to· precedents made It clear that whitei cant because they show why the dis- •
wan adequate representation In co,n-I voters ,generally bave no cause for i trlct wa~, created; they illustrate ttI_
gress" It also ~ays that the ..Suprem~1 complaint about districts drawn for the; purpose" said Robinson Everett, ., '"
Court s ob)ectlo~ to the blzalTe purpose of electing blacks. But the Su.: Duke Unlversltr ~.w Sch~1 professor.
shape of the dISt~ICt~ sets a hopelessly; pre me Court, in a 5-t0--4 ruling, re-: w~o i~ a plalnll.ff. ~ust hke a fln~er.
~ague and subJecu.ve· standard for: versed the lower court and ordered a: pnnt IS a key to Identity. here shape IS a
)udglng the constitutionality ~f .th,: dl5-j trial.
, '
: key to purpose. And a Quota system in
trlcts, Black leglslato:s and CIVil nghts, In the maJority opinion, Justice San-i the election of members of Con,ress II
groups ~ay the SUits I~nore the reality I dra Day O'Connor said the 12th Dis.; baSically, a .!'t!lurn to the politics of
that whIte voters continue to be reluC'! trict bore "an uncomfortable resem.i segregation. ,
tant to vote for blacks,
' ~ blance to political apartheid."
I What both SI~S agree on is that tM,
Whatever happens here in Federal· ,
: case and Justice O'CoMor's rulmg
court, In hearings that are expected. toj The state, black members of the i have left open questions about the fu.;
last less than two weeks, II Is clear the I. House of Representatives and civil, ture of Congressional districts and mj..
,Nort,h Carolina ease has posed funda- r,lghts groups have said the ruling I noritv representation.
~
$pecia1 .. TIIo_yorlcTl.....
'
I inevitably have to be considered by the:
I
I
. .' ,
I
J
W " h'
"
;
elg Ingequlty,
racl"al bal'!:lnce,and' :
geography.
i
I
If)
�DATE:
",
PAGE:
,~,
Justice fights efforts to
change minority districts
ASSOCIATED PRESS
The Justice Department sought
yesterday tQ defend congressional
districts in, Texas where blacks
and Hispanics are in the majority,
It was the latest step by the de
partment's civil rights division in
defense of such districts, now un
der court assault in several states
based on a Supreme Court ruling
in June in the case of Shaw vs,
Reno,
'
In that case, the high court or
dered a district court to re\'iew the
claim by plaintiffs that North
Carolina's predominantly black
12th District, which is 160 miles
long, represents "racial gerry
mandering,"
Since then, new districts where
minorities have a voting majority
have been challenged in Florida,
Georgia and 1exas,
,Last month, the department
filed a friend-of-the-court brief
defending the 1991 Texas re-'
apportionment. Under provisions
of the Voting Rights Act, Justice
had approved the distiicting plan
before it was implemented. The
government brief successfully op
posed the plaintiffs' efforts to pre
vent use of the districting plan in
the March 8 primary electiqns.
Yesterday. Justice sought court
permission to intervene in,the case
as a defendant on the side of the
state. That would allow it to help
decide trial strategy and to pre
sent evidence during trial.
The court challenge was filed in
January by a group of Houllon Re
publicans, including whites,
blacks and Hispanics. The chal
lenged plan created nine districts
with either black or Hispanic vot
ing majorities.
The 1990 census showed 1exas
is 25.5 percent Hispanic and ll.6
percent black. Similar redis
tricting occurred in the other
states where challenges are under
way.
,
The 1992 election saw 13 addi
tional blacks and six more Hispan
ics elected to the U.S. House of
Representatives.
Last month, Justice sought to in
tervene in the Georgia case and
filed a friend-of-the-court brief in
the North Carolina case defending
the districts where minorities
have a voting majority.
"
The civil rights division is still
considering whether to help de
fend Florida's 3rd Congressional
District from a challenge filed in
January.
/1
3'1l(P-fj
f!'1
�. DATE:
PAGE:
What Co~~~~sYQ!l~T£~!:~::~~~r?
state to be so rac:ially polarized that 82 percent of white VOl
ICETOWN, FISHTOWN, Gennantown. These are en would not vote for a black candidate. Political campaigns,
neighborhoods in Philadelphia; the city in wbich I now the court noted, had been dominated by explicit racial ap
. live. Names from a distant century, they barely cap peals, in which black candidates were targetted because of,
. ture the checkerboard. city Philadelphia has become. The DOt in spite of, their race. .
City of Brotherly Love now ranks in the top 10 of the c0un
The tradi.tioo.al answer to remedying such voting rights
try's most racially segregated munic::ipalitia
abuses is to acknowledge the exclusion and then to give
But within this city of racially distinct oeighborboods,
those whom the court finds to have been excluded their own
there are a few rac:ially neutral spaces: Fairmont Park or the
safe space-in short, race-conscious districting. The 12th
tree-lined parkway leading up to the Art Museum. These are
congressional district in North Carolina, the subject of Shaw
public areas in which no group feels it owns or controls tbf
space. Here people of different racial and ethnic identities. i t/. ReM, was one resutt. The district snakes around the state
come together to enjoy public festivals or leisurely Sunday ; to ae4~ a constituency that is 54 percent blaa and 46 per
cent white, The district proved offensive to the court in
afternoons. Here blacks, v.i1.ites, Asians and Latinos leave
large measure becauSe of its bizarre shape.
.
their homogeneous neighborhoods behind and enjoy and ceJ..
Lawyers for black voters in North Carolina acknowledged
ebr.lte their identity as Philadelphians.
the district's strange outline but said it was a justifiable way
From the example of Philadelphia's public spaces we
to redress pmiously exdusionary practices. SbouIdn't we
might learn how to rethink one of the trickiest legal and ra
be more worried, they asked, about the romposition d.
cial issues facing the federal courts and state legislatures:
North Carolina's oong:ressiona1 delegaticm than the appear
how to draw the liries for congressional districts. And in d0
ing so,· we might find a useful model for transcending other
ance of any one district?
aspects of America's racial division.
. .
In Shaw theSUpi'etne Court seemed to answer this ques
The imperative for rethinking the nature of CXIfIgressional tion in the negative. The Court said rac:e-<:onscious district
districts comes from the Supreme Court and the Congress,
ing may stigmatize blacks and violate the rights of whites to
L'I enacting the Voting Rights Act in 1965 and subsequently
participate in colorblind elections. Such an approach, the
amending it in 1982. Congress said the courts must act affir·
Court implied, won't lead us to race-neutral political space
.matively to assure all citizens the opportunity and capacity to
comparable to Philadelphia's public parks.
particiPate in their 0\\'11 government. But in the court's Shaw
In discovering this new right (previously undetected in the
II. Retlo deriSion handed down last JI.U1e, a bare majority of
Constitution) to participate in colorblind elections. the court
justices called into question congressional districts that are
overlooked the reality of drav.ing congressional districts.
drav,'11 up v.iththe purpose of inaeasing black representa
tion.
. The court seemed to imply that there is some racially neu
tral 'ny to establish the geographic boundaries of voting dis
These majority-black d,istricts are the political equivalent
tricts. But all districts, reganlless of the race of their constit·
of the ethnically homogenous neighborhQOd.. They are a safe
uency, are drawn by someone to eliminate or disadvantqe
haven for members of that group, a bit of turf that CD! eth
the political irifluence of someone else. Using race as a
nic grouping controls. a place where their voice is pre-emi
non in drawing up congressional districts is no more art»
nent. In her majority opinion, Justice Sandra Day O'COIlnor trary than using party affiliation, a practice as old as the Re
said that race-concious gerrymandering, .however weJl.inten.
public itself, which the court did not object to. More
tioned. smacked of "political apartheid" and was thus CD'ISti
important, the court failed to address the harsh but unrDis
tutionally suspect.
.
. The legal reasoning of o'Connor's opinjon (signed by four
takable reality that without some government interYeD1loo.
public spaces like the North Carolina oong:ressiona1 de1ega
of her colleagues, including the court's only A.fric:an.A.meri
tion have been, in fact. ra:cially segregated.
can member, Clarence Thomas) is c.ertainly open to a'iti
It is as if people from white neighborhoods with easy ac
cism. But the political implications of the decision are dear:
The high court is challenging elected officials. lower couru
cess to· the public space on Philadelphia's parkway treated
and the American .people to do for their democracy what the
the· parks as an extension of their neighborhood and di.sa:lIIr.
city planners have done for Philadelphia: define aDd desicD
aged blacks and Latinos or Asians who attempted to Pin
raciaJIy neutral space..
.
them. This assertion of territorial cmtroI might DOt be a·
plic:itly at even a:I1SCiousIy based OIl race but the eBect
he difficulties of this task should not be undeIatimaI
ed. Take the example of North Carolina, where die
Shau' v. Reno case originated. The white majoriry hid
dominated every congressional district in every eJecQan ill
the state from the beginning of the century lintill990. The
state's population is 24 percent black but had been ,...
sented by an aJ].v.i1.ite congressional delegation since Jlecr:D..
struction. No blacks were elected to J1W1y statewide or IIICII
offices. e\'en where blacks were a sizable minority of the ,.
N
crn.e.
T
I~
�would be the same: DOt everyme would have access to the
park..
,
In its unwi1lingness to bless ~ dist:ricting, the
court neglected to tell us how else to integrate the parks,
ie., to create racially neutral political space accessible to aD.
One alternative would be not to district at all in North
Carolina. to elect all members of Coogress at-large. There is
nothing in the constitution that requires the states to aeate
mngressionaI districts; in fact. coogressmen were elected at
large in Alabama and Hawaii in the early 1960s. At-large
congressional elections would eliminate _the rac:e-conc:ious
districting which the court is skeptical about. The problem,
of COI.Ine. is that if voting is racially polarized then this option
"is effectively "racially neutral" for only one group: the group
'With· the most votes. Where whites won't vote for blacks,
and whites are a majority. this option woukI effectively as
sure the white majority control of all congressionaJ seats.
For the racial minority, not to district at all is not to be rep
resented at all.
.
"
Another colorblind ahemative would be to retain 12 dis
.tricts but 'make each district reproduce the stateWide ratio of
black and white voters. U blacks are 24 percent of the state
population, each district would be approximately 24 percent
black. Because of residential segregation, this option would
require all the congressional districts to be as fantastically
contorted as the current 12th Congressional is-and might
be physic:aJly impossible. Nor would this option g;ve the
" black minority any greater chance of gaining representation
than the single, statewide, at-large election, if voting is ra
cialJy polarized.
Still another choice might be to make as many as possible
of the 12 congressional districts competitive, which is usualJy
defined as a district in which no group has more than 55 per
cent nor less than 45 percent of the voters. In a c:ompetitive
district, the outcome of the eJection cannot be predicted
based simply on the relative nW'!lerical strength of the more
dominant group. In a competitive district, the majority is fluid
or majority status is at least 'Within reach of the minority if it
plays its cards right. The minority can presumably attract de
fectors from the majority and become part of the next gov
erning coalitiOn.
Lani Gliinier, 0 lou: professor ot thl U"irllrsit;y D/
orne
PF1Insyivo1lio. is the outhor
Tyro"", D/1hI
Majority." publislaed by T1ae Free PtW.
This approach is race conscious. indeed, the 12th C0n
gressional District in North Carolina is drawn to maximize
the possibility of blaclc representation in the distria wbile at
the same time aeating maximum incentives for candidates
from the majority to appeal to white voters. This attempt
was not sufficient for the white plaintiffs, nor for the five jus
tices. The white minority. according to depositims ta.ken ci
acme of the plaintiffs in the cue, does not feel it can win over
members of the black majority. In their eyes, the black ~.
ity of the district is monolithic and likely to mnain 10, even if
only by a na.rrow margin.
In other words, the problems with the race CXIrISCioos ecIu
tion is that it simply reprodUces the racial poIariz:ation at the
heart of North Carolina politics, this time to the disadvantage
of a white. not a black. minority. The political justification for
the disadvantaged position of whites in this district is that
whites, as a majority in 10 of the 12 other districts, have the
advantage in electing the ~ delegation statewiSe.
Y
et another altemative, the &ubject ci my JDUCb.ma.
ligned writings. is cumulative voting. This is a DCJHtia.
tricted raciaDy c:oIorbJind soJutioo that lowers the
threshold for representation by giving each \'Oter multiple
votes to cast based on the number ci open seats. If North
Carolina elected 12 representatives statewide. each \'Oter
would get 12 votes. Voters could put their votes on one
candidate or spread their votes out among any number ci the
other candidates. Uall the members of a polit:ic:ally CXlbes.ive
minority cast votes for the same candidate, that candidate
could get elected even under the most adverge circumstanc:.
es. Women, enYiroomentalists or RepublicanS could all Wt.e
strategically to form "districts of the mind." ,
Some will fear the empowerment of poIiticaJJy CXlbes.ive
minorities. Citing the example of Israeli potitic:s, skeptics will
worry about the possibility of reinforcing group identities il
ways that lead to political paraIysi.s and disproportjooate influ
ence of narrow interests. The Israeli electoral system.
though. is an extreme example, since parties with as little II
1 percent of the vote are entitled to seats in the Jegislature.
North Carolina's current system of district elections is an0th
er extreme, since any majority with 51 percent of the \'Ole
gets total power, pote.ntiaDy excluding even substantial 49
percent minorities. Cumulative voting is a compromise be
tween these two extremes. It aDows representation ci 8IJb.
stantiaJ minority viewpoints. wbile assuring that the m.a;xtty
gelS most of the power.
•
In some "'3ys this CI.ItWIative 'Y'OI:ing alternative is ideal be
cause it respoods to the issues raised by both black and wtite
voters in North Ca.tdina at the same time that it is cXlIartiiu:I.
It does not arbitrarily label 'VOters by drawing cmtricts baed
on assumptions about race or ethnic:ity. People are J'I!Ift'
sented based on the way they cast their baDots, not on where
they happen to live. Finally, aJthough 60 percent ci North
dina black voters do not live in either ci the two omentJy del;.
ignated majority black districts, under this alternative f'!Yf!tY
Aflican.American voter W'OI.IId have a c::hance to eJect J'I!Ift'
aentatiYes ci their c:hcice.
01 coune, some may prefer one ci the other remedial apo
tions. Each has its own limitations, inducting, in the c:aae ci cu
mulative YOting. the need to get Congress to permit mutt:i-at
CDlgressional eIectioos. (no small task). But whateYer the 1ft"
ferred alternative, it should be measured by its ability to reme
dy-and not to reproduce-the prior disaimiDation il wbicb
maPritY rule became majority tyranny.
The larger.dlallenge is to make sure that D:I1IectNe _
sDHnaking about our cxxnrnoo destiny 0CQ.D'5 within a .IeaiIIa
1M body or poIit:ic::aI space in whic:b aD voters feel lepiesemed.
If we fail to meet this chalJenge we shaD never design nciaIIy
IIIeutI"aI poIitic:aI spaces a:mparabIe to PhiladeJphia's parD. And
f we rail we shaD be hard pressed to ask those who feel CiIID'
IisIentJy ~ to keep faith with our demoaacy.
an
c.r.
/3
�'.
DATE:
PAGE:
David S. Brixler
Zorro in
The House
The 12th Congressional District of
North Carolina is
16o-mile long
ribbon, often no wider than the right
of-way of Interstate 85, which it fol
lows from Durba1n sputhwest to
Charlotte.
The 4th District of Louisiana
snakes '600 miles in a giant Z across
the state, no more thim 80 feet ...ide
at points, and splitting off bits of
almost every major city except New
Orleans.
What they have in conunon; besides
their odd configurations, is the fact
that both were created in the 1992
redistricting as majority-minority dis
tricts, with l.argeenough percentages
of African American voters to ensure
they would send black representa
tives to the House.
They . are under attack in the
courts, as are other districts in ~or·
gia. Florida and Texas that critics
claim are products of -racial gerry·
mandering" undenaken by those leg·
islatures to meet the demands of the
Justice Depanment .and the federal
Voting Rights Act.
Last year, in a case challenging the
Nonh Carolina district, the Supreme
Court ruled 5-4 that "redistricting
legislation that is so extremely irreg
ular on its face that it rationaUy can
be viewed only as an effort to segre
gate the races for the purpose of
voting" may be subject to challenge'
under the "equal protection" clause.
unless the state has "sufficiently com- .
peUing justification" for such a eerrY
mander.
On Tuesday ,lawyers wiD be bade in
court in North Carolina arguing
whether such a justification exists.
Meantime, a three-judge panel's
unanimous ruling that the "Mark of
Zorro~ district in Louisiana is unc0n
stitutional is headed on appeal to the
Supreme Ulurt.
Last week, J talked to the freshman
members from those challenged dis
tricts, Reps. Melvin L. Watt (D-N.C.)
and Cleo Fields (D-LaJ and to Rep.
WilliamJ. Jefferson (D-La.),. second-
a
term member who is helping coordi
nate strategy on the redistricting cas.
es for the Congressional Black Cau.
cus. They make the compelling case
that the coons, in their efforts to
mandate colorblind standards for con-
gressionaJ districts, are themselves
being blind to history. .
Before Jefferson was elected to the
House in 1990. from New Orleans,
Louisiana had gone 11 S years without
lending an African American to Uln
gress. The state is 30 percent blade,
Until Watt and Rep. Eva Clayton
CD) were elected in 1992, North Car
olina, which is 22 percent black, had
lent aU-white delegations to Washing.
ton for almost a century.
.
Behind that pattern' of exclusion
lies the persistence of racial bloc vot
ing-and districting decisions de
signed to diffuse the black vote
enough to keep blacks' from dominat.
ing any constituency. Congress eet
out to break that pattern with the
Voting Rights Act. which, in its most
recently amended form, was. widely
interpreted as a command that wher
ever it is possible to create a majori-,
tY·minority district, states are re: i
quired to do so.
When Watt's district was chal
lenged. the Supreme Ulurt revised
that Wlderstanding to say that "bi
zarre" districts such as his J·85 corri
dor raised a suspicion of racial gerry
mandering that violated the rights of
the protesting white citizens.
The claimants invoked legitimate
values. Traditionally, districting plans
have' been judged by the.ir compact
ness and contiguity and by the re
Ipect they show to natural political
entities. These standards have Dot
pined constitutional protection, but
conunonality of interest is an impor
tant element in representative p
ernmenL
There's a world of difference be
tween Durham and Charlotte and be
tween the opposite eRds of Fields's'
district, which, as the district court
Doted, splita 24 parishes (counties).
"'thereby destroy;nl the common rep
resentation histoncally enjoyed by
residents of the same municipality."
But for the COU1U to insist that
those valuea I n overriding ignores
the other values-and the history-'
which Congre.. rightly took into ac
(OWlt in passing successive vers.ions
of the Vo~ JOpta Act.
As Fields said, the ultimate purpose
of that legislation was "not to bring
about nice, neat districts but to inte
grate Ulngress," That cause was Wl
· doubtedly furthered by the election in
1992 of 38 African American repre
lentatives, 13 more than there had
· been in the previous Ulngress.
In Louisiana, Jefferson argued, the
Z-shaped district tracks the historical
pattern of black settlement, as the
· former slaves moved to the closest
cities and set up enclaves for them
selves in a hostile white environment.
, . "Our history has been one of exclu
.' sion. Drawing districts hke this is a
, .necessary remedial effon: he said. .
The Louisiana court said the legis
lature had overcompensated by put- .
· ting more blacks into Fields's district
than were needed to ensure election
of an African American. Instead of
being 63 percent black, the court
said, it should have been 55 percent.
That strikes me as being exactly' the
· kind of political judgment legislatures
· are better equipped to make than.
. unelected judges.
These new districts are not pretty.
But they're a whole Jot less offensive
than the all·white delegations that
preceded them. This. is a good area
for the courts to show some defer
"ence to the potitical process.
�THE WALL STREET JOURNAL.·
v
Justices Allow Wide State Regulation
.
Of Jiydroelectric Projects of Utilities
DATE::
PAGE::
~
~
ployers to function wilhout disruptions,
like Iprivate) employers."
Yesterday's ruling won't affect pril'ate
·employers, because the First Amendment
only limits the ways government can reo
strict speech. Nor does the decision affect
B:. t' \' ~ :-'1. B..>J-:KEn
Suprt'me Court addressed was whether what kind of speech by government
I
sIC·;r:,i"·· .. ·
111' \\\11 ~··TII1·11J"\H'-\~
state authority is limited to controlling workers is constitutionally protected. It I
does. however. refine
\\~!'HI:'.;(JJ·U\ - In a def..,,: for utili·
pollutIOn. or whether states can impose determining when publicthe procedure for
employers (an be
ties. th~ Supreme Court said sliltes han:' • other rondltion5 on power producers.
held liable for punishing workers whv
brl'ac J:.Jlh,:·r:tl· Ii' se: envirunmental stan·
Affirming a deciSIon by Washington's engage in protected speech.
dard~ for hyGr~'electrit projects that go
Previously. the Supreme Court had said
beyof;c rfq~;t'm .. nt~ impc,st:d by the fec· top court. the Supreme Court majority said
that under the Clean Water Act. states that government workers may sue em·
eral g,:'\ernm~ni.
hare wide latitude
goals
Ldli:: t'rs· i·.,r iht? h~·drL't'leclflq)Q\\W such as presen'ing to accomplish or to ployers over disciplinary measures taken I
fish habitats
in response to speech on matters of "public
indu;:~\ w2rn"d Ihill l'eslerd3~·s ~.:! rul·
impose "any other appropriate require·
mg Wll!.!!:; fr.;.:" u:lll!je~ and olher (,wners ment of state law" (Pr'D ."·;0. lot Je/!er.<on concern." provided the speech wasnt
of suer, r'lan·., ,0 spenc hup· amc·unl~ (·f C01111111 rs. lI'ashInglOl1 /Jt'parlt1lenl of £co[. I too disruptive. Yesterday. the high court
I said that such suits should turn on \\'hat
mC'flt'Y :'.' fif' hundreds of prclJect, reli·
I "reasonable·· supervisors think an em·.
(en~i'C ~)!~.:~ plants sti!! iii thf ;dar;n:n~
Employee Speech
I plo~'ee said, not on what a judge or jury
51,S?, "!la~ :;i":.:'rm· 1(I'j !:'x~,ensl·.. t? 10 bu:ld.
later determInes was actuall\' said.
tlv';t ;~I'Tf~.' "cd~d.
Separately. the high court gave govern·
In th~ Macomb hospital case. a federal
Jr, hi:- ~f;: "'~I :or {h.: rnQjor!~y. Jus\ice
ment agencies ~omewhat greater protec· appeals court had concluded that it was
SanC!r~ DJY O·Conn(.[ saic Slale~ alsc'
lion against lawsuits filed by workers who irrelel'ant what supt'r'\'isor~ thougr,: th~
('(IU!C z;;<:· :.':..;:h!:'f s~anc:!;d!' III 0~her
pr':IJt:(:, .onG :c::';i:ies II',,,; result If. d;y claim they were disciplined for things they nurse said if her comments to a co,workE:'r
are founrl to have deselwd protP<:tion
char;;:!:', in;" nii\·ii'"bl~ wiitfr. The:ie. In· said·.
The ruling was a Victory for a public under the First Amendment.· .
cluc~ {\·~.S::··Y: :il.'r. of. d(ltks and rbt'r·
hospital In ~facomb, Ill.. that fired a nurse.
But the Supreme Court yesterday set
\";.'::'~
allegedly for making critical comments· aside that deCision. In the high courts
E~..,;r:,~.~'fli:",I!s!~ at'piaudt'c !lie high
about management. But the precise effect plurality opinion. Justice O'Conn0r saId
(";~:.~ ::~, :~: .;, Thf\· ~!T.t1h'::5IZt'c! that
wr,;le tt;, ru::ni deal: s;,ec:icall\ with of. the decision was difficult to determine. that employers require broad latitudf In
in part because the justices issued four. l!1anaging personnel. She stressec tha!
5:;;!it" !'t-~..• ,.;: .. ,::~ r£-Iatt: ~(, ii5~J h:.:.o;~ats. it
opinions. none of which attracted five . government. when acting as an employf:'r.
a:!),' \\." .. :~ }!!",''7 ~ia't'~ nuth'~\~:~:. t(1 lrnr\l):,e
\·otes. In addition. the Inain opinion. which may exert far greater control over its
r':'t;T~t':~·j·::":." !:~J~~C :1.' recr€'au('rl81
or'
...as signed b~' four justices. didn't provide employees: speech than IS permISSIblE
a clear rule about when public employers when it regulates citizens· speech genE:'r'
. The """
:n~ JUS::( e, :n;(,!\·eQ
are liable for aClions they take against ally.
f;f.:'ri~ ::. \\·"s:J,[,;:;I.·!'1s:a;!' :0 preYl"nt a
To illustrate the legal obligatior. of a
hyc;··,t':.,. :r. :: ,;",' :r: T.j'·,@afrom re· workers for speech that subsequently is
found 10 be protected by the Constitution's supenisor. Justice O'Connor saId that
d;.;,.:r.~ :,,~ ·;;":f·, ~].,v. :F. :r,,· Dc,st'walllp$
First Amendment.
offIcials at the ~facomb hospital conduct!:'d ;
R;\d i".. ,','. :t,.;- j~ .. t'! a: which certain
Despite the ambiguity. Richard Ruda •. a thorough investigation. including a
chief counsel for a Washington,based con· series of inteniews. before deterr!llning
AJ:r...'~::~. :~:t. F~c!!"ii: Er,~ig'Y Regula·
sorlium of state and local governments. that the nurse's complaints were disrup·
r'.·r:. C(.r.:;·.:~;:· r. :I( f~oo:" hydrc,t'lertric
rid;,', ,: Ii.. :.,.d~r J: ",..,.,,!. tht' fedE'rai. praised the courrs main opinion as "fully tive. While the high court sent the case
recognizing the need of government em· back to the lower court for a determinaum
eif..::. '*\' .••.•.;, ~ ~:y~ ~ i~,,:, .<::tl:-S a role in
Plea",' 7ilm 10 Page AS, Column 1
whether the disruptive comments were
!~I" ~,;~: .. .' T:' j ~"j. p~:-.. rh~' qU~5:jur. thE'
actually the basis of the dismissal. Just!{ e
O'Connor stressed that managemen:·s
concerns about efficiency should be giler.
great weight. (lfatf'rs l'S. Churchllli
.
.
.
.
�€fJc l\JasOinRton mimcs
rBible·message kept
.out ofcourthouse
High court rules
in Georgia case
ASSOCIATED PRESS
The Supreme Court, which 14
years ago banned the Ten Com·
mandments from classroom walls
in public schools, yesterday reo
fused to let them and other reli·
gious writings be posted in a
county courthouse.
The justices. without comment.
let stand rulings that forced offi·
cials in Cobb County, Ga., to reo
move ffom their courthouse com·
plex a 3-by-S-foot framed panel
. containing the Ten Command
ments and teachings of Jesus.
In a bold appeal. county officials
had urged' the justices to allow
greater accommodation of reli
gion in public life.
'"The judicial branch of our gov
ernment has been allowed to co
erce the American people into an
amoral straitjacket which has be
gun to tear our society apart at the
seams:' the appeal said. "No soci
ety. nor any individual, can .navi
gate the stormy seas of life for
very long without a spiritual or
moral compass and rudder. In this
regard. religion serves a secular
purpose.'"
. .
The panel was donated to Cobb
County, and until 1967 it hung out~
side the original county court
house When that building was de
stroyed. the panel was moved
inside the Cobb County State
Court Building in Marietta. It
hung for 27 years on a wall across
the hall from traffic court.
Bruce Harvey. a crimiMI de
fense lawyer; and James Cunning:
ham, a county resident. sued in
1992 to get the panel removed.
Their lawsuit said the panel vio
lated the constitutionally required
separation between government
and religion.
.
A federal trial judge and the
11 th V.S. Circuit Court of Appeals
agreed and ordered the county to
remove the panel.
. The lower courts relied heavily
on a 1980 Supreme Court deciSion
that struck down a Kentucky law
requiring the posting of the Ten
Commandments in public school
classrooms.
In their appeal, Cobb County
officials said the 1980 ruling
shouldn't apply in this case bet.
cause it involved government con
duct "in the context of a compelled
educational setting."
The appeal said the lower-court
rulings are "tantamount to calling
for removal of all references to the
Ten Commandments or God from
U.S. currency and from public
buildings."
.But U.S. District Judge Mar\:in
Shoob had ruled thatthe Ten Com
mandments panel could remain in
the courthouse if officials were
willing to make it part of a larger
educational display outlining var
. ious influences on modem law..
1ft other action yesterday. the
justices:
• Gave public employers added
protection from lawsuits by work
ers fired for making statements
later found to be constitutionally
protected speech. The court ruled
in an Illinois case that public em
ployers cannot be forced to pay
damages if, at the time of the fir
ing, they reasonably believed the
worker was simply being insu~r
dinate.
• Rejected a challenge to a Dal
las curfew called unconstitutional
by some teen-agers and their par
ents. The court. without comment,
letstand a rulini that said the cur
few properly is aimed at "protect
ing juveniles from crimes on the
streets."
.
• Let stand rulings that cited'
free-speech considerations in
throwing out a lawsuit against TV
host Phil Donahue and the mother
of a rape victim who told her story
on his show. The suit had been filed'
by the victim, who gave binh at
age 11 after beina raped by her
stepfather.
DATE:
PAGE:
¢=/·fr
'A-r
�DATE::
PAGE::
'Government jobs and Free Speech
r-{;~ 1i:;)LING th<;t \,'J] affect 18 million Ameri
insubordination but that she is entitled. to a
can l.viJians r~:'J work for federaJ, state and hearing to determine whether she was indeed
locaJ gOVI!?iii. :!s, the Supreme Court yester
flted because of nasty things she said about her
day set guidelines baJancing the right of free supervisor or beC.1use of protected speech criti
speech with the need to provide efficient and cizing the policies of the department.
effective goverrunent services. Because their em
In this case, the court distinguishes between
ployer is the goverrunent. public-sector workers the roles of government as it relates to aU the
have constitutionaJ protections not available to people and as employer. In the first context.
those in private employment. A corporate execu . restrictions' on speech are rarely tolerated-in
tive. for example, can fire a worker for making order to protect the "verbal tumult, discord and
statements critical of company policy. But the First even offensive utterance" that are part and parcel
'Amendment protects speech directed against the of open debate. But the government as employer
goverrunent. even' speech by an employee criticiz
has an obligation to get certain jobs done, to see
ing policies or practices of the goverrunent entity to it that employees are courteous and efficient.
for which he works. The protection is not aJl·
While it may enter into contracts with workers
encompassing. though, as the court explained.
limiting this authority or may protect certain
Cheryl Churchill, a nurse at a public hospitaJ in
Dlinois. was overheard telling another nurse that kinds of disruptive activity like whistle-blowing. it
her department was a bad place to work. Her is not required by the first Amendment to do so.
version of the conversation. supported by two The Constitution,' the court said. does aUow
disciplinary action on the job for speech that is
witnesses. is that it was intended' to convey infor
detrimental to the mission of the agency and the
mation about a matter of public policy-specifical
efficiency of the operation.
.
ly. departmental practices that she believed were
The decision is a reasonable one that should
adversely affecting patient care. Others who heard
her, however. said that she unfairly criticized her cause no problems for civil servants. These
su;>enisor, caused the other nurse to turn down a employees remain free to criticize government
position in her department. and was generally policies, engage in debate about public issues and
disruptive to the efficiency of the department and press grievances though authorized channels. But
the moraJe of her co-workers. She was fired for like workers everywhere~ they run a risk when
insubordination. She sued. claiming that she was they are insubordinate. disruptive in the work
place. rude to clients and customers and verbally
fired for protected speech.
.
The court ruled that she could be fired for . hostile to co-workers.
I
�€bl' ~l'\lf iJork €hnl's
IEx.Inspector
ForF.D.A.
Is Convicted
OfBribery
NEWARK, May 31 (AP) - A for
mer inspector for the Federal Food
and Drug Administration was con
, vieted today of both paying and con
spiring to take bribes to allow toris of
contaminated and rotting seafood
into the count ry,
F.DA officials have said they re
ceived no reports of people gelling
sick because of the contaminated
food, Agency officials said that Since
an undercover investigation by the
Umted States Customs Service led to
the charges against the former in
spt'ctor, Robert A. Vaccaro, and 11
other people, safeguards like the rota
lion of inspectors and bribery aware
ness training have been set up.
.
Mr. Vaccaro was cleared of other
charges, including six bribery counts,
H€' is to be sentenced on Aug, 11 by
Federal District Judge Alfred M, Wo
hn and faces 130 years in prison and
$25(1,000 in fines, though the actual
penalties will probably be far less
under Federal sentencing guidelines~
Good luck at the.Track
Assistant United States Attorney
Lorraine S, Gerson had lold the jury
that the crimes allowed Mr. Vaccaro
10 live lavlshlv and to drive a Porsche.
'A'lIh a car phone, although he aurib-,
uted hIS wealth to good luck at the
horse Irack.
.
Mr. Vaccaro's defense lawyer, Da
vid A. Ruhnke. had countered that his
clienT coUld prove he nelled about
$70,000 an 1986 from betting on horses,
and thai the family's lax returns'
would rebut allegations of the high
life.
Mr. Ruhnke urged the jury to con·
Sider the reliabilily of the govern·
ment's witnesses, some of whom
have pleaded guilty to related
charges.
Mr. Vaccaro, 42. of Queens, faces
the most serious charges of those
charged in Ihe case, Nine defendants,
including Ihree F.D.A. inspectors and
two shippt'rs, have pleaded guilty,
while another was convicted in
March 1993.
Conversations on Tape
Jurors heard taped conversations
between Mr. Vaccaro and co-c:onsplr·
ators showing that "he knew what I'll'
was doing was corrupt," Ms. Gerson
said. That included "cooling down"
: the operation when I'll' thoughl the
'1 authorities w&re aware of i(she said.
The bribes ranged from several
hundred dollars to a one-time payoff
i of $30,000, she said.
Mr. Ruhnke told the jury that Mr.
Vaccaro still worked the phones be·
fore and after court appearances as II
salesman for a Newark food imporl-'
er, selling fish to reSlaurants. Mr.
Ruhnke declined to name Mr. Vac
caro's employer.
Mr. Vaccaro started a consulting
bUSiness in 1987 after resigning as a
supervisor in the F.D.A.'s Brooklyn
office.. He is charged with taking
$65,000 in bribes as an inspector.
As the principal of Food· Tech Ana
lysts and Consultants Inc., Mr. Vac·
caro bribed inspectors to destroy doc
uments, 'to file false inspection reo
ports and to import food previously
rejected by the F.D.A., according to
the indiclment, handed up in June
I
1992.
The indictment charged that Mr.
Vaccaro's bribes meant consumers
were exposed to seven and a half tons
of swordfish with excess mercury,
645 pounds of decomposed lobster
lails and one and a half tons of small '
lobsters contaminated with fecal bac
leria.'
DATE::
PAGE::
G-I·'~
i3 _If
i
�",.
.
'
THE WALL STREET JOURNAL.
J!/ft
orn Asunder
Allegations of Fraud, . "
And Religious Violence
Engulf Hasidic Village
,. .J
Pos:-iblt' :\h\l~" (If Ft'~h.'ral.\id
b Inw~ti~13kd in a Town
e
That Bru~)ks \0 Dissent
The Rabbi·s· \\'urd Is Law
-11"' \'.\"
5;(.':r:. 1-
~ll'l·:J"'f.":
KIR)':\S .l(lE!.. :-; Y - \\'r,?r. .J0hr, K,rl
roundf'r. :h~ :')~n~! :,~ Gt'tze! Bt'r;::~r B·:ui~
"arc hE'rt' .•.• t'....;;c::'; b.,.IIf'\'~ illS eye~,
Huncrt:'c~ d mH, w~rf srreal'!1lng'in Y:c'
d15rl. tJ<'~~:~).':"· ~.-,:":~I~!' anc! s~0nlr.g Yli~(":
H!r;ct , .r:.",:,,', ' I; mac.; tht' n,,;r c'n my
nE'ck st~nd ','r: f:lC,' says :-'11. Kdrl. a
voluntE'e~ !:r~r.1i:.r. [,',:om ne3rby :-'lonrIJI', ":
the I~?2 :;:c:::"n;.
'
Thl~ ul:r c·(l~:!1:,d,'x H;"Sldl'. Jew:sh
comrr,u~I:l\' .... <1) Ir,':"n~t'd trt:'toliSe :-'Ir.
Hirsctl. (i ·r,;~':·~. t1l1~ dC-Cl!St'c tr.t \"ll:a~~
le::..dH~t:~
e,; "r,::st'> ,,: ft'dt~.:;
p~(l;:-r~r.>,
r.:r~· _'rr.l;~':'r." or :r:!,:'~me~, ~,::::
hur.f. 1' t, : . - brtr:~jt'!' :l:'jP ihf ~ht'p;,:r:~
CE'n",1' .'.,\1:',;, : .. ; I:'~:::" "s!;,'~Ic: bl? bd,'
It labeled
a
l
ishec ~~, ~:. :~ .. ~.I'
','
I;" :hr ~ .~t'"
II Ii:" ~,":: .' K:~::~' .tur ,',ur:'<~ fdr.~:i'
iar, i: r,,',\' t'f ~'H~'J;;'lh ... :C' ....·:lIS the fO("I~
(If a fh::~r.t'" ,;;;1 .. (".'rlf 1i ( 1 thl:' Sl!,'rt:'n,f
Cuurt i,. 'i;~:'·n'j~ ;f·.. lt",,';n~: ..... h~:h~r U',f
f(\n~r.-,:...:~:·"·. ~ !"n':I.":< ;I.~ thr hGr.c;'-;,!;lrj~C
sh')t.ilc rl~ ":::'.'''\'~r. F" (1~lrj::nue i.:'«t!O; f(d,
€'rd~ an: ~:~t~" ~;c J~ :1 rub~;,··~(rl!I' i tj:~.
t:-~n !,~.:!:::).~1. ,:l!~ 0nt' \}~ \ht'" pi}.. !;t'~" 1"I\\;'l~
in :-';ew y(ir~ state, lilt mcorporatt:'c rf'il·.
gi(lUS seaIf'men! rf'lie~ he.:; ',By (\n wel!an.'
. and other statt anc federal aid.
'
t.:nder Investigation
But thE're is anNher, darKer sid!' to this'
modern·da) pilj:Til'l community nestled in
rollin~ tll!l~ .,\, mlle~ from :-';P\\ York ClI),
:-';ot onh art n\'il liberties apparently
floutee. 'bu:'t>\':dpnre is accumulating tha:
somE' (If tr,t' :, id thf \'Illage depends on may
be thE' P~,)dlXl...r f~iiUd,
Ar.s. AHOrne\S officE' is investigatin~
whE'ther federal funds granted Kiryas Joel
10 bUllc a mE'dKal center were diverted for
bu!ldrnl1 rE'I:l1ious and Nht'r proje<lS: State
pollct' ar~ trp.~ to dE':erliirnE' whelh('r
ar~('n W3~ u,rC lC' corer uf' ~utrl a dl\'t'r·
Sl<m, Th~ ff'c,'rc.! H('i.l~;nr: ar,d rrban D/:"
'\,elopment bt-p".. m~nl also is Investigat·
ing tht n,eC:l "I·{ent",r 'funding.
. Jame" Ker:ns, a dtH-r:";.
;!att'J! .: :~lt' ;l!!'":" i. !>ays. ,', p~'rJ':'" I .~.
l(.j)(t:c ,r,;.. ~~:i";:.;,. Gnd !.tillE'·agenl:. func,
ingo rE'<!';,..':' :.,! ;',n'~,'ruc::()n of thl" mt':l1
cal center], we found either fraudulent
applica.tions. overinflation of bills or fail·
ure to adhere to policies of grants."
Interviews with current and former
residents suggest the village may be mis·
using other federal programs. such as
Head Start. Indeed. ffiJD is part of an
infonral federal task force looking into
POSf':' . ; fraud in vario'$ federal programs
by, li:any as seV::i, f-!':sidic sects in three
:-;ew rork rotlnti<::'. according to people
familiar with l;< .\lIquiry. Besides HUD,
the task force ih~ludes the Federal Bureau
of Investigation. the Postal Service. the'
Education Department and the Internal
Revenue Service. The counties are Or·
ange. which is the site of Ki!')'as Joel. plus .
.RockJand and Kings (BrookJyn).
Kiryas Joel is a place given to intimida·
tion. About 300 people out of a total of 12.()(\O
living here have broken away from the
sect's iron·fisted lead~rship. which de'
mands obedience and has warned others
not 10 join the "infidels." Vandals have
slashed tires on cars of the breakaway
members and stoned their houses by night.
By day, hatred has been spewed at them
and their children. Fear rules.
"They've laken away our freedom.
Everyone is afraid to talk." says Joseph
Waldman. . a 42,
vear·old dissident
ieader who carries a
gun because he says
he has received
death threats, .He
and others contend
town leaders use
some of the loca)
rabbinical
acado
emy's 800 students
as enforcers to
frighten and some'
times beat up dissi·
h W Id
dents. They also
Josep a I'lan
claim that village
elders sometimes wiretap residents'
phones and deny people the right to vote in
federal elections.
"This little community. which was once
our sunshine. is now the war zone of the
Hasidic world." says a member of the
breakawa)' group. speaking from what he
calls a "secure" phone elsewhere.
When approached in his office at the
rabbinical academy he runs. the town's
religious leader. Rabbi Aaron Teitelbaum.
denies instigating any violence. He refers
questions about other allegations to Abra·
ham Wieder. Ki!,)'as Joel's deputy mayor.
who denies them. saying t.he breakaway
group is conducting "a smear campaign
aimed at destro)ing us."
The deputy mayor - who is also presi·
dent of the main synagogue and the public·
school district and is active in running
parochiahchools - says Mr. Waldman ex·
aggerates incidents caused by a few
youths "who sometimes get out of con·
trol."
Kiryas Joel. a village of Winding streets
and tightly packtd garden apartments and
t\\'(',family homes', is part of tht' Satmar
DATE:
PAGE:
(0-'''5'1
A-I
sect of Hasidim, which preaches slmt
adherence to Old Testament scripture and
has about 100,000 members world·lInd!'.
The town. established in W;7.·grew as an
extension of the crowded Satmc:.r commu'
nity in the Williamsburg section of Brook·
Iyn, Its name means COmmunity of Joel. a
reference to the late Grand Rabbi Joel
Tei:elbaum. the spiritual founder of the
Satmars here and in Satu·~are 1St Mary:,
Romania, He died in 1979.
The Satmars' current head is his
nephew. 77·year·old Grand Rabbi :'105es
Teitelbaum, who in turn is the father (I(
town religious leader Rabbi Aaron Tei!(:I·
baum. The grand rabbi declines to be
interviewed.
The Satmars shun outSiders anc ..... ha!
they view as the corruption of modern
society, including television, They essen·
tlally follow shtetl·like customs of 15th·cen·
tu!')' Eastern Europe, Married women ..... ear
wigs over clean·shaven heads. All females
older than five must dress so they are fu'h
covered, Boys and men have lOCks of ha{r
dangling by their ears, Men dress in black
garb. white shirts and wide·brimmec black
hats.
Religion and the family are at the heart
of Kiryas Joel. where a fire whistle goes off
15 minutes before the Sabbath begim on
Fridays. The town has 17 synagogues and
numerous yeshi\'as. or religious schools,
as weJl as ritual bathhouses, AI homE', only
Yiddish is spoken. Some older reSIdents,
among them many Holocaust surYi\'ors,
know little English,
Children abound in Kirya~ Joel. in
carriages or playing on la..... ns ar,d Side
walks. About ;00 of the \'illage ~ 1.3(":'
families have eight or more offsp:-lng,
Town leaders say proudly that [here are nc,
truancy. drugs. teenage suicidE'S M out·of
wedlock teen pregnancies, ~Iosl youths
marry at 1i or 16. with the help of a
matchmaker.
Graduates may not go on te, secular
higher education in pursuit of a careE'r.
Many men continue their studies of Scrip
ture instead of working full time. Buslc·ads
of other men make a three·hour da:ly
round trip to work in New York City's
diamond district.
The Flow of Aid
But for all the sense of communill, [he
town is racked by dissent. ltbegan in :he
second half of the 19805. when Grand Ra bbl
MoseS Teitelbaum. over the objections of
some. installed his own group of town
leaders. including his son. Aaron. as chief
rabbi. More trouble flared after the break·
away group set up a rival Satmar school
named B'nai Joel. invoking the name of thf'
sect's late f(lunder,
Meanwhile, federal and state fundlOl'
poured in. PolitiCians from GO\', ~far:0
Cuomo. a Democrat. to Rep, BenjamIn
Gilman. a Republican. have been strong
. supporters. Hasidic leaders are known' for
deliverin~ a bloc vote, "When you take ;hE' .
<05
Co n"\.' A.
�Icongregation':; free car ser.-jee to vote,"
says a woman resident. "the dnver glves
yl'lu a card listing who to vote for."
While Klr.·as Joel recei\'es a minimum
of ~: .lIe and' fed~ral aid for its overall
S(J~,;"I program be·
caus,' it i~ almost
totalh self·funded
bv thf main Satmar
congro:~allOn. about
thrt't'·fourths of the
large familit·s in the
Villagt' I:t'! wt'I!" rt'
cht'c\(s. food S!dr~;Js
or ~It'dlcajd. Their ~
""elfare,
food
'.
~,'
stamps and rt'ntal
.-= .'
.,
. assislanrt'
may
anlount to ab('u: S2
millj,~n
a year,
Grand Rllbtll
based on figures .lfusrs Teitrlbaum
from g(l\'~rnm!'nt.
.
agt'nms and a Kiryas Joel sOClal·serv·
ices olf:na l .
In addil::':':. thf rommuniry over the
past eii7h: years t:as receiwd more than
520 million 10 51&t~ and federal grants and
at It'a~:·S:' milll"r. irl Il·ans. This influd!'~
fund:r.. for r,Gc;s;ng. !-lead Start. thE pub
1iC'·s('h,:".. i c!:i':r'f1 a:1'J construction of sJde·
wal;;~. wt'lls. :hf ~'I~:!jt al center and a
sh(lr-;,:~g c~n~~~.
.
.
S'.'r:-~ H,,~::::(' 5Pcr,. !nelud;n~ the S:.:t·
I'll:::, .
~~\".\ al :aJ;;n{: ad\'antage of
.:r,.
~W:h .. ~.)(':,,; pn'Far. s a\·ailablt'. testmg
tilt? S\~:~r.. :,:- :ht? !'xt:eme." says Samuel
He:!::',.!;,. " rn·ft-~sN ,I; Jpwisr, studies at
Qut'er" Colit-i-'~ ':on Lc·ng Isl~nd. Last Octo·
. !)er. tht r.s ~a;':! it wc·uld nc. longer g'1\t'
m!lbn~ .:-. Ed"'(.ltj,,~ Departmt'nt "Pel!
iIT"n:~' i"~; S,,:me, arid Luba\'i!cr, Hasi·
dlt s':t1 ... "~ '~, :'\i-w Y·:r~ C!ty and \!onsI'Y.
:'\ y (In~ ~; ~ :ej rt'r. 5(·". The ~C'hool.~ hac!
di'~;:l';:<~ .:~IC i:,:·y\·rn:Jlf:1t by claiming
int?':~:!, '··J,.:!t·~,:~.
An:: :r. L,', An,':!"" a federal courl
J:i'C ~.~:r:,:;r Rabt,; Abraham Low in
Ar:
t~r,'~': c: \' :0 launder monE'Y.
R~::·.: L:.'" ',~~ :~ ma;nec! to a mece of
Grc:1C r:,,:,:': ;\j.:"f~ T... !lelbaum. will ap·
Pt'·,,·
C{'f:·
Names 011 the Mailbox
S,.. r.~ ':.rd;n~r\' r~side:H5 of I\irya~ Jot'l
alsl' c::r;l': su~;,ic;':.r.. ";~'t'rt"s a!1 awful
lot of freud wilen it (Qrr:e~ tt· mailboxes and
fictillu'U: !1amt'~ ::: KirYJ~ Joel." asserts
Patm\( Burke. pl-,~tmil~'''r of the ~own of
\!onr(le. Whi':h r,:·.ndlf~ :ht' Village small.
HI.- 11.'11;. 0( &\(i"! Sf('urity chf'cks ad·
drt'sst'c ; .. ,llg~,: ';ariations on the same
namc- going tc· n,t' same mallbo~ .. and
endem ~ (If s:mi:,lf ruses for obtammg
passp"m and drivers' licens.es.
\lr Burkf n<itifled long·dlstance phone
C'ompciny Sprint Corp. of apparent fraud
..... hen II KPP: sending ;-~ unpaid bills (for a
tota, (.f some S)liV.OOO' to the samt' ha~dful
of P('~"c'!!l(P boxes established by Klryas
Jut'! r~~I'Jpr,:5. '.:r. Burke says, A Sprmt
ser:.:r::' ·:'~!,l.",. John Anr.;nos. says, "The
oth.-r i..., lon~·dlstan(,f companies alsll
..\'t'·r~ yictaTi:zE-d." Sprinl couldn't find
enough p"identt' bring chargl's.
Ther. then' i~ (hI' rr,t"dical,ct'ntt'r mat·
ter. Thf basi( r"It'stion being looked into b)'
the r.s. Attorn!:'}, In WhltP Plains, :,\.Y.. by.
stale j"'!iif "nO: o}' HrD :~ wht-ther fpderal
,0
mone\' meant for the center went for other
projects. The partly built center burned in
1990, a month after a HUD inspector
became suspicicius about delays. The Vii·
lage entity set up to administer the pro·
gram hasn't returned 5}00,000 of HUD
funds that HUD has demanded back.
"It was rotten from the get'go," says
Zachary Greenhill. a New ¥orklawyer and
former prosecutor who fouli\ht off lGryas
Joel's S1.2 million fire·insurance claim on.
the center. reaching a 565.000 settlement.
He and his investigators found, in a 31, .
year probe involVing 52. subpoenaed wit·
nesses. that more than S130,OOO of work
paid out. of the medical·center project
account in 1989 and 1990 actually was work
on other projects. including a swimming
pool for a religious school.
Mr. Greenhill introduced in federal
district court in Manhattan a deposition
from a contractor saying 593,000 paid from
the medical·center account was for work
on a condo project headed by a man named
Cheskel Kahan. Mr. Kahan led the corpo'
ration set up to .oversee medical·center
construction. and is also a trustt'e of the
United Talmudic AcademY', or r.T.A.,
which runs religious schools.
OnE' contractor. Joseph Germann of
Tri-State Sheet Metal Works in Blooming'
burg. N.Y" says that an invoice for his
company's "diffusers and air grills" made
out to the c. T.A. was later changed by
. someone to indicate the bill was for the
medical center. 'He savs he did II t do any
work on the center. An'd COrrine Tetz of E.
Tetz & Sons in Middletown. KY.. says SlH'
"had no idea" that all the concrete her
firm deli\'ered for other projects .....as sup·
post'dly for the center.
A Suspicious Fire
.
"The i medical I project was bled of all
its funds for more imponant projects in the
\'illage." ~Tote a deSign and engineering
firm. Becht Engineering Co. of Liberty
Corner. X.J., In a report for Mr. Greenhill.
It said the quantity of concrete. lumber and
steel bars charged to the medical center
far exceeded its plans and what the
charred remains of the center showed had
been used. HUD rules specify that the bank
acco'un! for a HUD project. a blend of
federal and private funds, can't be used to
pay for any other work.
.
. Michael Barnes. then a HUD economIC'
development speCialist, Visited lGryas Joel
in March 1990 to find out why construction
on the medical center had stopped and to
. nspect the project's finanCial records. He
i
was greeted by a low·level clerk who had
little information. "I was p- and said I
would be back." he says. But a few weeks
later. he read about a suspicious fire that.
lit the skies over Kiryas Joel around mid·
night on April 21. 1990, destro)1ng the
building. State pollee found empty gas
cans and 17 separate spots where fire had
broken out.
Besides filing its insurance claim. the
Village development corporation then
sought HUD funding 10 rebuild the center.
And it asked the stale health department to
continue its prelim:!'!!,..)' approval for pa·
tientreimbursement once a center was
built. But a health·df1lartment official
says. "Our coun~1 s office is looking into
~'hat went on. An~' apProvals previousl\·.
'. '
given are null and void."
The state police are still trying to solve
the arson. A police' investigator'S report at
the time said that "a confidential' infor'
mant indicated the building was burned at
the request of people involved in the con·
struction. "
.
Mr. Kahan, the man who oversaw the
medical,center project and to whose condo
project Mr. Greenhill sa)'!> some funds
were diverted. declines to comment, say·
ing, "My English is not so good." He refers
calls to Meyer Wertheimer, now the Vii·
lage's directoi'of economic development,
who says he didn't hold the position then
and thus can't answer questions about the
projeCt. Deputy Mayor Wieder says.
"There was not a single Violation."
Some aspects of the Head Start pro·
gram at Kiryas Joel are questionable as
well. Federal rules say that parents vf
participating preschoolers can't be
charged for tuition or food. But one resl'
dent says he was sent a tuition bill several
years ago for $SO per month. even though
his only child at the time was a preschooler
in Head Start. "I asked them, 'How come I
have to pay? It's a free program.' And they
said, 'Why shouldn't you pay: Everybody
has to pay.' "
Charllnl Rent·
Another resident says he pays 5120 a
month now for his child to be in Head Start.
Once he held back payment. he says. and a
person from the U.T.A. called and told him
that "if I don't pay, my daughter won't
receive a go·in card." .
.
. William Goldenburg. director of the
Village's Head Start program, says: "We
never charge apenny; parents know this."
He concedes that the names of the pro·
gram's students show up on tuition bills
the V,T,A. sends to families. But he ex·
plains that "U.T,A. runs the Head Start
lunch program. and their computer must
just print out all the names." The Health
and Human Ser.ices Department IS slatt'd
to grant the Kin'as Joel Head Start pro·
gram SS27,435 this year.
Allegations of abuses of low· income
housing programs also have turned up.
such as in a dispute centering on a romplex
built with Farmers Home Administration
funds. It involves a former tenant, Jacob
Weiss, and his ex-father-in'law, Da\id
Falkowitz. Sidner Siller, a lawyer for Mr.
Weiss, says, "Based on our information,
Mr. Falkowitz has rights to a number of
apartments and is receiVing payment for
them."
Such an arrangement would be illegal.
says Marlyn Aycock, an FmHA spokes·
woman. People who sa), they have knoll·l·
edge of the FmHA program in Kiryas Joel
say investors typically make tax-deducti·
ble contributions of 535,00<0 to $50,000 per
unit to the U.T.A. or a charity of the
congregation. entitling them to COllect e~·
tra rent of up to $500 a month from
low·income tenants. Mr, Wieder call~ thIS
allegation "total1:: false." Mr. Falkowltz
denies hI" owns or collects rents on apart·
ments in the FmHA complex. The FmHA
said yesterday that based on reports from
its field staff, it is investigating compll'
ance In the Kin'as Joel project under
equal-opportunity and other guidelines
.i.QftJ
".
d
Cont 1
�,"
The case before the Supreme Court
involves t'lt pUb!i('SChOOI'd,s!~lct status of
Kin'as .Tut-i"s school for thl:: handicapped,
The town ,,'ugh: the status. contends State
Schoo: Boa"ds AssoCIation chief Louis Gru'
met. ,(f ~"'! aid that could offset some
paroch;;:.:-school costs, Kiryas Joel in~!ia:lly
quallfied for ~ull or part reimbursemenl of
paroch:al'schoo l bus transportation and an
English,language IUtoring program, "'The '
schoui dlstnc: IS a funding funnel," Mr.
Grume: declares,
Replies Deputy ~Iayor Wieder: "Who,
erer made th(,~t charges lS the lowes! of
low persons."
Votmg has been another sore spot.
Two ~ ,~ar, ag", 150 people signed a peti'
tiN, sa\'::,~, "'jolenee here "makes l! im'
possiblt' ~~ ha\'e free
elec:iom" and ask'
ing that' \'oting
booths be' moved
all'ay fror.' the'syn,
Cigogue tt,,,: bans "~,,..
, . '
d:ssiden: families,
Congrtg 21 ;C';]
Yete,,' Le',. I~:: by
the grand ra!:lbi.
then \\'r'-':" [(, the
sigT,~r~ :t"l!~r.;; !her.1
..)'.: ~...
.~.
.
,
t" 'repent'" and re'
m~H' t[,t':,' ;,ames
or ~;;'(t' eV~':-:ir:iJni'
Abraham 1l'lf'dfl'
{"tior, fr'_,::: :n, Sat,
mar S"(1 and d~nial of \'isiting rights to
tht- Kj;\,~, J,:'~! remeten', Children of the
Sjp~"!' ~,i(eC ext\uls;0n from par.:)chial
~(h(,,)b, :'!l'~' SJiner5 removed their
namt?~ Hot s--'~,;,gLl~ue posted :h·, remain'
in!:: l~ ~'~J~h'~~: ad,),'r,>,'d\' tc' \'(,;l:lj: bo(lths
:r.-:h~ ;t~,c D':-:-:llxr~tic primary in J9~:,
A ~,,<C~r.: whC'se nam~ stayed on the
EST s~y, :r.. ,,· ~\'di lh,)ug-r. the posting WdS
la"~': d' '.IT.' : .. : :r,~ general eleCliC'n. she
w::~ J:;,;:~: ,;",:-'Hundreds of boys from
the ri:lb~:;;;".: '. i": r,j·;.l were there to scare
l
/])'
' "
-'~:;.al\~
,
sht" ~.:\.. ~'.
~Ir,\\';~':~; je!'l;t'~ there was any intim
\'llU,"
-
Id,,:::'r, ..;
:;c.u:: ;,nr. ~ays rf'cords show all
\\.:t'd, ~Ir, \\'aldman'says
'.-f, \'co::!:!: day, he saw rabbinical
Sluder,:, ~';;1C),:;n!" the sIgnatures of for
me, ;':<.ij,;'i:~ TtlI:' Oran/lt' County Board of
Eit'(:: i:, ,,,y~ l! IS 1(X'~mg into mO\'ing the
v(IIm" ~,: .. but SE'l'S n,l reason to act on ~tr.
Waldm"r,s ch:.r~es.,
th~ d:~>,c~r,b
:h~:
'Hit Him With a Rock'
Jus: hOIl seriousl\' residents take the
grand rabb:s concerns about obedience to
hi~ dicta:es is sUflflested in a statement
given Iv state police by a rabbinical stu·
den: ir: DE'Cem"er 1!l5~, The student.
Chain', Ge't!lif'b. saId he was directed by
till', m€n. Including ~tr, Wertheimer, to
"hit ~lr, :Samuel: Kaufman in the head
with a rock. bl.'causl.' hI.' was renting
an apartment to Mr Israel Wiess Isic!.
whom thh dId nor like."
A suppC'r:er (If the breakaway school:
~Ir, WeiSS h:.d :I.'n'ted without the approval
of Congre;::'::lj"n YetI.'''' Lev. The student,
said ~I:" \\ ,,;:h~ :ml.'r and the othl.'r man
gale h:n'. thl;' 5:-;lOes and then. at 11 p,m,.
pl':ntt>d I!' a "edroom window of Mr, Kauf·
m.1r.·~ h'r',- Th.,. ~: ... dent threw a stone
thr,'I!;~, :h~ ~;nj",,/, ~Ir, Kaufman'wasn',
hurt. No one was charged with a crime.
report spoke of about 300 vouths from the
Mr, Wertheimer denies he gave any
boys' school who wanted "several subjects
instructions or stones to Mr. G<lt tJieb , He
to leave." It said stones were thro'A-"Tl al
also contends that Mr. Waldman coerced
three cars, including that of Mrs. Teitel
the student into naming Mr. Wertheimer,
baum's secretary. Jacob Tiernauer,
and that in return for naming him, the
Captain James Schepperly of the New
student got the charges against himself ,
York State Police says he IS meeting With
dropped. Mr. Waldman rejects the Werth and "we are making
community factions
eimer account.
progress," Village COnstable Emanuel
Trouble worsened after Grand Rabbi
Farkas contends that state police used to
Moses Teitelbaum ordered his followers in
take the dissidents' claims of \iolence too
a Pass.over 198~ ~~I!'ech to shout Shygetz,
seriously because one dissident, Rabbi
Aroos!' ([nridl,': . mt:) at anyone who sup
Hirsch, was Kiryas Joers constable at the
ported th£- br'l:,~:<i.1.'J<:y schceL %/1:. Wieder
time; Mr. Farkas says things have quieted
says the grand r.:.bbi war,
':y trying to
down lately. '
"have peace and !.·.. I:::,':';i~y by asking
But the opposition group's attorney.
people to leave the synagogue who did not
Michael Sussman, says federal. state and
respect him." But the speech became a
local authorities have underp/a,ued com·
battle cry for the rabbinical students, aged
plaints by Kiryas Joel dissidents, "They
17 to 19, Reports in the Middletown Times
view this as an internecine religious thing.
Herald Record tell of harassment, beat
where siding with one or the other faction
is considered inappropriate." he says,
adding that he believes the Satmars' vot'
ing bloc also is a factoL
In April 1990. after a demonstration at
Mr. Waldman's home that broke some
windows. a state court ordered village
Chief Rabbi Aaron Teitelbaum to show
cause why Mr. Waldman and his sup·
porters shouldn't be granted a permanent
order of protection. Rabbi Teitelbaum re
plied that while he was a "witness" at a
lawful demonstration, he didn't throw
stones or order any thrown, Complaining'
that "Mr. Waldman has repeatedl r de·
nounCed me and impugned my religious
authority," he nonetheless said he had told
congregation members that physical at
tacks and threats were "not acceptable,"
Justice Peter Patsalos didn't make the
protection order against the rabbj and his
congregation permanent but continued a
temporary one for several morE' mc·n:hs,
'Open to All'
ings. slashed tires, uprooted plants and
smashed wmdows.
Children of loyal congregation mem
bers chanted the words as they taunted.
shoved and spit at students of B'nai Joel.
the breakaway school. Mr. Wieder says
these students brought such action upon
themselves by "singing songs cursing the
grand rabbi."
Incident In the Cemetery
Rabbin;::al students went so far as to
vent their anger at the widow of Grand
Rabbi Joel Teitelbaum. A supporter of
B'nal Joel. she arrived about 1 a,m. for her
annual vigil of several hours by her hus
band's grave, According to a petition to
COngregatlon Yetev Lev signed by more
than ]00 residents, a large group of youths
'''jumped out yelling and cursing, They
threw rocks large enough to kill a person at
her. and into the holy shrine, on the very
tomb of our holy Rabbi Joel. ..
Mr. Waldman says he was awakened by
the shouts and. after calling the police.
raced to the cemetery to find Mrs. Teitel
baum "crying and shivering." The stu
dents. who he believes came from the
rabbinical academy just behind the ceme
ter),. smashed her car Windows. he says.
"It looked as If th' Sazis had surrounded
her." Mr. Waldman says. A state-oolice
Rabbi Teitelbaum says Kiryas Joel is
open to anyone, but if indi\iduals want to
attend the schools and main congregation
they must follow the grand rabbi's wishes.
A translation of a speech 11' Yiddish he
made at the main-synagogue social hall on
Dec. 31, 1989, seems more restrictive than
that. however. He said landlords would be
told that they risked excommunication if
they rented or sold to someone without
permission from the congregation, Any
member ignoring that rule "has to be
chased as if he were a murderer," the
rabbi said.
A year and a half later, a landlord who
rented an apartment to the Chaim Ho·
chauser family was beaten at thE' Kiryas
Joel cemetery by more thar. 20 men, the
landlord said In a police report, The Ho
'chausers declined to "apply for accep·
tance" In the community as Instructed in a
Dec. 12, 1989. letter trom Congrl.'gation
Yetev Lev D'Saunar. the BrookJyn·based
world-wide congregation of the Salmars.
Before they moved in, it was k.nO\l,"Tl that
the Hochausers Intended to sena [heir
children to 8'nai Joel.
An agnement signed by the grand
rabbi in June 1989 with developers says
that anyone who builds an apartment
"with no exception" must pass along 510.
'-0-1 '
~f\"'t~
�,
000 per unit to the congrega tion lor paro
chial schools. The document called the
agreement binding "by the laws of Torah.
and also in secular Jaw." Even though Mr.
Wieder maintains payment is "volun
tary." a 1990 contract proposal from one of
the builderS for a two-family home Rabbi
Hirsch planned to erect indicated he had to
. pay the 510,000 per unit. By then. Rabbi
Hirsch had been thrown out of the congre,
galion.
Fear and Mistrust
Today, the town is filled with suspicion.
Kiryas Joel leaders and dissidents alike
ask "who told you that?" before answering
a question from a reporter. Some reSidents
say they are afraid to speak openly on the
telephone because of a furor two years ago
after Rabbi Hirsch's allegations about
fraud in the village were taped and made
public. llJegal tape recordings of his and
other dissidents' phone conversations
were sold in some Brooklyn stores for 52
each. (Rabbi Hirsch says the tape was
altered to distort his words.)
State Police Lt. 'Preston Felton says
some residents are afraid to use the vil
lages existing medical offices for fear
their records might be made publiC if they
ever got on the wrong side of village
leaders.
.
Mr. Kerins. the detective who investl
.gated the medical-center fire. says the
local phOne company told him it had found
evidence of "looping." When that occurs.
someon(:'s supposedly private line can be
listened t0 elsewhere. An official of High
land Telephone Co.• whi· h serves Kirya5
Joel. declines to comment when asked if it
is looking into possible wiretapping. "To·
tally false," says Mr. Wieder when asked
about the wiretapping allegations.
"'t's like RUSSia used to be:' says thl:'
woman who says she felt intimidated from
voting. Her children. who attend the alter
native school. are constantly harassed by
other youngsters, she says. ''I'm afraid to
let them play on the street. Other children
hit. shout and spit on them from top to
bottom."
Her voice shaking. she says she can't
afford to move back to Brooklyn. "When
we came out here it was so beautiful. the
envy of the world. Now it's unbearable."
"
�.~~C
WtlSbington 'Os!
DATE:
PAGE:
S/2./9Q
,4 -
.y
The Wheels of Justice
Crank Up This Month
More High Court Opinions Than Days Remain in June
lower c::owt judges. The joke among lawyers
is that if an opinion is especiaDy difficult to
follow. it must be a june.
Clwles Evans Hughes. chief justice of the
Testiness increaaes. Scalia mocked Justice
United States in the 1930s, once said, "How Sandra Day O'Connor's opinion in Tuesday's
I clialike writing opinions! ,I prefer argu case of
a..,rdlilL Scalia, whose
ments-and Jet someone else have the reo , vitriolic pen often is aimed It O'Connor,
wrote, amoog other thinp, -:Justice O'Con
IIJ)ORSibility of decision."
He must have loathed the end of the Su nor makes no attempt to justify [her opinion]
preme Court term. June has become the do on historicalll'ounds (it is quite unheard 00."
or-die month. The month when, in an effort
o'Connor. using milder rbetoric, dismiss
to resolve all of the outstanding cases, the' ed Scalia's complaint. (Three other justices
diffic:uIt gets done. the stubborn compromise 'sided with her; two sided with him; and two
and procrastinators face the music.
went their own Way.)
Of an estimated 84 cases to be decided
Powell, who was on the court from
this term. 36 remain.
1971-1986. noted that in the mid-19805 the
"It is truly a sweatshop at the Supreme court beard abnost twice the number of cas
Court in June." said Paul Cappuccio, a former es it will decide this term. But no matter.
derk to Justices Antonin Scalia and Anthony The justices, like other mortals, leave their
M.'KeMedr. "Everyone at the court dreads toughest work to the end.
'
the ine..itable memo that comes around from
"Sometimes a justice would work fairly
Chief Justice (William H. J Rehnquist saying slowly to circulate [a propoaed majority opin
it·s time to stop dillydall}ing and get these ionl in which I would want to write I dis
opinions to the printer."
.
sent," Powell said. "I would have to tee the
"june was the month that I worked bard opinion before I would begin writing I dis
est," retired Justice Lewis F. PoweD Jr. said sent.••. I was IOI'IH!times IUikY of doing
yesterday. It is when the justices must finish just that (working UowIy CII1 a ma,jority opin
their opinions, write dissents to other justic ion} myself:
'
es' opinions and anticipate drafts that have
The court's most CICIIltnM!!r8iI ctiIIput.es of
yet to be circulated.
,the tenD await decision, iDcJucIiD& a cue
june rulings often show the strains of testing black and Hispanic: wtiDa rilhts in
deadline and forced consensus.
Florida, wbicb was beard CII1 tbe first NonTuesday's case invo!\'ing public employee day of 0c:tDber. AIao pending is whether
speech rights-.produced four different opinions, Caagresa may require _
TV systems to
IKlII! signed by a majority of justices. The rul
Itt aside up to one-t.hird of their cblnnels for
iDa. requiring public employers to investipte 'JocaJ broadcaster. IDd whether tile New
before they fire someone for allegedly insubor York IetPUature's c:reatioa of alPlCiallChool
diDate remarks, emerged from a patchwork of for Hasidic Jewa violated tbe CCIIIItitutiona
the justices' separate statements.
tepIratiaa of cbun:b IDd Dte.
June opinions, sometimes characterired by
Otber higb profile ClM. concern the
hasty reasoning. are most likely to confOUDd ' epeec:b filbts of dilruptive aboniaa c:Jinic
By Joan Biskupic
.~ Pol!
SUII Wmer
W""" "
protesters, Whether judges must have au
thority to limit juries' punitive damages
awards, and the constitutionality of state
procedures in numerous death penalty cases.
RehDquist tries to evenly distribute the
opiDioo writing. So eometimes one can deduce
which justices are most likely to be writing
opinioDs from outstaDding cases. O'Connor has
delivered the most opinions so far, nine. Be
hind her, with six each, are Rehnquist, Clar
ence Tbomas IIId Ruth Bader Ginsburg. john
Paul Stevens. Scatia IIId Kennedy have written
1M! majority opinions each.
Justices Harry A. Blaclcmun and David H.
Souter have
three opinions each.
On May 26, Blac:kmun sponsored a music
rec:ita1 at the court with a renowned pianist,
¥ioIiDist. c::eDist and bass baritone. The bian
DUll event bas become a tradition for the
court's most Ieflior justice. Before Black
mun, who wiD retire at the end of the term,
iDUOCluced the periormers, he told the audi
ence that be boped the afternoon's music
would boost the justices' spirits as they head
ed into I difficult mcioth.
written
!
�DATE:
PAGE:
9Immencements
l
.
Lani Guinier at Hunter:
'Silence Is Not Golden'
By MARIA NEWMAN
Lani Guinier told the Hunter Col
lege graduating class yesterday that
the lesson she learned from her brush
with Washington politics last year is
that silence is not golden,
During her speech, Ms. Guinier
saId that afler President Clinton with
drew her nomination as assistant at
torney general for Civil rights, some
laid thaI she should nOI' have been so
vocal about her vie",:s,
."These people suggesl that if I had
befn more quiet about what I was
about. that J would have gotten the
job, and then I could have gone on and·
done the job," she said after she was
presented with an honorary doctorate
of Junsprudence, "Blit I believe that
if silence is the price of admission. it
IS also the cost of doing the job,"
Three of the 19 commencement,ex
ercise~ for the City University were
held yesterday, The exercises for
Hunter's 1.857 graduates were spread
Out over two days. Yesterday. gradu- ;
ates m the humanities and the arts
education, sciences and math re:
ceived their degrees. Todav. those in '
nurSing, health sciences, SOCial work
and the social sciences will graduate
in another ceremony. with Hugh
Downs as speaker.
'
M, Guinier. whose mother gradu
ated from Hunter in 1939, told the
graduates that the events of last year
were "my worst nightmare come
true." Ms, Guinier said that opinion
makers have trouble understanding
that complex problems require com
BrOoklyn College
plex solutions,
. "We demonize our opponents," she'
At its 69th commencement yester
said..
.
day, Brooklyn College conferred 1,741
"We see things as two-sided rather
bachelor's degrees and 1,129 mas
than multidimensional," she said,
ter's degrees.
"We seem to have lost our political
In a rousing address, Alan M. Oer·
will to confront rather than til con
showitz, the Harvard law professor.
demn our problems."
urged graduates to celebrate their
ethnicity and cherish the hyphen that
Ms. Guinier praised Attorney Gen
eral Janet Reno, who supported her
marks their identity, whether in Afri
JeWish-American,
until the end. After the PreSident an
. can-American,
nounced that he was Withdrawing her
gay-American or woman-American,
. name because her ideas were "diffi
as "the single most important punc
cult to defend," Ms. Guinier went to
tuation mark in American history,"
But he warned that pride in nation
see the Attorney General.
al origins, something he said was
"She said to, me. 'If you stand on
sadly de-emphasized when 'he gradu·
principle, you can't lose: .. Ms: Gui·
ated from Brooklyn College in 1959.
nier said Ms. Reno told her. "'Be
should be tempered. He called on
cause even if you lose, you still have
your principles.' ..
graduates to "keep their pride with
out prejudice. ethnicity without supe
riority, heritage Without hegemony:'
City Colleg.
. In her commencement address,
CIty College PreSident Yolanda T,
Moses spoke of rising violence in soci
ety and urged the 1,900 graduates of
City College not to lose faith.
Dr. Moses, who became president
of the 140-year-old college last fall,
told the graduates they enter a world
far different from the world of their
counterparts 50 years ago, who wore
straw hats for the occasion.
"Today. America'is not at war with I
other nations, but we seem to be at .
war with ourselves, in our urban cen-I
ters, our suburbs, and even in rural
America," Dr. Moses said. "We are
. witneSSing increasing levels of vio- .
lence among young people that are
unprecedented In our history.
"But if I can leave you with one
thought on this commencement day
it, is that you should not; you must not:
.gIVe Into despair or lose hope. Each
and every one of you has the power to
make a'dlfference In this lI'orld, You
are our hope. Collectively. you can
move mountains. As City College
graduates you are living proof of
this."
�DATE:
PAGE:
!tots of leakage'
.in Haiti embargo
By Tom Squitieri
USA TODAY
MALPASSE. Haiti - Holding a pair of binoculars, the top ,
U.S. diplomat in Haiti on Wednesday came to the border with
the Dominican Republic to witness the scope of embargo-bust·
ina gasoline smuggling, vowing it won't be tolerated.
All Ambassador William Swing had to do was look over his
left shoulder to see what Haitians think about the US.-backed
U.N. sanctions and how they are mocking them.
Just as Swing pledged the contraband would be stopped, a
group of Haitians were busy unloading 1().gallon plastic drums
from the top of a truck parked behind him and carrying the
containers to nearby row
boats.
.....
By the time Swing
ished his 3G-minute border
visit, the boats were weU
into Lake Saumatre en
route to the' Dominican
shore to pickup more black
market gasoline.
"There's been lots of
leakage," he saidt "The
0_
whole program of sanctions I ..-..f~~~~Jacmel'
.
and ways to tighten it up are ,r
__ ,
being examined."
c:::. ~_
Swing'S surprise inspec- ' U S A TODAY
lion came as President Clin,
ton's new Haiti envoy, Bill Gray, arrived in the Dominican Re
public to demand that it adhere to the U.N. sanctions; ti8bt
ened over the weekend.
Swingsaid a three-person team is spending·four days exam
ining the poroUs 15O-mile land border between Haiti and the·
Dominican Republic, to detennine ways of shutting down the
smuggling operations.
'
But the task seems daunting. With big prollts being made by
Dominicans selling gas - and by Haiti's military, which con
trols the low inside Haiti - little cooperation is expected.
The smuggling of gas also has taken on symbolic importance
for the junta as well. Many otlcers Interviewed this week in
Haiti's milicary headquarters in Port-eu-Prince said that as
longas gas continues to come into the country, the military will
sIlow the people it can stand up to outside pressures.
II.. ,..,
r-
S-,,7(, off
jJr
Just before Swing arrived, four rowboats docked alongside
the blacktop "coatraband expressway" and unloaded their
loads of fuel The gas was then transferred into larger contain
ers and placed aboard smaJJ trucks for delivery into Port-eu
PrInce. just 90 minutes away.
A Haitian supervising the transfer. wearing a Bob Marley T
shirt and C8I'I')'iD8 a communications radio in one band. de
manded to onlookers, "Who are you; why are you here?" Told
the US. ambassador would be visiting. the supervisor groWled,
"I didn't get a mmsge he was coming."
SOldiers nearby were not as diplomatic. As has been the pat
tern for the past week, soldiers seized tapes from television
cameras and 11m from photographers.
They backed away when Swing arrived.
, Swing was banded a pair of oversized lIeld binoculars. He
scanned the lake for sip of fuel-laden boats. He never let on if
he saw the Haitians who were smugglIng right behind him.
"This is a large lake, and you can see there are a lot of possi·
blllties for smu(llling." lie said.
Swing seemed convinced the Dominican government - the
two countries share the MainHiz.ed Cartbbean island of His
paniola - DOW "understands the obligation" to 8!1\iist in the
U.N. embargo.
"The situation has changed. The resolve of the international
community to make it work has been shown." he said.
�I
Haitian Policy Is Tied
To Math and Morality
Critics Decry 'White House Fear ofExodus
By Roberto Suro
IJqS(
~I;lift
Wnll:"r
.. In seeking to implement quickJy a
new program for processing Haitian
boat people and answer its critics.
the Clinton administration is rel}ing
on a set of (akulaticins that involve a
peculiar mix of mathematics and mo
rality.
.
.
Current plans call for facilities
that can handle as many as 5,000
Haitians at a time, according to a de
fense policy official. But administra
tion official:; insist that an operation
on that scale can only succeed if they
rapidly decide who is eligible forref
ugee status and then quickly return
the rest to Haiti.
If they do not send back those
who fail to qualifr. officials insist,
there will be a mass exodus.
A nightmare scenario underlies
both the administration's planning
process and its argument against
more lenient treat ment of refugees.
It goes something like this: Encour
aged by hope that they might get a
pennanent home outside Haiti, thou
sands of Haitians set out to sea.
They o\'erwhelm refugee facilities.
Eventually a shipwreck kills hun
dreds.
.
Officials insist that this gruesome
vision lie" at the heart of their refus
al to consider proposals to create a
safe haven for everyone fleeing Hai
ti. whether or not they meet the
strict tests for refugee status. In re
cent days the safe haven idea has
drawn y,idening support from chil
,rights organizations, refugee and
~hurch groups, as well as some
'members of Congress. Most argue
.Ior erecting a haven at the Guanta
Damo Bar naval base.
Explaining why the administration
has rejected these suggestions,
'State Department spokesman Mi
chael McCurry said yesterday, "It
has been our concern that the cre
.~tion of a so-called safe haven might
~ncourage
people to U3e very unsafe
means of migration to try to arrive
at a safe haven."
;: The administration's critics, who
1night want to minimize the number
=t>f potential refugees; conte~d that
:the White House is using the night
mare scenario tl) avoid taking neces
sary steps.
"They have talked themselves in
to fearing a mass exodus. and now
they are trying to talk everybody
~else into it as a way of justiiying in
.action," said Jocelyn McCalla, execu
tive director of the National Coali
tion 'of H(iitian Refugees.
At the heart of this debate is what
immigration experts call the "mag
net effect" produced by different op
tions for handling Haitian refugees.
'While all agree that more generous
policies would draw more people,
there are wide disagreements on
·howmany would come and how
quickJy they would arrive.
The administration is operating on
:an assessment that anywhere from
.50,000 to 100.000 people would be
· drawn to a safe haven if none were
: to be sent back. and that they might
arrive at a rate of 1,500 a day, a
· source said.
Shep Lowman, director of refugee
: affairs for the U.S. Catholic Confer
: ence. argues that such numbers are
: exaggerated. He noted that when
· the United States operated a modi
· 6ed fonn of safe haven at Guantana
mo for eight. months after the Hai
tian military takf'Over in 1991. the
Coast Guard picked up an average of
· about 5,000 people a month. Over
many months, Lowman estimated,
the population of such a camp could
reach 50,000 people.
Other advocates. such as McCalla,
put the number even lower, saying
;that fewer than 20.000 people would
show up if the UlUted States created
'a safe haven.
vetoed the use of Guantanamo again,
puts the refugee capacity of the na
val base at 12,500 people, an admin
istration official said. Even if double
that number fit on the base, the offi
cial said, it would fill up unless Hai
ti's military government were quick
Iyousted.
Then, the administration might
have no choice but to shelter Hai
tians on U.S. soil, an administration
official said. That could create a po
litical crisis for the White House dur
ing a period of high anti-immigration
.sentiment.
.
. Searching for a policy that met
:bumanitarian needs while not creat·
jng an uncontroUable magnet, Presi
C1ent Clinton abruptly announced on
;May 8 that the United States would
.halt its policy of automatically re'
turnmg all boat people intercepted
by the Coast Guard to Haiti and in
stead would create some kind of pro
ceSSing facility where Haitiail:; could
apply for refugee statu:;. Those re
jected-and Clinton warned that
they would be the overwhelming
majority~still would bt> 5{'nt bark.
More than two weeks later. the
policy has yt't to bt> inlplemenlt"d.
and the Coast Guard has retunled
morethan 1.200 boat people to a re
gime the administration denounces
as blood-soaked. Administration offi,
cials defend the delay, arguing they
must avoid a nightmare scenario
even for the limited fonn of refuge
enVisioned in the new policy.
'1n humanitarian tenns, it would
be morally irresponsible to create a
large magnet by effecting this
change in policy before it can be fully
implemented," said a senior adminis
tration official. "Lives are at stake."
This view finds some SUpport
from inunigration experts. "There IS
going to be a very substantial bubble
in the number of people up front.
and that is where you cannot afford
to make any mistakes," said Deme
trios Papademetriou, director of the
immigration policy program at the
Carnegie Endowment.
"Any processing facility has to be
more than big enough to handle the
initial rush or you could have a disas
ter," he said.
�But some advocates argue that
only the refugees themselves can
decide whether to risk life and limb
for a chance to leave Haiti.
"The idea that it would be morally
incorrect to allow Haitians the op
portunity to seek asylum because it
would put them in danger is very pa
ternalistic. Lowman said. "That
kind of thinking would paraly'ze refu
gee operations all over the world.
I'm sorry. that is a decision you have
to lea\'e to the .efugee They are
aware of the dangers of the sea,"
H
�irfJc lUa~~illgtfilll mimC$
U. s. adds~:shiPs
to deploYment off
Haitian Coastline·
Aim is tighter rein' on'sanctions
sels] are ideally suited to get
closer into shore," the administration source said.
:
.
The C.S. government is sending
The two ships will join the growtwo coastal patrol ships to shut . ing U.S. armada that is,imposing a
down the inshore sanctionssweeping economic embargo
busting trade between Haiti and 'I against Haiti.
the Dominican Republic.
. .'. A total of eight U.s. warships
State Department spokesman'.: are now off Haiti's coa'st, and an
:\like :\1cCurry yesterday an- '. amphibious assault ship C<lITYing
nounced the addition of close-to650 Marines is steaming toward
shore craft to the deep water flo·
the Caribbean for battle exercises .
tilla of warships enforcing the
u.s. military officials said yester~
C.N.-sanctioned embargo on Haiti
day.
that was imposed midnight SaturAbout 15 other American war·
day. He did not specify the number
ships, led by the aircraft carrier
of craft.
. USS Eisenhower, began exercises
An administration 'source, ,. off Puerto Rico in the past week.
speaking on condition of anonym·· ' The ships; backed by frigates
ity, said the two coastal patrol : from Argentina and Canada, have
boats were being deployed, and . been enforCing the U.N. fuel emthat they had left their base Thesbargo on Haiti and its militaryday night.
.
dominated government. The em"We are now deploying shallow·bar·go was broadened over the
draft vessels that can actually do
weekel)d . to' include nearly all
more patrolling along the coast·
trade.
line," :'>Ir. l\lcCurry said.
The Dominican Republic has
He said the C.S. coastal vessels
the only land border with Haiti.
would operate within Haitian and
The two countries share the CaribDominican territorial waters if
bean. island of Hispaniola, and
necessary
their border has become an open
Under' existing C.N. ~ecurity
corridor for sanctions-busting
Council resolutions, the vessels
commerce.
"do have the authority to enter
U.S. Ambassador to Haiti Wil·
l Dominican and Haitian] territo- Ham Swing said yesterday that the
rial waters," the spokesman said.
3-day-old total trade embargo on
In contrast to the seagoing war·
Haiti already had been violated re
ships, which cannot operate in
peatedly. Reuters news agency
shallow waters because of their
quoted him telling reporters on a
deep draughts, "these [two yes·
visit to the border with the Domi·
By Ma,,:n Sieff
THE WASH'''GTON
':""es
DATE:
PAGE:
nican Republic that oil was being
smuggled across.
A team of three U.N. officials
returned Thesday night from the
Dominican Republic and are
working on a report asseSSing the
degree of sanctions-busting there.
William Gray, the recently ap
pointed U.S. special envoy on
Haiti, visited the Dominican capi
tal, Santa Domingo, yesterday to
discuss tightening the embargo
with President Joaquim Balaguer.
The meeting could be a stormy
one. Mr. Balaguer in the past has
expressed his disagreement with
the embargo policy.
"It's hard to predict how the
meeting may come out," one U.S.
diplomatic source said, speaking
on condition of anonymity. "There
are some serious issues that have
to be discussed:'
Deputy Secretary of State
Strobe ThIbott flies to the Carib
bean regional center of Jamaica
next week as part of what sources
describe as a U.S. diplomatic of
fensive to tighten up the sanctions.
"I think our full range of our
policy regarding Haiti will be
raised," Mr. McCurry said.
In another move to increase the
pressure on Haiti's military rul·
ers, the U.S. government is seek
mg to freeze the assets of Haitian
businessmen who back them, Mr.
McCurry said.
"The number of people now tar
geted on that list exceeds 600, and
the names could include members
of the business community as in
formation on their activities accu
mulates," he said.
Diplomatic sources said the U.S.
. government has also prepared a
six·point plan to set up a process·
ing center for Haitian refugees in
the Caribbean and is looking for a
site to implement it.
The most likely location ap
pears to be the British-controlled
Thrks and Caicos Islands.
• This article is based in part on
wire service reports.
�DATE:.
PAGE:
.' :~Inton .Iad to -lackie, ci.varW-ts
,
,
,I
.,
, Sayinl..lt's'time for President Ointon to respond to at
on minority voting rights, Jesse Jackson urged Ointon
to deliver a majgr address defending tile political redress
tIIat minority voting districts repr:esenl·
,
'
"Ointon needs to give a Jl18jor
civil rights speech to put some f~
cus on tile legality ~d tile right~
ness of sharing power and respon
Sibility," Jackson said.
. Jackson made tile demand a
day after,ending a l€k1ay Southern
bus tour to tally support for Ive
~nority districts facing legal cbal- ,
lenges:. The districts 'were created
in 1992 to correct the historical dis
enfranchisement of black voters.
AP
The former presidential candi··
.JACKSON: Urges ~te,'who was among those hon~
'sharing of power'
'ored during. Fox's airing Monday,
of the Essence ,magazine awards
.for his contributions, said he traveled from Virginia to Tex
aS'because of concerns over attempts to undermine black
political gains. "We must defeat tIIis attempt to undercut
black political power because political rights are preserva
tive of aU otller rights,",,Jackson said.
- lJefIla Moa
~cks
Written by. Gary F'J8Ids. Contributing: Sandra' Sanchez,
Gregory Townsend and Steve _rshall.
. .'
"
1
"'"
o/.J'1~
.,ii',
�':'.
'.
"",
'I
'.'
...+
:..•.
DAT.E: '
~bc hl~~in,gton ,os!.:
.~~~
PAGE:'
.\~
1udge Citesn.C~:~rreCti(msR~fi.liation '..
perjury,' Contempt Actio~ 'rh:r~tened in. Se~Ual'iia~~~me~,tCase
,
By Keith A. Harriston,
)',
W•
.ningI,.,Pooc SUft Writ..
sexual
h;rassme'nt~in'cluding d~~'
',:lnaiids, f,?r ~ and
,','
'
"
each of them seht out at the end ola
tIlreaci of retaliS-:: pay period. At alater deposition. she
,
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tion for r'efusing adVances or trying said that those 16'documents had
, A federal judge ruled yesterda~, to stop, the haraSsment-is "stan-- ',heeD backdated and that she bad forthat D.C. ~parfrnent of Corr~ons' dard operating procedure" at all Iev- . gotten about thai. '
,~
officials ill~gally have tried toretali-" els of, the department.
"
, ',In:the- otJler: case BnmimeD was'
ate against employ~s who, filed "a , '" The ,hearing yest~y concerned ~ written up fo~ negl~ 'of duty for'
, class-:ac?on sexual hanissment la~~, ~t:ioJ!Sof retaliatiOn a~t ~-'" ,misSing a meeting of whkbhe'badn't '
,swt agaIns~the, departme~t ,and said" tiff'Tyr~, Posey ,arid )enpis Brum- been ,notified. Assistant Adininistra
some official!! ,lied about It m an at- ,'meU,a department eniPI?Y~ and the tor Uoyd C. Jones, the sUpervisor
" ,tempted c~verup. ,
' " busban~ of one of ~ plaintiffs.
who initiated the action, is named as
" U.S. Dlstpct Judge R.oyce, C. '; 'In paper:s filed .Wlth the court, ~~-, , an alleged harasser.
"', ,Lambet:th ordered corrections offi-", ,tomeys said, of6cials'a~ the D.C.,jail" 'The d
' t lat ..I~ th
"
ciaIs to s~op,the,'~etaliat!on anQ,;,initiated~rWo~Jo~ePOSeY .'. ctionsae~er';B :"
threatened, to appom~ an, mdepen- 'abserit WIthout 'le.ive. ,The penalty a,
. gaIns, oseyan , ~ "
dent prosecutor to prosecute dePart- • ~ 'for that offense iste~tion. Po-'
Assistant D.C. Corporation Counsel
ment officials who commit perjury,in " sey. a 'former union:,shcip, steward, Carol E. Burroughs argued that the ,
his cow:troom or in depositions re-, bad been on medicalleave and hospi~ actions, ~en ,~department,. offi~
lated to theiawsuit.
' .: talized off and on'sUtcelast suriuner., ,weren}. retaliatory, and said :thelr
''] mus(SaY t~t.these De~ent ',:-rh~ ,Jeave Was neCessaryi.he.said. '. faulty memories, during, depositions
of Corrections'Officials act like they because oiStres& 'associated 'With his were due. to ¥ working "16-bour
don'tknciw the penalties for perjUry," 'J belplng female employees file ba~ days."
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, .Lamberth said.from the bench. "lI the '. rassment complaints. .
. "Lamberth said be didn't believe
U,S. atton\ey doesn't wantto proceed
Thr,ee offi~ials-Micheile Ellie. ."one bit of ~t."'·. .
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" with a perjur,y case, Jwill undertake.a ", the,a~tratorof the jail; Patricia ' . In an earlier ruling. Lambert,hS3ld'
contempt-of-court action. J will ap- , . Britton; tbe jail's'acting ~ssistant ad- tbe d.e~enthad tried to retaliate
.:' point an independent counsel ;. . to ' miniStratol' for pr~s; and Althea against Bessye Neal, the lead plaintiff '
, prosecute any' perjui'y' that o.c9Jrs, in Haynes. the acting head. of records in the case, by transferring, her from a
, my courtrOOm or indepositiOris.~ ' . at thejail-alIegedJy participated in job downtown to,be a unit manager:. at
The class-action lawsuit, 'filed in the action against POsey."
"the Lorton Correctional Complex in
, Jal1uaryby, eight current or former '. At. one deposition" Haynes said Fairfax CountY:....a position she had
, 'corr:ectioi1s employees; alIegesthatP()sey., had been, sent 16 notices, bee,n supervisirig.
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(i.s. Drops Civil RightsProhe of .
DATE:
PAGE:
'Montgomery Police
,'Case Involved DeJXlrlment:y Handling 0/ Officer ~
.Harassment, Sex Assault Complaints
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Rockville, said the deciSion ,,!ould nor
At the request of County£xecu
affect her civil claim for damages.
tive Neal Potter, the county attor
.......... SUCWrittr
,,,
Ebefly comptitined In :February ney's office investipted the matter
1992 that she was being harassed arid last year and found nothing improper
The u.s. Department ot' Justice'
had been raped a month earlier by an about the way the police department
has decided notto'pursue civil rights ..
officer she J)IIce dated. Eberly said handled the assault complaint. .
charg(~ against the Montgome.ry
that she attempted to end the rela
Capt. Douglas .L. McFee, a 31
County Police Department for Its
tionship when she discovered the offi- year veteran and Eberly's supervi
handling of.an officer's complaints.
, cer was married but that he refused sor at the Silver Spring station when
that she ~as harassed cllld sexually
and began what she described as a the aDeged assault occurred~ said he
assaulted"by;a fellow otricer...
long-term campaign of harassment.
retired in protest over 'the way the
.. The ca!~ was dropped last'month .
Eberly told The. Washington Post . departirient handled'her complaints.
~er inves tigators faikd to firid:Suffi- .
in -1992 that .she had not reported
McFee has filed a $1'.2 million
civil lawsuit in Montgomery County
the rape until a month after it hap
cient e\;den,t .that the department
pened because she felt "emotionally Circuit Court; contending ,that Po
:,had \;ol~\ed the civil rights of Offi·
unstable" and feared the officer.
lice Chief Clarence Edwards and
Cf.'T MdanieEberly, Justice ~epart·
Eberly filed a $14 million federal the department tried to cover. up
men! spokesman Myron Marlin said
lawsuit in February. contending that the officer's allegations and demot
yesterda\,: '
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county police failed to properly inves· ed 'him {or speaking out'on theinciSgt. Ha~ry Geehreng,a county
.
'tigate her claims and conspired to pro . dent.
police spokesman, said the depart
Edwards has said McFee resigned
tect the male officer. Police officials
ment would not have any comment
have said they were unable to pursue because he was bitter over budget
on the decision because it is the sub
sexual assault charg~s because they driven transfers that left the captain
ject of cidl lawsuits filed by Eberly I had no physical evidence.
working the overnight shift.
and one of her fonner commanders. .
Eb<:rh's attorney. Paul T. Stein, of
By'Brian M\.IOiir
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tbt l\l45ljirtgttln,oSt
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,·,·.\{j.S~ Pr6hes,Park~iidPT~nning
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'.' Park and, planning offjcials said ni6Commission ov~r"9.egregated'
they have nothiilgtohide: "
" ,bathrooms, lunchrooms and chang·
"We're looking forward to cooper- ing rooms.. '
The U.S. Justice Department. has. ating with Justice to see what comes
. The separate facilities were aban
begun investigating allegations of ra- out of it," said Leroy' Hedgepeth, ex- ' ',doned, .and in '1977 an agreement'
cial discrimination in the MarylandNationai' Capital ',Park and PJannm.g, ecutive director' of 'the' bi-county ~·Parsigrik,edandbetwP1annineen.ther~~ssanl'odn .
, ageQ,c,y, which oversees plarming'" UK:
g ~lLUlll
Commission operation.
,
.' parks', and rec;reatl'on 'l'n .Prl·nce', 0, , , , and promou'on .
.
;..._ ....,,"" the "':"'::':g'
,
. The 'investigation ,comes' fou'i
,'~"-";; , U,11UI ,
months after a rally at which 30, George's County' and. planning in . ofwomen and minority 'group mem·.'
agency employees called for an end, ·Montgomery(:Qunty.
. . , ' . ',bers~ Part of th.il~ agreement is still .
to what they described as unequal
' A 'spokesman for the Justice De- in effect. "
,',
. treatment and harassment of minori- partment, MyrQo Matlin, said, the de- .;' . Agerlcy officials "said yesterday
ties.
' ' , p;lrtment is investigating allegations they are.proud of the advances that
.
,
r . that prote~t was organized by the
'of discrimination against black and fe- : have been made since then. In 1993,
Monigom~ry County branch· of th~'.. ' ~e, employees,.buf h~ .d~lined' to .' for insta~ce, '68 ~rc~nt: of the 23~ ,
, 'NAACP,. whichioinehds that minor~,rdi,SCUSS the compl3l.l1 ts In detail,
people· hired. promot.ed ·or reclassl
'rues hav~ syst~matitaIly been cOn. The Park 3I!d Planning"Corn.rrus-" fi,ed .folU,gher positions were minon
"fined to lower~level jobs,
.. ·sion has an annuaJbudget of$167, ty group members or .white women, .'
".'1'his problem stems over two de-million~a 3,900 employees. The officials said. .
aides where Park and PWuung has a agency has been the target of racial
Officials also touted the agency's
tradition.9f ha\'ipg rrunoritie!; cutting, ' discrimination allegations for two . procurement program for firms
.grasS and in other similar jobs," said . decades. In 1974. eight black em- headed by minority. female and disa
W.. GregoryWims. Montgomery" pJoyees filed a'coDtplaint with the bled peOple. lrt1993,the program
NAACP president.
.... ".... ".;
federaJ Equal Employment Opponu- 'for the first time exceeded its goal of
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25 pereem of good~ and services
bOught.by the commission"
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The NAACP's Wims acknowl
edged that the agencY :had been do
ing better of late bUt said the Prince
George~s part of the agency had "
done a better job than Montgomery,
,;' 'in both "employment and procure- .
ment.
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Justice Checks Allegations ofJjia.fAga,fnst'Fl!mOJ~,.MinOrity'lr6fkers
"
By Ro~r:tE. Pierre
,,~~Std'''riIer . •
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DATE:
PAGE:
~rful ATF Workers Endured
Harassment, Reports Say
By Kim 1. Mills
~ed"'-
. Workers at the Bureau of Alcohol.
Tobacco and Firearms endured sex
ual harassment. inCluding lewd com
ments and Wlwan'ted touching. be
~use they feared retaliation if they
complained. according to Treasury
Department investigators.
Many employees of the agency
came to believe that "managers
a~used their authority by retaliating,
harassing or intimidating the work
force: investigators fOWld.
In some cases examined by Trea- .
sury's Office of Inspector General,
"'orkers tolerated years of sexual
harassment, including dildos left on
their desks and Wlwanted physical
contact. Some who did speak out be
came the targets of cOWlter-complaints .or were transferred against
theIr \l,1.~hes, uwestigators said, ..
Two Ul\'csligative reports b\' Trea.
sur" co m~ Iell.' d' Mar, were' ob
.
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In
talnf'd bv t f;f' ,!\ssociated Press un der
th F '.'
I.' reeaom of Information Act. .' .
.The r:obe was undertaken bv
Treasury!' Inspector eo" In rt'aen""ral'
:
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. ;:.porl;",c.t 0 a Janual)' 1993 report on
CBS s 60 Minutes." which said the
bureau hdd fa..i1ed to prevent sexual
harassment and had retaliated
ag3.1pst those wbo filed comPlaints
,Jack KilloM. a bureau
SilJd yesterday in response to the in:
~estJgatl)rs'findings; "We asked the
JDS~ctor ~eneral to please get in
vo~ed In. this process and are grateful
for the ,VIeW and advice they're given
us. We Ve concurred overwhelmingJy
WIth the recommendations ..
Th~ bureau has agreed t~ a number
spok_
of changes, including writing guide
lines on when it is appropriate to in·
vestigate aUeged misconduct and pub
licizing to employees the procedures'
for reporting such incidents.
\
The bureau also is in the process
of establishing "diversity peer
groups" to deal with concerns of
women, blacks and other minority
~oups and is naming an ombudsman'
to handle internal issues.
.
Among the investigated cases. ac
cording to Treasury's files, one crimi·
naI investigator who fIled a Sexual ha
rassment complaint found himself
facing a 3o-day suspension for "engag
ing in'repeated criminal conduct"
because he had pleaded guilty three
times to failing to control his barking
dog. The suspension was recom··
mended by his boss-a woman-he
had accused of hara5sment.
Treasury investigators found that
in some instances. the management of
.the bureau was not responsive when
told of hostile working conditions. It
also said thaI disciplinary actions were
not alwa}'s fitting or consistent arid .
said bureau. investigators did not al- .
ways appear to be indt-pendent.
Thf' inspertor general's office re
viewed 62' rases but focused on
those of eight rorrent and former
workers who had spoken to CBS. . .
. In only two of the eight cases did
the investigators conclude that sexuaJ
harassment had occurred. But be~
cause the complaint process was DOt
perceived to be independent. and be-'
cause management was not viewed as
responsive, the investigators found
"employees lost faith in management
and the systems and programs they'
were charged with Implementing."
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�€bt tu4S~ington,oSt
.
DATE:
PAGE:
~ranssexual;~es OverJob Loss
Case Cites D.C. lAw Barring Discrimination on 'Personal Appearance'
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A letter from one employee to Underwood's attorney.
Wayne' Cohen, describes this meeting' as well as in·
stances when the employee was asked by the superVisor
about whether Underwood was a man. '
After· the. meeting, Underwood' lW,lid her su~rvisor
stoppecfbeing friendly to her. Soon after ~~,~t same
supervisor fired UnderwoOd. telling berthat ber job was
being eliminated.
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'Bur after Underwood was told of the queries about her
aexua1ity, and after abe went in the folloWing week to .
.
;...
By Kara
w._,."" Swisher
p"", Suij Wrnrr
A District woman who underwent a sex-cbarige opera
tion is embroiled in a legal battle with her fonner em
ployer. cJai.ming that she was f!fed from her jOb as are
ceptionistbecause she looked too much liJ<ea man: .
Patricia Underwood. 33..who became a woman about'
, ~ dozen years ago. is sUing Archer Management Services ..
Inc., a New York City-based firm with a Dlstnct office..
She· alleges she was fired because other remaining
'''masculine trails."includlng her large bone structure and , . pick up her' check and found another person in her job.
she said she dedded to sue.
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excessive faCIal hair,
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Because federal laws do not protect' transsexuals , Last month, several counts of Underwood's lawsuit
against discrimir.ation, Underwood is. suing in U.S. Dls- ' were dismissed, including her claims of intentional infli(·'
trict COUrt under a broad D.C. law that bars discrimina-'
tion of emotional distress and discrimination on the basis
tion because oC-personal appearance."
, of her sex and sexual orientation.
"I just want to stand up and say that r am not a freak,
But U.S. District Court Judge Charles Richey allowed
. but a penon.~ said Underwood. a tall. well-dressedwom
the case to go to trial under a portion of the D.C. Human
an who bears a resemblance to singer Whitney. HouSton.
Rights Law that forbids discrimination based on personal
. "I was cjoing the work they asked me to do weU, and I
appearance.,
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. don't deserve to be treated like that because of my'
The odds of a transsexual winning a job bias case in
looks."
court under other laws prohibiting such' di~tion ,
In a statement, Archer s.aid it "vigorously denies any
are small, Title VII of the Civil Rights Act of 1964 bar;;
allegations of ~:rongdoing made by Patricia Underwood."
employers from discriminating against people because of
, h said'it believes thaI her claim of discrimination based
"race" color, religion, sex or national origin.R But that .
on personal appear4~ce IS. M\II,it'hout merit ... and that
does not encompass trailssexualism. which is definer.! a"
all of Archer's actions related to ,Patricia Underwood
, discontent With one's sex.
.
were wholly lav.fuJ and nondiscnnUnatory."
:. In a weD-known 1985 case, an Eastern Airlines ri!()!,
If the Iawswt goes to trial. which could happen insev~
lOst battle.to stay on the job after 'a sex-change' oper,a·
era! months. it appears it will be the first effort to have
tion, when the u.s. Supreme Court let stand a ruling by
D.Cs look~-oriented discrimination provision applied to
the 7th U.S. Circuit Court of Appeals that the' firing wa~ .
transsexuals.. '
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More broadly. UndeN'ood's case is yet another exam
"'Wbile we do not condone discriniination in any form.
ple of Iawsuit~ that an array of employees nationally have
we are cOnstrained to hold that TitJe VII does not pro
~d in recent years. daunir.g they ,are being treated un
tect't.ranssexu.als.- said the federaJ'appea)scourt's opin~
fairly in tht workplace because of their appearance ..The
ion.,·
issues have rangt'd from obesit,' and ugliness to, in a're
cent case in Virginia, a woman's allegations that she was
fired from a job at the R.itz-Carlton Hotel ~ Tysons Cor
ner because of her heavy mustache.,
, , '
The employees bave based their lawsuits on a variety
of statutes, including federal civil tights laws and state
laws barring' discrimination. In some instances. the
Americans With Disabilities Act-which bars job dis
crirniDation based 01'1 a disability-has been used. '
Last fall, Underwood was hired to answer the phones
at one of Archer's job sites. Archer contracts out em-. '
ployees to area businesses. Underwood said she did not
tell Archer executives that she was a transsexual.
But some weeks after she started. she alleges that
, other employees told her that at a meeting attended by
her supervisor and other employees. her sexuality was
discussed and derogatory remarks were made.
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t~t Wru;bington ,os!
DATE:
PAGE:
High Court Grants Speech Protection
to Insubordinate Public Worl{ers
By joan Biskupic
\l1.~io,m~- ~ r',.·,:-·,,~:v.,~.:,·
publi(' employer who is presented with
a report of disruptive remarks "must
tread with a certain amount of care.
She was not specific about what
kind of investigation was required.
"Manv different courses of action will
neces!'>ariil' be reasonable." she said,
That part of the decision was efiec·
tin::y 6 to 3.
fl
The Supreme u,urt ruled yester
day that a public emplo\'er who wants
to fire a worker bt>;:aU"E" of allegt d m·
subordinate remarks must first in\e5
ligate the epi5Ode. .
It marks the first time the court has
given procedural rights under the
First Amendment to publiC er:1p!oyees
,,'hose speech may be dl-ru;ltI\e,
At the !>am!' time. th"
re;,f
firmed the broad power of iederal.
state and local !:0'.e:-nments to reo .
strict emploYt'f~' ~Pfed.,.
The court !'>aid a bo" til:: firt iI pub
lic employee (or re!1:arh;;-,,~ the:;
had been o\'erhe~rd ant.: repcm,d b\'
other worker;.-a~· lon~ a~ tht' bo~s
reasonably bf'liew; they constituted
insubordll1att' sp'·~ch,
It dOt''' no; m;\t!::r. ju,tiee Silndr~
Dav O'Connor wrr,te, if It laler emt'rg·
es 'that the \1:1r~('r· w,,' corr:7:len,:~::;
on matter, of pl.:~·)!C cAr,('ern and tn;;t
the statemen;~ were pro~ected by tr,t
First Amendment. pro\lded some in
ve!'lIga! Ion o~currE'd,
-IT]he extra poWtr thl' government
has In this area com€'~ frum tht nature
of the go\'ernment';; nll~'lon as e:n
ployer:' O'Cc:1!lur said, .. \\'i.t,fj
unr-
w~o
b
iJa~d ?
ss:?;;
~r)
~t,n;\:'
1: ,iil
~ht
will conll'I!,):.!!.. t,;:, ali'agr;':,)"5 tift:;:lge
operation bt:~i:;, to do (·r say lhl:1gS
that detra(t iru:J1 tht agt-n(y's effec
tiye operation, tht g0\t'rnmelit tm
plo}'er mUi't havt' S():JiC power to r~
strain her.~ shE' add::d,
That part of th· ruli:~g was 7,HI 2.
Justice j01::1 P2::: Stever.;, joined by
H~rrY A. Bla\k:r.::n, wro:e in a dissent
that 'the majnri:y vit-w "ur.dt;e$!;'
matei' the imlJorilin.:e of freedom of
spE'ech (or the mort than 1S mill::..n
.ci\·ilian employt!'~ of thl!' country's
feder.1!. ~t;ltt an'! k!,,;! ~r:\·ernment!',
and subordll1;l:~;, thr.! Irefd0m to an
abstran inte,e;.! 1:1 bu:e:a:,Kra:ic e~fi
ci~:1q·,"
, Yet, O·Cor:r.')~·, I')p:r:ion 10!', offn
·go\'ernm;,>n: '.Iwhrr:: mOTE- protection
than thE')' h<l':! !)\·-'r.. Ybterday'l; ru!·
mgin Waf{ ',r !' {hurchr1/. !'h~ ~lid II
ju:;tice Antonin Scalia-who other
wise joined O'Connor's judgment in
the ca:,t:' amll1g from a nurse's com
ments in a Macomb, lit, hospital cafe
teria-lashed out at the unprecedt:'nt
ed requirement of an im'estigation,
saying it was ambiguous and would
burderi employers and the courts. He
was joined by Justices Anthony M.
Ken'ned\, and Clarence Thomas.
O'Connor's opinion was signed in
full by Chief Justice William H. Rehn·
quist and justices Da"id H. Souter and
Ruth Bader Ginsburg.
As the dust settled yesterday. many
legal experts said public workers had
fared better than employers. The
court already had !'>aid pubLc employ
ers may fire workers whose speech is
disruptl\'e,
,
Yet, thiS is the (irst time the court
hilS !'aid the First Amendment impos
es procedural requirements on the
employ~r, Solicitor General Drew S.
Days III had argued In a friend-of-the
court brief that the government needs.
great discretion over its personnel af·
fairs and that adoption of procedures
"would conflict with the common
sen~e realization that government of·
fice~ could not function if every em
plorment decision became a constitu·
tional matter:"
The ruling is likely especially to
benefit state and local public workers,
Manv federal workers, accordIng to
government lawyers, already are enti
tled to a disciplinary investigation un
der \-anous statutes,
Yesterday's case arose from com
plaints by nUrse Cheryl Churchill S('\'
en years ago at the McDonough D,;;
trict Hospital and her subsequent
firing,
Administrators, told by other nurs
es that Churctrill "'as knocking the
(Obstetrics) department," claimed
Churchill was denigrating the hospital
and her superiors. Churchill insisted
she was voicing legitimate concerns
about patient care and staff shortages,
A federal district court held neither
versIOn of the conver!'>ation rose to the
level of a "pubhc concern" and there
.fore was not protected by the First
Atr\endment.
But the U.S. Court of Appeals fo:
the 7th Circuit reversed, ordered a ju
ry trial to determine whether Chur
chill's comments were merely disrup
tive griping or a matter of public
concern, that is, nursing C"ife.
The a;>~als court ruled a public
employer is liable when it fires an em·
ployee who engages in the latter type
of speech. even if the employer. after
staff interviews, had believed other
Wise at the time of dismissal.
In rejecting that standard, the Su
preme Court said yesterday it is
enough that the public employer rea
sonably investigates the complaint and
believes it to be true,
While Stevens and Blackmun dis
sented from O'Connor's opinion, they
effectively endorsed the prinCiple of
an investigation into complaints 2bout
public employee speech.
Scalia, Kennedy and Thomas count
eredthat employers should be able to
fife workers unless the action is in re
taliation for some constitutionally pro
tected speech. Scalia mocked O'Con
nor's approach as "strange
jurisprudence indeed," conflicting with
employers' legitimate prerogatives,
~In the present case, for example, if
lit were discovered] that nurse Chur·
chill had not been demeaning her su
periors. but had been complaining
about the perennial end-of-season
slump of the Chicago Cubs. her· dis·
missal. enl()neou~ as it was, would
have been perfectly OK: Scalia !'>ald.
55
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The court sent Churchill's case
back to a lower court. saling it should
resol\'e whether she was fired be
cause of her statements in the'cafete
ria cr because of something else,
It noted Churchill alleged manage
ment was hostile to her because of
earher criticism,
In a separate opinion yesterday, the
co~rt by 7 to 2 ruled (:Jat states Can
require operators ,cr; ,;ydroelectric
power plants to kef:j:' a minimum
amount of stream flow to protect ,fiO!:,
in thiS case, salmon and ~,ec.E.i:ad
trout in Washington st~te,
While the ruling in PUD No, lof]e!
ferson County 1:, ,Washington Dtpart
mOlt of Ecology was a \;ctory for envi
ronmental groups, it puts '~e
hydroelectric power industry at a dis
ad\'antage,
•
bwyer:; for the proposed ~:dro
~l~~:nc project, to be built Just outside
the OlYmpic \allonal Park on the Do,
~ew21!Jp~ River. had argued that ttl~
federal government IS solely responsl
bit for deciding the amount of river
fio\\' necessary to keep water clean
and ;,r",~erYe fish populations.
But O·Connor. "',il1ng again for tlIe
co\.Or;. said the federal Clean Water
Act gi\e;, state~ authority to 'impose
'mllilmwrn stream noll'. pro\1ded,the\'
ar" consl~tent wah water quality stan
OQ:">.
"In rna:-::. ca,es. water quantity j~ ,
cI0'it-!:' related to water quality; a suf
iio:;er.~ 18\\'~ringof the water quantity
iii a body of water coUld destroy all of
ItS designated uses. be it for drinking,
water. recreation, na\igation or, as
hert'. as a fishery," she "'lOte,
Justices Thomas and ScaIJa dissent
ed. saying the Clean Water Act does
net gl\'e the states such authority to
l!l1po~e flow-ratt conditions and the
court's interpretation "will signiflCallt·
Iy disrupt the carefully crafted federiJ· ,
, state balance" in a Federal Power ACt. '
l'nder that Jaw hundreds of hy~
electric project licenses will be up for
renewal in the next decade.
.,
5b
,
"
��PHOTOCOPY
.PRESERVATION
�DATE:
PAGE:
Court
stirs civil
rights
activists
Retroactivity out,
says 8-1 majority
By Nancy E. Roman
T>1E _SHlNQTON T!t.IES
The Civil Rights Act of 1991
cannot be applied retroactively a
nearly unanimous Supreme Co~rt
ruled .yesterday, shutting off
rehearmgs for thousands hoping
for a shot at the act's punitive dam
ages.
If Con gress wanted the law to be
retroactive, it should have said so
specifically, the court said con
tinuing its reluctance to int~rpret
congressional intent in the case of
a law that is not clear.
"Since the early days of this
Court, we have declined to give ret
roactive effect to statutes burden
ing private rights unless Congress
had made dear its intent;' Justice
John Paul Stevens wrote for the
court.
The ruling came in two cases
a woman charging sexual discrim
~tion .and .two. black men chars
mg racial dlscnmination.
Only Justice Harry Blackmun
who will retire at the end of th~
term, dissented.
"~here is nothing unjust about
holdmg the employer responsible
for injuries caused by conduct that
has l?een illegal for almost 30
years," he said, referring to the
Civil Rights Act of 1964, which
outlaws job discrimination.
Many civil rights leaders were
outraged and said they will urse
Congress to amend its 1991 law to
apply to cases pending when it was
passed.
.
I
"The Civil Rights Act of 1991
was a tremendous victory, and now
it will not apply to thousands who
had cases pending at that time. For
them, today's decision means jus
tice will be denied," said Ralph
Neas, executive director of the
Leadership Conference on Civil
Rights.
The Clinton administration' had
urged the court to apply the law
retroactively, and Mr. Neas said he
and other civil rights leaders will
meet with the administration be
fore determining how to approach
Congress. .
Walter Olson, a senior fellow at
the New York-based Manhattan
Institute, said the court is right:"
"If it tumed out the opposite
way. we could all lose a lot of sleep
fearing that what was legal today
could be punished tomorrow" be
said. "At least you want to ~
.Congress take the heat for retroac
tivity, rather than get the court to
agree to smuggle it in there."
In 1991. Congress modified
eight Supreme Court decisions
that made it harder for employees
to win job-discrimination lawsuits. .
Justice Stevens dissented in those
cases.
As a result of the 1991 law, more
cases charging employment dis
crimination now qualify for jury
trials and punitive damage
awards.
In yesterday's ruling, Justice
Stevens said Congress bas the
power to apply a law to those cases
pending when it passe4. but law
makers must make their intent
crystal clear.
Joined by Justices Sandra Day
O·CoMor. David Souter and Ruth
Bader Ginsburg. he said Congress
could make its wishes known in
either the language of the law or
the debate pteced.ing its enact
ment. They said the 1991 law failed
to do either.
Justice Stevens noted that Con·
aress passed a civil rights bill in
1990 similar to the 1991 one. Pres
ident Bush vetoed the earlier bill.
citins its "unfair retroactivity
rules~' Congress couldn't muster
the votes to override the veto.
"It seems likely that one of the
compromises that made it possi·
ble to enact the 1991 version was
an aRreement not to include the
kind of explicit retroactivity com·
mand found in the 1990 bill." Jus
tice Stevens wrote.
Kerry Scanlon, c::ounael to the
NAACP I.epl Defense Fund. said
Mr. Bush was objecting to making
the law apply 10 closed cases- not
pending cases.
"Congress always meant for it 10
apply to pending cases;' be said.
"Everybody knew that."
Justice Antonin Scalia, joined
by Chief Justice William Rehn
quist and Justice Clarence Thom
as, agreed that the 1991 act is not
retroactive. sayinS retroactivity
must be written into the law.
Richard Seymour, director of
the employment discrimination
project for the Washington Law
yers Committee for Civil Rights
Under the Law. said Congress in
tended the law to apply retroac
tively but stopped short of sayins
so to "give cover to Republicans
who supported the bill."
Randolph Scott-McLaughlin
vice president of the Center fo~
Constitutional Rights, said the
court is supposed to interpret re
medial statutes broadly to belp
achieve their purpose - in this
case to ensure "minorities and
women were equally protected in
the workplace."
"Once asain the court bas abdi·
cated its responsibility:' he said.
Mr. Scanlon said the rulinS will
create bavoc by bavinS judges in
different courts applying different
standards as they decide discrimi
nation cases.
Mr..0lS<?" said the majority of
eight IS evtdence that this case in
volved legal principles. "More of
ten than the partisans on both
sides might sometimes admit
the~ are some principles of fair:
ness which are so compelling that
~pJe come together." he said.
Not applying the law retroac
tively is one of those principles."
In the rast case. Barbara Land
graf sued USI Film Products after
. working at its Tyler. 'leus. pro
duction plant for 16 months as a
machine operator making plastic
bags.
John Williams, a co-worker, sub
jected Ms. Landgraf to wbat a led
eral judse described as "continu
ous and repeated inappropriate
verbal comments and physical
contact."
. She quit in 1986 and sued her
employer.
. l.Dwercourts found that the sex·
ual harassment made Ms. Land
Ira!'a workplace a "hostile work
environment" and that her em·
ployer was liable under Title VII
of the Civil Rigbts Act of 1964.
But they said she was not en·
titled to back pay because she
could not prove that she was "con
structively discharged" or that
"working conditions would have
been so difficult or unpleasant that
a reasonable person in the employ·
ee's shoes would bave felt com
pelled to resian."
�\.
.Under the i991 civil rights law,
she would qualify for damages and
anorney's fees without meeting
that burden of proof.
When Ms. Landgraf appealed to
the U.S. Court of Appeals for the
5th Circuit, asking it to apply the
1991 civil rights law retroactively,
it refused. saying, "There is no
clear congressional intent on the
genera] issue of the act's applica
tion to pending cases:'
In the Ohio case, Maurice Riv
ers and Robert Davison sued
Roadway Express Inc..after they
were fired in 1986. Both had been
longtime employees, working· as
garage mechanics.
Their lawsuit accused Roadway
Express of racia] bias. but the case
was dismissed after the Supreme
Court ruled in 1989 that protec
tions offered by an 1866 anti
discrimination law applied only to
hirings. not to on-the-job bias.
~
.
·.
�tbt Wasbington ,ost
DATE: S-~S .. 9(
PAGE:
D-/~
Plaintiffs Enjoy an Anti-Bias Victory
.Secret Sen'ice Agents Hope Denny~ Multimillion-Dollar ,Settlement Will Teach lason
Denny's also agreed to launch the larg
est nationwide program ever to avert fu
"'~CI'I"" ScaH Wm....
ture discrimination in its 2,000 restau
rants. The company will hire an outside
All Robin D. Thompson and five of his
monitor to review the chain's treatment of
C'O-workers wanted was some food, but
their meal turned out to be what one law
minorities and will test employee
yer called the world's most expensive
perfonnance with monitors posing
breakfast.
.
as customers.
The six tmiformed Secret Service offi
Deval Patrick. who heads the civil
cers, aD of whom are black. had gone to a
rights division of the Justice Depart
DeM)'" restaurant in Annapolis and or
ment, said the suit put corporations
dered food. They were in tov.n because
on notice that the federal govern
their boss, President Clinton, was sched
ment won't tolerate disclimination
uled to gi\'e an address.
and that his office will be watching.
Nearly an hour later, they were still
"These are the stories repeated
.;aiting to be sel'\'edwhilt: at a nearby table
again and again," Patrick said. "but
their vohite rolleagues were cleaning their
With today's action, the message is
plates.
clear: There will be a high price to
B«atl~l' of tht' alleged discriminatory
pay for unlawful indignities. and the
trl'atment. the Denm"s restaurant cham
Justice Department will exact that
announced yesterda~' that it would pay
price wherever the law is violated.
$17.73 million to hundreds .of African
Unfair standards employed by res
Americans-including Thompson and the
taurants must no longer be standard
other black officers-who said. they were
fare."
\;ctims or racial discrimination in Denny's
At least 20 separate investiga
24 restaurants in Maryland.
tions of similar allegations against
Each Secret Sel'\ice officer will receive
other firms are under way. Patrick
$35,000. The comPany also settled for an
said.
additional $28 million a class-action suit by
Officials from Denny's admitted
California blacks who made sim.ilar claims,
no wrongdoing in the settlement and
At a nev.'S conference yesterday at New
said they acted to put the perception
York Avenue Presbyterian Church,
of racial discrimination behind them.
Thompson said the settlement will make
"The resolution was the right
corporations thulk twice about discriminat
thing to do for our customers and
ing against "those of us who look like me,
our: employees," said Jerome j. Rich
my mother, my aunts and uncles."
ardson, dUef executr.·e officer for
joseph W. James. who sat \lith Thomp
the Spartanburg. S.C.-based Flag
son at that breakfast on April 1 last year.
star Companies Inc.• parent compa
said the lawsuit will show young blacks
ny of Denn)·'s. "It·s a terrible pain
tht:y don't have to suffer discrimination si- '
for me and my company for anyone
lent!\'.
to perceive that they wouldn't be
-( nf:'ver thought something likt: thi:.
treated fairly at Denny's."
Attomtys for the SIX Secret Ser
"'ould happen to ml', especially in the·
vice officers and other claimants said·
1990s," James said. "It opens my eyes a lit
tle more that there are ignorant people out
there who do d.isc:rinUnate, There has to be
a change. Maybe this is a start."
.
The justice Department, said the two
agreements, worth a total of almost $46
million. constitute the broadest nationwide
settlement of an accommodations case in
U.S, histor;·. After funds are distributed to
tht- plainu!i:. in tht- class actions and $9 mil
bonm It:gill le!:it and exp!:n:.t-~ art: dt:duct·
ed. the remainder v.ill be made available to
others across the country who can pro\'e
iht'y wt-rt: unfairly trt:Jttd by Denn~··:;.
By ReUla H.i.Il and Pierre Thomas
13
their investigation showed that Afri
can Americans experienced a pat
tern of discrimination that included
~ting blacks in the back of dining
areas or in segregated areas and
aeating lengthy waits for tables,
They also said American Inmans
and lbspanics have complained of
mistreatment at the restaurants.
Those claims are not a part of the
settlements announced yesterday.
One of the officers' attorneys.
John P. Reiman, of the Washington
Lawyer's Committee for Chil Rlghts
and Urban Affairs, said discriminato
ry prac:tices had become ingrained In
many Denny's restaurants nation
wide.
He said officials from the Spartan
burg headquarters encouraged a
corporate culture that viewed blacks
as "'less valued customers."
The six Secret Service officers
who spoke at the news conference,
along with other plantiffs who
brought suit in California, said the)'
were bewildered that such attitudes
still exist today.
Lorna R. Elam, who for months.
prepaid her meal each time she \l'ent
to a DeM),'S restaurant frequented
by blacks in Portland, Ore., said yes·
terday that she questioned the pra::·
tice at fltSt but believed that Den
ny's treated everyone that way., She
later found out that white friend,
and colleagues said they never paid
before ther finished eating.
�,
ebr~r\u iJork eiutrs
~ Restaurants to Pay
enny's
"
I $54 Million in Race Bias Suits
:
By STEPHEN LABATON
Sprc'1.' to Tht Nt.. York lime,
WASHINGTON. May 24
Denny's, a national nistaurant chain,
agreed today to pay more than $S.4
million to wule lawsuits filed by
thouSands of black customers who
had been refused service or had been
forced 10 walt longer or pay more
than white customers.
TIM' new head of the civil rights
division of the Justice Depanment,
Deval L. Patrick, called the agree
ments the laraest and broadest settle
ments ever achieved since laws Were
aCiopted more than 30 years ago to
end segregation in restaurants and
other places that serve the public.
The agreement, worked out in c0
operation I:It'tween Government law
yers 'and lawyers representing
Denny's customers. ended Federal
dass·action lawsuits in Baltimore
and in San Jose, Calif., and a com
plaint in Virginia. Those actions were
filed by thousands of blacll customers
who assened that Denny's had violat·
ed their civil rights by' treating them
rudely and routinely giVing preferen·
tial trealment to whites.
, In one instance, a black Federal
judge from Houston and his Wife who
,had been traveling for 18 hours said:
they were torced to wait at a Denny's
in Yreka. calif., for almost an hour as
lIo'hltc teen-agers'taunted them and
referred to them as "niUcrs:"
In another case, six black Secret
Service agents assigned to lhe Presi·
dential detail were refused a table at
a Denny'sin Annapolis. Md., while
their white counterparts were served.
For more than three years
Denny's. a subsidiary of Flagltar
Companies Inc. of Spananbura. S,C.,
has been the target of growing com
plaints that its restaurants segregat·
ed blacks or reqUired them to pre-pay
or make various payments not re
quired of white patrons.
The company denied that It had a
policy of discrmllnation, but it ~e
theless promised 10 take Immediate
steps to prevent shabby treatment of
ils black customers. '
Some executives said they feared
the pubhl'ilY had bl'Kun 10 dlsroura",t·
blacks. who rcpresent 10 p<'fn'nl of
ils customers. from ealing althe I.SUO
Denn,,'s restaurant!', In all, more
than ••300 claims were filed assert ing
that the company had treated black
customers wursl."than lIo'hilCS,
Under today's settlements, how:
much each customer receives from
Denny's will depend on how many
,people come forward within the next
few months.
'
In addition to the cash payment
and the promise to imprpve itS treat
ment of blacks, the company agreed
to hire Sharon Lybeck Hanmann, a
Los Angeles lawyer. to enforce the
consent decree and to monitor any
civil rights problems that may arise.
Il also promised to begin a program
In which blacks posing as customers
will investigate whether Denny's res
Laurants are discriminating,
"With today's action, the message
is clear: there will be a high price to
pay for unlawful Indignities, and the
Justice ~nment will exact that
price wherever the law is violated,"
Mr. Patrick said. "Unfair standards
employed by restauranu must no
longer be .tandard fare."
The settlements also suuested
that after more than a year without a
leader, the civil rights dlV1llon at the
Justice Depanment may be begin
ning a more active period. The divi
sion suffered a bruiling political let
back when President Clinton with·
drew the 'nomlnation of Lanl Guinier
last year to head the dlVi.Ion., Mr.
Clinton left the position vacant for the
first 15 months of his Adminlltratlon.
Throuah much of the last year, the
division also faced crtLlclsm from
New York Democrats and Republl·
cans for III investigation Into the 1991
disturbancel In the Crown Heights
IeCtiOn of Brooklyn.
Moreover, today's leulements re
flected a revived partnership be
tween clV1l right. and Government
lawyers that had disappeared Wring
the Reagan and Bush Administra
tions.
, ,
The two Federalsuitl settled today
had been filed under Title II of the
CIVil Rights Act of 1164, which il
known al the Public Ac:commoda·
tiona Act. The law .al oftell \lied In
the 1160's and 70's to eUmlnate many
lingering . .reaation problema. but
In the last decacle. it hal not been
widely cited.
'
Last year another restaurant
chain. $hOney's, agreed to pay 1105
million to thousands of black employ·
<>es and jOt applicants to settle a
nAn:
PAQt:
,J"·iJ,S· ?j
1/./
. discrimination case, but thaI case dId
not mvolve customers,
to;:77~~~J~~~~~01tl~e~~C:/~:
::::f~::t: ~::rv'!~~e":~tft~r::::;
discrimination that permeated the
gun to uncover evidence that the
company" management.
'''We believe that there was, at the
company, an attitude that went into
the management level. but we don't
. know exactly how high," uid John
ReIman, a lawyer for the Washmgton
Lawyers' Committee for Civil Rights.
"This attitude at the company. at the
management level and working its
way ~~n, had the effect of causing
discrImInatory attitudes going down
to the lowest levels of the company,"
Ano~r lawyer, Mari Mayeda, said
that dunng pretrial fact·finding a for.
mer manager testified about training
lessions in Which ~nagers were in.
Ilructed about how to deal with too
many blacks in a restaurant at one
time. Ms, Mayeda said the company's
code word ror such occasions was a
"blackout."
But Jerome J. Richardson the
chairman and chief executJ":e of
Flagstar, denied that there was any
policy to dISCriminate against blacks.
"These settlemenu are not an ad.
mission,that Denny's has had a policy
or practice of discrimination against
African Americans," he said. At a
, news conference in Washington, he
sought to ponray the incidents as
random and noc pan of any corporate
strategy.
'
"We serve I million customers a
day at Denny" alKl we have 40,000
employees,"Mr. Richardton said, "It
would be M'fve 011 my pan to say that
cultomers are always satisfied."
Wi~in.the lut year, Mr. Richard.
~ said. the company has taken sig.
nlflcant llepslO prevent dlscrimina.
tion ,at Its restaurants, inCluding
tramlng and random c.hecking, It has
also hired Norman J.HIII, a black
executive. to head III human re
sources depanmenL
But the portrait of the chain pre·
sented by some cutomen today sug·
lested dult It had been plagued by
racial problems.'
'
, Kristina Ridgeway .al 17 years·
old when she walked into a Denny's in
San Jose in 1991 with 17 other teen·
agers after attending a college forum
sponsored by the San JON chapter of
the National Auociatlon for the Ad·
vancement of Colored PeopIe,The
restaurant c1emanded a cover charge
in addition to a prepayment for the
meal, eYen t.hough several white
classmatel did not have to'mab such
payments.
.
\'"\
1
�",
..
"\ was very upset," Ms, Ridgeway
said, "Both my parents are from the
South and they had to grow up with
this kind of thing, and they would
alwllYs tell me !hal I wouldn't have to
deal with stuff like thiS,"
" In, another case in California. Ra,
chel Thompson recalled how Denny's
offered a free meal for anyone on a
birthday and how she had brougt,lI
proof of her 13th birthday 1.0 I family
gathering in Vallejo. ~ restaurant
rerused to accept a baptismal certifi·
CAte with Rachel's date of birth on it.
"They just said that wasn't enough
and made a big scene," she said. '"
felt embarrassed. It was humiliating
because other 'families in there were
looking at us, and 1 guess they
thought we were some kind of bad
criminals,"
And some incidents occurred as
recently as last year, even as the
,company was trying 'to resolve accu
sations of discrimination.
In April 1993, Denny's Igreed as
part of consent dec-ree 1.0 take steps to
end discrimination 'as'lts settlement
of Federal case in california. But the
same day it entered that consent de
cree, Denny's refused to serve six
black Secret Service agents. They
sued in Federal court in Baltimore,
and the case In California was re
opened.
.
,
Federal judges in Baltimore and
San Jose must approve the settle
ments before they take effect, a pro
cess that lawyers said should be com·
pleted this summer. Once approved,
the customers will receive $46 million
and their lawyers will share another
$8,7 million. Any money left over'
from the settlements will be donated
to the United Negro College Fund and
to other nonprofit organizations dedi·
cated to furthering civil rights,
'
The case should not have a large
effect on Flagstar's bottom line.
Denny's had revenues of $1.53 billion '
in 1993, and the parent company,
Flagstar, owns more than 500 Har· .
dee's franchises, as well II all El
Polio Loco and Quiricy's Flmily
Steakhouse chains.
'
In over·the-counter trading the
stock of Flagstar closed tOday at
$9.50, down 37.5 cents in light trading,
�DA n:
PAGt:
S'~,';5' ~"'
ct- I '
"__
..
Vsharing in Denny's Award
",",",11.""-" v", "
WASHINGTON, May 24 - Cus
tomers of Denny's who believe
that the restaurant chain treated
them improperly because they
are black will have to file a claim.
if they want to share in today's
Proposed settlements.
For customers of DeMy'S in
any state but California, awards
arE' POSsible fo~ any incidents that
occurred from July I, 1987,
throuah today. For California cus
tomers, the incident must have
occurred from Nov. 14, 1988:
through today.
lawYers for the two Federal
class-action suits settled today
advised that cuS[omers could call
a tOil-free number, 1-800-836-0055,
to obtain a form that will be used .
to separate valid claims from
frivolous ones. The forms will also
be published in major newspa
pers this summer.
Lawyers Mid the forms Would
ask for bioaraphicaJ information
from the Customers. They will
also request a desCription of what
happened and will ask if a com .
.plaint was filed at the time of the
incident and whether the custom
er has witnesses.
"They will have to Show more
than just that they would have
liked to have been served more
quickly," said Craia A. Hoover of
Hoaan &- Hanson, a firm involved
in the case. "But the standard of
proof is not as naorous as a tnal."
The claims will be examined by
a California law firm. Saperstein.
Mayeda & Ooldstein, or the Wash.
ington Lawyers Committee for
Civil Riahts and Urban Affairs.
To discourage fraudulent claimS-,
lawyers said, anyone who pre.
sented a false claim could be sub
ject to perjury proceedings.
,
�-
- - - - -........~=-.-.,~--,..,.. -.....---
.
'HlNAnOH' .... W\PA.....
CUSA
• t
TODAY
DATE:
PAGE:
'Denny's settles bias case-
,
.
DemIy'I wtU pay an UDpreoedented
$4$.7 m1I1ion In c1aJnageS to thousands of
blac.k paD'OnS Ule nstaurant cba1n refUIed 10 IefVe or forced 10 pay In ad¥IDee ffJf' meals.
Tbe teUlemeDt WiUl tile Justice Depar1meDt - Ule lIU'pst UDder tile 1964
avu R.\iIlts Ad ban'tI:II raetal dJsa1mlaadon In public accommodations - was
I.DDOUDced Tuesday and comes wtth a
'W'IJ'DiDalOotbers "tba1 baven't Icst Uleir
apper1te for racism. "
"We are watclll.n&" .YS As!IisIaDt At·
torney General Deval Patrick, bead of
tile dvtI rtahts divtsion.
DenDy's SpartaDbur& s.c.-based par.
_ fIaIlItar. also qreed to proVide di
versity I:I'ain1ng for employees and fran·
cblsees. Include more minorities In
Denny's Ids. and bJre independent tes
ters to CODduct bUDd tests of bow wlUte
and minority.patrons are treated In bUD
c1reds of Denny's nstaurants Dation
Wide. It also qreed to appoint an inde
pendent dvtl-rI&bts monitor.
Jerome RidlardsOD. cblet executive
of F'/q5tar. denies DenDy's ever bad a
policy or practice of cliscrtmination
qa1nst blackS. He says Ule company de
dded to tettle the case becal.lle of Ule neptive public
perception of Denny's relationslllp wtUl black C\IIlOmers
and the hi&b c:a;t of IIhtinl tile cbarges ID court.
Ricbarc1!on said tile pubUdty bas hurt tile company
but would not say bow mucb lilies bave deled. .
.
Complalntssurtacecl In December 1991 WIlen 18 mem
bers of a black youUl sroup - aaendlna • ctvU rt&bts
conference - In San Jose. caut.. U"led 10 eat at DenDy's
and were told they bad to pay a COYer dI.arIe aDd pay for
tIleir food in advance. Wbtte tneads wIlo weal to DenDy's
tile same day werea' liked to do tile lime.
.......
...
~. 4U PIIJJID1II were DIIDId fD • dE nelkla
IUIt lied In cautomla. Amona tbem.:
.. Racbel Tbompsoo of VallejO, caut.. wtlose famlly
took ber 10 Deany's CI'lber 13th bI.rtIlday for Deany'. tree
lIb1bday meal (Story, below).
.. A black federal JUdI! from Taas aDd Ills wUe were
CII1V1D8 ttI.rou8b cautom.la 10 On!elo wtJ:eD be IIOpped In
• YreII:a DeaIly'L Tbey were D!Yef ?e'.I"YId. fI'W!D Ibou&b
Ilte ....unmt . . vtrtuaIly empty.
A c:onaeut decree lJed Tuelday In CIUforrda requlres
Deaay's to pay S28 mIlUoa In
aDd 16.8 mWion In
IepI fees. Eac:.b of tile 40 pltUIUII wtU _125,000.
ctamar
'
.One girl's tale of humiliation
Racbel Tbom.-m wanted walles aDd • IUDdae at
Denny's for ber 13th b&J1bday dinner. IaIteId, sI1e Ie.ft
bumillated and b\III8I"Y.
.
But IS a result of tile laJ'II!.!I pubUc ac:commodatIooI
IlUJement ID U.s. bJstory, RadlelaDd ber fIrnUy wtU
_ 1125.000. Her sbare wtU Ilelp pay ber way IIU'OU8b
co1le&e - at Tuslleaee UIdYendty InAllbluna.
In Mardl 1993. Radle!'s famlly took ber to tile
Denny's near tIleir bome in Vallejo, caut.. bteca\lllllbe
wanted tile Deany's tree blrtbday m.a.. But tile I'I1II.
rant wouldn't accept ber bepCismaI cerUcate or
ICbooIID .. proof of bel' bUtbday. As tile fImUy pro
1I!IIIed. otber waltn!as ptbered II'OUDd tbeIr cable.
"A ICIC of tile people In tile ""W"IDt were IIaI'ln& at .
. " RadaeI?Iid. "We dJdn, fI'W!D eat; we JIIIlIOt up
aDd left. ... I wtDt borDe IDd cr1ed."
Tbe 1bonqlIoas c:ompJaIned to tile Ioc:aJ 0WDeI'.
tIleD to Denny's corporate pereDt.
flit Ilteletfer 01 apoIOSy _
recetved
eDOU8IL '!"beD tIley
1Ieud about Ilte cautonda lawsuit and dedded to jotn.
wasn'bal_
-.."..
....
�tfjC 1Ua~~iltgtolt €buc~
'Denny's said to face
uphill fight to clear
racial-bias image
By Tony. Munroe and Jerry Seper
THE ~TON ' . .5
The DeMY'S restaurant chain faces
a difficult task in overcoming the pub
lic's perception that it has treated
black customers unfairly, a specialist
in corporate "damage control" said
yesterday.
Publicized charges of racism are
bad enough for .acompan)"s image.
. Tbm Davis, executive vice president of
the Corporate Response Group, point
ed out.
What's worse, he said, "If you pro
vide a service in.a competitive area, in
which there are lots of alternatives,
then it's that much more difficult" for
the accused company.
.
Denn)"s parent, Flagstar Cos. Inc. of
Spartanburg, S.C., will pa)' S46 million
to "hundreds" of black customers to
senle two class-action lawsuits accus
inR Denny's of illegal discrimination,
the Justice Department said yesterday.
The senlement, the bigRest o( its
kind under the Civil Rights Act of 1964.
must be appl'Olled by (ederaJ judges in
California and Maryland.
It includes an agreement to imple
ment "the most comprehensive pro
gram in h.istory~' for a company to com·
ply with the law. the department said.
Also yesterday. Denny's said it will
pal' 54.50,000 to resolve Claims by the.
Martin Luther King Jr. All Children's
Choir of Raleigh, N.C., that two
Denny's restaurants in Prince William
County, Va., refused to serve the aroup
. because its members are black.
.
Flagstar's chairman, Jerome' J.
Richardson, declared yesterday that
the company has no policy that dis
criminates against anyone and apolo
gized to any customers who felt they
Mre treated unfairly. .
He said at a press conference in
WashinRton that each discrimination
complaint had been investiaated, and
in some cases employees had been
tIred. Citing company policy, how
ever, he would not say how many
Mre fired or how high they Mre
in the corporate hierarchy
.
The 1..500 Denny's restaurants
have 47,000 employees and make 1
million transactions a day. and it
would be "nai ve" not to thank some
customers or employees might be
lieve they were treated unfairly.
:'.1r RichardYln ~aid
F1aastar chose to settle the
cases rather than take on the ex·
pense of fiahting them in court, he
said.
But, he added, "I can assure you
we would not have lost aU the
claims."
The company's civil riahts trou.
bles beaan in December 1991,
when 18 youths visited a Denny's
in San Jose, Calif., and were asked
to pay before eating, which they
said was because of their race.
Since then, Denny's has faced
other charges of racism, and the
company says it has taken several
steps to prevent such incidents.
But Mr. Davis, the damc.ge con.
trol expert who said his rirm has
represented several Fortune SO
companies and bas watched the
Denny'S siruation, ~aaested that
Denny's waited too long to solve its
~roblems. and that yesterday's set·
tJements create the per:eption
that the company is being forced
to act.
.
"It appears it's being imposed
on them," he said. "They weren't
allressive at the outset."
'''1 don't get the sense here that
they understood '" what' was at
stake here:' Mr. Davis said.
Mr. Richardson said the accusa
· tions are"just about the 'last thing
in the world" he would want some
one to think of him or the company.
"Clearly there was damage
done to the company and damage
was done to me personally," he
said..
Mr. Richardson is owner of the
carolina Panthers, an expansion
fnnchise in the National Football
lAaaue awarded in October. He'
said he was more worried about·
the damage the lawsuits had done
to his image than whether the)'
· would hurt his chances of winninR
an NFL franchise.
. The Hnlement requires the
company to run ads about. the
aareement in minority-oriented
media, but Denny'l doesn't other
wise plan an image-polishin!! me·
dia campaign,
.
In the Maryland case. six black
· U.S.. Secret Service agents as
sianed to guard President Clinton
said they did not receive service at
a Denny's restaurant in Annapolis .
on April 1. 1993, wh.ile 15 while
al!ent~ at the restaurant wen:
DATE:
PAGE:
ee~.
Denny's agreed to pay 517.725
million in damages and 51.91Tti1.
lion in attorney's fees. Each of the
six black agents will get 535.000,
and 12 other pLaintiffs are to reo
ceiw S15,OOO each. The balance is
to be split among victims identi.
fied later, from 1..300 discrimina
. lion claims on file .
.' In the California case, Denny's
agreed to pay 528 million in dam·
aaes, plus 56.8 miUion in anorneys'
fees. Each o( 40 blacks who said
they suffered racial bias wilJ be
awarded 525,000. The remainder
will go to others who show they
also were the victims of discrimi·
nationat the c:b.ain'lCalifomia out
lets.
"We have beard from hundreds
of black customers at the Denny's
restaurant c:b.ain," said Assistant
Attorney General Deval 1.. Pat
rick, who heads the department's
civiJ riahts division. He described
the settlement as the "largest,
most sweeping nationwide senle•.
ment of a public accommodations
case in history."
Denny's qreed that it will:.
• Hire an experienced, indepen· •
dent civil riChtJ monitor to watch
the compauy's performance in
Maryland and california. Mr. Pat
rick identified the monitor as Los
Anaeles 1a"'YC!r Sharon Hartman.
• Educate and train all current
and new employees of their obliRa
lions under the law.
• ~~uct random testing to Cle
termine it black patrons continue
to be treated differently.
• Require adwrtising to reflect
the "lJl'Ut diverSity of tltis coun.
try~ SO that it conveys to the public
that all potential customers reo
lardJess of their race or colo~, are
welcome.
The aareement will remain in
force for five )'Uri.
Last July, Denny'ssirneda "Fair
Share" aareement with the Na
tional A.sociation (or the Ad.
vancement (o.r Colored People
(NAACP) des1rned to increase
econoJDjc OPPOrtunities for minor.
itt.. by SJ billion.
Nine months into the Ieven.year
plan, Denny's J'ePOn, what it con
siders ailDificant prolress.
.
• Denny'l pledged to hire an
awrqe or 46 new minority man.
.,en a year, and hired 103 in the
first nine month, at the mana~er
level or hiRher.
• Denny's and the NAACP set a
gosl of 53 new minoritr-owned
franchIsed restaurants in se\'en
years. So far 2R application~ art'
under J'e\·iew.
�Mr. Davis said Denny's did the
right thing by distributing prog
ress repons on its agreement with
the NAACP
"It's critical that they not only
meet but exceed thole loaIs:' he
. said,
, MEASURES
OF PROGRESS
Owners 01 Denny'S restaurant outlets
said they have improved career and
business prospects for minority
employees and businesses in the
first nine months of a promised
seven-year effort:
·CerMts:
Hired 103 new managers and
higher. level staff.
".. .1
...:
Now reviewing 2B applications.
MarMtJn-=
.
Spent $1.5 million in minority· media
and mar1<eting deals and a
black-owned ad agency.
Pure....ln.:
New purchasing contracts worth
$20 million a year.
a.Mce.:
Spent $1 million for outside
professional services.
DlNCton: .
Appointed Vera King Davis to
Flagstar's bOard of directors.
$ow,ce
F
,
Cos Inc
\9
,
�..
OAT!:
PAG!:
of an earlier court fudgment that
Demjanjukshould be stripped of his
U.S. citizenship and deponed,
t·
Demjanjuk., who was enndited iii '"
1986, was convicted and sentenced
to death for tonuring and mUT~ring
Jews at the Tr,eblinka concentration
camp in Nazi.occupied Poland durin" ~
World War n. He was aJJegedly the' ,
B), Joan Biskuplc
~·,,:;i\.In':"':1 ,", ... ~~"
f"!'kr
notorious "Ivan the Terrible."
,
But Ia~i yeM the Israeli Supreme
'The Justice Depanment yester
Court overturned the conviction,
,da), asked the Supreme Court to
saying there was insufficient proof
throw out a federal appeals court . that he was Ivan, and Demjanjuk was
ruling that prosecutors committed
allowed to return home in Septem
fraud by \\ithholding e\idence that
ber.
favored allE'gt!d Nazi death camp
In the meantime, the 6th circuit
, guard John Demjanjuk.
court had appointed a tria) judge to
If the petition is succt'ss{ul. it
investigate the Justice [)epart.J1lent's
rouJd c1E'.ar the \\'ay for thE' Unned
handling of the deportation. The apStates to deport the retired CIE'\'t'
land aulO \\orkt!r, When ttlt' 6th l' ,S.
UrcuitCourt of Appeal:; found that
fraud had occurred. it voided an ear
lifr extradition authorization.
ID its filing )'esu:rda)', the Justice
Dt'partment said prosecutufs in
volved in the eCCort .to deport
DPmjanjuk acted in good faith and
that the failure to produce rer1ain
docwnents did not rise to the IfveJ of
"egregious and deliberate mi:;.con
duct, such as bribery of a judgE' or
fabrication 0( e\1dence" that typical·
Iy is found to be a fraud upon a coun.
'MThe standa,rd "dopted b)' the
court of appltals 111 this case is incon
sistent with standards aru.cuJated b)' ,
the overwhelming majority of tht'
courts of appea/::',~ said the brief
signed by Solicitor General Drew S.
Days III"
,
'The government is seeking to vin·
dicate prose<'uton,' actions a. weU as
to removt: a cloud over the \'lhdity
ll.S. Challenges
Fraud Ruling in
Denljanjuk Case
!
\\
S-~-Pf'
diS
-'I
peals court Wbmately concluded last
year that prosecutors had dt-i'ralJdtod
tile court by withholding mlormation
that Demjlajuk c:oukI have used to
contest the extradition.
The Justice Department con
tends that Demjanjuk still !ihou.Id be
deported because of his actMtles at
camps other Jhan Trebtin.ka. The
6th circuit court', finding of fraud
"Will binder the government's ef
forts to remove IDemjanjuk I from
the United Sutes," Days told th~
justices.
,
��tbt tu4lS~ington tJos!
,.
.,
DATE:
PAGE:
Whe~ ""ork·Force Diversity Lags
Department Is Accused 0/ Pervasive Pattern o/Racial Bias
By Peter Hehr
V.4"'",,"'Jf'h,j~ "1h' ~:a!1 "!"'Itt':
ith ltswidtdy varied
missions-from weath
er forecasting to ct'n-'
sus tai.ing and high·tech re
search-the Commer("e' Depart
ment is arguab!}' the most diverse
agency of government, That is not
true of its work. force. deparunent
administrators have acknowl
edged.
A group of. black career e:m·
ployee~ at the d('j)artment has 3("
cused Commerce of a longstand
ing. pervasive pattern of racial
bla, in pa} ,md promotIon.
The employees' alJegations in
. elude a "conspi("Uf"lU5 absence:' of
Afncan Amenbns in mid·level
and senior car'eer positions: the'
lad; of efitcti\!e carter de\"t'lop·
ment program; fer rr..inorit \" em
p!oytt~; and a ·"pl..ntation m~nta!l·
t{' thJ: purll~he~ those who filt'
dJscnnunatiorJ comp)iimts. accord
ing 10 a :-.;0·... 4 iett!:'f from four
depar:mf'nt mrmbt'r;. to Com
merce S('of:tJr\' Ronald H,
Bro....'~. . ':
Black~ m<s.ke Utl 18 percent of
Commerc!:"" 33,()OO em!)loyt'el>
but 1t'5~ than 7 perctnt ohls pro
fessional staff. :.according to the
gTOUP, tht Commerce Committee
for African An1er:can Concerns.
Commerce ranks 38th out of 58
federaJ agen("ies in percentage of
black professional employees and
47th in percentage of females in .
professional positions, said the .1
group, which filed Freedom of In
formation ,-\ct r~que5ts to compile
infonnation on Commerce's work
force.
A Sl'niOr.. ajde to BrOv.l1 caJJed
the complaints :'/egltlmatt'," Com
mt:rct' "ha!> bee'n negul!lent on IS
sues of divt:rsity for a long timc,~
said tJlc aick-. who a!>ked not to be
identl{u.. d·, The ~tatjstics are
~shocking," the: aide ~id.
W
,.
,
lSrown,
met several
times With the group's leaders.
has ordered a review of the de
partment's ~ua1 opportunity poli"
des and its handling of diversity
issues. He 'Aill receive the first
status'report from the review
. next Wednesday. and is determ.ined to implement any reforms
that are requirt'd. aides said,
~Diversity is the key·to the fu
ture success of the Department of
Commerce," Brown saId in a Feb
ruary statement to CO'mmerce
employees,
But the secretary's response .
has not been swtft enough to sat
isfr some of the department's
critics.
. Employees ·from Commerce
and several other agencies held a
protest near Brown's office on
May 26, Organized by the Mont
gomery County, Md., chapttr of
the NAACP, the protest focused
on Commerce's Equal Employ
ment Office, which handJes work
place discrimination complaints,
"The Commerce EEO office is
mockery," said one sign carried by
a demonstrator.
."We are very dissatisfied with
EEO process. We want a spedaJ
re\;ew board to resolve aU cases
pending more than 180 days,
There are a bwtch of them," said
Gregory Wuns. president of the
Montgomery NAACP chapter,
who is heading a campaign against
discrimination in government
agencies. Wims said the effort has
prompted improvements at the
Washington Navy Yard, the inte
rior Department and the National
Institutes of Health. Now. he said.
the group is turning to the. Com
merce Department,
"We know that ::.ecretary
Brown himself wants to end dis- .
crimination at Commerce." said
Wims, But he questioned whether
the re\;ew team Brnwn appointed .
will produce the necessary re
forms because the African Ameri
can employees who lodged the'
complaint have not been given
key poSitions in the re\;ew.
. Brown "has selected people Ito
make the review} who don't iden
tify with the NAACP. We repre
sent employees who are suffering
and have complaints," Wims said.
They should be included in the re
view, he said.
Most importantly. the Com- .
merce protesters want to see ac
tton taken on their perSonal com
plaints. said Wims. The group is
calling for an independent investi
gation of managers "who are re
sponsible for creating and perpet
uating discrimination within .the
agency," according to a May 9 let- .
ter four Commerce employet::s
wrote to Brown.
.
The secretary's aides said the
department will begin to initiate a
comprehensive diversity program
in July. They aclmowledge that it
may be easier to prevent future
abuses by reforming Commerce's
. practices than to resolve charges
of past discrimination. But the
strength of Brown's response is
likely to be jUdged on both counts,
his aides said.
�.
:
The ·FBI. meanwhile. is primarily
charged with protecting certafn dignftar
les. although some of that falls to the U.s.
Secret Service, the State Department and
special units such as SWAT 'teams at the
various local departments. The California
Highway Patrol has dominion on California
freeways and is assisting wIth .traffic
control at the stadium, The U.S. Drug'
Enforcement Administration wm be on the
lookout for major drug crimes. ,The Los
Angeles County district attorney's office
will monitor events and provide legal
. .
guidance if needed.'
All of the participating ag~ncies come
together at the Joint Operations Command.
Center on the Rose Bowl grounds: Final
cons.truction work on the center-whose.
furnishings al)d' hardware will be packed .
up and used for the 1996 Summer Olympics,
. in Atlanta' after the World Cup.:,.. was
completed last week, as crews installed
carpets and activated the enormous bank
,of teleVISIon sets that will allow center,
officials to monitor events in every corner
of the stadium slmultaneousl\,.
There is one low-tech aspect Should a
situation overwhelm, any single police
force, representatives at the command POSt
'WOUld only need to yell across the room. 'A
network of mutual aid agreements spells
out procedures for coming to each other's
aid,
"We recognize that a situation such as
thl5 one requires us to be talking to .each
other and shanng information," Schander
said, "Thls"is not a time for us to take little
bits of mformatlon and hold onto them."
, Despite 'the dl\'ision of labor and the
mutual aid agreements, there have been a
.'few flare., ups so far. The LAPD, among
others. has feuded with World Cup spori
so:s about reimbursement for lawen
forcement expenses- Pasadena is gettmg
between 53,6 million and $4,6 million: but
Los Angeles. since it is not hosting the
games. will receive just $800,000 for costs
incurred in protecting Soccerlest. a week
lqng ex.hlblt'that IS' slated for the conven
tion center.
More significantly. talk of a job action by
Los' Angeles police officers has stirred'
some tensIons.
Angered by stalled contract negotia
tions. some Los Angeles officers have
threatened to. disrupt security for the
games by picketing. calling in sick and
refusmg to work overtime. Those threats
bother some World Cup officials. who
worry that an acrimonious labor dispute'
launched as the games get under way could
undermine some aspec;s of their planning.
At the same time, other authorities have
quietly fumed that LAPD officers are only
perIpheral players in the event anyway
and are exaggerating their, importance in
,;
order to exact contract concessions from
the cit\',
The'LAPD, which has devoted seven
members of its tactical planning unit to
full-tIme ~'orld Cup preparation, guaran
will
not be jeopard~
tees that publiC safety
iZed even if some officers call in lick or
refuse to work voluntary overtime ..
"We will have sufficient numbers of
officers," said Ll, Ed Wilson. one of the
department's lead planners for the games.
..
"That you can be sure of."
. On the other hand. a 'little ·P.R. never'
hurt either. .
.
Officials are trying to stop trouble before
it starts-partly through an unusual video .
campaign intended to brief fans on what to', .
expect from American cops.
As tourists stream to Los Angeles from
around the nation and world, they'll see
the IS-minute tape. entitled "A Safe World
Cup Experience," produced by World Cup
soccer olficials and members of the Na·
tional Law Enforcement Executive Council
to be shown on airlines. Once they chec!, in
at their hotels,they, may see it qain.as
hotels are being asked to play it on their
in-house video systems.
The tape; a blend of cheerful narration
and stern admonitions. follows a couple as
they arrive in Los Angeles. where they are
greeted by courteous Immigration and
Naturalization agents and then have their
luggage politely rifled by a customs offi
cial. As they make their way through the
city. the narrator gives driving tips....;in.
eluding hints for avoiding carjackers-and
warns visitors about,American laws such
as the legal drinking age and the restric·
tions on open alcoholic beverages.
.
As the couple, decked out in World Cup
soccer sweat shirts, traipse into the stadi
um, viewers get a warning about how
American authorities 'will treat such be
havior as fighting in the stands. throwing
debris at players or referees or running
onto the field,
"At no time are spectators allowed on
the playing field ..or pitch.'" the narrator
states at one point. adding that "swilt and
certain consequences" will befall anyone
who ignores that ad\'ice,
On the tape. a few hapless fans try to
bring umbrellas. soccer balls or flags on'
poles into the stadium. Police officers seize
them. The narrator. meanwhile. tip!! visi- .
tors to poi~ts of loeal interest: For example,
unlike many of ,their European counter
parts. most American law enforcement
authorities carry weapons; .'
Another difference: A.1thoi1gh autllori - .
ties in some parts of the world tend to live
fans room to blow off steam. the style of
American law enforcement is to intervene
early and prevent violence. from laining
momentum.
.
Police here want fans to be aware of that
so that they will not lest the resolve of
American autlilorities or overreact if the
police move in to break up a fight,
"If you are planning'on becOming dis
ruptive. violating any laws, we will take
action." one officer says near the end of the
tape, a shot of the Rose Bowl looming over
hiS head. "And by the way, good luck to
youdavorite team."
�,
.
THE WHITE HOUSE BULLETIN,
Friday, June 24, 1994
SINCE THE MORNING PAPERS:
o
o
Israel and Jordan have a secret peace agreement, according to an
Israeli newspaper published today. The newspaper Maariv says the
accord, initialled by Jordan's King Hussein and Israeli Foreign
Minister Shimon Peres during a secret meeting in Amman last year, is,
the basis of a peace treaty now under study by both sides.
According to the newspaper, the initialed document calls for an
exchange of land, the establisQ.ment 'of full diplomatic ties; a joint
airport, quotas on water drilling, arrangements for holy places, and
cooperation on economics, defense, and agriculture.
Japan's parliament is set to vote on a no-confidence measure against
Prime Minister Hata and his minority government tomorrow morning, ,
lawmakers said today. Hata has been maneuvering to prevent a
challenge from the Liberal Democrats, the conservative pro-business
party that ruled Japan for 38 years until July 1993. He and
coalition colleagues have spent the last day trying to woo the
Socialists, without whose support th~y cannot prevent the LDP's no
confidence motion.
IN THE WHITE HOUSE AND AROUND TOWN:
o U S moves to stabilize the dollar. Treasury Secretary Lloyd Bensten
confirmed the move in a brief statement today, saying:
"Our actions
today, in cooperation with ourG-7 partn selling other currencies and buyi
,ng dollars in an effort to
influence the greenback's value. Bentsen made it clear that if
today's action does not succeed, the US and its allies were prepared
to move agai~, saying: ,"We look forward to continued cooperation to'
maintain the conditions necessary for sustained economiC,expansion
with low inflation."
Meanwhile, the dollar was mixed against other major currencies
,in mid-aft~rnoon European trading after the Fed led other central
banks in a coordinated effort to support the sagging currency.
o
Gingrich and other House ,Republicans throw support to proposal to
change budget rules for GATT; say they won't suppor't GATT if tax
increase is included. Today, a number of Republican Congressmen
announced 'their support for H.R~ '4198, sponsored by Congressman
Thomas Ewing. The bill would alter budget rules affecting how
legislation implementing trade agreements is scored. The
legislation would require cost estimates of trade agreements such as
. GATT to take into account the increased tax revenue caused by
economic growth under the trade agreement. These revenues would be
used e. Asked if House Minority Whip
Newt Gingrich was now willing to support GATT -- which he has
expressed some concerns over -- if a tax increase was not included
in the financing package, the source said Gingrich "believes that we
are currently working with the Administration and others to resolve
some of the concerns regarding oversight and, anticipating that that
is successfully done, then of course" he will be a "vigorous
�.'
/
",
J,i
i'
danger of being put off "for months. il Despite a report in the USA
Today that; the on':"gotngimpass~ over the, racial justice prov~S10n
has led to, a cancellation of further compromise sessions until the
issue is resolved", Administration aides said 'this morning that they
think it is highly unlikely that the bill --now in conference
would be delayed for anything more than a couple,of weeks, not
months. And an Adminis~ration official said this morning that "the'
bulk of the bill Is there •••• ,It's 99 percent done; 1,001 pages
are written and they~re working on 12 page$," all regarding the
racial justice issue.
'
While: some Democrats on the 'Hill have increased their call for
the President and the Administration to exercise more leadership in
coming up '!'lith a solution to the problem, White House officials
still seem: inclined to hope congressional leaders can'work'it out.
Aides point out that the President did discuss the'issue in a White'
House meeting with key Democrats early in the week.
There' are two solutions to the problems: come up with new
language that is acceptable to enough senators ,to pass that chamber
(while still retaining the votes of supporters in the House); or
convince, Black Caucus 'members and other House champions of the
provision to agree to drop the issue from the bill. At this point,
a: White House official said today, neither option is leading the
other ,with discussions on both general, solutions ,contim.ling.
Despite thePr~sident'having said publicly on at least one
occasion that the Administration would take a position on the Racial'
Justice Act, spokesperson Dee Dee Myers continues to say that the
Administration currently p,as no position on the issue.
(Contributed
by Mark Halperin, White House Producer for ABC News.)
,
'
o
o
Clinton whacks Limbaugh.' Today, President Clinton' took a swing at
Rush Limbaugh and other conservative talk radio show hosts in an
interview from Air Force One, accusing them of It a 'constant,
unremitting drumbeat, of cynicism." In a phone call to a St. Louis
talk-radio' station, Clinton also took on evangelical Christian
broadcaste~s, mentioning Jerry, Falwell by name.,
Perot and RNC tag team to take on Clinton? After watching the two
.' hour, NBC television spec.:j.al on health care, Ross :perot is said to
have been so disgusted in its one-sided p:r:esentation, which he
believed favored concepts backed by President Clinton, that he made
contact with the Republican National Committee to explore a jOint
response to present the real facts to the public. According tQ one
GOP source, however, Perot did not offer to pay for RNC
advertisements.
The source said Perot contacted theRNC, "although,
.very much in a formative stage, and it is very preliminary." A
source close to Perot would not confirm that Perot was requesting
RNC assistanc~, but added, "We did feel [the NBC report] was very
one sided ••• and we were unhappy with the 'program.," The' source added
that Perot'has made aneffor~ on his own to buy television time for
programs on NAFTA and health care, but "they have not allowed uS,to
buy any time." Concluded the SOUFce:
"There are certainly other
options; we communicate directly with our state organizations via
electronic mail, voice mail, phone trees and so on and are having a
lot of real, imp'act at the local, grassroots level."
'
�indictments will be sought relating to the so-called White
House-Treasury contacts •.•• While some of these contacts,may have
been inadvisable in'hindsight, they violated no law." Cutler said
,he is now going to "make his own independent review of what happened
'in th~ 'course of those White House and Treasury contacts, It adding
that he is willing to testify to Congress about his conclusions.
As for how the White House views Fiske's findings, Cutler said:
,It I
would characterize this as much, more than moder9-tely good news.
I would characterize it as very good news."
o
o
Supreme Court upholds restriction on anti-abortion protesters;
throws out Florida redistricting plan. The Supreme Court ruled'
today that a Florida judge did not violate 'the f~ee-speech rights of
anti-abortion protesters when he said they must remain 36 feet away
from an abortion clinic, but the Court said he went too far in
limiting their activities to 300 feet away. Writing for a 6-3
majority, Chief Justice William Rehnquist said the 36-foot buffer
zone generally "burdens no more speech than necessary to accomplish
the government interest at stake" -- protecting access to the
cli~ic.
Rehnquist was joined in that view by Justices Harry
Blackmun, 'John Paul Stevens, Sandra Day O'Connor, David Souter and
Ruth Bader Ginsburg. Justices Antonin Scalia, Clarence Thomas and
Anthony Kennedy dissented. Writing for the three, Scalia, said
creation of a zone that .excludes only a particular group which has
broken no law is "profoundly at odds with our First Amendment
precedents and traditions."
The Court also announced decisions in two cases closely watched
concerning the'l965 Voting Rights Act. The Court tossed out a
Florida redistricting plan that increased the,number of Hispanic
dominated election districts .forthe State House of Representatives.
The Justices overturned .a lower court decision, supported by the
Clinton Administration, that' Hispanics had been shortchanged by an
'earlier district alignment adopted by state lawmakers.
In the other
voting-rights case, the Court ruled 5-4 that the law does not
require a Georgia county to expand its one-member county commission
to give black residents a stronger voice. In other cases:
The Court also ruled today that Federal judges may order a
death row inmate's execution postponed until a lawyer can be
appOinted to help prepare an appeal. By a 5-4 vote, the
Justices reversed a Federal appeals cour.t ruling that said
Federal judges may not postpone an execution until a formal
appeal 'is fileq with them.
The Justices ruled 9-0 the United Mine Workers of America
union does not have to pay $52 million in contempt-of-court
fines from p violent labor strike in southwest Virginia in
1.989. The Court said contempt proceedings conducted by a
state judge violated the union's due process rights. The
union was entitled to a criminal jury trial before such a fine
could be imposed, the Court said.
Clinton attacks Republican health plan. This morning, Clinton spoke
to a friendly crowd of smallbusiIiess leaders. under a tent on the
White House lawn. Clinton used the opportunity to blast the plan of
Senator Bob Dole, which has already picked up the support of at
�'--~..;,~.
..
A15 I
THE WALL STREET JOURNAL WEDNESDAY, NOVEMBER 2, 1994
Discrimination in the Name of Diversity
Several big rases now. at various
stages of litigation illustrate the practi
cal anel Ipgal pl'Oblems of awarding pn+
erences based on 'race-a policy also
known as affirmative action' or, as the
Clinton administration prefers to call it,
"diversity." Because the administration
is party to, or a friend-of-the-court, in
these cases, they also showcase its legal
views of the issue. SufficE' to say, this
administration has yet to see a racial
preference it doesn't like.
-Adm'and v. Perm. On Election Day
briefs are due to the Supreme Court in
this case from Colorado. Adarand' Con
structors, owned by whites, put in the
Rule of Law
By Terry Eastland
bid on a highway guardrail to be
buill" in the San Juan National Forest.
Mountain Gravel, the prime contractor,
instead gave the job to the Hispanic
owned Gonzales Construction Co. For
awarding the subcontract to a minority
company. Mountain Gravel got a $30.000
"bonus" from the U.S. Department of
Transportation.
The idea behind such a payment is to
. increase the number of Transportation
Department contracts with "Disadvan
taged Business Enterprises" so that it can
meet goals set forth in the Small Business
Act. Under the SBA. the government is to
award not less than 5% of all contracts to
small businesses owned by "socially and
economically disadvantaged individuals,"
Adarand does not mince words in calling
the bonus a bribe for the purpose of en
couraging the racial discrimination it con
tends the SBA legislatf's.
At issne in the ease is whether the SBA
violates the Constitution's Equal Protec
lowe~t
lion guarantee. The argument between
"Adarand and the Justice Department ad
dresses the degree of scrutiny a court is to
give a racial c1assificatiolJ and even
whether the SBA goals are "race-based";
. the government valiantly but incredu
lously argues that they are not. Both
Adarand and the Justice Department cite
recent Supreme Court precedents in their
favor. and in truth the law here is con
fused and unstable.
- PodlJereskllll, Kirwan. Last Thursday
the federal court of appeals for the Fourth
Circuit unanimously held unconstitutional
a University of Maryland scholarship pro
gram open only to black students. Plaintiff
Daniel J, Podberesky's case demonstrates
the oft-neglected truth that affirmative ac
tion can discriminate against a minority.
Mr. Podberesky wasn't orthe correct race;
he is HispaniC.
Under the University of Maryland's
program. resident and out-of-state
blacks are eligible for the scholarships;
in 1992, 17 of the 31 scholarships
awarded went to out-of-state blacks.
This is also true at other state universi
ties, which routinely recruit from a na
tional pool of minorities_
And yet the usual justification offered
for affirmative action of this kind is made
in terms of the state's'past discrimination.
Bringing in students from out of state to
correct this problem, at the literal expense
of taxpayers and the obvious expense of
those resident students not eligible for the
program. is illogical.
The Justice Department under Presi
, dent Bush kept out of PodlJl'rrsk.11 but un
der President Clinton it participated as a
friend of the court. The Clinton adminis
tration has an interest in supporting
race-based scholarships since the Educa
tion Department has swung its weight in
their favor through regulations that now
appeal' to be in confliet with the Fourth
Circuit's nlling. If POtll}('f('sk!1 re;](~h('s
the Supreme Court this term or next. the and support a New Jersey school board's
Clinton Justice Department is likely to decision to layoff a white teacher instead
be in. the case, defending what the . of a black teacher solely on grounds of
Fourth Circuit calls "an overtly open racial diversity. the Justice Department
says it does not support quotas. But its po
racial yardstick,"
- Ail.Y'1l and E(iSOI/, Early last month . sitions in Easol1 and- Aiken contradict
the Sixth Circuit rejected the position of that.The consent decrees included numer
the administration in a pair of cases in ical goals, and the city of Memphis met
volving challenges to affirmative a.ction them through the expedient of counting by
programs. ,Both had been adopted by the race.
city of Memphis pursuant to consent de
With Assistant Attorney General De
crees resolving charges of racial discrim val Patrick aggressively. filling in the
ination against blacks.
details of Bill Clinton's diversity policy,
In Aikrn. to meet promotion goals for the administration is now engaged on a
blacks established in the consent decrees. wide number of legal fronts. Where it
thinks the law can be read or bent to al
low Congress or the executive or a state
or locality to make decisions about em
ployment or other opportunities that fur
ther its idea of diversity, i,t is likely to
do so. But its views are meeting resis
tance in the federal courts,' which are
'facial:preferenceit ·
still dominated by Reagan and Bush ap
does:TtYlike~ :," .
pointees, and where even some Carter
appointees are rejecting the administra
the pOlice department elevated to sergeant tion's positions. That is why. over the
a large number of blacks who ranked be next two years. the issue of racial pref
low the top candidates for the positions. erences is likely to ignite politically,
White officers-most of whom ranked forcing the president to speak to it more
higher than the promoted blacks...,sued, than he has so far.
charging a'violation of the Equal Protec
Asked at his press conference last Fri
tion Clause. Eason, involving promotions day whether he agreed with the Justice's
.made by.the city's fire department. is fac
Department's decision in Pisratl1ll!UH,
tually similar.
Mr, Clinton said. "As long as it nms
Aik('1/ and Eason are both notable for
both ways, or all ways. I support that de
what they say about affirmative action as cision." He meant that a black teacher
or any teacher of any race or ethnicity
it is usually practiced today. Observing
that "the City has made no effort to limit could also be laid off for reasons of di
the duration of these remedies," the Sixth versity. This, perhaps unthinking, an
Circuit expressed concern that unless pro swer raises an alarming prospect-that
motion and hiring goals such as the ones any citizen. regardless of race or ethnic
in this case are not held to the "most ity. might be discriminated against for
searching !judiciall examination." they the sake of diversity.
"may come to res!'mble not remeclirs but
Mr, East/find is ('Ilifor of Forl)(',~ i1frdia
entitlements ...
In defense of its d('cision this Sllmml'r Critic all/I (/ {ellol!' 1/1 tll(, ElMes 1/1/(/ PI/bUt:
in TtUIIlf/1/ ,,, Pism/tllf(l!l to switch sides Poli('H eel/lei·,
~C~J~{~~~~~,~~~;~(
�.,.
Discrimination and Scholarships for Minorities
By KIMUERLY J. McLARIN
Ten years ago Nicole West was
exactly the kind of student for whom
the Benjamin Banneker scholarship
program at the University of Mary
land was intended: black, bright, tal
ented, and not even remotely inter
ested in the university.
"I hadn't even thought about
Maryland," said Ms. West, who grew
up in Silver Springs, Md., and wanted
to study education.
She was conSidering the Universi
ty of Virginia, Pennsylvania State
University and "a few others," but
at the suggestion of her guidance
counselor. Ms. West looked into the
Banneker ,program at Maryland,
and what she found persuaded her to
apply. On Monday, four days after
the program was struck down as
discriminatory by a Federal appeals
court in Richmond, Ms. West dis
cussed some of its benefits,
~~}
The scholarship. she said, paid ev·
erything - tuition, room and board,
fees and even books. Program offi
cials also closely monitored her
progress. providing her with a men· •
.tor, graduate school recommenda-.
tions and assistance in navigating
the waters of the large and some
times impersonal university.
"T,hey were very influential as far·
as my success was concerned," said
Ms, West, who graduated in 1989 and
is now pursuing a doctorate in edu
cation at Syracuse University. "The
idea thal the program would beelim
inated is a travesty."
The unanimous ruling by a three
judge panel of tj1e United' States
Court of Appeals for the Fourth eir:
cuit only affects' the states in its
jurisdiction - Maryland, North Car
olina, South Carolina, Virginia and
West Virginia. The university says it
will appeal to the United States Su
preme Court, and a decision by the
'{/-=-'----------------/-.,.-----
A way to redress'
past wrongs that is·
itself declared to
wrong.
be
attract other African-American stu
dents," said a university spokesman,
Roland King. "It also helps to dis
mantle the stereotypes a lot of soci
ety has about African-Americans.
II's very positive and reinforcing."
Daryl Jackson, a 1983 graduate,
was not a Banneker scholar. But his
sister attended the university on an
mher scholarship for minorities.
,
. High Court may affect the two-thirds
of American colleges that reserve at
least som'e scholarships exclusively
for minority students.
Each year, the university receives
200 to 300 applications for the 30 or
so new Banneker scholarships
which are named for the 18th centu:
ry bl~ck scientist and inventor, that '
Maryland awards as part of its regu
lar admissions program. To qualify,
students must have had a 3,0 grade
pomt average in high school and a
score of at least 900 on the Scholastic
Assessment Tests.
Last year the program's $1.26 mil
lion budget included full scholar
ships for 139 students; since its be-.
ginning in 1979, 482 scholarships
have been awarded, The scholar
ships are overseen by a faculty se
lection' committee, a vice president
for academic affairs and an assist
ant director of admissions.
But the' program's effects offi
cials said, extends far beyo~d the
recipients.
"Having these students on, cam
pus serves as a kind of magnet to
• "The fact that they seemed to be
trying to attract blacks to the school
did have an impact on my decision,"
Mr, Jackson said. "It felt welcoming.
despite the fact that at the time there
was a lot of racial tension."
University officials say they have
made some progress. The university
ranked second among colleges that
arc not historically black in the num
ber of bachelor degrees awarded to
black students in 1991, according to a
recent survey by the journal Black
Issues in Higher Education. And its
undergraduate enrollment of black
students stands at 12 percent, com
pared to 8' percent nationwide.
In 1992, 48 percent of black stu-
dents who enrolled five years earlier
had either graduated or were still .
enrolled, That compares to 64 per
cent of the student population.
Besides the SCholarship, the uni
versity'S other efforts to retain black
students include a program to pro
Vide mentors for minority students,
an annual jobs fair and a course for
. black male freshmen on· college
skills, On Tuesday, the university
broke ground for a $3,7 million cul
tural center for black students.
"This institution has made a very
significant commitment in trying to
address one of the most vexing a'nd
important problems in our society
today - the inclusion of African
Americans in higher education,"
said the university president, 01William E. Kirwan. "Why take away
a program that has been so useful?"
The case was filed in 1990 by Dan
iel J. Podberesky, a Hispanic student
who was denied a scholarship. An
earlier ruling by a Federal District
Court found that the program was
necessary because the university's
history of' racial segregation still
resonated among the state's black,
population. Thurgood Marshall, t~e
late Supreme Court Justice who had
been barred from attending the law
school there, successfully handled
the suit that opened the law program
in 1935, But the rest of the. univers'1y
remained closed to black students
until i954. The university remains
under desegregation mandates.
"We've got the Justice Depart-
------------------'_._---- ----_ ..
spe~ial I
ment telling us we must have
programs and the coun telling us we
can't have them," Dr. Kirwan said. I
In the most recent appeal, univer-I
sity officials argued that the effects
of discrimination were still visible in
,the underrepresenUltion of black I
'students on campus (although 12 ,
percent of the, 24,000 stu.dents are
black, more than 20 percent of !\1ary
land's residents are black).
But the appeals court disagreed,
saying the disproportionately small
number of black students at the col
lege did not itself constitute' dis
crimination. The court also ques
tioned whether the Banneker pro
gram was p'rop~rly planned.
"If the purpose of the program
was to draw only high·achieving Af·
rican-American students to the uni
versity, i.t could not be sustained,"
the appeals c!lurt said. "High
achievers, whether African-Ameri
can or not, are not the group against
'which the university discriminated
in the past."
Even if the the loss of black schol- :
arships does not cause the number of
black students to drop, the demo
graphics will nonetheless almost
certainly change, said Mr. King, the
university spokesman. Top students
like Nicole West may choose to go
elsewhere, he said.
Ms. West agreed.
"That was definitely a huge plus
for Maryland," she said. "\ wouldn't
say don't go to Maryland now, But I
would say look around and. cons,ider
what else is out there."
__
.
�i'
i
HEADLINE NEW EEOC CHIEF STEPS UP BIAS FIGHT
Byline: 'FRANK GREVE Knight-Ridder Newspapers
10/27/94
DATE
SOURCE THE NEW ORLEANS TIMES-PICAYUNE (NOTP)
Edition: THIRD
Section: NATIONAL
Page:
A12
(Copyright 1994)
The U.S. Equal Employment Opportunity Commission's new
chairman, Gilbert Casellas, pledged Wednesday to, investigate -the
high firing rates, among black federal workers.
"I've seen those reports," Casellas said. "They're something I
want to look into. "
Knight-Ridder reported last week that black workers in the
government were being fired at twice the rate of white workers everi
when they appeared equal in background, performance and every other
measurable respect.
That review of appeals found that only one in a hundred .fired.
workers who claimed bias won appeals before the EEOC.
A Washington-based advocacy group, Blacks in GoverIlffl.ent, wrote
to President Clinton about the issue on Wednesday. "Disparate
firings are the symptoms, not the disease," said BIG's
president-elect, Oscar Eason, in the letter. "The disease is
racism. "
Among the effects are "lax enforcement of anti-discrimination
law, lack of accountability, and a permissive attitude toward
discrimination in the workplace," Eason said.
Casellas' agency, which handles bias law, enforcement, became a
backwater in the 1980s when Presidents Reagan and Bush named
commissioners hostile. to civil rights groups. Congress responded by
cutting the EEOC's budgets.
CaselIas and two other Clinton administration appointees to the
five-member board were not confirmed by the Senate until last month.
Among other goals, his agency "must reclaim its rightful role"
as the leader in fighting bias in federal workplaces, Casellas said
Wednesday.
They are confronted, Casellas acknowledged, by a staggering
backlog of 92,396 charges of bias of all kinds, involving private
and public sector workers. At the current rate of review, it would
take 19 months to clear them up, even if no new cases were filed.
About 9,500 of the bias charges were filed by federal workers,
according to EEOC statistics.
CaselIas said he wants a 30 percent budget increase in the
fiscal year beginning next October to help clear the backlog and
improve enforcement. He also promised to "reinvent" bias
investigations and hearings, and to be more hospitable to cases
�claiming "systemic" bias.
The Office of Personnel Management, which has thus far taken
the lead in investigating high minority firing rates among federal
workers, will reconvene a panel of agency officials next week to
discuss the issue.
Knight-Ridder's stories were based" in part, on research into
the problem supported byOPM and conducted by Brown University
sociologist Hilary Silver. Her work is still being reviewed and
,re-analyzed, said OPM spokesman Janice Lachance.
A formal report of Silver's findings will be, made public "as
soon as possible," Lachance said.
Still to be determined by Silver and the OPM is just how
important race and ethnic origin are in determining who in the
government gets fired, officials said.
"This issue has the utmost priority in this agency and, we are
certain, across government," Lachance said.
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bate onwheiheithe Cons'tifu,;,::,'2" .
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"generally should be litriited to
'individuals who can prove they
',were directly ,victimized' by'
. bigotry~Hisviewson'affirma. tive',actioli were shaped,gt:ow '. '.
"~:ing:up.,in; Georgia,:,wljere.·a' "
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disdpl~e {were:·the ways'ito::,:,
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"sci~cl1lydefended hiS~odd~:,:,
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The court's conlOcience? Vtoiiz'as's'pOweito'swo.; justices .ofrqCj!~p'rejerence' cases
be tested,:,' 'Thomas's vi~ws are shared by'
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ence Thomas took"his seat on the rival'Qf two mod~rate justices appointed 'science.·on ¢iVil rig~ts," asserts~lintBo- "
,
Supreme Court after th~,most tu by ,Bill ,aintcin.:N:owh~re. is tl,lat tack lick, alboma~aide in th~1980s:'!'~': '
multuous judicial confirmation .b:earings, moreappar~ritthan;on'~Cial issue.s.In·· ;:The,Supreme c:otii:t's openirigdisilUte' .
.in history. And the debaltiover \Vh~ther' :,tJti,s !=OJ.lrt,t~iIn,'}lioimi.swill get.hisfiist. oveigovenlIl}ent, con~raCtspits :,~hit~., ,:
". ThomassexuaUy harassed"Anita'~!lL '.'crack at, influencing' his,colleagties on: . against Hispanics.. Adarand ,Qjnsttuc- .,' ~
',soil rages on in' new books; TWo' WaH 'many legal matters t}Uit:involve race, .in~. . tors, a white-owned firm;;offered the low,,> ", -,
, , Street Joumalreportersoffer a detailed'. ~ cludirig;t case:mvolvirig'race pr~ferei:i~s , . bid to eiecfa highway guarerail iii Colo~ , .
." look' at the Bush. \Vh,ite HI,)~se's ,barely :)f'!~w~rd.i?g fe,deral:contI'acts. Lat~r this' " ra?o's ~aJl.JuanNationarForest: But!he",- "
, .' successM campaIgn of ~'selhng" ,Thom-', .term;ltwdJ.attempt to settle some tough '. Hispamc-O\vned Gonzales Constructto,n.: '
:··as to the Senate. '. And . Missou'ri .;~en:school:de~egregation :issues and, possi~'Co. got the job,and the piitpe cOnlractor" .
· . . John Danforth; Thomas's CIl!ef SP(:>Rsoi:;" .bly;major votirig~rightl! Cas~.The'deci~~rere.iveda $30,000 bpnus, for ,aiding a'i',
· . 'provides a firsthand 'accou'nt,.ofhis .,~ions: will'sen~~ign~s of how' the. court ' . group define<!asdisadvimtaged.,Feder:al '.' :
; friend's humili~tioriaita "iesurrection;?~', :,'willh~n,dle~:o!tier:'~ot r~yialdispu~esin-;, ,law:;gni.nb(a'miriiin.u'm::of~'5:-pe.rCent·oO.;·;~ ,
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·-: ':;' As:the disp~te. .c9nti~i.le~~;~~~,46"yeaf ;:volvintrjo.~>~~s~~i".li!1;,l~io'n_,: a~~;la,":-'~ ;'the.,piIHpn:~:oVfed~faL:pr9A~!~:~en.t:jE,
· . old. Th9mas .IS emergmg ,as, ,a '!!tmient, •. s~hool admlssIQn.sJhatar¢,workmg th(:lr , " funds for Jnmonty firms; a. c1au~e,Adar,;q!:
.,voice .on. acoutt that, contiriu~ :;to'.tilr~ay)hrougliJ9wei;CQurts,:·~':;i'': > .. . ,,. _and· c~lIs, a: (~ra'ce,~base:<I,:quqta~~,,; th~tj~ <t·
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Woods Holdke~ographic Instit.ulti9111t:
and to'other sCientists; this and
'sites beneath the Atlantic and' n_,.:"'~'-:",~·
oceans, could, beCOme .qseful-:-rather'
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.than useless..,..churiks of' real :estate:·.·.,·.
.What better place to bury high-level nu..;:'; '.
,Clear .wastes than deep, in this primevaL
ooze mas remote a
as the Earth·," ,
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30 nuclearpower ,nations aren't,
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Seabeddisposa:lismorea'mattc~roltpo
. caLtimiqity than.of sci~mtific,ldjfJ:icu)lties,;
or ·valid e"ln',mc)'[ltm(~ntill t'Jrln('prt1c
" :c~ Where to .dispoSe:of deadly 0018011-",:·,
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,ECQnQmic, rec.0veries, aresypposed' to. proVide ~'oQS~ ... p~Qpl~.in~o,i;t.: It'~a~Sisyphean·ba~tl.~·/'iPQ:v.~ro/ is'~~ ';<~:>, '_ ",J
to. sitting presidents, ,to. the. majQrity partyin.CQngress' . chmbmg, Just less rapIdly. ,Th~>admmlstratlQnpredlcts· i:; ',;;. :",.' '
and to. thepeQple concern~d ,IIQt~with PQllsbut With· : that by 1996,.the"PQverty ratewill .. actually'gQ:dQwn:.) ...
their PQcketbooks: The currepfeCQnomicupturn,how-:' ',(cQunting gains frQm the Earned IncQme TaJ{ 9reditY:It' • ' .
ever, hasb,een atypically cruel;' and nQt only. to. Presiden't ,adds the whQPping Caveat, hQwever, that much depends' ..' •.' '...' .
ClintQn andDemQcraticiricurnbents. :pespite the. rising,Qn QverallrnacroeconQrnictrends. 1:\ndifwages fell with' ",', .,'
tide; the 8 miliiQn families' iri~:America'that are cQnsid-'· ; posi tivt'! macrQeconQmic treridS last.ye¥/'on,e: ~hudders:\, :, ;J,
,ered pbQr ~Qnti~ueto.follrider;~;::~;i~:~·:(f,~·:·:i}'~i:>i'~?'ii_;, ::', .; t'o think what might happepshQuld\\;e.t><:: subject'to an.~.L;;J~;:··:::~,·· .
hJi~~:r!~~·~ea:tdG~~~:~i~~~~~~~u:l~:~.~~t~ •. ·:··'~~W;~~~~~ip~~:~~~~:2y:i~~~~t!f~r'~~~}~!,~~:~~:jft~t.i{~A~f#~ •
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.' swell.'. 'But 'a'Qngside ,this ;goodneWstonies~a 'dismal. ·... answer Is.traInmg prQgrams: He, c1alms .t1)at~~thQ~'.\V,hQ,;('~ii\'·;"(C~~,.~.··
E~~l~@~;jWi!.~!~ir~i~~~rtio~fi~!:~;~~&ri~fl~~~t~~~~~~~~;,it
....comparableutteinplQyment nitesi<p1d, that feilaiSimilaf
nQW .eatns$8,87-10 peryear. .Add 6percent and ypu h~ve·,,\~;;.,!:,: \.": :.'.
. .p6.ints i~, the. ~usinesscycl~y~:)ti 'llJI1J:d .di~cb~dhews" . an unipspiringsal<rryof $9;370, far belqw. th~· QffiCi.aI .,:.<!}" . '.•. '. ;'
cQnfirmed, Ac~ordingtpth~CenterfQd~udge~andJ?QI-:·, PQVerty Iinef~rafam~lyiQffo\ir. 'Eveni£yollfac'tor 111 ~e }t·,,~" ..... .
icy Priorities,' which cQnducted 'sucl'! a. study, the poverty' Earned IncomeTax Credit~ yo.u 're.stillshy Qfthe PQve~ty·::;· .,' ,::' .
" . rate ih 1977 was le~ thah 12·percent.J~]993 it was .line-:-itselfan,unreasQnablYIQwstaric:iard'fQradecent::/::,,>, .'
slightly more .than 15 percent:.' .•.. :'" ..... ':;..>':.: '.',', .:,' da.i1y existen<;e. To. be sure, this dQesn't meaIijQb ,trai~.;' ... '.'
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. .... The new CensusfigUr~saISo r~~eala tr?llbling tr~nd
ing is wQrthless,pr even a bad id~a. It has been shown' to'
'in wh'o the'POQr are,·..FQridecades,' .families' head,edpy' ,be admirablyeffectiveamQrig :experienced work:.
. . single mQthers ;have bee~mofe'li~ely t9·1)e 'poor ,iliari .' ..•. ers,'such~loggers i~ the.Pacific N()rthwest.But
; two-:parent families. NQw.~we le,,!-rn thatpQ'Verty~_ rates:it sureisri'i a panaceafQq>ovetty. ,. .., .,. . ...... ....
.. have increase9~Qr two.:parent farnili<!:s~ welL These fig- . .:'. What's left?" There's. always. th~ minimum .
. ~res suggest 'that it's nQt::the'~asytcifgetS~of tnimbling . wage. If it. had kept' pace.Witii its '1~70s pur<.
: fainilyval~esor a screwed~up, weJfar~ ~ste~ thafar~ .tQ,: '.' chasing, power,.it 'WQuld be .abQut .$5.50' 'per'
blame (that's another.stQry);'bYt~~e~ing;more~i«;::· 'hQur, rather.ihiin the current/ and. j ane Il1 ic,.;,. '
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an erQsion.Qfwages:and,agrQ~rigm:imber:QfpeQple. :$4.25. Raising it would be a.healthystaft.A.Swe'v~.
who. WQrk.f1.dltime,ye~€<irl) keepa:£amily .o.qQur aflQat. .' noted befQ.r~ in~ese pages,the,arguirientthat'ahigher;,
......•. Various fede,r:al p<:ilici<;~transfer:payI'rferj~'~dben:-, ',: minim\lm, wage .wil~ price "th:~ pOor~()Ut,,~fjdb,s dQe~Il' f '. '.
, efits such.as FQQd StairipsandMedicaid~Qh¢lp;,9ne,wash; m'os(minimtim~wage.'rs are middle:<;lass;teenagers ;\:, .
; Qfthe mQst impQr$t balms'9flate.ha~,be~n·GliritQP's ·:.wQr~ing fQr pocketmoriey, 'nQt poo~ pleI),~nd WQmen': '. ' .
. expansion of the Earned'Im;Qme~ Tax Credit" whiCh .•. ; tQiling to. pay the reilt (see "Go. Take a Hike," The Edi-:' '., ... .
give~ataxb~eak.toPQQr, ~~rkingfamilies:with'chil9r,en.':tors, :May.16,:I988, '.and.'Take a Hike~ bySteph~nie".' ... .
M~ndmer, May 23, 1994); J'he ClinWn,administratlQn, '
This yeartheexpand~d prograin.pushed 312,000 fami~
,H«;s Qver Qr within .$500 Qf pie PQVerty l~ne;,'~yJ 99~ the . shQuld give the prQPQsal seriQus cQnsiderai:.iQn, espe
figure shQuld.apprQach 2 milliQn.. There's'no. questiQn.ci;llly 1lsit mQves to.. refQrm w~lfare. ThQughwe're nQt': .
. that the prQgram :~~l smQQth the, sIQP~: 0.£ ~e ·ds~ng.' naive enQughtQ .think;'tpis s,itYple act. ~ill~n'd"p<?~erty! ';: ~:;"
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., PQverty trend line." .. ,:,~" ,:'>\!:'t:: ~.: ·;'c" :',':' ,17'.":.,:.: '';'.' , •.•. we:.~eJ.1opefl,tlen~:ri..tgh~o~9:~J}eve)t~wW;sh<>tt~i,('tpe;~\~;, , ....
'. 'Bud~ thegover,nrrieritis})finging rngre p~opkoutbf .1' •·lo.ng a~dtinh~ppy shadow pc:>ver..ti still' casts. 'Qver ,qu~;,;:'
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�·tee qQ Transportation he ha; fu'nneled sorely n~edet
rnasd~r~nsitaid 'to ,New Jersey, '~He ~desrft have the "SAN'
reputatIOn as the lllcestguyon the HIli, but.he really:.:,.,
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,.does delhrer, a l?,t for the state,. reg~rqle~s,of w~at p~ople " '//~I,~;.: ~'.'lf,.>.1;!~~\;,· .;.
say about him, says a former Washmgton:aId~ to ,Flo- ~ :',·"';'r.:'::::.:·":;:.:::.,,:::,;, .:
. rio. (Complimerits vqlleyed Lautenberg'swayirievitl,tbly .: "'~RA':":t,:
tend to arrive by ·backhand. "He;s a prettY interesting' ."
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lpersonothert~a'nh~s person~lity,~,is, ~he ,\V~y;Yackel;' ii, ;'~:'; ,.:i<
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supporttr, descnbes him.) '. , " , ' ;':",:.:,."': I':'
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Desplieevincing conslderable political skiltin 'c:: 0ni - . '", i, ' : , / : ' :. ." .',.,.
· l . piling a liberal, pro-labor voting record without alienat~' .
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ring New jersey business, Lautenberg is cast as his state's
13yHarmaJ(osi~ ,', ".',:
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: pothole 'senatorwhile Bradley is off entertainin.g 'big'
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·tho~ghts. "He's New Jersey's answer to AI D'J\rnato;"" . "'~"t's iarc:;",he~· th,e forc~s of nature ,expos,e politiCa1 ;',:;,,' "
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·f:: '. '~~~h~~~~=[~~~e:i~e~:~~~~~~s~~~~~~~:.~~;t~~oL~· ~i.:r( ':0,~~I~~:!~~r;'~~~~,u~'~~~:kj6~~~hle~~j~~;:4i~~f;;:':;:~l.~~;(
i ',' Jut;ld sites and:~ass-translt funds:~or Ca~d~.~. <tlld:tl1~:::.:,'
,,:lll~;S agrIcu~tural.hl:!~rtl~d,when th~:we~th,<;!~dl~:;:~';./~:£~:{:{,\}L:
I' .' Norman Ornstem of New BrullS\Vlckdecldesyou're:1" '. sometlilng unexpected:,lt ramed.Months Qefore·,any~·':'>:'t)';·,: .
\.' '~orthy peer of D'Amato. Salmore, by, the 'way,.is mar-,: ;' orie:,pr~dicted ~venr driizle;the'dawn skjr darkened, <';'
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· jried!o the' sisterof Lautenberg's chief ofstaff. Is itanV clouds rushed.iu and the parched valley wasdf(!n~hed.
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,wonder Lautenberg has a chip on his shoulder?' .' ,',
". Cotton growers woke to findtheir'crops hanging limp "~' · . ' i ·
Lautenberg's' predicam'ent is exacerbated' by, the· :~d'·mottle~.t "9rape farmers disc~vered rows "and r~iws '.' ..-:'~, ,'.
' : media segmentation of N.~ jersey, where the~outh is '. of,crimsc)llseedlessandribiers" with their'. stems, .. ",
. subsumed by the Philadelphia m:u:ketandthen()rth .by, '.cracked: leaving thefruitsusceptible to disease. Alfalfa .... " ,.
, : , . ,New"York City'S. Thus, Lau~nb~rg suffers tl:1e indignity ." fa.rm~.rs·;clutched at soggy .bales of. greeri)nush.j,And ~,"'::'
,'.of being less well-~own among some. o( hiscollstit:uen t&,:, Tai~i:il·. : grow~rs .:(w~re', 'hauhtC':d' bynightmare~ >of,.,· /., .
" than' Arlen Specter in the south cirD'Arnato.and Dailiel' "tnildewedraisins;an,especially frigh!ening thought:: ',.
,'i~atri<:k Moynihan'in the .north. As. forilie '~ewJersey",:giveri ~~tthose wil1ningcommer'Cials ofclancing Sun.,.'.: ..; :'.
. print press,it tends to focus on the powerfulgovernor'~' . maids hadrocketed demand to r~cord le.ve.ls~ Growers: .:, ' .",
i
, office,currently home to rising star Christine'Toddscrarilbled iofind:workersto pick the cropsbt;fore they···' .. '.'
, l .:Whi~an,.leaving Lauteriberg struggling for attention.' < rotted., But (hey w~re out of luck, for. rnostof the,""
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:>. ;\. '/: '.:' ,';:mign,miwork for~ehad:already move~nor't!t to WaslV::>"
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~u~t~J~~l;I;~;~i~hn,;s,~~~y:il~,:~e!th~~ h~d'.
·t ''L,':~::~~~~~~:~;!!~~f::;o~:,'~~i~~~~~:~~. ',':·'Pie·growe~'pr:-edicamentwas,'rich.Before.·the p:~~~".':;'
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iug reform measure, privatelyde.emed:hypocriti- .
rain, '.
cal by some of·his colleagues; !tasn~t'helped~"I~' . they had dg'nated"almost $I million to the re-election ,"
l' , got people angry here, ~he,says.: ,;I,have towQrk harder: t()'. <i:campaigp :o( Repu,blican Governor;Pete,Wilson; Who,;
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;\: . . get things done." The Ne~ jerseycongressional:'delega- ,with'his~ supportfor,' Proposition :187..;-a mc:;asure tha(::
tion being more or less avipeis'i,len,:he haSnp closea1lies. ':wo'l1-ld deny S{>cial serVices t9. illegai alienS-:-has made ,,:,' ,.:'. .'
there; (His relations with NewjerseYRepresentattve Rob-, ." 'immigrationrestI1ction tile ceriterpiec~ of his political .' , " ."
. ert Torric~l!i have been particularly bitterove~.the years.)' :'efforts.;.pank.o~er lost profits, however, ,turned ):he 'con~ ,'.. ' >.
, ~ '.' . Lautenberg cannot turn for, sud::or to the state'sc:;antan:- ': ,'spicllously' silent growers into passionate, p.efenders 'of'
·.kerous Democ;ratic Party, ~ithd' DNcPoliticaJDiredof ' . the great unwasfied;The,next morning, grow~rs .from~,
Don~1c~ Sw~itzerhad t() be called ·in to brok~i·a~~al.;.acr.oss.tlle.'~ornucopia wer~moatling in unison ,to The ,
'I,'." .between the Lautenberg campaign and.thestate partybri" .:i-oSAiigei9 Times. "L.et's face it,". Harry ,Ktibo, a"self-,'
;,
'the' u~'of this fall's coordina:t~d Catnpai~ fund,S. '.::~ .'.' ·,!descrlbe~stluhch·,Reptibncail an<i;.h~adof the: Nisei
I . ,lhtis,Lautenberg i$left to paSs.his golden,years hun~:
'/Farmer--sLeague,'which represents 1,200 grow~rs~n 'the";'
'-kering do~ in his Se.nate pffice, fen~lingofftheslights .:'" ~ley, told the paper; "Fifty percent ofthe 'agricultural
ofrivals; realand perceived',. with a graceless pers~v.er,:i: :' work force irithisvalleyis illegal. We'd sinJ!;.,econorrii
. , ance,'f'I'iri the Rodney Dangerfield off\merlcaIl'poli~ .: c~lIy without them." CaseyJones, who farms a:16(}.acre
ticg....,.-is that what you're aSkirig?~ 'he re~porids 'wlJen ' Vin¢yard,wa$ frantically call~ng a labor contractor. ~'
',questiohedwhether he gets ilie.~i-edit he cles~rves~)'~n .mfddlemimw~o.rents out work crews. "He said a. crew' .
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a funny w~y,; though, Lau~enberg's knack for getting
wilL be. 'here at 6:00; but they never, showed. It's, all
· ,. '. cliss~d may be the key to bis elec,toral survivaiin NoveIIl:~·.' . "beCaUs,eOfthiS' POliti,' Cal rh,etoric." Ray Lo,pe,z of FO,~ler.
. b~r, an unspoken. bond' he sQares With. the voters.' ,Sp. Pa~king. was also' fretQng. "It plays 'well as a political
what,ifhe gets no respec;:t? "in that," says·a Democratic' .,·,issue, btitifthe, politicians get their way, we'll be in trou-'
, consultant. "he really is New jersey, isn't he?"
., . '. bl~~ Ifycni removed every illegal from this'state, tomor
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:. ',: .:~ . " : .f,:, , " ',:, ". "', .. row;' ,yoti:1l se~ th~' w1'!ole agricultural business start to ..
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. >FRANCIS Wi~KJNSON covers:'~.a.tio~al affa:irsJor lWlling" '~r'umble·.": " : : ' '.
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" The grq~e~~) fllp-fiC?P underscores ,th~ . . hypocr.lsy <?f ::j ,", ,
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· this·. California campaign season>in:ariy'Of the·
·inimigran,ts depiCted by ~epublicans:as welfare;sp?n,ges.; .
'~;f wlri~a~~;~;yi:~~~:~e~~~:~d~~~~;~~~h~,:/'}~'<i:;.;f~er:~~~6e~rir···" .•.,' ····.:·~~iiiksf~r·· '.. .
t~:7J:::!£fn!:~~:!;!¥~:~~f~!tSi~ ·:'i~l~~~~~~~~i~~F~1tk::~ . '.",
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·Reformand ControlActatthe behestofgr()wers u~.til Ci ".:!un,i?n :si~eg~i.tp,p,899)~oter~.in.()!le n;to~t~;\i~~~:
" guest work~rprovision wasadded~:Thispr()visi6n everi'::; ;:: S:~ J~~quII!,yall~y.~I~.Il,~.h!he ,~r,~tslgn, o(tP~iHnI~n;'~ .
.; •. tually turned into the. SpeciaIi\grictiltural Wor~~rpro7' r,esu!ge!1<:~ cain~}iri:~April:wheI;i :an'uIlexpe~t~g'~O;09~i'~i'!t .
. . " gram, which offered legal reSidencY to'immigrants who.. .' farmwotk~r!fshowed up:.along .the route ofthe pefligrina:<'.. ·;>:
. \ could prove they had beell agricultural workers~:
b.. ..ciQn~ or twenty-four~a:y. pilgrimage from Delano 'to \i;;'
..Wilspnnowdaims that his original bill was ~hijacked" 'Sacrameil to~ held to memorialize the .deathof Chavez: . ".
'by D~motrats,and he ,wanted workers' to be allowe<i ·in. .1'hingi began 'to spark and then suddeIlI}/thete'wasa
: on]y temporarily. But .Wilson voted. for the bill".aIld 'gf(~at gustofwind;"saYS,Rodrlguez. A.ft~r.themarch",t1!~/·\;l;;;i'.
. . . . '. ~nco~'Jgeaabu~e~?f it}!1~~ ~.88,Xqrexa~p~e. :;" .' . • ." ,:iiIlli0!l)~ad~!,sl1ip4~cid~.dt~s~ift its; r(!solJfi:es"fr()m:e i """
to PreSident Jfeagancomplammg th?-t crops w~re
." "'(slickmedia';C3inprugnj>l'Omounga grap~ 'boyifottt6t11e:
...·and demanding that immigrants be allowed i~ .the.: '. ..' ,·:;:,fi.-ir.~,; ~ork, d~:()r~iz!~g.w?~~ers .jn .the.fields.<:r~~·,
•tryon ,their word alone. The Immigrationa.rid.NatUraI~!.· . meant reverting ·t() ..the.tactics 0(. the. late '1960s~d,.,;, . i
·"ization Service. ~is too quick to depolt,"he insisted,'In',' ": ·1970~onfronting gio~e~()n their abus~ve.labor,prac": .:'.,:', .'.
the end 1 the farmworker.program becameayehicle for.' .tic~s,. h~lding.electi()nsfor' union, representationc:nd':!t"
fraud; anyone could enter·the United States bypresent-' .demandmgfalr labOr contracts. Smce May, the UnIon' 'n
.. ing a letter sa)'ing he had been an agricultliral ~orker. . '. has doubled its field ()ffices from twelve t9 twenty-four. It· ·F
Th~twas then. This.yearWils()n has jumped· nine "haS won sev~n'elec:tiOnS;Slx hymore ihan 80 :peicent-:-, . . . . JI ..:
. points 'aheadof his ,Democratic . opponent, : Kathleen', . . ' mor(! activity than .the union has' seen ih .aaecade~ Ithas';.::r :'; .
'.' BroWn, largely'beeauseof his 'support fod87: The ini..'
also increased membership from 2,000 to 10,000 in its, ,>~. .
.tiative·, known, by suppoitersas "Save Qur St:(!.te,",js
associate membership program, which covers workers
. . . <ba~~edbY.l tWo, ,.out .. of, three Californians, inCluding .' who support. the .ur:tionbut do not workunderuriion-_ ~ t .~•. ,'.,
,~ hlmos.~one.qmi.rtt;rofall L3.tinos: Written oy ~o fonne( . negotiated contracts. "Now you See. the bla.ck eagle fly- .: ~: .
" INS agents,the'.hlitiativetaps .into Californians' suspi"::· ingoverthe v3JJey," says Marc . Gross~an', a union'··'.. J. "
..''dons that illegals, stickup scifce.govern~ent resources~
spokesPlan, referring to',the'uFW f!.ag. "'We haven't seen,·
"
"Welfare,medjau.and ~ducation~ beriefitsaiet:he lJIag~\' . that in a long, long time.""
' . ' .. " , , ~<','
. '" nets.that draw IlLEGAL AIlENS," the vot~rs' manual reads.' '." Jhe union has adapted its field organizingt:;lctics',to.:·q;· . ·
.,'1NE:CANsTOP !THE IlLEGAL AllEN INVASION NOw." Started; . ····fighpng the proposition. Unionleaders an,nounce meet., , ".~ i,: •;..
.. .as a grass-rootsmovementinsub~rban Orange C()unty,. "ings oil Radio Caffipesina,UFW's station, in the valley,to . . . . :*~,'
,
. . .··theinitiative~picked tip by Wilson, who 'hasiurried it· " gather workers'and .traiilthem to registe'! vo'terS. At'one:~>:J.i,·
.·0.· , .into hi~ cer-tral ca1p.p(lign theme;,He has spenrmillions'.,meeting, a group. of about thir.ty Wc:!~,tl'l(!r~d )ookiJ1g)~/i: ~;:. /:; "
·:··on ·thirty.:second cominer(:ialsslioWing' black';:arid-white ' men, still in dirtY jeans and T~shirts from ~d~y in thee ; "',t i"'.:'
:image$ of,.:pandemonium 'at the' ;b(jrder. Onone of;·field,gath.eredonthe. front porch of a house.tha(':'\~l, :":.
· ,them, :,a narrator)~toiles:·;."300~000illegal )l}lmigrant', .•. ~elong~d :to:a m~n c~led:EfPrimo. Thoug~~er~p~ke :',:/r~'i:
: chiidr:en .irt'public:schools:.: .,an'dth,ey keep, comipg.: . ',.httle Enghsh,allo{ them ca.refullyfollowed dl~eCt10nson ;:.,' "}'
It's '!infair when peopleIike.y()uare working hard.''-' how to fill out·ballots.' A'man in a white cowboy, haC,: ' .
. '. .
'"
.
'. .
.'.'
'handed out/copies of a union poster:. "Ningun Ser,
' w'.'. ;.i.,.l~bn'.&~~ite.. fufrh.etoric has.a~hieved i.I1<!
'. .'
Human.o Es !legal.'.' {No Hunian Being is Illegal}. .
.. '.
.... .'.reslllt:lt ~3.!'rev1Ved the Umte~Farm Work-. ''.There 'were·o~erii1lmigration-related·qmpaigns.: .'
" . ....
. ..ers,a oIlce..pow'erfu.1 union'inretreatfof more{going on 'that night, too. AbOut .200 miles.~outh,. along:. .
.. , .
th~ aqeeade. The. unIon, '~which many pre-the .U.S. border near Sail ,Diego, Operation c;atek~eper, ,,)
dieted .would . disappear .after <the 1993 deat11 of its ' the latest government offensive to nab illegals, spriingto!
,
....,f()um:ler,Cesar Chavez, has sprung to life in'respons¢ to;' life.Two.huridredbOrQer cops; deplQyed inshiu.y new: ':·:t .
.' ....... the measllre; \Vhi,le .the 'great majprity offarr:tw9rkers ':..Je~p 'Cherokee&,Foid.Broncos, and .s~nan . high-speed, '.'j .,',
.
: are. here legally; many ofthem feel ~hreatened by the
boats; and armed with~field lights, laser fingerprinting '.} , ..
;propositloQ 's xeQophobiCovertones. And With good rea~ '.. eq'!}ipmentand night scopes', trained theireyes ori· the:.:! .
'... ,.' son. the iIliiiative rdluires'public ScllOOl teachers and .• . steel border fence. The offensive was a success. ':We " .; .
. ',': medical providers to verify thelegal status ofanyone.they· .' .caught 825' tonight, 'aimost four'tirhes' the same' riigh,t .. '
"sUspect is illegal. '~Every timethey see it Mexican face : last yeil'r," bragged GiistavoDeLa Vina, an INs.Commis- .
.' they'll questiorl'it;".says Arturo ~odfiguez, president of . 'sioner, at th~ post-Operation press conference, "Opera-:, ':
'..the.union: "How wouid youJikeii:if everytime you,went"tion Gatekeeper,"he conCluded; iIi a phrase that could ."
... :.
". ',. to thedodprhe asked youf()r youq:D: card?" But ~ven: . ~apply to j~st ab~ut ari,yone of Calif()rnWs immigr~ti?~. ):\'1
.
thebrmw()rkets her~;illegally a~ethe bestories to' make' .: s(,mflagrati9ns, "goes f~U blast." ~., '. ,. ';:"
..; .:':: '~; ... ' 'r
··?:it,...
',r,' .
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..."',
. NEW REPUBLIC NOVEMBER 14, 1994 '.
.
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I
THURSDAY, NOVEMBER 3, 1994
**
Court hears age-bias-case
ASSOCIATED PRESS
Employers should not escape li
ability for an illegal firing if they
later find a reason to justify the
action, an attorney for a secretary
fired at age 62 argued yesterday.
Some Supreme Court justices ap
peared to agree.
"This is a statute that says'
'Thou shalt not discriminate' ,:
Justice Ruth Bader Ginsburg t~ld
a lawyer for the 'Thnnessee com
pany that fired Christine McKen
non.
"You are turning it around '"
into something where the discrim
ination claim never sees the light
of day:' Justice Ginsburg added.
But the Nashville Banner Pub
lishing Co.'s lawyer, R. Eddie Way
. land, argued that fired employees ,
should lose any claim that they suf
fered discrimination if they later
are found to have Committed a fir
ing offense.
'
"The employee has no one to
blame but themselves;' Mr. Way
land said. "Congress did not intend
the diSCrimination laws to benefit
employees who are bad apples."
. Miss McKennon filed an age
bIas lawsuit against the Nashville
newspaper company after she was '
fired in 1990 after 39 years on the
job. She was told she was fired as,
part of a staff reduction.
The company won dismissal of
the case after Miss McKennon ad
mitted during pretrial proceed
ings that she had taken confiden
tial company documents home."
, BALTIMORE
Black judges oppose
raising retirement age
A group of black judges has
launched a campaign to defeat a
ballot Question that would raise
the mandatory retirement age
for judges to 75.
The Black Judges Confer- ,
ence, an informal group of the
state's black judiciary, says rais
ing the age from 70 would hurt
the advancement of young, fe
male and black lawyers by al
lowing current judges to stay
on five years longer.
, Supporters say the amend
ment keeps experienced judges
including Women and minor
ities - on the bench, and is
fairer than mandatory retire
ment at age 70.
White family sued for racial harassment isorderec
tomove.Qut
I
FROM COMBINED DISPATCHES
CHICAGO - In a, case de
scribed as unprecedented, a white
family sued by Puerto Rican
neighbors for racial harassment
has been ordered by a federai
judge to sell their home of 20 years
and move. .
. '
"The house has to be listed and
appraised immediately," 'Jeremy
MargOlis, attorney for the Puerto
Rican family, said yesterdaY. ,
"It is unprecedented. They are
being excised like a cancer on the
community, banned as despicable
racists," Mr. MargOlis added.
An order under which the white
family - John and Marie Kraft
three children, and a son-in-Iaw-":
agreed to move was worked out by
attorneys for both sides Thesday in
federal court before U.S. District
Judge Ann Williams.
"Close this chapter in- your
lives:' Judge Williams told both
families when the settlement was
reached. "Get over it and move on."
The Krafts had'been sued for
$10 million by- their next-door
neighbors, Isidor and Minerva
Ramos, who charged that shortly
after they moved into their home
on Chicago's Northwest Side in
1985, the Krafts began threaten
ing and harassing them, then
made death threats.
.'
Mr. Ramos, a Chicago police
man, is of black and Puerto Rican
descent. His wife is Puerto Rican.
The neighborhood is predomi
, nantly white and blue-collar.
Under the court agreement, the
three-bedroom house will be auc
tioned if a buyer canriot be"found
in 180 days:
_ i!
"I'm going to miSs the house:'
Mr. Kraft said yesterday. "But if I
stayed there, I'd still lose because
we couldn't get along."
He disputed the Ramoses' accu
sations.
"It wasn't about civil rights:' he
said. "We were ready to fight it. If
I had money, I would have fought
it."
Moving Out Settles
Lawsuit Over Rights
I
I
~
CHICAGO, Nov. 2 (AP) - A white
ouple have agreed to sell their
ome and move out within 60 days in
, prder to settle a civil rights lawsuit
accusing. them of harassing their
hext-door neighbors with racial slurs
nd death threats.
The neighbors who filed the suit,
hich sought $10 million in damages,
lire a Chicago police ofricer of black
and Puerto Rican descent and his
"uerto Rican wife.
,
L"Close this chapter in your lives,"
lIudge Ann Williams of Federal Dis
'rict Court told both families when
Ihe settlement was reached on Tues
day. "Get over it and move on."
I The white couple, John and Marie
~raft, have lived in their Northwest
~ide home for two decades. The
aintifrS, Isidor and Minerva Ra
, os, moved next door in 1985.
The lawsuit said that a year later,
e Krafts, their three children and a
on-jn-Iaw began shouting raCial in
, ults and obscenities at the Ramos
amily. The harassment eventually
~scalated to death threats, the law
~uit contended.
I The Krafts, who denied the accu
~ations, have now agreed to move
but only to avoid a costly legal battle,
~aid their lawyer, Gregory Adamski.
.,eremy Margolis, a lawyer for the
Ramos family, said the Krafts'
agreement "will forever remove this
~ancer from the community."
t
I
�,
THE WASHI1'4CTON POST
THlRSDW, :'-ion:''I'IBER 3, 1994
\
'/
,Revising the Laws on Fair Lending:\
Where the Regulators' Aim Is Off
,
\
hy all the ruckus over the Federal, ' , so, then what was their experience with other
Reserve Board's role in formulating the
institutions? And why would they choose other
, basis for a' proposed new Community
lenders'over Chevy Chase when they needed 10aJis?
Reinvestment Act?,
We simply can't teU from raw census tract data. .
According to their many critics, Federal Reserve
Relying too heavily on census tract data as a true
governors have ignored community needs and,
measure of deliberate c1iscrimination is a serious
, unlike other banking regulators involved in the
that has been given too much creclibility by
process, have proposed changes that would gut the
regulators and in the media. It assumeS far'too much'
CRA.
'
and explains little.
Community and ciVil rights activists, who took
The OTS may not agree with the justice
,
their protest to the steps
Department's approach in the Chevy Chase case but
of the Fed here in
the new CRA proposal that it helped formulate also
Washington the other
falls in the scattershot category.
day, aren't about to
, As an example, the proposed lending test would
change many minds
take into account such factors as the proportion of
behind the walls of that '
mortgage'loans made in a !Wtk's service area, and
bastion of conservative
the number of loans and the total amount made in
"
social philosophy and
economic policy. The Fed, after all, prides itself on . '
, being an independent agency, insulated from
pressure inside the government and out.
The larger drawback to meaningful reform of the
CRA, it seems, is a preference among the nation's
principal banking regulators for compliance rules
that are based more on a shotgun approach-than a
more precise rifle shot solution~ ,
Further, there is apparent c1isagreement among
regulators over recent enforcement measures
employed by the justice Department in cases of
alleged lending c1iscrimination. The nation's top
qu~stions
regulator of savings and loans and other thrift
institutions recently questioned the Justice
Department's approach in filing a lending
c1iscrimination suit against Chevy Chase Federal
Jow-, middle- and upper-income communities of the
service' area. Lenders also would be subject to a test
Savings Bank.
Chevy Chase agreed in August to a settlement
that would show the number of mortgage loans to
inclividua1s by income bracket within the service
with justice, though officiaJs of the institution and its
area. :
subsicliary, B.F. Saul Mortgage Co.. denied any,
,The only tests or guidelines that truly matter are:
wrongdoing.
• Did a bank refuse to make loans in a community
jonathan L. Fiechter, the acting head of the Office
of Thrift Supervision, told industry executives
because of racial or ethnic reasons?
• Did a lender make every effort to market its
meeting in Florida last month that the settlement
was based on an interpretation of fair-lending law
services to residents in a given area? ,
• Did a bank or S&L refuse to grant a loan to a
that is untested in the courts.
qualified borrower because of race, ethnicity or
That aside, the c1iscrimination case that justice
brought against Chevy Chase is a glaring example of
gender?
the shotgun approach to'resolving questions of bias in • How many loan applications c1id a lender reject, and
,lending.
what reasons did it give?
'
Surely those measures ought to be the focus of the
'In what it described as an unprecedented case, the'
justice Department broadened its enforcement of
, Fed, the OTS, the justice Department, the
Comptroller of the Currency and the Federal Deposit
laws prohibiting lencling bias by accusing Chevy
Chase and its mortgage subsicliary of failing to extend
Insurance Corp. as they attempt to reform the CRA.
Any violation of basic lending guidelines similar fo
services to predominantly black communities. justice
alleged that Chevy Chase not only neglected entire
and including those listed above should prompt stem
, neighborhoods, but also failed to market its services
warnings from regulators, to be followed by
as aggressively as it might have in those areas.
suspension or revocation of a bank's charter if the
offense is repeated. Enforcement should be just that
Interestingly, there was no claim by Justice that
simple.
Chevy Chase practiced c1iscrimination against anyone
who actually applied for a loan. The suit focused
Community reinvestment will'take care of itself if '
instead on the department's contention that there
regulators would simplify the rules, strengthen
enforcement of fair-Iencling laws and unburden
was c1iscrimination because a preponderance of loan
themselves of so many complicated assumptions and
applications received by Chevy Chase over several
years came from predominantly white census tracts.
guidelines.
J In the meantime, no one should expect that banks
One could also assume from that history of loan
by themselves can really make up for decades of
applications that no one living in the other census
racial c1iscrimination and neglect by various parties
tracts ever bothered to apply for a loan at Chevy'
Chase. H that was indeed the case, then there is a
that helped shaped the very census tracts that are
now the focus of concerns about community
question of whether or not residents of the census
reinvestment.'
tracts in question ever applied for loans elsewhere. If
W
flaw
The, discrimination case that
Justice brought againSt
Chevy Chase is a glaring
example ofthe shotgun
approoi:h to'resolving
ofbias.
�11-21-94': 2:40PM
SENT BY:
Dait~
CCIlT ECM:# 2
(No. 222)
11-21-.94
INA'S
EEOC...
CC-l
Reporter System
DAILY LABOR
SPECIAL REPORT
~EPORT
EEOC CHAIRMAN DRAWS ON BUSINESS PAST
TO ADDRESS AGBNCY'S MANAGEMBNT PROBLEMS
An unlikely 'Picture of Equal Employment Opportunity Commission Chairman Gilbert
Casellas-thumbs up and outfitted in a night suit in the back sea.t of an p~ 15 fighter plane
that is about to take off-adorns his office wall at commission headquarters.
But the newly installed chairman also made an unlikely journey to his position as head of
the country's chief civU rights enforcement agency.
Before coming to EEOC in October, he was general counsel of the U. S. Air Force for
more than year. Before that he was a litiga.tion parmer handling corporate clients for a major
Phlladel'Phia law firm.
Despite-and perhaps because of-his unconventional background for the BEOC position,
Casellas is moving quickly to address the problems at the beleaguered agency: an inventory of
cases that is quickly approaching 100.000; increased enforcement responsIbIlities; and the
prospect of closer oversight-and tighter purse strings-from the Republican majority on Cap
Itol Hill.
To address those problems. Casellas said, "EEOC has to oper~te more like a business.
If we were in the private settor, we would never survive. We would have been out of business a
long time ago. "
. His immediate priority is to assess operations and to determine ways "to make this
place worle more efficiently" more effectively. I I he told BNA during a wide - ranging interview
.Nov. 17.
To do that, Casellas intends to draw on his experience at the Pentagon and in corporate
law. "Principles that businesses have employed to make them more responsive can also work
in the government. I've seen them implemented at the Department of Defense. II he said, add
ing that be was shocked by the existing "top-dov;n approach If to management at the
commission.
In his first seven weeks at EEOC Casellas has lost no time getting an internal assess
ment started. He has visited six of the agency's district offices, met with more than a third of
the agency's 3,000 employees~ and accompanied senior staffers to the Office of Management
.and Budget to present the commission's budget request for fiscal 1996.
J
'IIA Hands-On Approacb~
Veteran EEOC staffers praised his hands-on approach. his honesty. and his ability to
grasp the problems of the agency. At those meetings, they said, he expressed concerns about
duplication of commission functions. "flattening" the headquarters staff, and loolcing at new
approaches and more flexibility in the field. Neither of his two immediate predecessors dis
played such a personal involvement and interest In the management of the commission. ac
..cording to several of tbose staffers, both at headquarters and in the field.
tCasellas is "enormously impressive," said a long-time commission official. "He1s
pleasant and bright, but he's walking into an agency that has a lot of problems. i t
By Nancy Mont\':ieler
Copyright
II:)
'994 by THE BUREAU OF NATIONAL AFFAIRS. INC.• Washlnglon. O.C. 20031
04111-2I1!13/94/S0+1' .00
�11-21~94
.
SENT BY:
CC - 2
(No. 222)
2:41PM;
SPECIAl REPORT
CCITT ECM;# 3
EEOC'"
(DLR)
11-21-94
A senior career attorney echoed those sentIments, but reiterated concerns that he said
many of the agency personnel have expressed about the impact that the administration's two
year delay has had on the commission. "We fell: neglected, t t he said. "This is supposed to be
a pro-civil rights administration. We'r~ waiting to see what happens. I I
Review And Redundancy
Casellas vowed to eliminate unnecessary layers of review and redundancy-particularly
at headquarters, where 17 percent of the staff is employed.
"What we should look at is why we have so many levels of review, II be said. "You need
oversIght and monitoring, to make sure there is some consistency in terms of the work. But 1
think we've gone too far the other way•• ,
Many of the policies at the commission-full InvestigaUon of cases p full remedies-were
adopted more than a decade ago, he noted, and need to be re-evaluated in light of the current
state at the agency.
"We're in a new reality now. We have more than 90,000 cases, U he said.
That reality may mean different approaches at different field offices and more discretion
for district directors, Casellas acknowledged. Field persoMel "feel that headquarters has
this cookie-cutter approach to things. " he said. "We should have the ability to innovate-with
in certain bounds-and to respond to individual situations. ft
Among the approaches the commission is expected to consider are an expansion of a pilot
alternative dispute resolution program and a return to the "rapid charge processing" system
used in the past. In talks With BNA. other higharanldng commission officials predicted that an
expansIon of both approaches-probably in a repackaged format-wits virtually certain.
Alt90ugh Casella.s acknowledged that both options were W'1der conslderation o he deflected
questions about any specific plans.
"There's a lot of people who say we can institute something like [rapid charge process
ing]. I f be said. ttl don tt know yet . . • There are things that can be done at the inceptIon of the
charge ••.• ADR. fact-finding. selection of cases. But those won't change the reality of thou
sands of people who show up at our door. "
Involving The Commissioners
The chairman said he plans to "announce a couple of initiatives" and to set his plans in
motion when the new commission holds its first public meeting Dec. 1. Greater involvement
among the four other commissioners is another of his goals. Newly-appointed Democrats Paul
Igasaki and Paul Steven Miller have joined Republicans Ricky Silberman and Joyce Tucker
bringing the agency to its full strength for the first time in more than a year and a half.
"I hope to engage in open discussion with commis s10ners at the meetings, •t he said, not
ing "a reluctance" for that.kind of open. give and take in the past.
"There's a certain dynamic that happens in those [apen] discu5sions. tI Casellas ob
served. til hope to engage them in more of that-to be inclusive and open to theIr ideas. t I
Other goals, he said. are better outreach to both the employee and employer community
and more polley guidance as well.
80
1 want to get out the message that the problems have not been solved." he said. "I get a
sense-from things I read and see on television-of almost a backlash. 'Too much is being
made of sexual harassment. Everyone is a person with a disab1l1ty. Title Vll was only de
signed for segregated workplaces, and we dontt have those any more.' ..
Cases Htesting the edge of the law"-he cited the report of an employee charging dis
crimination because of her body odor, as an example-Ifdemean the bulk of the cases that come
p
Copyright 0 1994 b~ THE BUREAU OF NATIONAl. AFFAIRS, INC., WaShington. D.C. 20037
0411t--.2693J94fSO+ll.00
�SENT ..BY:
11-21-94
11-21-94
2:41PM
SPECIAl REPORT
(DLR)
EEOC....
ccrTT ECM;# 4
(No. 222)
CC-3
in where someone bas suffered some blatant. flagrant discrimination or mistreatment. 91 he
said.
"People see those cases as represeming the norm and say we've gone off the deep end. I
have fO remind people of the thousands of cases that come in' every year. Women who are
groped, are called names, people with disabilities who want an accommodation, black people,
Hispanics, Asians who donlt ger a Job because of the color of their sldn or their accent. People
who just want a job or hit a glass ceUing or don't get a promotion or get fired for reasons that
have nothing to do with their abilities.
t'l think we have to keep remindmg people that 30 years later we haven't solved those
problems ••• I think that's an appropriate role for a commission chairman. tt
As Casellas pointed out the F-15 picture on his office wall to a departing visitor. he was
asked bow the move across the Potomac river to BEOC could match the excitement of Pentagon
ll~.
.
.
"That was a great job, U he responded. "But 1 have more passion for this one. II
End of Section
Copyright
II:)
1994 by THE BUREAU OF NATIONAL AFFAIRS. INC•• Wae"lng!on. D.C. 20037
eM18-2893/114J$O,.S1,oo
�•
II"
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.,
NBC NEWS
MEET THE PRESS
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1995, National Ilma(.kasring Company. tnc. All Rights Reserved.
PLEA,f\/<; CREDIT ANY QUOTES OR J::XCf:RI'l~f) FROM 111105 NBC
TA'LEVISION PROGRAM T() "NRC NI::WS' MEET THE PRESS. ..
NBC News
.MEET THE PRESS
Sunday. "'ebruary J 2, 1995
•
GUESTS:
DAN QUAYLE
Former Vice President
./
LEON PANETTA
White House Chief of Staff
Tim Russert· NBC NEWS
MOO.ERATOR:
PANEL:
ROUNDTABLE GUeSTS:
Brian Williams -: NBC News
Gwen Ifill - NBC News
Tim Russerf. NBC NeWs
Brian Williams - NBC News
Gwen Ifill - NBC News,
This is It rush transcript provided
for the information and convenience of
the press. Accuracy is not guaranteed.
In cat;tJ of doubt, pleasfi' r.hRr:k with .
MEET THE PRESS· NBC NEWS
(?02)88S.4698
(SundaY$; (202)885-4200).
�Meet
tbel·rc:~s
,1
(NBC News) • Smlday. February 12, 1995
,
'
MR- RUSSERT: Welcome again to MEET THE PRBS~. Our is~ues thi~ ~unday ffii')rning: the Clinton
White Houlie under barsh, <:riticism 'from 'fellow Oemo(.:rats about the handling of the Dr. Henry,
Fosterfsurgc(:m general appointment, the baseball strike, and a hudget, which liignified to many a surrender
on serioUs deficit reduction.
We'll Dllk with the president'l\ top adviser, White House Chief of Staff Leon Panetta. Alld in our MEET
THE PRF:~S Minute, SenatOr J.W. r:ulhright died this week. We'l( show you his first appearance on
MEETTHl:,:PRESS 44 yearl:i ago. February 25. 1951. ','
:'
,
Bul, first, we'll focus on the Rcpuhlican race for the White House, minus Dan Quayle. Why didn't he
run and where will his supporters go? With Ul:i now, the man in the new!;, the fMmer vke (,~rcsidenl of
the United Star'es. nan Quayle
' .
,
, .
Mr. Quayle. welcome hack to MEET THE PRESS.
MR.. QUAYLE:
Thank: you.
,
,
'
MR. RUSSERT: And joining rne in the questioning tllis morning. Gwen Ifill, who
NBC NeWfi.
cUV~I'~P{)lilics
for
Have you changed your mind?'
MR. QUA Y1.E: Sh01l1d i rccom;klcrright on this program?
MR.. RUSSbRT: . Bt: IllY' guest.
.
.
MR. QUAYLb: No.lhaven't changed my mind, and jrwas
,
lhc right dcci~ion ..
'
to
MR. RUSSERT: Three weeks aBO. you went the Amway convention anu said, 'TIlI.scanned, teSted
. and ready; I'm back in the arena and that's where I'm going ro stay;" And then you suddenly sajd~ "j'm
nor going to run for president." You sakI you're putting your family firs!. You have three kids. 20 and
,,18 arid 1(" and a strong and loyal Wife. Marilyn.vlve us .l sense of the conv~rsaiioll that wenr on with
your fcllJlily. the concerns thcy raised about' your candidacy.
MR- QUAYLE: Well, it's a conver!;atioIllhat we've had fOf I1I1Jnrh~.atuj I~ ~1.;.uted iotcn~ely this sllmm~r
when they were all home. Corrine is still at home; the two heys arc at college. hut during Christmas
vacation when I '!IllS in the huspltal. the conversations comiUlJeu. And fknewexaclly where their ..
'feelings were. I knew the diRruptiOI) it would be to them.'
.
But to their credil--a!ld I'm nvl goins JO tell you what they told me pnvateIY"l1u(to their credit, tht:y
said, "It'~ your decision and we'll support you in wha(cver your decision will be." AndJ love my
'chikiren, and) ti10ughr that was a I:peat testament to their (.~haraclel. And it was my dccisiuI1: il was; 3
tough decisit)u. '
.
Tim, thes9 things arc lIot jUM black and whi\c. They're difficult to n~pon. quilt: hankly There iii a lot
of thought and reflection. It's a pt.:rsonal introspective uccision. YtlU add it Up, one side. the campaign
and all il entails, and the orher !\id~ is (he family and you hllvc to makl~ 11 choice.
. MR. RUSSbRT: hi it fair to
SII)'
that your family urged you
nol
to run?
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MR. QUAYLE: Wtl!. let me just say if's fair to say that the statements from my family when I lold
them I was not going ro run was from ecstasy 10 relief. There W!lS a lot of reluCt.lIlce, there's no doubt
about that.
MR. RUSSERT: QllestiOIl$ahout your health. La~1 week. j\1I1 wert:
IIJl~ video· 'you sank a putt acruaJ,ly.
it!
thcPebblcneach Tournament
playing golf and 1 saw
MIl QUAYLE: Sank a pun, yes.
MR. RUSSER'f': The ens announcer said ... quotc."J talkel,1
at least. six months away from heing physically fit,." True?
lO
Dan Quayle las' night. He I\aid lie was
i
MR. QUAYLL Nt) I probably said .~ix months that I'd he 011 Coumadiiland theIllh~ do..:tors.would
determii:ne what rny medication would be aftcr that. No, }'m rravding. I've been on .1 fairly rigorous
schedtJ.1le for the last two wetks, My uoctor said, "You can do whatever you 'want; go wherever you
w/UU." I'm back to running ~gajn. ['mIlO( at 100 perettlt (:HI what I'd like do in running, hut I'm r.erting
there; It will lake a littk hit OfliiIlC.Bu\, no, I'm (lut anti physically fit right now.
MR. It.USSERT: Whc.n you hall surgery--uf first it was d~s\:rihed' as a routine appendectomy and then
later it was revealed that a tumor was removed. Wa.... there any malignancy ... '
MR. QUAYLE: No. There wasno ...
MR. RUSSERT:
,fmlnd ill any way.
MR. QUAYLE: ... no malignancy at all. Jr was something that was derccrt'lt durillg tht CAT S!.4n:
Looking hack un it, I'm glad I had that CAT scan right now. alrhough that-they dorn know whether it
would have grown. stayed the same or mayhe just shrunk over the wurse of time. DUI the docto~ all
said it should he removed .. and it
WLIS
removed and then.:.wa.... no malignancy whatsoevcr,
MR.lRUSS13RT:. If you. rail f,)I' pn•
.'sidclll in the future. you'd
sure rbat people are aWllI'e of y01l1' condition?
,
.
.,..
r\;!ka.'~e
all yllur health n.:cords to make
i~'
..
MR. 'QUA YLF.: Oh, 1 would imagine if 1 run for the presideI1l ill the future thal health jusI won't he a
oonsi&deration, You guys won't he aski!l~ for health recQrds. tax rt!(.;urd." or anything lik~ that. YOII'II
respect one'~ privacy thl~ll. .
.
MR., RUSSERT: What coun!l), ale you (raol'!
MR_ QUAYLE: Thing!' are going to change. We've gone so far to thl: extreme in one direction, we're
going to flip hack ,md it'll be like~,:,( just finished n:ading "Nu Ordinary Time" ahout l:ranklin RooseVelt.
We're going to !~O hack 10 the days when the press allowL-d a little privacy, they wenm'l so probing, to
the good old days. Uwell,
'
MR. RlJSSERT: . let mt! raise the is!)uc': of money. Your political adviser. ~1ark G(xlthn, said mOlley
was the issue in tem1S of your withdrawal. Phil GrarTlfll had $6 million in the. bank; Bob Dole, S2
million, How lIIudl ..II) y(',u havt: nn)' bal\~ now'! .
.
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MR. QtJAYLE: Well. we had ,not started raising money; but, Tim, J had about 20 fund-raisw:; that I
was in the process of sch~uling, f don't k.now if Mark Gnodin knew that or nol. We could IlilVe raised
a couple million dollars in Indialla, Could I have raised the- $15 million to $25 million" I think I could
have, When you get OUl and yOll ~tart raising money. there's a <.:errain dynamic [0 it: you c(Uch on, Now
if I'd have g('l!Il: out and not done so well. thClI·obvit1US}Y the money might nOI have been there. But in
the polls. we were (:~carly in second place. We were going to be [he challenger [() Bob J)ole. As il .
stand.. right now. someone cl~e willlnkc my position. But I fee! very comfortahle We could have raised
the money. So. no. Do I like going OUI and raising all that muncy? No. 1 don't think anybody does .
. Well. there may be a few that really enjoy it, but J don't, and most of us don't. But (hat was nol the
,
factor.
.
"
(
MR. RllSSERT: Who will .Iake your position, as you would sa)'. the runncr·up ,to Bob Dole?
.
.
.
.
MR. QUAYI ,f;: I thii'k we'll have to wait and see who -J think they're ail prUbably s,jmewliat in a
group. The two ohvious ones will be Phil Granmi and Lamar Alexander. I. believe thaI Phil'~ a lillie'
bit ahead of Lamar in the polls hut. YOIl know, these polls loday really arcn 'tgoing to make that much
difference. except Boh Dole is ch.:arly well ahead. The om: poll I did see that he apparently gained more
from PlY supporters (han anynneelse. 1 assume thar wa~ more name recot~tljtion than tinything else .. t
don't know. But he is way out !here.
MR. RUSScRT: Might
yOll
endorse Senator Dole in the ncar future?
MR. QUAYT.F.: I haven't decided whether 1't1 endorse a l.:."Indidate or not. I might. And it won't be
until prohahly this .,ummer, this fall; dctcnnming the appropriate time and where ~all I have the greatest .
impaa. . Obviously. 1 want all tht: candidates 10 address the issues thaI we have raised: the cultural
issues. national defense issues. domestic issues like l~gal retorm. the flat tax .. And 1 think Ihnl Ihey. will ...
So I want to cuulUlue to be, ."!Ii I ~aid several weeb a~n, which )'ou quoted, "continue to h~ in rhe arena;";'
. MR. RUSSERT: T.et'~ rake a look ul the monitor. Thi!l is the calendar (hat a candh.Jate·s going to'
. confront. A year from wday. Iowa, f.ehruary 12; then Pebruary 20, New Hampshire; March 5 aJ'It1 7,'!
New York a.nd six other ~lates; March 12. Texas. Florida, seven other !'tates: March I'), Mi(.;higan,
Illinois, Ohio; March 26. California and ConnccliclH. And what that lead!; us to, in 44 days from·
Fetiruary 12 to the 26, lwo-thirds of lhe delegates arc going 10 be selected. 'Howmuch money will ir take
to compete in that from-Ioaued ~'ystem'!
' ...
MR. QUAYLE: 'lkpcnds on whu it is. Obvioli~ly. if you're Lamar Alexander or Phil Gramm. it will
tak~ more than Bob Dole or, ifl had been in the ract, jusr hecau.se of the naIne rccognitiml factor. I.. :
dOli', lhink that thaI ifl the sophisticated way to sort of report this race and v(har'seoing to happen. It's.
the easy way and it shows support, who's gO! the most [mmey is declared l.he front-1'lll'lner. Uut tba('s\·
not nece,"sarily the case. I. PrcF.idem Muski.e, President Connally R few names come to mind that had 'the, .'.
. most money,
,..
will
But Illt)kinr, at [hal cukndar there. Tiin, I
say r.his, thai if Hob Dole wins Iowa and New Hampshire.
if:.; (;l,Icr·When it; il? .. rebru:uy20. If hl~ win~ Iht1Se two SIMes. everyone might as well pack their hags
and go.oo.and do sUlIlething el!:e. So it Wlm't even be till March 30 or the 4)-day time frame that'~ up
there.
.
MR. tHlSScRT: Will Dan Qllllylc nr Marilyn Quayle run for governor of llidiana in '96?
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MR. QUA YI.I:: Well. I can speak for myself and I've obviously had that quescion a lot in rhese last few
days. And I jusl begg~d fl)r a HUh: bit of time. Ijust gOt out of one race. ) need time ro I'efit.!ct (10 what
I ",,'ant to do. 1f M<lrilyn runs (or gm'emor--J'II sa)' it right hCl'conMEET THE f'RnSS--you're the first
to hear··'t. I wiU Sllppi)fl h~r.
.
MR. R1JSSERT: Will she rWI') Is she lhinking ab<lur it?
MR, Q1IAYLb: You'll have
to
talk to her. J have learned over the years, I don't speak for my wife.
MR. RtfSSERT: In the USA Today poll. about the Repuhlicancandidates. one thing lhat struck me was
lhm 45 percem nf Republicans had an unfavorable vi(:w of you, which I. thought was rather high amongst
lite Republican hase rairly \lr unfairly, dlj you think you have an im,lge problem? .
MH.. QUAYLE: Well. it depends on who you'retnlking to. If people have Iistt!ncd to me speak, .people
have t;,e(':11 in a meeting with me. pt!ople that know the n:,,1 Dan QUilyle, no. Ohviously. if people have
the image of fhe stereotype thaI wa.<; formed· in the fim three weeks in the 198~ campaign, tiTSI
'. impre£t\ions. yes. So it depends on who you're talking about.
MS. IPlI.L: Can we go back to the race.amJ .also go back to whether you speak for your wile or not'>
A fe'A' wt:ck~ ago ~n Hammonc.l. Indiana, she gave 11 speech ill which she assesst.-d the 1996 race and the
peopilC who would have then oet!n your contenders. Of Phil Gramm sht: said, "Hc'~ not ver)' 'well
rt)()uglll1 of in the SenaH~, cvenarnollg Republicans themselves. Do you agree with her assessment'? 'Was
it an accurate rt:flccrion?
'
t'
MR. QVA YU~: No, it's not accurate at alL 1 don't...
.
",
MS. WiLL: What
WitS
her a(:lUal statement?
MR. QUA YU~: I d0I1~1 know. Jwat>n't there. hut 1 c.lII't imagiuc Marilyn saying something like that.
MS: IrILL' You can'l illlaAinc··you've never heard her say anything like that'!
MR Q1JAYLE;.. I j~St
(~n't imagine hersay~ng something like Ihat.....·"·~
MS. I rILL: Ahotlt Lamar Alexander, she said hcwa~ hasi\;ally trying
. in OI'dcr to buy the preskltmcy or th~ 1I01111ltiitiull.
10
throw
1II0neya\
the campaign
·MR. QUAYLE: 1 don't know what...
MS }f;n.l.:
Sh~
didn't say Iltcse things?
. MR QlJAYU':: Well. you're goinl!
saying things like lhat ..
MS IHLL And you neVl;!r w.lk
[0
t(l
have to a,,,k herDI)t)'! ask me. but I just can'l im3jdne her
her about it, 1 guess?
MR. QliA Y I.E: Well, I'm not going to go thlll far.
\
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MS. IFILL: OK. 1..)011't waut to t.alk about it today. Let's talk ahout abonion. Last lime YOIl and i mel,
it was over a luncb~ol1 i~ which you were asked about thi~ question and one of the things you said in
response to a question about abonion was, "Jt should be her choice. It should be the individual's choke,"
Now Ralph Reed, thl: head of the Christian Coalition. has said that that should be a lirmus It.'51 for
presidential and vi<.:c presidcutial candidates .. Do you agree with him?
.
. MR. QUAVI.I::: 1 read what he !':aid and I don'L think thilt we sorl of-~begin lO exdud(: people from the
political process of who's going lO be our president and vice president nominee.r;. Look. this whole issue
is one that rca.<:onabk men and women disagree on. It's lUI emotional issue, al·times it c~m he rather
divisive. But let's remember, in 1980 we had a pro-life presidtmt. Ronald Reagan,and Ii pro-choice vice
president. George Bush. So 1 don't buy into this idea that you're going to ~appl)' Ii litmus lest on one
issue for pre~ident or vice presidem.
MS. IFILL: So you' rc splitting with the Christian Coalition llll this issue?
MR. QUAYL~: Well. I'm not cxactly sure, you know, where their··~alph Reed has a wonderful
organization; he's (I very good friend. I wiUbc talking to him about how our j~!\ues can get he fore the
candidates and before tht: American public for seriuu$ discussiun. But if we're going to SHIrl al'plying
litmus tests, no. I can't he parI of that.
. .
MS. IFILL: So you would supporl. a presidential candidate who was pro:life and a vice presidential·
. , .
candidate lhat was pro choi'~fI'l
MR. QUAYLE I'm just not going to exclude. 1 think thcy.--t want them to go tbrough the nomimning
process: Who rhe Republican:. nomillate for their presitirmrial candidate. who the Repuhlic"ans nominate
for their vice preskll.:ntial cand.idate. 'I am oonvinccd that-:-nql only myself, hutl'm~im;cd that ~~ph
Reed will suppurl the ticker.
...
. .....
-: .:~~>
.
MS. IFILL: Also OIl the abortion !':ubj~CI, theadministratiort finds itself out on a limb in its suppono"r
Dr. Henry Foster, the president" s nominee for surgeon general. If you were in the Senate today, would ."
you support hi!> nOIIlIll:4Uon?
'
'
~
MR. QUAYLE:
I'm sure thM I wouldn'r. Rut. you know.
feel· SOfri'" tor Dr . Poster;;: The-':,
incompetence in the· way thal this l1ominar.ion was handled· is amazing. Y~u have to realize that this is
the third year of the Clinfon administration. From what I know thaI there was not the FRI check. Ihere
was not eV~1I an internalinvestigafion in the \\o'hite Hou~e. You know, this confirmation proCcs~ is not
easy. There's a lot of scrutiny: And they've ju~1 ha!\ically hung Dr. ·Fo~ter OullO dry. t\ndl don',
know him: I haven't mel hin,. I know his n~c:ord only from what I've read in the papers. I'm sure that
there's others lhat could have be~ll I:ollsidered. Rut the WCty Ihey bandied this is unbelievabh:.
MS. IFILL. But YOt\ said that the is',oe with [)r. roster i~ his credibility. From what
think that he purposely 111isled the White House about his record?
MR..· QUAYL[;: 1 doriOt
Y·(lU
know. do YOll
IOlOW. Theonl), (hing I kllUw is that the White House dicl not do their
homeworl<" This was handled pt>t1rly and it shows incompetence. And that's going to he very much of
lUI issue in 1996: (~ompetcnec--beiTlg \Able todr~1 with matli.:rs like this f mean, if it's not .1-\lSter, it's
something t:!SI.:. We hav!..: chaos. You have--evcn I>emocrms ;uc just appalled by the way thai this .has
been handled. And the p(,or guy, Dr, f:nster is--ht: didn', knuw what he was getting imo. I mean, he.
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6
the other nominations go up. Bm he had no idea that this wa~ going 10 hlow
and the White Hou~e should have warned him.
Stefl
up in his f'acelike
.
MS. fRLL: One more thing 00 Dr. rOMeI'. Dtl you thillk someone who practices in women's health
i!;sues. all obl;terrici.1n or gynec()logist. ~h()uld ever. be nominated for surgco/1,general?
MR. QUA YLE: Well. I think when you nominale !lomebody for surgeon general. you ought lOlry to
have a person thai can uniry the c()umry as much as possihle. And where you have someone lhat has
pcrfnl'lllell a number of abortions, there's going to be i\ large scgmeIJ,t of the population. al lea!;t 25.
maybe 3() pert~ent, thaI will be very much opposed [0 that. I think. that is afaclM that they ought to
(;(lllsider. And 1 Wtlllll1. think (hat they would want W hitvc.: somebody that would bring UR together rather
than lear us apart.
MS. IBtL Let's turn HI nffirmative action briefly ,Lamar Alexander is ~omeonc you would have run
. agail\..~ for presidenl had you done it--hitS ~aid that he c()nsidcr~ awarding scholarships and joh~ based on
nlcialprefcrence to be the close~tthing 1.0 tht definition of un-American he can think. of. Do you agree
with. that.?
'
MR. QUA YLr:.:1 think what he is saying is Ihat it's time to look at affinnati\'e aClion and to goo-and
to crc.ate a l~olor-hlind society. We've had affirmative al~tion; it's going to be ~criously revieweu.
There',; no doubt ahom it that quotas and affirmative action are discriminatory. And we wanl lo.he
judged on tht colltent of our character and not .the ,clor of our skin.
MS. IfiLL: How does this iiI illill the family valucg campaign that y;,u've heeu sayint~ Ihat the
Kepubln:aus should rim? Is if a distracLion oris it l1aft of it? .
.
.'
.
~
,
MR. QUAYLE: Nil. Equal opportunity; nard work; geuine a.head; ~dr-Iet.pa;t. It fits very wcU"zith
family values .
. MS. IfILL: And all tllll'Jta laws should
b~
repeolp,(\?
MR. QUAYLe: . y~~
MR. kUSSERl: Mr. Vice Pr~sident. on Social Security. you said sORltlliing interesting last week.
"Yoo'Vt: t.nt to h:vel with the Am~l'icnn people and tell them r!lf.re·s a crisisln Sucial Security ril(hl
around th~ corner." What's the crisis'>
. .
MR. QUAYLE: Well, it's going turon out or mrmey. Ir'~ going to be hankrupt by the year 2010 for ..
sure. And what we have to d(), Tim, is to be hom:'})1 with the American people and quit kidding ourselves·.
that Soditl Security is going to he secure forever. tr's nOL Alld it's 1101 th~ currem bcncficiaries~ it:s
not t~vcn the peuple whoa are going 10 he retiring in the next live or liix. years. It's our generation -tl:\e
ha"'y boom g~lleration. And I think that we n~~d 11'1 ~tan thinking creatively ri.ght now. Anu--can:t UIjC
the word "vll\unraI'Y" because th~ word "volUntary" is wrong and you've gut to take lhat wtlrd off the
tahie.
.
But I'd
.
like to lISl! the word "f!exibiIil)·" in Soda) Security .111.1 try to figure Ollt how we can encourage
people to Ihinkof other ways to have rt:lircment im:omc hesidL:s Social S('!(':uri[y: ,mlluilie~, lRAs .'things
uf mat sort. And if Wi; can hove that convcr~ati()n uiMlusue with the haby boom g~np.rnTion am.ltllc;:X
generation and the younger pe('lplc, perhaps we'll have a diffenmt retirement system 20 to :;0 years from
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The difficult thing is [hat politician" dou', want to l"ok at the long lerm; they ollly want 10 look
at ~ 'i;Mrt tt:rm, But yOIl cannot just totally dismiss Social Security, bccause it is a crisis right around
,the C"':lrner.
Ill'l", ,
."
'
,
'
MR, RUSSERT: Would you look at raising retirement age or means testing so that people who made
mor!! money would get I~ss in henefits?
'
,
,
,
MR,' QUA YU::: I suppose you can always--the retiremc.inlage is easy to deal with, the benefit side lmd
the cash flow side. But I think we have to be a littlt: bit more imaginative than that. 'I really waIlI to look
at trying to get people [0 think beyond just Social Security. And maybe if people would st,art to say, ,,'
"Well. OK, Socia! Security is only going [0 he parr of my retirement income and I need H.l save here and
ilwe.<lt here," and we might be able to· work the tax stnlcture a little bit differently in Social Securiry.
These are the types of (hings .that we oughr to look ,at. But when you have amendments in the Senate "
right now that we're goingto put in th~ Constitution ...
MR. RUSSERT: Right.
MR. QUAYL.b: ... thal ynu can', tOuch Social Security--I mean. this is ridiculous. And this has become
such a political issue that some of U.'i, when I was, you know, thinking ahout rynning, anuc:cl·tainly. you
know, DOW that I'm o·ur,. I'm going ro talk about this issue hecause we reaHy have to focus t1n it." '
MR. RUSSERT: Would you say to ,he American people, "Listen, ('m for a balanced budget. but'if
you"re serious ahotit truly balancing the budget. you're going to have \0 deal with entitlements like
Met1ir.are and like Social Security"'!
'
MR. QUAYLF.: Absulutely, You're kidding the, American people and look,.,the American people 1c'now,
r.hange the debate a littl~'bi(amf
you can help us. Ami the debate is. you know, when we reform Medicare or whatever it, is going to be,'
the (.h.. batc is alway~ how much yuu cut. But it'8 cut from currcw services and the cu\s may be frorna
"
12pl;n;ent incf{~~e down to a 9 percent increase.'
.
"
,
this, ' AlII.lllte Congress is going to find this out. And I wish we (:t.'IlIltt
MR. R'tJSSERT:Lilluting the growth?
,"---'"
,
,MR. QUA YLb: Yeah, If we could change lhedialoguc that this year it'sgoiugto he II percent instead
of 12 percent, rather thall l'l $~nO hilHon cut in vetenms auu a~1 iculturc lind Medicare nnd Medil.;aid and
all these things. SUl we don'\ do that. And maybe there's a way in the budget pru<.:CS!\ and tao might
be able to help us. an<.Ilhcn get thi::; puhlicdiscussion ina different way, because otherwise, I don't know
how it's going to happen. Get these 30-sccond commercials, you getup there and nubody wants to. you .
know. make those tough decisions and that's the reason you have to have a halanced budgel ClJllcrdmim(
is to give them someprott:ction to do what they say th~t they want to do. ' '
, ',.:', '
~R. RUSSERT: Hnnl'CJllc!:tioll: You're only 4~: ' Wonl!1 you like to be p~~j\l~Jlt ~omeday?
/\1R. QUAYLE: 1 w(.lllld like to be president someday. I deciut.:d that I'm not going 10 lUll in 1996,
, I m'll.ic a family clcd!iion. I'vc !iaid Ihat decision will make me a ht:!tlcr husband, better faitH.:r. and
perhaps some day II hetter president.
MR. RUSSERT: We'l! sec you in the year 2000.
GO(.ld luck to y(.!'u ,md your famity.
ir not
souner. Mr. Vice Pfesidenl, thank YOll
.i'oining us.
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MR. QUAYLE: Thank you very much.
MR. RllSSERT: Coming
m.:~t,
the man in charge of managing the White Ilouse, 1.eon
Pam~Uil.
(Announcemems)
MR. RUSSERT: Leon PancII.a, welcome.
MR. PANETTA: Nice
to
be here, Tim.
MIt RUSSERT: And joining Iue in the questioning is nrian Williams, who covers the Whitt: HouseJof
NBC Ncw!\. Had a good week?
MR. PANETTA: It's one of those weeks you go up and down in this business and this has been one of
those! S1..'lmewhcn: in betwl,:cn.
MR. RtlSSCRT; Dr. I knry fO!iter: revelations that he nuw perforrm:d sterilizatioll on meIllally retarded
Docs that chall,ge the president's view/)
.
,
WOUle!l.
MR. PANnTTA: No, nol at all. I think. again. the imVOl'tal~t thing is to look at the ()vcrall career of
Dr, r-nsler, which COVI,:I'S a 3H-Y~lr career. Tholie who' know him have great I'$pecl for the integrilY of
lhe work he' s done in medicinc, as a tcacher. as an administ rarOf, the work he's dOlle jli prevellling teen
agl: pJ'egnantics. With regards 10 the hysterectomy issue, this WliS something lhat was accepted pnl<;tice,
ilt {he time that he wrote the articles involved with rh.aJ: issue. ,-\s a resull of finding new medkation. new
Jrugs. that practice has changed and Dr. Foster's views have changt::J as well. &1. again; the main focu~
ought to he on lhc,?principal :thrusr of his career, which has been aimed al trying to prevent lecn:age
prcgnanci4!s,
.
MR. RUSSERT: But ptllilically speaking, did Lhe president and did you con(;lude thaI abonioll and
sterilization would not be a big issue?
MR. PANETTA: . We never made the issue of a woman's righl to chok~c a disqualifying factor with
r~ganis to surgeon general in the United States. arid I don't think thaI ought to be dOlle. Yl.lu'relo()king
Oil a s.urgcon p,eneral, )'ouire looking at a UUCLQl who hilS a great reputation. The main focusbythc
presidt:nt wa,1\ on the neet.! to try to dosornething about this growing probleI'Il ofteen-agc pregnandcs f~r
unwed mother!\. W(~'re looking;u a problem that, in 1%0, involved something like 92,000 births. Now
iI's quadruplf.:(1 to almuM :l68.000, Thi!; is a lUajor'problem in our society. Dr, r:oMer devcloped a
signa1urcpt'ogram aimed allrying to pn:vc-nttp.p.n-;lee ilregnancics.
.;.
YOu know,il's not a question of what people within the Beltway feel about Dr. rOSICr; he's going [0 get
up hy the attaek !WlllP~ that are out there that: basically. have an ilgenda that says. "Women's right .e,
li,l cboose (.1ligbt to be 1l1ade illegal." That's what the baltIc is within the Deltway, Talk to the people
from where he's from; talk to the kids that. were i1lvolved in Ihal program: lalk to the dl'lctors thalhe
worked for; talk til the indlVldualli [hal he worked with in the t'ilIfllllunity, All of them havr f.rcat respect
for his wO.rk Thili.'l\. [he test ()f whether or not he ought to beaffirrrll;d as suracoll general
. lmll
MR. RUSSF.RT: Bur the positioll or !\urgeon general is a pn~ition an importanl symholisrn
::nuntry;. it's iI leaching rok. Does Dr. FC'sler .believe in ahorl ion on demand'!
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MR. PANETTA: Dr. roster bdkvcs, 3!\ the president docs. in a woman's right to choost:. He does not
believe. you know, thaI abortions ought to be thrust upon individuals. nor ought it to be something that
we encourage. The reality is that 'he, basically, hils enc()unlgcd. in this program to prevent teen-age
pregnancies, ab~linem. c <Hld he (.~ontinlJes to do that. And all of his work has been aimed at trying to
. prcvern abortions.
.
When you're trying III ,'arget tccn-age pregnancies. what are you trying to do') You're trying [0 prevent
women from heing pur into a position where they're going to lurn to abonions •.so thai's the key. But
let's Lmdcrstaud what's going on.here, all right. if people focus on his qua.lifications, on his hack.ground .
. wha.t be's ahout<1!> an individual, tlum he'll be affirmed as surgeon general. If,on the other hand, they
focu~ on the attack gWllp~, the cxrreme right, which is basically trying to say. "We ought t,-l make illegal
a WOIDaIl'S right to choos(!," then thal will, indeed, hecome the attack point thar we're !';ceing right now.,
That moultf nl1t be tlu.: issue: The issue should be. "ts he qualiricd overal~ to be !iurgcon general of the
United States anu .dcal with some tough problems that Wl~ [,Ice in this Country in the health care area?"
MR.. RUSSERT: But the issue of credibility. of trustworthiness, has al!io been raised. The pre.~ident has
said Ihat ahonillIl shoUld be ~afe, legal and rare, Along COllies Dr. FOSler, who said. "I performed one
aborrion, " "Well, no, iI's aClually less than II dozen." "Well. no. it's 39." "Well. yes, it actually did
. include 55 lnim'! with an experimental pill." Ano now there mill' be more abonions in, Alahamaand~:
"Oh. by the way, I also sterilized mentally retarded women."' Js that consistent with safe. legal ;tnd rare'!
MR. PANETTA: Dr. Fosterhimselfh:ui said that, you know, when you have a 38·, 4Q..Y~1 career as·
.an OB/GYN, somebody who deals with, women's problem:; ill medicine, lhat when he responde::o to the.'
yuc:stiol\ and he rcspi'lndcd to t.he hesr of hi~ recollection, and theff~ w;..~ ohviou.~ly some mi~undcrstan<JinA
at the time, but look at hie; overall career. That's the point. This is nor a question of a few ahonioDS
that were legal, tha.t;ilidinvolvc a woman's right to choose. 1 mcari.i:ito.er~); nothing illegal with.:;~hal
he did in thal area,as !In OB/UY N. Look at the overall record, ho~ever:-'1ils main thrust of
has bc.cn aimetl <If I.rying (0 prevent tcen-age pregnancies; trying to prou;cl children; trying to give babies
iI.chance. He's got th()u~ll.nds of births that he'" been invnl\'C~,1 wiLh during his career. That's the main
thrust of what h~' s :thout.
his·cateer
You JcflOW, a doctor is a liule ~it like dealing with p. pOh(;Cm3.11. YOII can'tjust isolate wh:'I'" doctor.
does. He deals with real-litt issues. He's gOt to confront thos~ is,~ues, justHke a cop ha~ to confront ....
those issll~!;. And sn it's nul alWAY" the easy choices'that you have to dealwitb Hut overall. he's trying
[(I provide for the health and thesaf(:ty of women inthis country. an~ that's what his career's been about.
MR. RUSSBRT: So ,Ihl.! pn::!.ident enthll!iiastically and who!eheanelHy sUl'pol"tsDr. Henry b))llcr?
MH. PANETTA: That'S corrc<:t, and we will fight for his nomination
MR. RIJSSt;I(T: If Dr. roster cam<.: In you arid volumarily s<tid. "Mr. President, Mr. Panetta. I've had
enou!:h of this .. r wUIIL out," would you allow him to witMraw?
MR. PANETTA:. Wcll.)r: F(.lstcr hlmself·-and I've lmd a i.:onver!.3tion with himjllSlthc olller day·-is
in tbis t(.l .LIII.: end. 1"-: wants w fight for this nomination. He believeslhal he do~~s have the kind of
rCllutation alld hackgwlIJIt'land experience that ili important H.i Ihcjob of surgeon general :md he's willing.
to confronl thl~.
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List~n. ~rc's no question that, whc'n you come to this town and ~tarr getting the rap (hat you sometinres
get wht.'11 you're nominated for any position. that you're going to 'take some hits., He knows that now.
hut overall. he also knows what he's about. And what hc'" about is what lk I.ou Sullivan ~ays--Ihat he
is an oW...tanding physician: it's ahm.lt what those kid" in thaI program say; it's about whal others' say
ahoUt his career. Thi~ is a good man, He ought ro he given a chance for this nomination.
MR. RUSSF.RT: Whal. aboulpriorities, Mr. Panella? Tht cuuntry, in the election of '92 and '94, said,
"Wl~ want on talk aboul the economy; we want to talk about crime; we want to talk about immigralion.
And here the adminisrration is ~uggestillg we have a dehate about abortion and stc:rili7..ation.
n
MR. PANRTT A: Family values h.ave always been a pari of the president's slatcmentli 10 rhe country
about what nccd~ to be done, He talked abour a New Covenant; he talkeQ about uwirnporrancc ,of family ..
values of people beillg involved in the community .. And lhat invtllvc~ the issue of health care and it
involves teen-age rregnancies anJ involves the kind ofsocial breakdown that's taking place in our
society.
.
','
Ynu know, I know ir's an uncomfortable' issue, God t'orbid that we ought to have SCIl<ltors and
<.:ongressmcn not have to be uncomforlahle in.dealing with Ihc if'sues Ihat confronl the American people: ..
hut famili~s h,lVe tC)·deal with this is!\ue ever), day. yc~, it's um~oll1fo"ablc, Communilies havc to deal
with this issue evcry day. Ye~, it's ullcomtoftabte. Churches have 10 deal with this issu~: every day.
Y t:s, i(~ uncornf~mahlc. Rut it's 'part of wlia( our society's all abom, pan of the problem thaI we have'
to confront. and that'~ why the president nominated this surgeon general.
MR. RUSSERT' l,et's look at the tape, This
:are Llatlocrats--llbout Dr. fo~ter.
i~
what two Democrats had to 5<1y·-not Republicans;
rhe~e
.
"":. .~,.
(Viut\.upes frornl :cbrilllry'9 and 10, 1995)
SENA.TOR BARBARA MIKULSKI (DemQcrat, Maryland); Unfot"tun3.tely. the Whitt:' House llid noq10
the hCitjob in pUlling Dr. foster's nomination forr.h and thai's .iu~t the way, maybe, that White I1o~sc:
IS.
SENATOR JO~F.PII HIDEN (Dt:~nocrat, Dtla~aie): I am ju~t, quite rrankly:'angry that I'm even having
to occupy aJl)' of my lime, no matter how gund or bad or indifferent a manOr. roster is, wills this
nominatIon. 1 think it is a political blunder in the extreme that we're even debatinp,it. Why are we·
dllinj't this? Why don't we .iust go out and find rht single: best doctor in America, appoint that doctor?
"
. J
.
There's gOI to he olle out tht:rc that's not controversial and competent.
(Eud of videotapes)
.:. MR:
RLJSSEKT: Wh? committed the polilical hlunder?
.
.
"
~
MR. PANeTTA: Well, first of all, I have a lot of respect for those two senators. hut. ag<lin, God forbid.
that \1:;': OUNhl tel mi\k~ scnator~ uncomfortable ahout having to c.1eal with i~~llrs .Iike lhis. I mean, that's
e!;~emiall)'. what they're l\aying. They're basically sayin,t;, "God, why· do J h~\le to fUl:C this kind of
controversial issue'!" Hccause it is a controversial issue; because deaJingwith teen-age pregnancies is a
comrovershil issues; bt"-cau~e dealing with dOt,;lOrs that have I<J cl)nfront those issuc$ j~.controver"ia1. So
wh~rhat's whar the name
the gmllt: is all about. And the fact is. you know. they can talk. about the
0:'
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White House, this or thaI. That's nO[ the issue. You know. this isn't a vote .ahout White House process.'
This is a VOle ahout tlw quaHficarions of thi~ surgeon general. Let thai be the issue. '
MR. RUSSERT: But the White Hnuse proce!is was lacking.
MR. PANETTA: Well. listen, tht,;rc'~ no question that we ,,'ould have served the presid~m netll:r in this
process. and I've said that. And if's not going tll happen again, 1 can assure you, because. ill this Clise.
we had the department doing the veiling as well as the White House, and thaI should not happen. But
the reality is, don't make that the test of whether or not Dr. roster is worth nominating for surgeon
general. Look at hi~ credential~; look at his qualificatiom:.. look at his background, .
.
MR. RUSSERT: SellClh)r Bidell had somdhing else to say about another issue you got involvoo in last
week.
SEN. BIDEN (Videlltape from rcbl"UarylO. 1995): .The onl) (hing we should ~ spending less time on
than this nomination i~ baseball. rorget about ba.~eb~ll and get on with other i~~ues.
MR. WILLIAMS: Which bring~ us, magically, to baseball, Mr. Panetta. The president chose to get his
uniform dirty in thi!\ fight. Af\ a.friend of mine put it .•tnd I know >'ou lov!.: thep.e comparison.<;, "Had this
been Reagan. Jim l::htk:CI' would have beal him ov(.!r the head in the Cabinet room; in corm;s Reagan to
cut the ribbon." J~ it unfair to criticize the prc~ident for getting personally involved in ba~ehalP . '. "
MR.. PANETTA: The president has said. and I think the American people sense this. that. you know,
we'(e dealing with a national l'a!ltimc and iris an hnportmH i!:!:ue. H certainly is an il11ponaril issut: w
. those commuruticf\ that are involved: it's an important issue to those people that have jobl\ thatan~ related·
to ba<seball;. it'~ an i.~W9rtant issue to Americans. generally, that we try to deal with this issue. He made.,'
the eft'on to try tt)'~ac~rf we could resolve it.·'::'He did he through a rnediator: hc:did it through 'trying to~:"
brin& them intO the White House. I think it was importam for him to make that effort and to Iry to gt:1 ..
the Congress involved, hopl1!fully, in ~ettlng sUllie lind of mmpolsory arbitration enacted. That is worth
tbe effon.
.
You know. people kind of assume that when you get electdJ 10 the pr(;sidency. m'iyl~ what ynu ought
to do is run and hide from the key issue,,' that face' this country.. Mayhe you ought.nut to take 011 these
. conuoversies. Mayhe yuu ought to just try to tcnpe.oplr what they Hit: [0 hear and do nothing else,
That's not what this pre"ident's about. H('s going to taking on these issues. He's taken 011 controversialissues in the past. ·1 think this was the right thing to do.
.
. MR. WILUAMS' I'm going w quote from a Reuters' article by our goodt'ricnd Gene Gibbons,who
. covers the White House for Reuters. QUllIC, "Watching Bill Cliillon'!: presidency unfold i!; like watching
an old movie starring the master of slap stick. Charlie Chaplin. No matter how hard he trie~, the end
result is always a prattal!." Y'our joh. It tak.es on ev~u lllme SkIS'S on 5uilday morning::; when you have
to listen to things like that. Have the forcef\ of evil and disorganization crept back into the West Wing?
1-1 know it was your task to put a big arm on them and stop thelli,
.
MR. PA~.ETTA: I don't think !lo.t think we'vc made. a lot or plUgl!;:~~. When I carne in, I said w~
had to enact bett(.!r discipline and we h:tvc. We've gotten better linel\ of authority developed in the White
House than we had, I think we've gotten a much bt:IICr focus in terms of Lhe issues !.hat we huve to
confront. from day-ta-day. Ooes Ihilt llIean we're going to avoid controversies? No. Dolts it mean rhilt
mistakes aren't going III be made? Nll. And docs it mean Ihat there iSll't a lot more to be done? Yes'
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OUl in rhe end. , want p"ople w jud~e this president and 1 think the president wanr.s to hI:.' judr,ed based
his performanlcc. lias he done a good job on the ecoilomy'! Has he don~ a g\1od job i·n terms of
dealing with the; dcfici: ill rhis country" . I las he done a good job ill terms of trying w confront hculrh care
issues? Crime') Th.;,sc are the issues thaI people have to weigh in lImlls of whl!ther or m.ll this While
.. Huw:e is successi'u i or no\.
011
MR. WILLIAMS: YlIU mentioll crime.. On the crime hill ~:urrently being talked ahout, for days, ill fact,
in the House. The White House, for some time now, has heen saying, "We're going to draw line1\ on
.:eltain issuer.. We're going to mark when; we disagree with the new Rcpuhlican-c,:omrolledCongress."
The presidenl yesterday said--hc threatened a veto jf the House goes against--if he gets a crime hill that
t:alls for l~ss than 100,000 new polke oftkerson Americ.:a's mccl~. The prohlem is, there's a kIt more.
in the crime bill. Then~ are things like the much pilloried midnight baskethalL There arc Ihings being
discussed in the House lik~: differem;c$ in the cxclusioIUlry rule, illegally obtained evidence. Doc!; the
veto threat apply to anylhing b~1 lOO~()OO new police offk~rs on the streets·of America?
MR. PANF.TTA: Well, there are something like five or six hills, J guess, going through the House thar.
involve crime issues, Slime of which we agree with. There areSOnle that we have concerns about.
You've mentioned some of thol\e. The pri!>on issue: We don't particularly like me appniach that's heing
tak\.."Jl here--ouly three sr.ates qWllify for prisons. Somebody made thlo: comment that the Repuhlicans are
hccoming the party of snmllgoverruncnt and big prisons. We have some concerns ahout that. But..
clearly. the fundaillental i~slle .and the i~suc we addressed yeslcrday is the president. il\ not going to back
away from 100,000 Cl)ps. We want 100,000 cops out th~[c; we want the moncy to gu ~vecific:ally for
that purpose and we don't want to create some kind ofhlock grant that's going to wind up as some of
Lhe;: similar programs in the past have wound up, not prouucing cops on the street, but buying hunting
trucks and doing sorlll:: of.thc Ihings lhar. frankly. do!!'t rdatc to good law enforc~mcnt in Ihls country:
:;.~~~\; .
, "-
·...:>r '.~/!~~:.
. MK. RUSSfiRT: Mr. Paur:llii, affirmative action: . the' Repuhlicanli
. ..t.;:, '
, ' , ~31
have oe«:idcd fh;tj they want
..,' ",:.....
16·undo"~:..·
affirmative action,prefercmialtreatment for minority based on minority, race or sex. In your lIative state'.
uf California there will be Ct propoSition in 1996 which will say, "Color hlind: There will be no
pn.:rerentiallrcatmenl or discrimination bascu UlI race. MWhilt is the president's p()~ili(1l1?
.
MR. PANETTA: The prr.sidenl's pysition is that we have (0· stand by the principles involved with
regards to a civil right.s and equal opporillnity inthis"c()untry. We've comClOO fnlinthis country'fwlIl .
the days of segregation aud dil'crimmation. We've made a tremendous amount of prugre.c:~. It has not
heen easy. A 1m or pt!{)plt: have sacrificed ovcr thol;e years, We're not Aoiflg to'p-II h:u:kwards.1 think' .
the wurst thing that ciml!:\ppen is, you take an issue like aftirmulive action or the whole issue of civil
righfs and race relations in this country and make it a political il'~ut:, That's the most d.mgerous thing
Ihat can happen. You cannoqlivide this nation 00 that issue; we cannot allow it t() happen
.
And 110. you know. if w~'rc t\oillg to confront an issue and there are conccrn.q about IImv it's being
cllforccd or arc there areas where it can he improved. you know. we can look at that. BUl let us.n("
. whtJlc~ale. tuu:k away from the issue of confronting ~~qlJal justice and cgual opportunity in this counlr)'.
We tUlVl~ made W(.l Ulany sa~rifices to turn back.·
.
MR IHJS.5ERT: So you oppose tile CalifQrnia initial.ivc').
MR. PANETTA: We oppose the clToris to [lim rhe c1(lCk hack ondvil rights.
MR. RUSSERT: And aft1rmativeactkHl'>
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MR. t)ANETfA: On affirmative action, we clearly oppost: moving backwards. Where you h.we
discrimination, you need [0 have a remedy; that jnclude~ affirmative action.
MR. RUSSERT: On the deficit, you are widcly regarded in this town as a deficit hawk. and yt:l. you
signed "ff on u hudgel that was sent up to The Hill. Democrat Bradley I;aid ht: wai: disappointed:
I)cmoccat Exxon said. "The prc!;ident dropped thl.! ball"; Democrat Tsongas saill, "It was a dbaster." It· '
guarantees defidtl> of $200 hillioil as far as 'the eyt; can set.'. Haven~t you given Ihe Republican.c;
enonnous ammunition to say, "I.isten, we need a balanced budget amendment betau!\e this president will
not haJancc the budget''')
MR. PANeTTA: Tiw, you know,'1 think, in the cnd, people have to judge hased on action: that'~ really
the rest. There arc a'lot of great' speeches about halancing the budget and [here are a lot of great
cmnrnent!; on the floor alld you Cilll find some of the toughest cldicit cutters in this town when they're "
JUSt tatking ahout it But loo.k at the votes, thai'S ultimately what counts. and160k at the actions taken' '
to deR! with the deticit. That's what counts. This president proposed $500 billion in deficit reducl iOIl."
Not one Republican voted for lhat packagc.-not onc·,·although that,'s where all the big talk is coming from.
right now.' We added ~nothcf $RO billion in deficit redul.:lion in this budget.· We are CUlling the dencil .
in terms of GOP in haIr and it's going down. Is there more,lhalcan be done? y,,;s. We're willing to .
WMk with the Congress to do more. aut in the end, it involves tough choiCe!; Oil issues. 1101 gimmicks' ':.
like baillnced budget amendments,' npt gimmicks like speeches OIl the floor about how tough you ar~:'
II means tough VOles on tough issues. Tha('.s whaf this prc~idem dill and, that's what we're going to
propose in LClms ot our budnet.
'
·.
'" ,
MR. KllSSERT: Arc::
}'\)U
8(ling to win the yote on the balanced budget am~Il(1r!ll'!nl? ,
". 'MR. PANE'!TA: ,Ithinkjl's going.[O be a closc'~ote in tht: Senate. Very frankly. our COIlCCrrl...i" tba~;" ,
rhey an:: going to proceed with adopting a balal'lC'i:d hudget iimendment without telling th~ Ameri~;~'
people exactly how they're going tu get there. and that'sjU!\t amnher example of what I'm talking ab~~~:'
Here's $1.2 trillion. Yeah, there arc tax cuts on top of it; it'~ S1.6 trillion. ,1 have yet to .4Iee,one::
Republican senator OJ' (:'uf1t,rcssman say to the AmericaIl people, "ThiR is how we're going to dO'it.
'rh~e an~the cuts wc're goint~ to make; these are the rrogram~ we're goillK to eliminate: this is what's
~()ing 10 he done." , ..
.
..
MR. R.USSEIH: But, Mr. Paneua. you had your chance with the Clinton budg~t and you didn't do it.
You kert $200 billion deficits all the .way through 1992. US News & World Repon reports today tbat
you wanted inore deficit reduC(ion. more buu~c::t cur~ and the first lady, HiIlQry Clinton. oVl:rrul~d you.
it says. because Illcre,4uolc. "was no pOlitical payoff." 'Is that accurate?
MR. PANETTA: That's not tnlc, Tim. Tllc--the bOUollllinc here i!>, again: I.nt')k at our record. Look
at the the record of this administration. 10 the last election, the Republicans camc out and attacked this
rrc~ident for deficit'rcduction, for the $500 bi1lion we [lUI iII plac.:e.
'
'
, MR'. RUSSERT: But they wOllld "fly (,0 percent of the deficit reduction CaIne from im.:rcasing f.¢.6~~rom
from culling budgets. ,
MR, PANETTA: Look. whell you're dealing the <'~(.Infrnnting the deficit. you've got to take on all of the
tough ch<.)ices. We clie!., We did about $255 billion in spcnding cuts, including $)00 billion in I.!ntitlement
Lut!'.. Yes. we did rev<.:tlue!\--taxt:~ on the we~\lthic~t in this \.:l)untry--bl.:cause Iht.:y ought to plIrlkipa[e in
d~ficit reduction "s well. ~l') when you're doing deficit reduction. you've snt to l.'I..lmt~ tinwn ;md vote
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some very tough chokes Republi(.;an!; deckll:d, "$500 billion, with tlla[ as a part of it? I'm not going
to v\')te for if. Come up with something clse." I'm waiting to s¢e what lh\:~'re coming up with.
MR. RUSSF.RT~ Vice President Quayle just sakI something. He said there's a Social Seturit)' crisis'
arournJ the corner. Do you agrl:!c?
MR. PANETTA: Ilhillk, in the long tenn, therl:!'s a crisis. AI [he present time, ther<:'s a l\urplus; Social
Security is not one of tht~ entitlements that's in tmubll:! at rhe present r.ime. Sut down the road, into the
IlC7.t century, there arc ~l')me concerns about what happens. that's correct. '
MR. J(t)SSERT: lie also said, ''That you cannot be serious abl\ui halancing the budget unless you deal
with Medicare and Social Security. " hir?
MI{, PANETTA: 1 thillk, wheu it comes 10 halancin!! the hudget. Social Security is nol a problem. You'
know" we look at cnritlenwnl8, overall. you have to say most of the entitlements arc in pretty good shape
Wilh the exception ofMedicare. Mcdicaid-:-hcalth care issues. And we have continUally taken the position
Ihat if you're going t~) control costs in health care, 3!; we should, it has to he related to heallh care,
rdorm. 'Othcrwi!;e. it'~ not going to happen.
MR, RUSS'GRT: Final QUtsti~")n, Mr. Panetta: 'The Russians Me giving aid to the iraniall.C'i to help them,
builO a nuc1~llr homb. Will this put aid from the United States to Russia at risk if they coruinue to assiSf '
the Irani'lI1s?
, MR. PANETTA: W~! have expressed our concerns on that iSloUC and continue to ex.press our concerns .. '
And, obviously. we thinlnhat, ultimaltdy, there's liome hope that this will oot take place. But I can
assure you that we will continue to review our relationship on [he basiS thal they adhere [0 the pol.i~y.;~hat
we helieve in, which IS, -"Let us not give aid ufterrorhl!:i ill this world." . <" ',' ' , " ";:'#~~,>
MR. RUSSI:RT: ,: Ami if tt\ey continue to go forwaru'!', '
MR. PANF..TTA: Well, we're going
[0
continue to r~view it, and that's Hie be<;t I can say right now.' '
MR. RUSSERT: leOl) Panetta, Whi,te House chief of sraff, thanks for heing our guest this morning on'
MEeT THE PRESS. '
MR. rANETTA: Thank you.
,MR. RlJSSERT: Anctwe'll be right back,
( AnnoUJlccments)
MR. RUSShR'l: We're back 011 MF.F.T THE PRI·:SS. And here to help
Gwen rfill and Brian WillialTlS.
u~
sort lhillgs out a little bit,
All right. ,.Mr, White I lOllse.
MR. WllLIAMS: Yt."ah.
MR, RUSSERT: ... rJan Quayle raised Iht: charge of incompetence.
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�Mf..~t
MR. WILLIAMS:
tht
l'fl~s
(NBC New~) • Sunday, February. 12., 1995
t~
Y~ah.
MK. RUSSERT: ·How are they feeling at the White House?
MR. WllLlAMS: I'm going lO go counterculture this morning and lell you Ihat this is not a sad lime
:II the White lIousc hecau$c of the following. They arc sadly hanging black hunting that Dan Quayle is
nol nlnning becausl~ I hey really wanted '[0 run against Dan QuayJl!. But, you know. the White House
"taff jusl saw the word "bold" used in association with them after the peso rescue in the pages of
New~"Week. And whih: FOR would not have invited Tony Rohhin.~ to Camp David to talk. strategy, to
talk. y.ou know. inllucnce and how to t:mpower the administration, their approval ratings are up now that
there'!; a palpable. recogni:l.ahle IIppl)nent. What the)' need is for. if you listen to thcm, the Repuhlicans
w rwm a somewhat lacklU!'ner candidate; they need a mo.~g independl'llt to run. And what they have ·and .
thi~ is what's empowering them and thiFo is what they knt')w--wh<tt they have then is tI 43 percent victory
.the fl!eJ(.t time around. DI')esthalsound reminiscent?
MS. IFllL That's all they need ..
.
.
MR. ROSSERT: Gw(.~n [fill. this is reminiscent of Ihe whole il;sue, to IIlC, of gays in the IIlilitafY an(\"
hear me out. Whl.:l1 the pres idem came to office. he WM going 10. focus like a laser heam on the
CCOl'Jll:lllTl)'. and suddenly ,1IIOllg came this issue of gays in the military and the whole country said. "Why
is he focusing on thaI issue? Why is that central heret Suddenly, we: have a referendum in NOVl,;llIoer:
r'OCtll.'fi on that economy; uelll with those deficit..: fight crime; deal with immigration. And now·.t!te .
CtlUtlll1)' for the last wee~ ha!lheen debating abonion and sterililllfion. orr message and I'm not sure-nOI .
only~ as MrPanetta said. are the congressmen uneasy about that debate. I Lhink: the American public.
to(L
.''':''''''''
:.-'~.
,
.;:.:~~i-;~~:.r~ .
MS . lf-ll.l: Well. here's the difference. The difference is that on me gays'in the miliwy. hc'Cwas~on:'
the wrong side in Ihe opinil')!\ polls. And on ahonion. he's generally on the right side in the opinion
(\011$_. Ann ThaI'!'; why you :saw Leon Paneua wlinLins to make this Ii. fiSht .Uuforfn n:llp.ly. it wasn't a
fighlr they exactly chose. Everybody has been criticizing tht: White Hou.~ tbiswcek hut saYLl~. "They
.allo..vcd tll us ~et into anargl!IlIcnt aboul lhe nUmbers of abortions. that Or. Foster had," when, in fact.
whai h.<tppened is that they got beal at their own gam!.::. The pro· life forces came out a.nd said. "It waS
700 abortion!:," anti a~ a result. in ordcno say {hat 'wasn't lrue, they had to Say, "ltwas only '39." Jt'"
. was like during the campaign when the Bush forces were i\ayint! that Bill Clinton had :raised taxt:t. 27
.timt...~ and the.: Clintoll people came back and said. "It was only 26." Wel1. ilwa~t\'t the ar&umenl they
wanted (0 hav~ lhl;lI either
. . . t:';?
MR_ RUSSERT: Going
\l)
putting you on the spot, [fill.
MS.- IPrL.L: Uh·oh.
.,
MR" RUSSERT:
I~
Dr. Foster going to be tunf'inned?
MS. JHLt.: After listening to Leon Pancuajust now and listening to Or. roster, who apparently is not
wilhng to)ake hjms(~lf out of It, if!' going to he. a Ci!{ht all the way to th~ end. 'am not willing ro say
IlL: 'IIII.'on:t be exactly.
.
MR. RUSSbRT:
I:\ritll1
Williams.
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�Meet the Press (NBC News) - Sunday, .'cbnlary 12, 1995
16
MR. WILLIAMS: They're going to have to haud OUl a l~11 of fref golf carl rid~ at Camp David for'this
nne. Th~re arc going to be hrklgc. road and dam projects in every state of the union. Jusl kidding. I
don't know. 1 think Ih4~ chanct~s are heiter tha.n they were 48 hours ago, hut it's n,")t great. J1ow's rhat
for duckinH the question'}
MR. RIJSSERT: We have to take. a quick break,
MS IfILL: What abl)ut you?
MR. RUSSERT: We'll be hack after this:
(Announcl.:II\ent!;)
. MR, Rl1SSERT; Ms. Ifill put me (111 the spot. All right, GWf;rl. I do IIOt think 0 ... poster will be .
ronfirmed. I think the j!\r;ue will he. more {han choice. I think the issue will be credibility, I think there
will be more disclosures and this nomination will not go forward. Rut I've been'wrong in the past, I will
tell you.
Brian Williams. 'you mentioned the. White House .....
MR WILLIAMS: Mrfl·hmm. '
MR. RUSSERT: ... aml the presidcnt'!i ambitions for
Republican P,trlY? .
~96.
Who would they like to run again.f;t inlbc
.
MR. WILLIAMS: R~:lIlemher the numbcr~;43 pcrcent.Hcre's--thc total AmeriCan public; herc'!\,;:'
TCAistered voters. Here's 43 percent of those. That's wrut! it takes.· Tthink lhc)'would not shirk from'~~:
a Phil Gramm .1 don't think Newt Gingrich bothers ahem becliW.C of the perceived ('lropensily to blow
himself up verhally. What (j~l you think? .
MS.IPlLL: Absolutely. Th~:y love him. I think what they really would like: il> ab.:l~r.hitillcam owner
to run againsl him. bv~ryhody hates the owners of basehall learns. and he can run and he I,;wllook, you
know, kind of heroic.
..". .
.
~....
MR. RUSSERT: The White House folkr; tetl me [hat Bub Dok they 'think is too old and,has 3f) years
in Washington and they can use that as a club.
MS . TrILL: They're :>c.u'eu of him,
MR. RtJSSbRT: .But
rhc:m.
MR. WILUAMS:
J~:CJl
down. the issue of character and
cr~dihililY
and experiellce and stature Scafl,$
"r;;. it should.
MR. RlJSSERT: They think Phil Grmtlmj~ too con:;erv(ltivc. nut we'll set'. They said Ihe liame rhillg .
about Ronald J.~cagall. The)' really fear l.amar Alc:<ander They [hin~ lhat he is lhe kind (If folksy. uown
hom~ kind of guvcrn(~r from Tennessee, ~tate adjacent £0 "rl\an~as, Ihat could he ...
. MS. IFILL: But America has to figure
lIUl
who he
i~
first.
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�Meet tilt' Press (NBC News) • Sunday, February 12, 1995 .
MR. R~)SSERT:
GWt:11
inJl. thm's
I.he
17
last word; Brian Williarn)iWc'll he right hack.
(Arulounccments)
M.k.RUSSF.RT:. Senator J.W. fulbrlglll, Demucratic
s~nalOr
from Arkan.c;al; for 30 yl!ars, former
ch.lirman of the Senate rorcign Relations CommiUl~c and [he chief sponsor of an inlcrnatiollnl :;.tudent
exch~ng~ pwgram that hears his name, died Ihis week. He was 8~. During his carecr, Senator fulbright
appeared on MEET THE ')RRSS 15 times. Here's adip from the very tirst time, february 25, 1951. .
where he. gets imo a rather testy' exchange with columnist Doris flccson aoo\1t corruption at the
t(\,..'Conslri.1ction finance Corporulion··the Rf-C. as he rders to i[ --an agency which pwvidt.!u luans to
~timu!a1e economk growr.h. Note how, t1cspilc the tension, the senator keeps his drawl and his sense of
humor _
.
.
.
(Vi~eotap.e
from rcbruary 25, 195 I )
MS. DORIS FLE1:::SQN (Syndicated Colunmist): . Aren't you dodging? Are you getting that secure ...
SE;o../ATOR J.W. FULBl<ICiHT (Democrat. Arkansas): You mean; dodging
ou~ht to 11" vc 1111 RfC or not?
lh~ CJuc~tion
of whether we
MS. r:LEESON: .An.~ you getting at the question of whether the taxpayers' money is he.ing used propctJ)·
or not. or arc ynu merely showing that some people are, YOII know, as the animal .farms. thai all animals
are sincere. but sonl<.: arc more sincere than others.
SEN. I:ULl:JRJUlfi' Yeah.
MS. R.F.F.SON: Some all people are influential but some are moreinfiuentiaJ.
.
SEN. fUU3RIGHT: W~l1, that's right. Likc newspapermen. "II of rhern write. but
.
Sf) it mL~ns I\omcthing and other:; dqn't.
SlIUlCl)(
Ihem write
MS. r"'LEbSON: That doesn't have very much to do with tll(! Rt=C, Senator.
. St::'iI. FULBKI(jHT: All these things Me no. And ...
MS', FLEESON:Ir somwl!>l good nn Iht: pUlpil, but it...
SEN rtlLBRICiHT: It doesn't, nor does what these ...
MS. Ft .EESON': ... doesn't bear on lhe ...
SEN: FllLlnUGHT: .: .I't.'.ople do hav{~ mll(~h to do wi.lll Ihe RFC.
(End ..., f vi(\cotrtpc)
MR. RUSSERT: J iikl~ {host! glnves. This could ser ofl u wll!)lc new trend 00 Sllnda)' nl(.)rning .
.rhat' ~ aU for today. We'll be back next week for a special.~ditibn of MF.F.T
THE PRESS foclIsing on
[he is...crue of race in America. We'll tulk about welfare, out-of-wedlock births. affirmative actkmand
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�,
.
. Meet the Press (NBC News) - Sunday t February 11, 1995
18
more. Our guests: Republican Jack Kemp; Democratic Congressman Charles Rangel: Charles Murray.
author of (he "Bell Curve"; and Professor William Julius Wilson of the University of Chicago. And in
our 'political roundtable nextweek. the author of rhe controversial new biography of Bill Clinton, David
Maraniss.
.
We'll !\ee you then. If it's Sunday, it's MEET THE PRESS.
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�PHOTOCOPY
PRESERVATION,
�r
I
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f
f.
}
PHOTOCOPY
PRESERVATIOr,
�
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
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Stephen Warnath - Civil Rights Series
Creator
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Domestic Policy Council
Stephen Warnath
Civil Rights Series
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1997
Is Part Of
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<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Description
An account of the resource
Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
Provenance
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Clinton Presidential Records: White House Staff and Office Files
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Clinton Presidential Library & Museum
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Adobe Acrobat Document
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134 folders in 13 boxes
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Dublin Core
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Title
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[Clippings - Civil Rights] [1]
Creator
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Domestic Policy Council
Steven Warnath
Civil Rights Series
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Box 4
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Warnath-DPC-Civil-Rights.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
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Adobe Acrobat Document
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2/8/2012
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641686-clippings-civil-rights-1a
641686