-
https://clinton.presidentiallibraries.us/files/original/81ee47e2ea4df89bd50969f9440604f3.pdf
0b883f29a3396d5937d8f2890e41ed68
PDF Text
Text
"'Wjll "V 1.1 I \d IU\1
\tVllilYI,
U~ ~
,
I •
IJ
INSTITUTE rOil JLlSTICE
February 17, 1994
The Honorable Joseph Siden, Jr.
221 Russell Senate Office Building
Washington, DC
20510
.
Dear Senator Biden:
President Clinton recently nominated DevalPatrick 8S
Assistant Attorney General for civil rights. We are pleased the
President finally has acted to fill this vi~ally important
position.
However, once egainthe President appears not to know his
nominee's views on important civil rights issues, nor has he made
clear h1S own Civil rights vision. Instead, he has lashed out at
thos~ raising questions, attacking their commitment to equal
opportunity.
We respectfully disagree. This nomination is for the
notion's top civil rights law enforcement post. The Assistant
Attorney General for Civil Rights exercises tremendous discretion
in what cases to litigate and what arguments to make. He also
has ~he responsibility to coordinate the entire federal govern
ment's civil rights efforts. As a result, the person confirmed
to this pOSition, perhaps more than any other, will set the
direction for civil rights for the next several years.
As Stuart Taylor, Jr. argues in the attached ~egal Times
article, issues concerning the future course of civil rights are
too important to 19nore. The nominee should state in clear and
precise ~erms precieely how he intends to enforee tha law.
This is particularly true in light of Hr. Patrick's back
bo~h as an attorney ena currently
as a member of the board of ,d1rectorsfor the NAACP Legal Defense
. and Ed~cational Fund, Inc. (LDF). LDF has a'proud history of
civil rights advocacy. Nonetheless, si~ce Hr. Patrick has no
significant'record of his own views on civil rights, 'it is
imperative to query the nominee on whether he views his role as
groWld as anectivist, serving
p-::,-!-_~.o~;1.~,.!. .J:!-w _~nfJ;u'~n.t.".0(f !.91!!l~_~.g.,,~1+. ~':lP..P.~ ¥, ,t~,:.,!!!,...In
~PQt",Q;mity '!~_~.~._~.'!2.~eme_~~~!-p;-.!S!"~~~s,,,, or as an ··aa:vocate for
new 'directions in c!VIl r1ghts.
. . '--.... .....
~
u
.......
~_ _ _ _ '• •
_
. . . ._
. . . . . . ._ . _
'
�'!
,U,J
UI
"'*
HdJI1II
l'.r.V1Yl
~UlJ!\dJ\I\I
\"V.MM. ·U;);)
rUUj/U 1~
The Honorable Joseph Biden, Jr.
February 17, 1994
Page 2
To aid the Committee!n this endeavor, we have prepared a
series of questipns in areas within the Assistant Attorney
. General's juriSdiction. We take as our focus of :.Lnquiry numerous
civil rights precedents in which LDF's positions were rejected by
. the courts. The questions relate to whether Mr. Patrick agrees :
with LDF's poSitions on such issues as equal protection, employ
ment, public oontracts, bUSing and school desegregation, housing,
scholarships, and voting -- issues that touch the lives of every
American.
.
.
These questions elso go to the core of the nominee's overall
civil rights vision. Does the nominee share the president's
stated goal of securing egual1ty of 0.R.~~ni~l'._. -- a goal shared
by the overwhelming majoiI~y of Americans orevery race -- or
does he support equality of results?
~---~~----------The Institute for Justice stands second to none in its
commitment to and efforts in support of equal opportunity and
1ndiviaual empowerment. Where we differ from our critics :.La,that
we look not to race-based solutions, but to traditional means of
upward mobility, including economic liberty, educationalopportu
nities, arid property ownershlp. AS expressed in the enol-osed
Wall Street Journal article, "Blacks and Whites on Common
Ground," we bA1ieys people of all races are tired of divisive and
counterproductive race-based policies and prefer policies based
on values and aspirations that are common to all Americans.
It is in ~hat spirit that we provide the enlosed questions.
We hope these questions will aid.the Committee in its delibera
tions on this nomination, and help inform a V1tally important
debate on how best to deliver on our nationts promise of opportu
n.ity for all Amaricans.. Please do not hesitate to contact us 1f
we can assist in any manner.
Enclosures
�rUU4IUlb
QUESTIONS FOR DEVAL PATRICK
~he £ollowing questions relate to major civil rights cases
and the way in which our. nation's civil rights laws will be
enforced.. The issues covered -- equal protection, employment,
public con~racts, busing and school desegregation, housing,
scholarships, and voting -- touch the lives of every American.
The Assistant Attorney General for Civil Rights wields broad
discretion in the cases selected and arguments made. Hence the
nominee's philosophy will have enormous impact on the. direction
of civil rights law enforcement.
Mr. Patrick se~ed during the mid-1980s as an attorney for
the NAACP Legal Defense Fund (LOT), and presently serves on that
organization's board of directors and as chairman of its New
England steering committee. LDP was involved, either as attorney
for one of the parties or as amicus curiae (friend Of the court),
in nearly all the cases referenced in these questions. In 16 of
the cases discussed in these questions, LOPts position was
rejected by the courts. .These questions are designed to elicit
. whether Patrick's views are the same as those advanced by LDF,
and how he will enforce civil r1gh~s statute~ ~n light of these
precedents.
.
I.
EQUAL OPPORTUNITY
va.
EQUALITY OF RESULTS
1. In his courageous dissent to the Supreme Court's deci
sion upholding the "separate but equal" doctrine in P1essy y.
ferguson, . Justice Harlan declared, "Our CQnstitut~on is color
blind, and neither knows nor tolerates classes among citizens. HI
He urg.d that W[i]n respect of civil rights. common to all citi
zens," the Constitution does not "permit any public authority to
know the race of those entitled to be protected in the enjoyment
of such rights. ".2
Fifty-eight years. later, in Bmw y. Bd. of Education,'
. then-LDF lawyer Thurgood Marshall argued, "That the Constitution
is colorblind is our dedicated belief." In subsequent years LDF
has changed its position on this i98ue and has advocated race
conscious policies and remedies in a wida variety of contexts.
1
163
u~s.
537,
~~g
(Harlan, J., dissenting).
14. at 554.
J
34' U.S. 483 (1954).
�rUU:l!U!O
Question:
Do you believe the Constitution is ,colorblind? How do you
assess the record of departures from the principle of color
blindness 8ince19541
2. In Regents of the University Of CalffQrn~a v. Bakke.·
in which the Supreme Court invalidated the reservation of a
8pec~f~ed number of seats for cartain racial groups, Justice
Powell stated that all state-imposed racial classifications are
"inh$rently suspect and thus call for the most exacting.scruti
ny." As amicus, LOF took a contrary pOSition end urged the quota
be upheld.
Questions:
a.
Do yeu believe Bakke was correctly decided?
b. Do you agree with the principle stated by Justice
Powell? Do you believe ~1: accurately &tatesthe applicable
14th Amendment standard? If not. what do you believe 1s the
current standard,
what is your basiS for that view?
and
c. What general standard will you apply to determine wheth
er race-conscious policies or rcmedies are appropriate?
d. What is your definition of "quota"?
policy challenged 1n Bakke was a quota?
Do you believe the
e. Undar what circums.tances •.if any. do you believe quotas
are constitutional? Would you give an example of the type
of quota you would challenge as Assistant Attorney General?
f. Do ~ou agree with the findings of Prof. William Julius
Wilson in his book. The Truly Disadvantaged, that the bene
fits ofrace-spec1fic policies generally are concentrated on
those who need help the least, while aiding little the most
disadvantaged people .1n our SOCiety?'
g. HOW, if at all, 'would you reorient the· concept of ·'af
firmative action" ~o focus benefits on those who need help
the most? How would you implement this approach in.l1tiga
t1on, consent decrees. administrative rulemaking, ·etc?
438 u.S. 265, 290 (1978)(Opinion of Powell, J.).
2
�J
U. 1-
;:"i ll. o! J I lYl
r lW!Yl J U lJ !l.d JUI.1I. VMM.
U:> :>
rUUb/U 1~
3. In WBshington y. Day1S,' the U.S. Supreme Court ruled
that statistics elone erG ordinarily not sufficient to state a
cause of action for race discrimination under the 14th Amend
ment's equal protection clause. Rather, plaintiffs must prove an
intent to discrimina~e. A contrary result.wou~d place in jeopar
dy government policies and practices that are race-neutral but
affect groups differently.
.
In McCleskyy. KemJ,),6 you argued, solely on the basis of·
sociological statistios (relating not to the race of the defen
dants but of the victims), that the death penalty 8S enforced by
the State of Georgia violates equal protection and the Eighth
.
Amendment's prohibition agains~ cruel ~nd unusual punishment.
Questions:
a. You have indicated repeatedly in your public remarks
that you adhere to the views you expressed in your McCle~
argument.' Would you urge the Court to reconsider this
precedent?
b.Do you believe capital punishment is unoonstitutional in
all inst&nees?
.
c. .As Assistant Attorney General, you would be responsible
for enforcing criminal laws prohibiting civil rights v1ola- .
tions, including race hate and police brutality crimes. In
appropriate circumstances, such as premeditated race"-based
killings, would you seek the death sen~ence1
d. Under what circumstances, if any, do you believe "ad
verse impact" (i.e., statistical disparities) alone is
enough to state an equal protection cause of aotion?
e. Would you argue to change the rule of law established in
wasbington y. Dayis?
4.
Xn Son Antonio Independent SchOOl Diet. y. Rod~igue&,'
the plaintiffs urged the federal courts to strike down the State
of Texas school f1nancingsystem as a violation of equal protecI
426 U.S. 229 (1976).
6
481 U.S. 279 (1987) •
., See, e.g., Patrick, "The Death Penalty: Can It be Adminis
tered Fairly," ABA Individual Rights and Responsibilities Panel
(Feb. 5, 1993) •
•
411 U.S. 1 (1973).
·3
�rUUI/UHI
tion under the 14th Amendment. LDF supported this position as
The Supreme Court disagreed, finding that Mwealth" is
not a "suspect" classification under the 14th Amendment, and that
education is a right conferred not by the federal constitution
but by the states.
.
amicus.
Criticizing this decision. former LDF director-counsel
Julius L. Chambers, former LDF [position], has urged theories
that would "establish constitutional protection against disparate
'treatment of the poor based on thoir economic status. This 'is an
area of emerging constitutional law that will have tremendous
impact on civil rights."'
.
Questions:
8.
Do you believe "wealth" should be a
tion triggering s.trict equal protection
other categories that currently ore not
classifications that you believe should
suspect classifica
scrutiny? Are there
considered suspect
be?
b. Apart from instances of 1ntentionald1scr1m~nation on
the basis of prohibited characteristics, do you believe
issues of 8ch~ol£inance and governance are appropriate
~ubjects of federal civil rights litigation?
c. would you as ASII.tstant Attorney CenQraladvance the
constitutional theories described above?
II.
EtJPLOYMIlf'l
l.A frequent objection to race-specific remedies for past
discrimination is that they conler benefits upon people who were
not victims of discrimination and pena~ize people who are guilty
of no wrongdoing.
In Firefighters Locol union No. 1784 y. Stgtts,lO rejecting
LDF's position as attorneys for the plaintiffs, the supreme Court
stated that the pol.:l.cy of Titlo VII of the Civil Rights Act of
1984 "is to provide make-whole. relief only to those who have been
actual victims of discrimination," and ruled tha:t "a court [1s]
not authorized to give preferential.treatment to nonv.:l.ct.:l.ms."11
.• Chainbers, ItWhat Color IS. the Con8titution,M
(Fall 1988), pp. ~5-47.
u.s.
10
467
11
.I.cl •. at 580-581.
~6l
(1984).
4
Human Rights
�J3-0.7-94 12: 15PM
FR'OM JUD'icI"ARY 'COw, USS
TO 95140293
POOB/OIB
Questions:
B.
Do you believe Stotts is good law?
b. What exceptiona, if any, ore there to the rule expressed
in StOttS? "
c. In litigated orders and consent decrees, wi11 you ~im1t
make-whole remedies to identified victims of past discrimi
nation? If not, under what circumstances. in what ways, and
by what authority would you extend such remedies to people
who are not identified victims? What if anything would you
do to protect ~he r1gh~s of 1nnoc~nt workers who might be
adversely affected by such remedies?
In Wygant y. Jackson ad. of Education, U the supreme
Court struck down as a Violation of the 14th Amendment a school
bcard·s layoff policy by which ~eachara wfthgreater seniority
were discharged solely on the basis of race. LDF as amicus
argued in favor of the race-based layoff policy.
2.
In his plurality opinion, Justice Powell stated that the
guarantee of equal protection requires both a II showing of prior
discrimination by .thegovernmental unit,· and that n[oJther, less
intrusive means" were unavailing before race-conscious. remedies
are warronted. 13
Questions:
a.
Do you agree with Justice Powell's opinion in KY;ant?
b.
Do you believe the race-based layoff policy used in
wygant was a quota?
'
c. What type of evidence of past discrimination must e
governmental unit make before proceeding to race-conscious
policies?
a. What type. of "other~ less intrusive means" must be
considered before public entities may employ racial classi
fications?
3. In Martin y. Wilks, It the Supreme Co.urt rebuffed argu
ments that would· have shut the courthouse doors to victims of
416
..,
u.s.
265(1985) •
lJ1. at 274 and 283 (plurality).
490
u.s.
755 (1989).
5
�TO 95140293
P009/0lB
discrimination. The Court held that under the Federal Rules of
Civ~l Procedure, white f~refighters should be allowed to chal
lenge a consent decree under which their opportunities for
promotions were limited by racial preferences, since they were
no~ par~1es ~o ~he litigat~on that produced the consent decree._
LOF participated in this case as amicus. The rule adopted by the
Court was subsequently modified by the Civil Rights Act of 1991.
·Questions:
a. Do you believe the Court's decision in Wilks waS cor
rect?
b. Do you think the same result would be mandated by the
due process guarantees of the F1fthand 14th Amendments?
c. What steps will you take to insure that the rights of
third parties who may be affected by litigated orders or
consent decrees are protected?
.
Much of the language adopted in the Civil Rights Act of
.
widespread implications for employers and workers.
4.
1991 has not yet been definitively interpreted, but could have
Questigns:
a. In what ways, .i£ any, do you believe the Civil Rights
Act of 1991 limits or broadens ~he power of employers to
adopt race-specific preferential poliCies, or of courts to
order or approve such policies?
b. Do you believe that the act's prohibition of "race
norm1ng" forbids all hiring or promotion selections from
different lists based on race, color, national origin, or
gender? If not, under what circumstances are these practiC
es permiSSible?
c. %n adveree impact cases, do you read the act's require
ment that the employer "demonstrate that the challenged
practice is job" related for the position in question and
consis~en~ w1th.busines8 necessity" aa impos~ng two distinct
burdens? If so, describe how these burdens may be satis
.fied.
.
d.
Will you use "testers w in the employment context?
6
�IU
IXI.
~:J14U'~J
r U1UI U10
CONTBACT SET-ASIDES
In City of Richmond y. J.A. Croson Co., 15 the Supreme Court
struck down a 30 percent minority aet':aside of city contracts,
finding that the program was unrela~ed to any obJect~ve other
than "outright racial balancing." LDF defended the set-aside 8S
omi.cus.
The Court ruled that a public entity must "identify the
it seeks to remedy in its own jurisdiction,·16
and found that neither statistical disparitIes nor societal
. discrimination satisfied this requirement. 17 It must also con
sider "race-neutral means to increase minor1~y business part1c~
pation" before pursuing race-conscious measures.'s
.
discr1m1na~1on
.
Questions:
a.
Do
you agree with the Court's decision in Crgson?
b. Would you seek or support legislation to modify or
overturn Croson?
c. Wbat types of findings are sufficient to justify setting
aside a percentage of contracts on the basis of race?
d. What types of "race-neutral means to increase minority
business participation" must be considered before race
conscious measures are permissihle?
xv.
auSXNQ
ANP SCHOOL DESEGREGaTION
1. For four decades our nation has struggled to fulfil its
promise of equal educational oppor~un1~~es. r~ced with massive
resistance, the.United States Supreme court approved the limited,
temporary use of extraordinary remedies such as forced busing.
The effectiveness of such remedies is now open to .question, and
large majorities of Americans, both white and hlack, oppose
·forced busing. As columnist Wi11iam Rospberry has observed,
husing is "almost monomaniacally concerned with the maximum
15
488
u.s.
16
~.
at 504.
17
lJi. at 499-50 6.
18
14. at 501.
469, 507 (1989).
7
�• V,J
V I,
;:J't
U.·IJUI
fJ.\VIYL
JUlJlldJ\ltf LVMM.
U~~
TO 95140293
YUillUlo
feasible mixing of races, with educational concerns a distant
second. ,,10
The Supreme Court and other courts have ruled consistently
that extreme measures such 89 buslng should not cont~nue indefi
nitely; and that once school districts are desegregated, federal
courts must return control to local' authorities. LDY has strong
ly opposed these precedents.
The Civil Rights Division has jurisdiction over hundreds of
continuing desegregation decrees, and has enforcement.8uthority
to initiate new actions. As a consequence, the Division' s
enforcement policies impact educational opportunities for hun
dreds of thousands of American youngsters.
Questions:
a. How many outstanding desegregation decrees exist?, What
is the average age of the decrees? How many cases have been
terminated Since January 1993? How many new desegregation
actions have been initiated during that 'time?
b. What is your view of the efficacy of forced busing as a
des.gregation remedy?
2. In Milliken y.' Bradley,30 LDF represented the plain
tiffs who sought to extend busing beyond school district bound
aries into the suburbs. The Supreme Court rejected their argu
ment,ruling that inter-district remedies are inappropriate
unless the plaintif£s co~~d show .that the suburban school dis
tricts were guilty of intentional segregation and that district
boundary lines were created with discriminatory intent. The
Court's ruling was based on the principle that the scope of a
remedy must be defined and limited by the scope of the constitu
'tional violation.
Questions:
a.
Do you agree with the Court's ruling in Milliken?
b. under what circumstances, if any, would you seek ~nter
district remedies in desegregation cases? What evidence of
discriminatory intent would you require before seeking such
remedies?
U .. William Raspberry, liThe Basy Answer:
E.a.B.t (April 10,1985), p. A23.
20
41SU.S. 717 (1974).
8
Busing," WQshington
�"\oj"
\.1.1
vi
1£•• lJUI
rnvro.
.J\J1JlI.rII\IU
\"V.Ml'/l,
U;:';:'
rUIUUl~
3. In Pasadena City Bd. of Education y. Spang1er,Jl the
plaintiffs in a school desegregation case, supported by amicus
LOF, argued that the courts should adjust racial ratios for
student assignments each year as demographics change. The
Supreme Cour~ disagreed. Not1ngthot rac10l ratios are appropri
ate only as a $tarting point in shaping a desegregation remedy, .
the COurt ruled that "the District Court was not entitled to
require the [school district] to arrange its attendance zones
each year so as to ensure that the racial" mix desired by the
court was maintained in perpatuity.-aJ "
Questigns:
a.
Do you agree with the Court's ruling in Spangler?
b. Under what circumstances, if any, do you be1ieve that
required racial ratios for student aSSignments may permissi
bly be changed to reflect demographic changes?
c. How long must 8 school district maintain racial ratios
in studentass1gnments before it is f~ee to assign students
on a race-neutral (~.g., neighborhood) basis?
y. School ad. of
'I'X)..zs the Unit
ed States Courts of Appeals for the First, Fourth, and FifthCir
cuits recognized strict limits on the power of courts to super
vise schOOl districts once the districts have fu~fil1ed desegre
gation orders. In all three cases, the school districts had
complied with such orders, and sought to reduce the scope of
forced busing. In both Biddick and Oyertgn, LDF represented
plaintiffs who sought orders mandating continued forced busing
an argument Fifth Circuit Judge Pa~rick Higginbotham character
ized as "e heady call for rawjudic1al power."26 The courts
rejected these demands, holding that attainment of unitary status
triggers "the mandato~ devolution of power ~o local outhori
4.
In Morgan y. Nucci (Boston), 23 JiQdick
City of NorfQ1k,:a, end U.S,
y.
Oyer1;on (Austin..
:u
421 U.S. 424 (1916).
n
Id. at 436.
n
831 F.2d 313 (1st Cir. 1987 ).
" a4
784 F.2d 521 (4th Cir. 1986).
".
25
834 F.2CS 1111 (5th Cir. 1981).
26
.Id.. at 1176.
9
�'" J
" ..
,,,,.! vi'"
! 4\111'1
"VLl1 '" 1./\1\
1 vUlI'llYI.
U;);)
lU
~014U~~j
r UI J/ UI 0
ties, ,,27 and that thereafter, plaintiffs can challenge school
policies only by demonstrating intent to discriminate.
Oueatigns:
e.
Do you agree with these holdings?
do you disagree, and on what authority?
If not, in what ways
b. Do you agree with the First Circuit's holding in Morcan
that court supervision must cease as each component.
of a school district (e.g., student assignments, faculty"
etc.) becomes unitary? If not, what is the proper rule, and
how is it consistent w1~h spaogle~1
y. Nucc;!,
5. In Board of·Sduoation of Oklahgma City Pllbl1.o Schools V.
Dowell,3a the Oklahoma City school board, which had achieved
unitary status in 1977, sought to discontinue busing due to the
increasing burdens it placed on black students, and instead move
to a neighborhood school system in which minority students could
continue voluntarily to transfer with transportation provided.
The Tenth Circuit Court of Appeals, adopting the position urged
by LDF an behalf of the plaintiffs, ruled that desegregation
orders, including forced busing, must continue in perpetuity
unless the school system could demonstrate a "grievous wrong
evoked by new and unforseen cond~tion$.·
.
The Supreme COurt rejected LDF's position and overturned the
Tenth Circuit's ruling. Desegregation .orders "are not .intended
to operate in perpetuity," the Court declared, and courts should
d~s801ye the decrees .-after the local authorities have operated
in compliance with [them] for a reasonable period of time.",t
In Freeman y. Pitta (DeKalbCaunty# GA),30 the Supreme
Court ruled that a district.CQurt may relinquish its control over
specific components of a school district's operations as it
achieves·unitary status, even if desegregationrema1ns necessa.ry
in other areas of the school system.
Do you agree with the holdings in Dowell and Freeman? .
B.
b.
How do you define "reasonable period of time" as set
forth in CQwell?
2'7
aa
Morgan, 831 F.2d at 318 (emphasis in original).
111 S.Ct. 630 (1991).
,
2t .
'
.ld.. at 637.
112S.Ct. 1430 (1992).
10
�. uru,r-::l4·U::i:lrM
HUM
JUVICIA~Y
GOMM. USS
TO 95140293
P014/018
c. Will you act to discontinue federal court decrees when
school districts attain unitary status? What factors will
you consider to measure such status? Does that include
. districts that have aChieved unitary status in some compo
nents of their school system but not others?
6. In several public speeches you have saie! tbat -g:ramma:r
schoolS allover the country are xesegregating. • •• LDF has
g:g;t to be in those cases.!f31
I
QuestiQns :
a. By It r esegregat1ng l II ao you mean segregation in the
ordinary sense of the term -- i.e., official state action
that results in involuntary separation of the races -- or
something else? If you mean something else, what level of
state action is necessary, in your view, to trigger litiga
tion under the statutes within the Civil Rights Division's
. jurisdiction?
b. In what circumstances would you take legal action t.o
counteract Wrasegregation Was you define it l and how would
such actions conform with the precedents cited above?
What steps will you take to Z'eview existing desegrega
tion decrees and return control to local authorities?
d.
v.
HOUSING
In U.S. y. Starrett City ASSQCiates,32 the U.S. Court of
Appeals for the Second Circuit struck down as a violation of the
Fair HOUSing ac"t a policy that held vacant housing units open for
whites rather than allow black families on waiting lists to rent
them. The policy was justified on the grounds of racial balance.
Questions:
a.
Do you agree with the court's
b.
Will you challenge such policies if you encounter them?
dec~s1on
in Starrett City?
31
See,. e.g., Remarks ot Deval Patrick, NAACP Legal D;~fer.se
Fund Anniversary Dinner (Oct. 21, 1993)(emplulsea in or:Lgin~ ;.
840 F.2d 1096 (2d C1r. 1988).
11
�TO 95140293
VI.
1.
POI5/0IS
BaCE-SPEClfIC SCHOLlBSHIPS
Title VI of the Civil Rights Act of 1964 provides:
No person in the United States shell, on the ground of
race,'color, or national origin, be excluded from
participation in. be denied the benefits of, or be
subjected to discrimInation under any program or activ
ity receiving Federal financial assistance.
In Bakke, referenced earlier, four Justices of the Supreme
Court expressed the view that Title VI is color-blind. l ) Jus
tice Powell found that the race-based admissions policy violated
both the 14th Amendment and Title VI. [AS previously noted, LDF
as am1cYs opposed the result in Bakke.]
.
In Pgdberes1(y y. Ki rw an,:14 a Hispanic student challenged a
UnlverSI~ of Maryland scholarship program that was limited to
African~American students.
The U.S. Court of Appeals for the
Fourth Circuit, rejecting LOF's poSition as amicus, overturned
the trial court's ruling in favor .o~ the university. Applying
Bakke, Wygant, and Croson, the Fourth Circuit held that a race
specific soholarship 1s constitutional only asa narrowly tai
lored remedy for the university's past discrimination, which was
not demonstrated by the record.
The Clinton administration has announced a policy interpret
ing Title VI to allow race-specific SCholarships, and has indi
cated such schoLarships are not only permiss1ble but constitute a
"good tool" for college recruitment.
Questions:
a.
Do you
~elieve
Title VI is color-blind?
b. Do you believe that aside from narrowly-tailored reme
dies for demonstrated past discrimination by the college
involved, race-specific scholarships in institutions of
higher leArning subject to ~1tle VI are permiSSible? If 80,
under what circumstances?
c. Do you favor the administration'. policy on raCe-Sfop..cif
1c scholarships? If so, why do you believe it is necessary
or desirable to use race rather than disadvantage as the
criterion for awarding such scholarships?
33
438 u.s. at 408-421 (Stevens, J.,
judgment in part and dissenting in part).
9S6F.2d 52 (1992).
12
concurring'
the
�• UJ-U,I-::HI
U:: l~rM
HUM
JUVICIARY COMM., USS
TO 95140293
P016/018
,d.
Do you agree with the Fourth Circuit's ruling in'
Do you believe the administration's policy
comports with that decision?
EQdbere§~?
VI:I.
. VOTIHQ
1. In Shaw y. Reno, the Supreme Court ruled thatrac1ally
gerrymandered electoral districting may violate ,the equal protec
tion clause, in the context o£a Nor~h Carolina congressional
districting scheme which, as described in Justice O'Connor's
majority opinion, "bears an uncomfortable resembiance to politi
cal apartheid • .,n Justice O'Connor observed that one of the
districts was 160 miles long and in parts "no wider than the 1-85
oorr14or," while another was likened in shape to a "'Rorschach
:l.nkblot test. ' .36
'
LOY argued as amieus 1n support of thera~ially gerryman
dered districts, contending ,in its brief that "redistricting
cannot be trace-neutral.'·
'Questigns:
. 8.
Do you agree with the COurt's decision in Shaw y. Reno?
b. wnat principles will you soekto apply to redistricting
cases and pre-clearance procedures under the Voting Rights
Act to avoid v:l.olat.ingthe 14th Amendment?
c.
Do you agree with LOF's position that redistr:l.cting
cannot be race-neutral?
2. In f;resley y. Etowah CQunty Comm'n,31 the Suprame Court
held that the Voting Rights Aot does not extend beyond voting .
matters to issues concerning governance and the leg:l.slat1ve
process. The Supreme.Court rejected LDFts con"trary pos.1t:J.on as
mnicus.
'
Questigns:
Do you agree w1~h the result in Etowah CQunt~? If not,
to what extent do you believe the Voting Rights Act should
apply to the legislative process?
B.
35
113
36
.1.d. at 2820-21.
S~Ct.
2816, 2827 (1993).
J7112S.Ct.820 (1992).
13
�· • UrU.r-::l4
1£:: l::lfM
HUM
JUJJ!CIARY COMM. USS
TO 95140293
P017/018
b. Will you seek or support legislation to overturn Etowah
count;:r?
Prof. Lani Guin1er, whoae works frequently are cited in
LDF briefs, bas argued that the Voting aighte Act extends to
legislative processes, and should be read to ensure "propor
tional interest representat1on,-.including outcomes of
legislative processes. l • To what extent 40 you agree w~th
Prof·. Guinier' s approach?
C.
Prepared for the Inatitute for Justice by Clint Bolick and
D. Korner.
R~chard
J.
See Ie. g., Guinter, The Triumph of Tokenism: The Voting
Rights Act and the ~heory of Black Electoral Success, 89 ~1ch. L.
sax. 1077, 1136-44 (1991).
It
14
�_-
. f'f;
J
, 03-07-94 12:15PM
•
•
~'O
•
"
FROM JUDICIARY COMM. USS
, TO 95140293'
POlS/DIS
"
A.UTHORS' CREDENTIALS
Clint Bolick is vice-president and director of litigation at
the Institute for Justice in Washington, D.C., which he co
founded with Chip Hellor in 1991.801ick previously served as
dlrec~or of the Landmark Lega1 Foundation's Center for Civil
Rights (1988-91); and as an attorney with the U.S. Department of.
Justice, Civil Rights Division (1986-87) and the U.S. Equal
Employment Opportunity Commission (1985-86). He hassucC8asfully
litigated civil rights cases in the areas of economic liberty,
sohool choice, employment discrimination; school dasegregation..
housing discrimination, gender discrimination, and criminal civil
rights violations. He has authored three books: Grassroots
tyranny: The Limits of federalism; unfinished Business; A Civil
Rights Strategy for America'eTbirdCentuxy: and thanging CQursa:
Ciyil Rights at the Crgssrgads.
.
Richard D. Komer ia an attorney with the Institute for
Komer previously aerved aa Caputy Assistant Sacretary
for Civil Rights, U.S. Department of Education (1990-93): Direc
tor, Office of Legal COunsel (1986-90), and Speciel Assistant to
the Chairman (1985-86), U.S. Equal Employmen~ Opportunity COmmJ.a
sion; attorney, U.S. Department of Justice, Civil Rights Division
(1982-85): attorney, U.S. Department of Education, Office of
Civil Rights (1980-82); attorney, U.s. Department of Health,
Education and Welfare, Office of General Counsel (1978-80).
Justice.
15
�THE WHITE HOUSE
Office of the Press Secretary
February 1, 1994
For Immediate Release
BIOGRAPHY OF DEVAL L. PATRICK
A respected Boston attorney who grew up in a segregated
neighborhood on the South Side of Chicago, Deval L. Patrick's life
experience and professional expertise make him a higbly qualified candidate
to help carry forward the .Clinton Administration's strong civil rights agenda
as Assistant Attorney General for. Civil Rights.
<
Patrick, currently a partner in the law firm of Hill & Barlow and a
leader of the NAACP Legal Defense and Education Fund, was raised and
attended public elem.~ilt93;'~ and junior high schools at the edge of the
Robert Taylor Homes project on Chicago's South Side. When he was in the
seventh grade; a teacher who recognized/Patrick's great potential
recommended him to the Boston-based group "A Better Chance," which
awarded him a scholarship to the prestigious Milton Academy. After
graduation in 1974, he won a scholarship to Harvard College, where he
received his B.A in 1978. He then spent a year in the Sudan and Nigeria
as a ·Michael Clark Rockefeller Travelling Fellow before returning to
Harvard to attend law school. At the law school, ~here he received his
J.D. in 1982, Patrick served as President of the Legal Aid Burea and won
the final round of the Ames Moot Court Competition. Following his
graduation. he spent a year as a clerk for U.S. Court of Appeals Judge
Stephen Reinhardt.
In 1983, Patrick became a staff attorney for the NAACP Legal
Defense and Ed'Ucation Fund in New York City. He litigated a variety of
civil rights cases there, specializing in capital punishment and voting rights
cases.
(more)
�I,:
r"
!"
Deval Patrick
page two
After three years at the NAACP, Patrick joined the Hill & Barlow,
where he is currently a partner. In addition to his civil and commercial
practice there, he has continued to devote as much as a third of his time to
civil rights cases on a pro bono basis. He chairs the New England Steering
Committee of the Legal Defense and Education Fund, and for the past three
years has served on the executive committee of the Fund's National Board.
In addition to his work for the NAACP, Patrick serves on the boards
of the Boys & Girls Clubs of Boston, the Harvard University Alumni
Association, Milton Academy, the Boston Bar Association Council," and
WGBH, Boston's public broadcasting station. He formerly served as Vice
Chair of the Massachusetts Judicial Nominating Council, which screens
candidates for appointment to state court judgeships by Governor Weld.
Patrick lives in the Boston area with his wife, Diane Bemus Patrick,
a labor and employment lawyer who is the Director of Human Resources at
Harvard Unh~rsity. They have two daughters. Patrick is 37 years old.
# # #
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Stephen Warnath - Civil Rights Series
Creator
An entity primarily responsible for making the resource
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
A related resource in which the described resource is physically or logically included.
<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
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
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Extent
The size or duration of the resource.
134 folders in 13 boxes
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Original Format
The type of object, such as painting, sculpture, paper, photo, and additional data
Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
[Justice, Department of - Confirmation Briefing Materials]
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Steven Warnath
Civil Rights Series
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 11
<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
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
Date Created
Date of creation of the resource.
2/8/2012
Source
A related resource from which the described resource is derived
641686-justice-dept-confirmation-briefing-materials-a
641686