Affirmative Action Report: Footnotes
1 "Affirmative action" enjoys no
clear and widely shared definition. This contributes to the confusion
and miscommincation surrounding the issue. We begin therefore
with a definition:
-
For purposes of this review, "affirmative action"
is any effort taken to expand opportunity for women or racial,
ethnic and national origin minorities by using membership in those
groups that have been subject to discrimination as a consideration.
Measures adopted in court orders or consent decrees, however,
were outside the scope of the Review.
For economy of language, in this document the use of the word
"race" (e.g., "race-targeted scholarship")
also refers to membership in an ethnic group that is disadvantaged
because of prejudice and discrimination
2 115 S. Ct. 2097 (1995).
3 See Appendix B of this report.
4 NAACP v. Allen, 493 F.2d 614, 621 (1974).
5 DOL memo from Arthur Fletcher to All Agency
Heads discussing the revised Philadelphia Plan, 6/27/69.
6 Richard Nixon, RN: The Memoirs of Richard
Nixon 437 (Grosset and Dunlap: 1978).
7 Regents of the University of California
v. Bakke, 438 U.S. 265(1978).
8 Chronicle of Higher Education: April
28, 1995.
9 National Center for Education Statistics,
Digest of Education Statistics 1994, NCES 94-115, Table 179.
10 Bureau of Labor Statistics, Current Population
Survey.
11 Bureau of Labor Statistics, Current Population
Survey.
12 Bureau of Labor Statistics, Current Population
Survey.
13 Bureau of Labor Statistics, Current Population
Survey. For a time-series discussion of black/white earnings
rations, see Donohue, John and James Heckman, 1991. "Continuous
versus Episodic Change: The Impact of Federal Civil Rights Policy
on the Economic Status of Blacks," Journal of Economic
Literature, 29:1603-43. See also, Bound, John and Richard
Freeman, 1989, "Black Economic Progress: Erosion of Black
Americans" in The Question of Discrimination.
14 EEOC, Office of Communication, The Status
of Equal Opportunityin the American Workforce (1995). For
a discussion of empirical evidence on earnings gaps and discrimination
for Hispanics, see Gregory DeFreitas, Inequality at Work:
Hispanics in the U.S. LaborForce (New York: Oxford Press,
1991).
15 Bureau of Labor Statistics, Current Population
Survey.
16 Rogers, Bill, 1994,"What Does the
AFQT Really Measure: Race, Wages, Schooling and the AFQT Score,"
mimeo., William and Mary. The figures cited here adjust for racial
geographic differences.
17 See Card, David and Alan Krueger, 1992,
"School Quality and Black-White Relative Earnings: A Direct
Assessment." The Quarterly Journal of Economics, p.151-200.
18 An important study that points out the
near unanimous opinion among economists of the positive impact
of government anti-discrimination programs on improved income
of African-Americans is Donohue, John and James Heckman, 1991,
"Continuous versus Episodic Change: The Impact of Federal
Civil Rights Policy on the Economic Status of Blacks, "Journal
of Economic Literature, 29:1603-43. Freeman, Richard, 1973,
"Changes in the Labor Market for Black Americans, 1948-72,"
Brookings Papers on Economic Activity, vol. 1 was among
the first to identify government anti-discrimination programs
as a source of progress.
19 See Blau, Francine and Marianne Ferber,
1992. The Economics of Women, Men and Work, Englewood
Cliffs: Prentice Hall, p.129.
20 See Blau, Francine, and Lawrence Kahn,
1994, "Rising Wage Inequality and the U.S. Gender Gap."
American Economic Review 84:23-28, for a discussion of
the large decline in male-female wage differentials that occurred
from the mid 1970s to the late 1980s.
21 Department of Education, National Center
of Education Statistics.
22 The five studies are: (1) Leonard, Jonathan,
1984, "The Impact of Affirmative Action on Employment,"
Journal of Labor Economics, 2:439-463; (2) Leonard, Jonathan,
1984, "Employment and Occupational Advance Under Affirmative
Action," The Review of Economics and Statistics; (3)
Ashenfelter, Orley and James Heckman, 1976, "Measuring the
Effect of an Anti-discrimination Program, in Estimating the
Labor Market Effects of Social Programs, Eds: Orley Ashenfelter
and James Blum. Princeton NJ: pp.46-89; (4) Heckman, James
and Kenneth Wolpin, 1976, "Does the Contract Compliance Program
Work? An Analysis of Chicago Data," Industrial and Labor
Relations Review 29:544-64; (5) Goldstein, Morris and Robert
Smith, 1976, "The Estimated Impact of Anti-discrimination
Laws Aimed at Federal Contractors," Industrial and Labor
Relations Review.
23 Leonard, Jonathan, 1984, "The Impact
of Affirmative Action Regulation and Equal Employment Law on Black
Employment," Journal of Economic Perspectives, 4:47-64.
24 See above studies plus Donohue and Heckman,
Continuous versus Episodic, 29, Journal of Economic Literature,
p.1631.
25 For a full discussion of the impact of
weakened affirmative action enforcement during the 1980s, see
Leonard, Jonathan, 1990, "The Impact of Affirmative Action
Regulation and Equal Employment Law on Black Employment,"
Journal of Economic Perspectives, 4:47-64.
26 For a discussion of the impact of affirmative
action on minority employment in skilled positions, see Leonard
1990, The Impact of Affirmative . . . .," 4 J. of
Econ. Perspectives 47.
27 See Leonard, Jonathan, 1984, "Anti-discrimination
or Reverse Discrimination: The Impact of Changing Demographics,
Title VII and Affirmative Action on Productivity," Journal
of Human Resources, vol. 19, No.2, pp.145-74.
28 "Good for Business: Making Full Use
of the Nation's Human Capital", A Fact-Finding Report of
the Federal Glass Ceiling Commission, March 1995.
29 Bureau of the Census, Current Population
Survey, "Income, Poverty and Valuation of Noncash Benefits
1993."
30 Bureau of Labor Statistics, 1994 Fact
Sheet.
31 Federal Glass Ceiling Commission, Good
for Business: Making Full Use of the Nation's Human Capital
(March 1995).
32 See, e.g., Neumark, David and Roy Blank
and Kyle Van Nort, 1995, "Sex Discrimination in Restaurant
Hiring: An Audit Study," NBER Working Paper No. 5024.
33 Bureau of Labor Statistics, Current Population
Survey.
34 EEOC, Office of Communications, The Status
of Equal Opportunity in the American Workforce (1995).
35 U.S. General Accounting Office, Immigration
Reform: Employer Sanctions and the Question of Discrimination,
Report to the Congress, GAO/GGD-90-62, March 1990, p. 48.
36 David Neumark, et. al. Sex Discrimination
in Restaurant Hiring: An Audit Study, Working Paper No. 5024,
National Bureau of Economic Research, Inc. (February 1995).
37 Federal Glass Ceiling Commission, Good
for Business: Making Full Use of the Nation's Human Capital
(March 1995).
38 Bureau of Labor Statistics, 1994 Fact
Sheet.
39 Gregory DeFreitas, Inequality at Work:
Hispanics in the U.S. Labor Forces (New York: Oxford University
Press, 1991), Chapter 4.
40 A Report of the Study Group on Affirmative
Action to the House Committee on Education and Labor (1987).
41 Andrew Hacker, Two Nations: Black and
White, Separate, Hostile, Unequal Ballantine Books (1992).
42 1990 Census data as compiled by the Office
of Federal Contract Compliance Programs (1995).
43 U.S. Bureau of the Census, The Black
Population in the United States: March 1994 and 1993 (1995);
U.S. Bureau of the Census, Characteristics of the Black Population
(1995).
44 EEOC, Office of Communications, The
Status of Equal Opportunity in the American Workforce (1995)
(Data supplied by the National Committee on Pay Equity).
45 Robert Wood, Mary Corcoran and Paul Courant,
"Pay Differentials Among the Highly Paid: The Male-Female
Earnings Gap in Lawyer's Salaries," Journal of Labor
Economics (July, 1993).
46 This taxonomy is not intended to suggest
which programs may warrant strict scrutiny pursuant to Adarand.
47 Such "hard" set-asides have included
the Patricia Roberts Harris Fellowship (20 U.S.C. 1134D-G) and
the Women and Minorities in Graduate Education (20 U.S.C. 1134A).
48 15 U.S.C. sec. 637 (a)(1),(4).
49 Roughly 80 percent of reviews are "triggered
by"computer- based selection system.
50 41 C.F.R. § 60-2.12(e).
51 The five studies are: (1) Leonard, Jonathan,
1984, "The Impact of Affirmative Action on Employment,"
Journal of Labor Economics, 2:439-463; (2) Leonard, Jonathan,
1984, "Employment and Occupational Advance Under Affirmative
Action," The Review of Economics and Statistics; (3)
Ashenfelter, Orley and James Heckman, 1976, "Measuring the
Effect of an Anti-discrimination Program, in Estimating the
Labor Market Effects of Social Programs, Eds: Orley Ashenfelter
and James Blum. Princeton NJ: pp.46-89; (4) Heckman, James
and Kenneth Wolpin, 1976, "Does the Contract Compliance Program
Work? An Analysis of Chicago Data," Industrial and Labor
Relations Review 29:544-64; (5) Goldstein, Morris and Robert
Smith, 1976, "The Estimated Impact of Anti-discrimination
Laws Aimed at Federal Contractors," Industrial and Labor
Relations Review.
52 Leonard, Jonathan, 1984, "The Impact
of Affirmative Action Regulation and Equal Employment Law on Black
Employment," Journal of Economic Perspectives, 4:47-64.
53 See above studies plus Donohue and Heckman,
Continuous versus Episodic, 29, Journal of Economic Literature,
p.1631.
54 The Pentagon tends not to use "diversity"
and rarely uses "affirmative action." The preferred
term is "equal opportunity." Insofar as bias and prejudice
persist, effective equal opportunity strategies will often entail
affirmative action.
55 Distribution of Active Duty Forces Report,
DMDC 3035, March 1995.
56 See, for example: "Historically
there has been an acute shortage of equity capital and long-term
debt for small concerns owned by socially and economically disadvantaged
individuals." S. Rep. No. 95-1070, 95th Cong., at 3 (1978)
(Amendments to the Small Business Investment Act of 1958, P.L.
95-507 (1978)).
57 "Congress had before it, among
other data, evidence of a long history of marked disparity in
the percentage of public contracts awarded to minority business
enterprises. This disparity was considered to result not from
any lack of capable and qualified minority businesses, but from
the existence and maintenance of barriers to competitive access
which had their roots in racial discrimination, and which continue
today, even absent any intentional discrimination or other unlawful
conduct." Fullilove v. Klutznick, 448 U.S. 448, 478
(1979).
58 Fullilove, 448 U.S. at 466 n.48,
quoting H.R. Rep. No. 1791, 94th Cong., 2d Sess., p. 182 (1977).
59 Ibid. As Gunnar Myrdal wrote in
1944:
The Negro businessman encounters greater difficulties than whites
in securing credit. This is partially due to the marginal position
of Negro business. It is also partly due to prejudicial opinions
among whites concerning business ability and personal reliability
of Negroes. In either case a vicious circle is in operation keeping
Negro business down.
Myrdal, An American Dilemma: The Negro Problem and Modern
Democracy, Harper and Bros., 6th Ed., p. 308.
60 Fullilove, 448 U.S. at 467.
61 Id. at 459.
62 See, e.g., H.R. 5612, To Amend the Small
Business Act to extend the Current SBA 8(a) Pilot Program: Hearing
on H.R. 5612, Before the Senate Select Comm. on Small Business,
96th Cong., 2d Sess. (1980); Small and Minority Business in the
Decade of the 1980's (part 1): Hearings Before the House Comm.
on Small Business, 97th Cong., 1st Sess. (1981); Minority Business
and Its Contribution to the U.S. Economy: Hearing Before the
Senate Comm. on Small Business, 97th Cong. 2d Sess. (1982); Federal
Contracting Opportunities for Minority and Women-Owned Businesses--An
Examination of the 8(d) Subcontracting Program: Hearings Before
the Senate Comm. on Small Business, 98th Congress., 2d Sess. (1984);
State of Hispanic Small Business in America: Hearing Before the
Subcomm. on SBA and SBIC Authority, Minority Enterprise and General
Small Business Problems of the House of the House Comm. on Small
Business, 99th Congress., 1st Sess. (1985); Disadvantaged Business
Set-Asides in Transportation Construction Projects: Hearings Before
the Subcomm. on Procurement, Innovation, and Minority Enterprise
Development of the House Comm. on Small Business, 100th Cong.,
2nd Sess. (1988) Barriers to Full Minority Participation in Federally
Funded Highway Construction Projects: Hearing's Before a Subcomm.
of the House Comm. on Government Operations, 100th Cong., 2d Sess.
(1988) [hereinafter 1988 Barriers Hearing]; Surety Boand Minority
Contractors: hearing Before the Subcomm. on Commerce, Consumer
Protection, and Competitiveness of the House Comm. on Energy and
Commerce, 100th Cong. 2d Sess. (1988) (examining difficulties
that minority-owned businesses experience in getting private sector
bonding)Small Business Problems: Hearings Before the House Comm.
on Small Business, 100th Cong., 1st Sess. (1987).
63 H.R. Rep. No. 460, 100th Cong., 1st Sess.
18 1987.
64 Ibid.
65 United States Commission on Minority
Business Development, Final Report, at 6 (1992)
66 United States Commission on Minority
Business Development, Final Report (1992), developed from data
provided by U.S. Department of Commerce, Bureau of the Census.
67 The study, released on July 12, 1995, was
conducted by Dr. William C. Hunter of the Federal Reserve Bank
of Chicago. It involved an analysis of 1,991 loan applications
and concluded that there was no evidence of discrimination in
comparing well qualified black and white applicants, but there
was a statistically significant disparity for marginal applicants.
The author attributes the result to affinity between loan officers
and white borrowers.
68 For further discussion, See, e.g.
Timothy Bates., "The Potential of Black Capitalism."
Public Policy 21 (Winter 1973); and, generally, Timothy Bates,
Major Studies of Minority Business, A Bibliographic Review), Joint
Center for Political and Economic Studies (1995).
69 United States Commission on Minority Business
Development, Final Report, p. 4 (1992)
70 "The State of Small Business,"
A Report to the President, p.63 (1993).
71 The goal for women was added in the
1994 procurement reform legislation, the Federal Acquisition and
Simplification Act. Racial minorities are presumed to be "socially
disadvantaged" for purposes of the government-wide SDB program,
mirroring the statutory presumption in the SBA's §8(a) program
described below.
72 Congress first codified the §8(a)
program in 1978. The earlier regulation-based program keyed eligibility
to either group status or economic disadvantage. Congress
and the Carter Administration chose to require that both conditions
be satisfied in order to focus the program on victims of group-based
discrimination and to ensure that all beneficiaries were economically
disadvantaged. 15 U.S.C. § 637(a)(1), (4).
73 15 U.S.C. § 636(j)(15).
74 10 U.S.C. 2323
75 See, Surface Transportation Assistance
Act of 1982, Pub. L. 97-424, 96 Stat. 2100 (Jan. 6, 1983) [STAA];
superseded by Surface Transportation and Uniform Relocation
Assistance Act of 1987, Pub. L. 100-17, 101 Stat. 132 [STURAA];
Intermodal Surface Transportation Efficiency Act of 1991.
76 15 U.S.C. § 644(g);
Federal Acquisition Regulation, 8 C.F.R. § 52.219-8.
77 "Small" varies with the industry,
but the maximum number of employees varies between 500 and 1500.
See Federal Acquisition Regulations (FAR) Part 19.102. The DOD
wealth test is personal assets not more than $750,000, excluding
business assets and personal residence.
78 49 C.F.R. part 23; 48 C.F.R. § 52.219-8.
79 The full effect of federal procurement
affirmative action is found in the "ripple effect" -
diminished discrimination at the state and local level, and in
the private sector. Such measurement is inherently difficult.
80 See, e.g., GAO/RCED 94-168 (August, 1994),
at pp. 24-25.
81 See, T. Bates, "Do Black-Owned
Businesses Employ Minority Workers? New Evidence," Review
of Black Political Economy 51 (Spring 1988) (research by
Professor Timothy Bates, Wayne State University, Detroit, MI.,
based on 1987 census data).
82 Census data indicate that of all small
businesses formed in 1976-78, less than 30 percent survived 6
to 8 years; data for 1982-87 indicate that only 42 percent of
black-owned firms survive five years. See, The State of
Small Business: A Report to the President 214-15 (1993).
83 See, Final Report of the U.S. Commission
on Minority Business Development (Dec. 1992).
84 See, Final Report of the U.S. Commission
on Minority Business Development 51 (Dec. 1992).
85 SBA measures economic disadvantage in a
three-part test: the individual's net worth, the financial condition
of the company, and the company's access to credit. For entry
into the program, personal adjusted net worth cannot exceed $250,000;
during the developmental stage of the program (the first four
years), it cannot exceed $500,000; and during the transition stage
(the last five years), it cannot exceed $750,000. In a September
1994 audit of 50 larger §8(a) firms, the SBA Inspector General
found that 35 of the 50 owners had a net worth in excess of $1
million; 13 of the owners, for example, had business equity ranging
from $1 to $9 million; five owners had personal residences valued
at between $800,000 and $1.4 million. See Audit Report on
§8(a) Program Continuing Eligibility Reviews, Report
No. 4-3-H-006-021 ("1994 Audit Report") at 7-9 (Sept.
30, 1994).
86 Testimony by Cassandra Pulley, Deputy Administrator,
unveiling the Administration's proposed §8(a) reforms, 1995,
S721-1:1:August 9, 1994.
87 See, T. Bates, "Do Black-Owned
Businesses Employ Minority Workers? New Evidence," Review
of Black Political Economy 51 (Spring 1988) (research by
Professor Timothy Bates, Wayne State University, Detroit, MI.,
based on 1987 census data).
88 The actual 12 month participation rate
for MBE's following the 1993 implementation was 17.7 percent.
89 Even where one statute seems to speak commandingly
of a rigid numerical set aside, it elsewhere gives the agency
head authority to waive or modify the numerical target as appropriate.
See, Surface Transportation Assistance Act of 1992, Pub.
L. 97-424, 6 Stat. 2100 (Jan. 6, 1983) [STAA]; superseded by
Surface Transportation and Uniform Relocation Assistance Act of
1987, Pub. L. 100-17, Stat. 132 [STURAA]. Read together,
these provisions amount to the usual kind of flexible goal, though
with a pointed Congressional emphasis suggesting that the Secretary
of Transportation would be expected to defend carefully a decision
to set lesser ambitions.
90 42 U.S.C. § 293a(b).
91 57 Fed. Reg. 8347 (1992).
92 Institute of Medicine, Balancing the
Scales of Opportunity: Ensuring Racial and Ethnic Diversity in
the Health Professions, p. 16; Huckman, Beverly B. and Rattenbury,
Bruce, "The Need to Bring More Minority Students into
Medicine," American Medical News, 35 (29), p. 39-41
(1992); Nickens, H.W., "The Rationale for Minority-Targeted
Programs in Medicine in the 1990s," Journal of the American
Medical Association, 267 (17); p. 2390-95 (1992); Council
on Graduate Medical Education, Third Report: Improving Access
to Health Care Through Physician Workforce Reform: Directions
for the 21st Century, p. 13, 19-21 (1992).
93 Nazario, Sonia, "Treating Doctors
for Prejudice; Medical Schools Are Trying to Sensitize Students
to 'Bedside Bias,'" Los Angeles Times, Dec. 20, 1993;
Blendon, Robert J., Aiken, Linda H., Freeman, Howard E., and Corey,
Christopher R., Access to Medical Care for Black and White Americans,"
Journal of the American Medical Association, 261,
p. 280 (1989).
94 Lillie-Blanton, Marsha and Hoffman, Sandra
C., "Conducting an Assessment of Health Needs and Resources
in a Racial/Ethnic Minority Community," Health Services Research,
30 (1), p. 229 (1995). This article references the Tuskegee Institute
study as leaving a legacy of mistrust, particularly in African
American communities, of research.
95 Institute of Medicine, Op. Cit., p. 19;
COGME, Op. Cit., p. 29.
96 42 U.S.C. § 293a(b)(2).
97 See "Higher Education: Information
on Minority-Targeted Scholarships" United States General
Accounting Office, Pp. 68-71 (1994).
98 Ibid., 71-76.
99 Ibid., 82-88.
100 38 F.3d 147 (1994), cert. denied, 115
S. Ct. 2001 (1995).
101 Metro Broadcasting v. FCC, 497 U.S. 547
(1990).
102 47 U.S.C. §309(j)(4)(C), (D).
103 958 F.2d 382 (D.C. Cir. 1992).
104 26 U.S.C. § 1071.
105 FCC, "Representation of Minorities
and Women Among FCC Auction Winners" (4/17/95).
106 Statement of William Kennard, General
Counsel of the Federal Communications Commission, before the Senate
Committee on Finance, March 7, 1995, at 10; Statement of William
Kennard, General Counsel of the Federal Communications Commission,
before the House Committee on Ways & Means, Subcommittee on
Oversight, Jan. 27, 1995 at 11.
107 Federal Communications Commission, "Summary
of FCC Tax Certificate Data," at 4 (Data as of 2/28/95).
108 See Moore v. U.S. Department of Agriculture,
993 F.2d 1222 (5th Cir. 1993) ("One wonders what substantial
relation to an important interest is satisfied in operating, if
that is what happened, a government program for the sale of agricultural
land with a racial criterion this crude").
109 7 U.S.C. § 2003(a)(1).
110 7 U.S.C. § 2003(d).
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