Discrimination, Color Blindness, and the Quota System, by Sidney Hook, from the University Centers for Rational Alternatives, October 1971...... Uncertain Progress, by Sidney Hook, from the University Centers for Academic Freedom in Jeopardy-Time to Strike the Alarm Bell, by Sidney Hook, supplement to the University Centers for Rational Alter- Rites of Passage: Race, the Supreme Court, and the Constitution, by 94 What Is "Affirmative Action"? Fair Game? Inequality and Affirmative Action, by John C. Livingston, from the Texas Law Review, Vol. 58:845, Contractor Obligations Under Executive Order No. 11246 To Provide Financial Relief, by David A. Copus and Linda A. Rosenzweig, from the Appendix-Guidelines for Effective Affirmative Action Plans. "Affirmative Action" Under Reagan, by Chester E. Finn, Jr., from Commen- "Voluntary" Quotas, by Nathan Lewin, from the New Republic, Vol. 181.. Living with Quotas, by Joseph Adelson, from Commentary May 1978.. Loading the Economy, by Senator Orrin G. Hatch, from Policy Review. Benign Victimization, by Midge Decter, from Policy Review From Back To Patriarcy, by Daniel Amnéns, Arlington House, 1979.. A Blueprint for Judicial Reform-The Son of Separate But Equal: The Su- preme Court and Affirmative Action, by Senator Orrin G. Hatch Summing Up-a Chronicle of Two Decades of Social Experiment. . . and the Disillusionment That Swept Ronald Reagan into the White House, by Theo- dore H. White, from the New York Times Magazine, April 25, 1982. Reverse Discrimination, by George F. Will, from Newsweek, July 10, 1978.... The Constitutionality of Reverse Racial Discrimination, by John Hart Ely, The Case for Affirmative Action for Blacks in Higher Education, by John E. Fleming, Gerald R. Gill, and David H. Swinton, from Institute for the Study The Reverse Discrimination Controversy-A Moral and Legal Analysis, by Robert K. Fullinwider, from Rowman and Littlefield, Totowa, N.J Sour Grapes Are Spoiling the Federal Anti-Discrimination System, by Nell Justice Blind-Sided, by George F. Will, from the Washington Post, July 10, 1033 Regents of the University of California, Petitioner v. Allan Bakke, On Writ of Certiorari to the Supreme Court of California, Supreme Court of the United United Steelworkers of America, AFL-CIO-CLC v. Weber et al., Certiorari to the United States Court of Appeals for the Fifth Circuit, Supreme Court of Washington, October term, 1978. H. Earl Fullilove et al., Petitioners v. Philip M. Klutznick, Secretary of Com- merce of the United States, et al., On Writ of Certiorari to the United States Court of Appeals for the Second Circuit, Supreme Court of the United AFFIRMATIVE ACTION AND EQUAL MONDAY, MAY 4, 1981 U.S. SENATE, COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, Washington, D.C. The subcommittee met, pursuant to notice, at 9:30 a.m., in room 2228, Dirksen Senate Office Building, Senator Orrin G. Hatch [chairman of the subcommittee] presiding. Present: Senator Grassley. Staff present: Stephen J. Markman, general counsel; Tom Parry, chief counsel; and Claire Greif, clerk. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION Senator HATCH. The U.S. Senate Subcommittee on the Constitution today convenes the first in what will be an extensive series of hearings on the subject of affirmative action and, in particular, the relationship beween affirmative action policies and the equal protection guarantees of our Constitution. During these hearings, it is my intent to explore thoroughly the implications of affirmative action programs for our Nation's values, its institutions, and its moving principles. The Subcommittee on the Constitution, in this course, will pursue such diverse matters as the legal issues surrounding affirmative action, the administration of affirmative action, the impact of affirmative action upon minorities and majorities, the economic and social effects of affirmative action, and alternatives to affirmative action. We will not, however, lose sight of what is the overriding matter of inquiry-is affirmative action constitutional? These hearings are long overdue, in my opinion. What is remarkable is that the affirmative action concept-one with so many important implications for what our Nation is all about-should have begun to take root within our system almost totally in the absence of legislative sanctions. It speaks to other difficulties in our political system that affirmative action has developed solely through judicial and executive branch decisions. Sixteen years after President Johnson issued Executive Order 11246, 12 years after the Philadelphia plan, 9 years after Griggs v. Duke Power, and 1 year after Fullilove v. Klutznick, it is about time that Congress start to take an active role in this matter. At the outset, I would like to clarify how this subcommittee defines affirmative action. It is defined, for the purposes of these hearings, to mean public policies and programs which accord preferential treatment to individuals based upon their race, color, sex, or national origin-although I will admit that there are unique factors that come into play with respect to sex. It is defined to encompass policies which require or permit quotas, timetables, goals, ratios, or numerical objectives on the basis of race, color, sex, or national origin. It is defined to encompass policies which identify discriminatory conduct on the basis purely of statistical evidence and disparate effects rather than on the basis of some demonstration of discriminatory intent or purpose or motivation. It is defined, in short, to include color-conscious public policies. Affirmative action is not intended here to cover the development of public programs administered without racial discrimination that are anticipated to result in improved opportunities for deprived individuals, a disproportionate number of whom may be members of minority groups. At the outset, I would also like to make clear my own present thinking on affirmative action. I do not come into this hearing without preconceived opinions. I have written on the subject of affirmative action, and I have introduced legislation on the subject of affirmative action. The Congressional Record of September 3, 1980, contained 120 pages of fine print on my views toward affirmative action. I have introduced Senate Joint Resolution 41-the equal protection constitutional amendment-that would restore what I believe is the traditional understanding of the 14th amendment in this regard. [Text of S.J. Res. 41 follows:] Proposing an amendment to the Constitution of the United States relating to affirmative action. IN THE SENATE OF THE UNITED STATES FEBRUARY 26 (legislative day, FEBRUARY 16), 1981 Mr. HATCH introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary 1 JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to affirmative action. Resolved by the Senate and House of Representatives 2 of the United States of America in Congress assembled, 3 (two-thirds of each House concurring therein), That the fol4 lowing article is proposed as an amendment to the Constitu5 tion of the United States, which shall be valid to all intents 6 and purposes as part of the Constitution if ratified by the 7 legislatures of three-fourths of the several States: |