you can do it in less than 10 minutes, it will give us more time for questions and dialog on this.

We will now turn the time over to you, Ms. Martinez.

STATEMENT OF VILMA MARTINEZ, MEXICAN AMERICAN LEGAL DEFENSE FUND

Ms. MARTINEZ. Thank you very much, Senator.

Affirmative action quite clearly is a matter which directly or indirectly affects the life of virtually every American. Yet despite its pervasive impact, it is a concept which is widely misunderstood. Specifically, I use it to refer to those race and sex conscious measures which are designed to insure that minorities and women participate in representative numbers in all aspects of our society. However, I want us to be equally clear as to what affirmative action is not. It is not a system of inflexible quotas or mechanical formulae designed to give preference to minority or female candidates regardless of qualification.

It is fundamentally a remedy to redress the continuing effects of past discrimination. I think that the legality of such race and sex conscious remedies can no longer be questioned, particularly when you look at Supreme Court decisions such as Regents of the University of California v. Bakke and the United States Steelworkers v. Weber, which held that racial and ethnic quotas were permissible under title 7 of the 1964 Civil Rights Act where they were used in a manner which promoted the integration of an employer's work force.

Recently, we saw Fullilove v. Klutznick, where the Court upheld the provision of the Public Works Employment Act which provided that at least 10 percent of Federal funds granted for local public works must be used by State or local grantees to procure services or supplies from minority-owned businesses.

Despite its clear legality, however, affirmative action has been the subject of considerable controversy. Its detractors allege that it is inconsistent with the fundamental principles of American society, that its implementation is too costly, and that it results in reverse racism.

I would like to briefly address those three arguments.

First, the critics of affirmative action argue that it breaks with this Nation's fundamental commitment to assess individuals according to merit rather than their racial or ethnic characteristics. However, such an assertion is naive. It fails to consider the extent to which merit factors in any society are invariably tied to the social order.

As Terry Duster, a sociologist at the University of California at Berkeley, indicated, measures of merit have varied throughout history, and virtually without exception, they have been intrinsically connected to maintaining the position of the privileged members of the particular society.

The preoccupation with merit assumes that our Nation has historically functioned as a meritocracy. Such, of course, is far from the case. As Justice Blackmun stated with respect to school admissions programs in his opinion in Bakke:

It is somewhat ironic to an element of conscic

so deeply disturbed over a program where race is et to be aware of the fact, as we are, that

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AFFIRMATIVE ACTION AND EQUAL

PROTECTION

THURSDAY, JUNE 11, 1981

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to notice, at 9:30 a.m., in room 6226, Dirksen Senate Office Building, Senator Orrin G. Hatch (chairman of the subcommittee) presiding.

Present: Senators Thurmond and Grassley.

Staff present: Stephen J. Markman, general counsel; Peter Ormsby, professional staff assistant; Claire Greif, clerk.

Senator HATCH. The hearing will come to order.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator HATCH. This marks the second in a series of hearings by the Subcommittee on the Constitution on the subject of affirmative action and equal protection. This represents the first attempt on the part of Congress to explore thoroughly the issue of affirmative action and its impact on our country.

During these hearings, we will continue to explore the constitutional, the legal, the social, the philosophical, and the economic implications of affirmative action programs and policies.

During our first day of hearings, we heard testimony from four of the Nation's leading academics on affirmative action. Prof. Martin Kilson of Harvard University argued the case that there were strong historical antecedents for current affirmative efforts.

Prof. William Van Alstyne of the Duke University Law School argued simply to the effect that "racial discrimination by the Government of the United States should be forbidden without exception and entirely without qualification."

Prof. Robert Sedler of Wayne State University contended that affirmative action programs are thoroughly justified as a result of the past history of discrimination toward both blacks and Hispanics.

Finally, Morris Abram, the former president of Brandeis University, claimed that affirmative action represented a rejection of everything that the civil rights movement had fought for for so many years.

Let me clarify once more my own definition of affirmative action. For the purposes of these hearings, I am talking about public

institutions of higher learning . . . have given conceded preferences up to a point to those possessed of athletic skills, to the children of alumni, to the affluent who may bestow their largess on the institutions, and to those having connections with celebrities, the famous, and the powerful.

Indeed, the espoused concern of affirmative action's detractors with the purity of the merit system seems somewhat disingenuous. One must remember that up until quite recently racial and ethnic considerations were utilized with impunity to deprive minorities of an equal share of the fruits of our society.

Another argument raised against affirmative action is that of exorbitant cost. I believe that argument to be overstated. While the University of Michigan may have spent $350,000 to develop an affirmative action plan, it spent $7.2 million to comply with regulations for the handicapped. The University of Illinois spent over a half a million dollars to correct a violation of the Occupational Safety and Health Act.

We do not contend that affirmative action programs are free of cost or that they need to be. We submit, however, that the costs attendant to affirmative action programs are quite insignificant when one considers the societal benefits generated.

Finally, the notion that affirmative action has resulted in reverse racism can be summarily dismissed, I think. Today's white males might be quick to protest that they should not be penalized for the oppression wreaked upon minorities by their grandparents or the grandparents of others. They are not so quick to recognize that they continue to benefit daily from those past acts of oppression.

In my judgment, the most significant shortcoming of the critics of affirmative action lies not in the logic of their arguments but in their apparent inability to see the long-range societal benefits of affirmative action.

We have cited in our testimony specific examples of modest progress that has been made because of affirmative action programs, for example, at the University of California at Santa Barbara.

These gains are truly modest. Yet their value should not be underestimated. Through mechanisms such as affirmative action, Hispanics and other minority members have been given a stake in this Nation's societal institutions.

However, even if one chooses to ignore these long-range benefits, it is clear that affirmative action must remain a viable concept so long as racism and discrimination continue to plague our society. For the Mexican American and other Hispanic people, that moment has not arrived. The tradition of prejudice and discrimination against persons of Mexican descent is deeply rooted throughout the Southwest.

As the Supreme Court's 1954 decision in Hernandez v. Texas makes abundantly clear, systemic discrimination against Mexican Americans in the administration of justice has long been the rule. Similarly, segregation in public accomodations and facilities has also been quite commonplace.

In employment, discrimination has been equally pervasive. I cite in my testimony specific examples that I will not go into now to keep my presentation short.

Educational discrimination has also been an accepted fact of life. This legacy of bigotry and discrimination is far from being overcome. The gains of the last decade, although tangible, have not been sufficient to overcome the prejudice and discrimination which continue to permeate our society.

Thus it is clear to me that we must encourage, and in many instances require, the continued use of race and sex-conscious measures to promote the integration of our society. In doing so, I would hope we would keep intact the effects test articulated by the Supreme Court in Griggs v. Duke Power. It must remain as the cornerstone of Federal civil rights enforcement efforts.

In addition to the effects test, it is equally clear that future affirmative action efforts must continue to involve numerical goals and timetables so that we can measure whether or not there has been any significant progress.

I want to underscore again the difference between goals and quotas. It is more than merely a semantic distinction. The numerical goals to which I refer are essentially targets for the selection of otherwise qualified minority and female candidates. They are not rigid formulae which require the selection of protected class group members without regard to merit.

In sum, we believe there is a continued need for aggressive affirmative action efforts to insure that minorities and women are accorded equal treatment in our society.

In closing, I would like to say that you have been quoted, Senator, as saying about affirmative action that:

If the Government officials and politicians who presided over its genesis had injected heroin in the bloodstream of the Nation, they could not have done more potential damage to our children and our children's children.

I would say to that that you are overlooking the Mexican-American and other Hispanic and minority children whose intellectual potential was wasted in inferior schools, who were condemned to lives of poverty, peonage, and prejudice. This is the damage that is done when there is no affirmative action. These are the injustices that will plague Chicanos and other minorities if you cut off one of the very few avenues to equality that minorities have gained in this country.

Thank you for your time.

[The prepared statement of Ms. Martinez follows:]