We found an anti-Klan network at our convention in Norfolk in 1979. I will have them put you on the mailing list and send you the material.

The Klan is gaining a new level of respectability in the white community. I think one of the reasons for that is a failure of the Federal Government to enforce the laws as they relate to the Klan. The Justice Department has said to us that they cannot do it because they cannot infiltrate. I find that interesting, because they did a pretty good job in Abscam and getting Congressmen put in jail.

I suggest that it they can do that to Congressmen, they ought to be able to do it to the Ku Klux Klan, who Senator Hatch said did not have sense enough to talk about scapegoats and affirmative action.

Thank you.

Senator GRASSLEY. Thank you.

Senator HATCH. That is right. Thank you.

[The prepared statement of Dr. Lowery follows:]

PREPARED STATEMENT OF REV. JOSEPH E. LOWERY

Distinguished members of the Sub-committee-Thank you for this opportunity. The Constitution of these United States, it is generally agreed and historically affirmed, is basic to the national guarantee of equality of opportunity for all Americans. Its noble sounds for life, liberty and equality of opportunity for all Americans have served as model for younger governments which sought freedom as a bedrock and equity as hallmark.

It is unthinkable that the Constitution should ever serve to restrict or even discourage efforts to achieve those goals. It is disconcerting to even fantasize that the Constitution, once the cradle of liberty, should become the tomb of the national commitment to achieve equality.

Is there any reason to question the need for affirmative action? Are the reasons that it became a part of the national policy no longer valid?

It is an indisputable fact that there is a widening gap between the economic condition of whites and blacks in this nation. Almost one-third of blacks in this country are in poverty, while less than 8 percent of whites fall in that category. Think of it, almost one out of three blacks in poverty!

It is a fact that unemployment among blacks is two to four (and in some age groups even higher) times higher than among whites. There can be no denying the fact that the median income of blacks is less than 59 percent of the median income of whites, and that is lower than it was in the early 1970's.

It is a fact that a black male college graduate earns only about the same annual income as a white high school graduate. It is a regrettable fact that denial of equal opportunity means that black families are unable to afford adequate medical and dental care, and housing and education . . . Black life expectancy is 5-6 years less than whites.

However, if it please the committee, I am aware that you have received from earlier testimony and from your competent staffs more than adequate facts and figures to establish the case for continuing inequities and documentation for the widening gap between black and white as well as the nagging discrimination against women.

May I then address briefly the devastating effects of the abandonment of strong affirmative action at the level of the national government.

First, may I enumerate some responses to the question of who opposes affirmative action. There are strange combinations and alliances on this issue.

The Ku Klux Klan-a resurging, violent hate group. . . was among the earliest and loudest to engage in public attack on "reverse discrimination."They shouted it in Decatur, Alabama where they shot four young peaceful demonstrators; where they attempted to assassinate me and shot into the car in an attempt to kill my wife. They have blamed affirmative action for denying white males jobs as they burned crosses, shot into homes, shot down women and young people, lynched, intimidated and terrorized.

There are others who oppose affirmative action who are not members of KKK. There are powerful foundations that file "friend of the court" briefs. Some are antiunion.

There are others who are sincere but mistaken, or confused and some who are unaware of the continued inequities and discrimination against minorities.

There are still others who say that because European immigrants made it without affirmative action that it is not needed for blacks.

Such a claim ignores much of history. It ignores the devastating impact of slavery. It ignores the "color consciousness" and racial bias which plague black Americans. It ignores the long range effects of a legal, segregated socioeconomic system which was sustained by "white supremacy." It ignores the effect of laws enacted for the sole purpose of abridging, restricting, denying, and dehumanizing blacks.

It ignores the fact that inequities exist because of intentional, deliberate, intense, often vicious efforts, programs and policies!

Can these inequities then be remedied by any means other than legal, intentional, deliberate, intense programs and policies?

Shall race, the one fact that abetted the creation of inequality now be excluded as a factor to remedy that inequality?

It is the factor race/color that spawned the laws, customs, policies that discriminated against blacks in education, employment, government and health. It is race/ color that continues to provide the emotional support for physical, political, and economic assault on blacks.

How then can we realistically remedy the effect of assault and discrimination without considering the causal factor? Aren't we saying to millions of Americans: It is your race/color that cast you into the turbulent sea of deprivation but we must ignore that factor as a means of delivering you from destruction.

Or, is the attempt to outlaw intentionality (affirmative action) another way of saying that the government has no desire to remedy; no responsibility to establish leadership and motivate remedial policies; and no charge to set an example of remedy?

I confess that there are those in this Nation whose hatred and bias and adherence to concepts of white supremacy might be sufficient to perpetuate inequity and have our government withdraw from efforts to change this terrible state of affairs. They may be loud in voice but they are small in number compared to the great majority-like those in this room-who want inequities eliminated. There may be honest differences of opinion about methodology but we share the American dream of justice and equity.

It is to this majority that I appeal. Hear me when I assure you that by painful experience we have learned that intentionality is the only means of closing the gap. Strong affirmative action is the only vehicle that has delivered any progress at all. Left alone, the system will not correct itself. Without forceful leadership at the national level, the states will not move forward. States rights for us have historically meant states wrongs. The private sector has always needed the national government as leader, example, and enforcer.

Let me urge that you reject the cry of "preferential treatment" for what it is... a smoke screen to obscure the reality of inequity and the lack of commitment to remedy.

If two fingers on your hand are wounded and bleeding, is it wrong to treat them urgently and preferentially? Is that "preferential" treatment or "survival" treatment? Is it not beneficial to the other three fingers whose welfare is sorely threatened if they are infected by the neglected? Of course, the hand benefits from the healing of the wounded fingers as the hand suffers from possible infection from the injured two.

Have we not always engaged that brand of intelligent treatment to address critical issues? Have we not so addressed the needs of veterans and the handicapped? Have we not always preferred justice over injustice; healing over perishing: order over chaos?

It is in the highest and noblest tradition of our Judeo-Christian heritage that we exercise intentionality and affirmative action to rectify wrong and minister to suffering and need.

What then makes affirmative action now so "wrong?" Is it that the one distinguishing factor is race/color?

The cry against quotas is irresponsible, and the cry against goals illogical. Can we be serious about a journey that has no destination? No one is insisting on quotas, but every quest must have a goal. How will we measure progress? Or failure?

It is truly sad to hear those who claim to be "friends" and "allies" denounce affirmative action. It is painful to witness the abandonment of the ship when salvation is possible if all hands would man their stations.

The truth of the matter is that even on the international level nations have engaged in affirmative action to achieve the goal of nationhood out of a desire and commitment to remedy historical wrongs.

In conclusion, may I assure you that any retreat from a strong commitment from intentionality to close the gap on the part of the national government will have negative repercussions throughout the nation. Make no mistake about it, we are experiencing an unemployment crisis * * * that worsens and is having and will have a disproportionate impact on minorities. We are witnessing the regurgitation of overdoses of unemployment and repression and hopelessness in many parts of the world. In America we are experiencing an assault on black life that is frightening. That assault must be met by forceful, affirmative redress of the national government and the national conscience. Hate groups (KKK, Nazi) are gaining new levels of respectability in spite of their killings and terrorizing (with impunity for the most part).

They will be encouraged by a retreat from affirmative action

*

*

on the part of

the national government. As a matter of fact, in the southern part of Georgia a Klansman said he was abandoning his Klan when he heard what they were going to do in Washington. He said they were not needed anymore.

Hate groups have lynched in Mobile; killed in Buffalo; shot down women on the street in Chattanooga; conducting killer training camps in Alabama, Texas, and elsewhere * forced a young black lad out of school by threats and intimidation in Rome, Ga. **; killed in Utah; and gunned down citizens in North Carolina

Blacks and other minorities feel deserted by the national government. Hubert Humphrey said * that "the test of government is in how it responded to the needs of those in the dawn of life-the young; those in the twilight of life— the aged; those in the shadows of life-the weak; the handicapped the dispossessed ⚫ the oppressed

*

How shall we meet that test today? We do not come seeking handouts, only standups We challenge our government ** to stand up now before a nation and world that needs your leadership a leadership that is serious about remedying inequities. Any retreat now will give aid and comfort to the enemies of justice and equity. Let us not now retreat but move forward toward that day when color will become irrelevant; when every man and woman can sit under his or her own vine and fig tree and none need be afraid; when full employment has become a reality; when men shall study war no more; when black will not be asked to get back; when brown can stick around; when the red man can get ahead, when white will behave all right, when we shall be that great nation united, shining in the sunlight of justice and equity, and whose light shines around the world inspiring peace with justice-all over God's world.

Thank you.

Senator GRASSLEY. Mr. Chairman, I would like to insert a couple of articles into the record.

We find that the FCC now has as part of its function the role of racial determinator. The FCC staff now has to spend apparently considerable time in determining whether or not applicants are Hispanic.

A second article, and these are articles in yesterday's paper, detailed latest efforts of the Federal Government to classify each of its 2.8 million employees by race.

These articles clearly bring home the sad point that our Government in many ways is no longer just concerned about protecting individuals from discrimination based on race, but it is actually involved in the very big business of being a determinator of race. I think the articles will point out that it is not very effective in determining what is the race of people.

I would like to include those in the record.

Senator HATCH. Without objection, those will be included in the record at this point.

[Articles supplied by Senator Grassley follow:]

[From the Washington Post, July 15, 1981]

SI SI, SENORS KRAMER AND LIBERMAN, SI SI

Mr. Liberman and Mr. Kramer, who just bought radio stations, have been duly found by the Federal Communications Commission to be Hispanics. That means the sellers of those two radio stations get a nice tax break because they have contributed mightily to the FCC's policy of encouraging "significant minority interest" in broadcast holdings.

Adolfo Liberman's family owns K-Love Radio Broadcasting Inc., which bought KTNQ in Los Angeles from Storer Broadcasting. Liberman, born in Poland, descended from Spanish Jews expelled from Spain in 1492, according to the FCC order. He immigrated to Mexico in 1921, and lived in Guatemala and Costa Rica before coming to the United States. The Liberman family speaks Spanish "a majority of the time," the FCC said.

Oscar Luis Kramer, meanwhile, owns 95 percent of Central Florida Spanish Broadcasting, which bought WMJK in Kissimmee, Fla., from Major Market Media Inc. Kramer was born in Cuba, as were his parents, and immigrated to the United States in 1961. He worked in Spanish-language radio in Miami before moving to Orlando, where he was active in Hispanic affairs.

An FCC policy statement says that minorities include ". . . Those of black, Hispanic surnamed, American Eskimo, Aleut, American Indian and Asiatic American extraction." The FCC, a spokesman said, followed the guidance of the Equal Employment Opportunity Commission, which refers only to "Hispanics," not "Hispanicsurnamed."

[From the Washington Post, July 15, 1981]

THE RACIAL/ETHNIC LABELING EXERCISE

(By Mike Causey)

The U.S. government is in the midst of one of the most ambitious racial/ethnic labeling exercises in history. Purpose is to figure out the race or national origin of each of the nation's 2.8 million bureaucrats without offending any of them.

To get at peoples' roots diplomatically, Unicle Sam uses localized yardsticks to measure color and nationality. Because ours is a complicated society, definitions vary from Washington to Honolulu to San Juan.

Federal workers here, in Guam and in every state but Hawaii had the option in January of picking another race or national origin if they didn't like the listing they had on file. Options ofered here and elsewhere included (A) American Indian or Alaskan Native, (B) Asian or Pacific Islander, (C) Black, not of Hispanic origin, (D) Hispanic or (E) White, not of Hispanic origin. It will be some months before the government knows its As from its Ès.

At the same time federal workers in Puerto Rico, conforming with Census Bureau guidelines, were given two choices. They could list themselves as either (1) Hispanic or (2) Not Hispanic.

The trickiest head count of all will take place this fall in Hawaii, which is, as any anthropologist will tell you, wonderfully mixed up. The 30,000 plus federal civil servants in the island paradise will have 15 different choices. They will have the same A through E options as colleagues in Washington, but also will be able to more closely identify themselves as (F) Asian Indian, (G) Chinese, (H), Filipino, (J) Guamanian, (K) Hawaiian, (L) Japanese, (M) Korean, (N) Samoan, (P) Vietnamese or (Q) All other Asian or Pacific Islanders.

Idea behind all this is to help government develop better equal employment opportunity data, it says, and to conform with Commerce Department guidelines of race/ethnicity. By law, employes may designate themselves anything they want, within the geographic choices offered. That means a blue-eyed, blond could list himself as Japanese in Hawaii or black in Washington or Wyoming. Federal supervisors have been told to counsel people who do such things, but not to change anyone's designation if his mind is made up.

In the 1960s, the government shifted from an "eyeballing" system, under which supervisors listed the race and ethnicity of employes, to a self-designation system. The results were embarrassing in a couple of places. Hundreds of State Department employes, who wouldn't know a peace pipe from a piece of pipe, said they were American Indians. It made State look awfully good in its affirmative action pro

gram, but did not do much to give an accurate picture of the makeup of the department.

The result was that many agencies and departments went back to the eyeballing method. Officials hope to have an accurate racial/ethnic head count of mainland workers, as well as those in Guam, Alaska and Puerto Rico fairly soon. Hawaii will take a little longer. Results from several places may be surprising.

Senator HATCH. Thank you, Senator Grassley.

Our next witness is Michael A. Warner, a member of the very distinguished law firm of Seyfarth, Shaw, Fairweather & Gerald

son.

As chairman of the Labor and Human Resources Committee, I have come to respect the abilities of this law firm, particularly in the area of labor and employment discrimination law.

Mr. Warner, who practices in the Chicago office of Seyfarth, has been especially active in representing employers in labor and personnel matters. He is one of the most articulate and knowledgeable practitioners in the area of employment discrimination law.

We are very happy to have you here, and we look forward to taking your testimony.

I have to slip out for just 1 minute. Go ahead with your testimony, and I will be right back.

STATEMENT OF MICHAEL A. WARNER, SEYFARTH, SHAW, FAIRWEATHER & GARALDSON, CHICAGO, ILL.

Mr. WARNER. Thank you, Mr. Chairman.

I. INTRODUCTION

I very much appreciate the opportunity to present my views before this subcommittee on the subject of affirmative action and equal protection, particularly because I believe my views come from a somewhat different perspective than many of the other witnesses who have appeared before this committee.

I have been in the private practice of law for over 15 years. During the last 12 years, I have actively represented employers in labor and personnel matters with a heavy emphasis on employment discrimination matters.

During that time, I have observed at extremely close hand the actual day-to-day effects of the enforcement of the employment discrimination laws on numerous employers of all types and sizes and in a variety of industries.

Thus, I hope I can give some practical day-to-day meaning to the moral and ethical issues which have been so ably debated by others who have appeared before this committee.

II. SUMMARY OF CONCLUSIONS

At the risk of overgeneralization, I will attempt to summarize my overall conclusions with respect to the issue of affirmative action at the outset.

No. 1, employers should expect nothing less than vigorous enforcement of the antidiscrimination laws. This enforcement must be rational and realistic if it is to be truly effective and credible.