Unknown Speaker  00:00
Some sort of law at Northeastern University Law School in Boston. I'm also a 1969, graduate of Barnard College, and in 1973, graduate of the law school, across the street. I'm pleased to be here this morning. The topic of this particular session is affirmative action. Where do we go from here essentially, and I would like to tell you a little bit about my background, so that you can have some idea of what my relationship is to the subject matter. In addition to teaching in the constitutional law, and the civil procedure area. I have spent the better part of my 15 years of legal education, essentially working with various groups outside of the legal academic arena on the issue of affirmative action. I have filed amicus curiae briefs before the United States Supreme Court in virtually all of the major affirmative action cases that they have decided in the last dozen or so years, starting with the baggy decisions and moving forward. But I am not in by any sense of the word, a true academic. And my career has probably been far more characterized by activism outside of the ivory tower, as opposed to well, my colleagues would say activism within as well. But I'd like to describe it as activism outside of the ivory tower. The perspective I'm going to bring to affirmative action, thus is going to blend my experiences with the subject matter as a law professor, that is to say what the court decisions the legal decisions have said, and are continuing to say, with respect to this issue. And also my perspective about what is in fact actually happening in the workplace, on the job where people's lives are, in fact, affected by the theoretical struggle that we wage, so ably and eloquently in the courts, and often don't see the fruits of our labor. I want to preface my remarks for the this talk the full talk by saying that last term of the United States Supreme Court, last term Supreme Court terms are always described by the year in which they start the United States Supreme Court term runs from October to the end of June, often spilling over into July. And so last term is known as the 1980 a term we are presently in the 1989 term, even though this is now April 1990. This term will be known until the end of June as the 1989 term. So last term was the 1980, a term of the United States Supreme Court was produced a group of decisions roughly eight of them in which the Supreme Court finally, through the process of deciding actual cases finally fulfilled the mission and the agenda of the Reagan administration, as described in the Heritage Foundation report that was used as the blueprint for the Reagan administration. They made it in layman's language, more difficult, much less, less likely that one will win a discrimination suit, if one is to bring one either for hiring or promotion discrimination, and I'll go back over the actual specifics of this in a second. They made it much more difficult

Unknown Speaker  03:27
to get a job, it seems to me as well as to be promoted through the concept of affirmative action without the intrusion of racial and sexual sex discrimination. And in the probably the most famous of these racial discrimination, affirmative action cases a case coming out of Richmond, Virginia called City of Richmond versus croson. They spelled in large measure the death knell for a large number of fledgling minority businesses that have been thriving principally with governmental contracts through the operation of what are known as minority business set aside provisions. We call these MBE provisions, Minority Business Enterprise provisions. Now having said that, what did the court in fact do? The court, first and foremost did not say that affirmative action is unconstitutional. No court has said this since the adoption of the 1964 Civil Rights Act, and it is likely actually that in the foreseeable future, no court is going to say this. But without explicitly coming out and suggesting that affirmative action is unconstitutional, the court has done virtually everything short of that to make it impossible for the concept to function. Now, in many respects, I'm going to argue that the formalism that the court has engaged in essentially making the ability to Use the concept through the litigation process. A difficult if not impossible, really only mirrors the kind of obstacles that in fact have been operating for some time in practice. And so that what is really happening is that the court is simply now catching the law up to what has been occurring in practice. So that the two are now essentially standing side by side in parallel with one another, thank you.

Unknown Speaker  05:33
First of all the court has made it has narrowed extensively, those entities that can in fact be sued for racial or gender discrimination. There are a variety of statutory as well as constitutional provisions under which one could potentially bring suit for racial discrimination, or gender discrimination. And the court has, in a variety of ways chiseled away at one's ability to use those provisions, the principal way, or at least one of the principal ways in which the court is chiseled away is that they have certainly made it much more difficult to get at if you will be responsible actor, the person who ought to be held accountable for racial or gender discrimination in the workplace. In particular, the shift, of course, has been and I'll get back to this in a second, when we sort of shift over the practical side of it, the focus over the last four or five terms has been on the public sector, principally because the public sector has not become it has become the employer of first resort, as opposed to the employer of last resort, with some very interesting consequences for women and minority participation in the sort of the whole employment arena. But the court said last term in a decision called will versus Michigan Department of State Police, that are neither States nor state officials. And this is very interesting red herring, as distinguished from local governments. Now we're talking about state government, as opposed to local or municipal government are to be deemed persons within the meaning of the term in the Civil Rights statute known as Section 1983. Section 1983 is one of the principal weapons that we use and holding governmental entities accountable for their, if you will, disparate treatment based on differences in gender or racial identification. And now the Court has said that section 1983 is not available for challenging gender or racial discrimination, that one can still sue local governmental entities. But one cannot sue the state or state officials. The rationale has been sort of has been evolving through several terms before the court finally came out with this rather bizarre pronouncement. Which, I mean, none of us can quite figure out how this is going to function in practice. And I've had a number of lawyers call me who are in the midst of litigation, where they have sued the state and have got quite a bit of time into litigation against the state trying to understand whether or not will the will decision is essentially going to mean they're going to get thrown out on their ear with no redress for their client. But the notion here, I guess, is that what we are really dealing with is a separation of powers issue. And that while the courts, you know, it was very clear that they are not backing away from the federal or national commitment to non discrimination. They certainly can't interfere unduly and state governmental operations or the legitimately authorized performance of state officials in those state governmental operations. And so we're backing away, the notion being that your redress now is through the state court system under state law or state statutory or constitutional law, and not through federal statutes. I'll come again to why that's really quite bizarre and a major catastrophe for many minorities and women in the vast majority of states, which have not proceeded over the last 10 to 15 years to essentially move beyond the federal government in their adoption of state laws that protect against racial and gender discrimination in the workplace. In addition, the other principle statute in the arsenal of suit for employment discrimination against racial and gender discrimination is section 1981. Both of these are post Civil War reconstruction statutes. The court says that states may not be sued under Section 1981 for the acts of their employees.

Unknown Speaker  10:00
A or to put it another way, the concept of responding and superior, which is a concept that is had a long and rich tradition in the law, essentially the notion that when you have an employee working for you, you, as an employer have the responsibility for essentially making sure that your employee acts in accordance with all the laws that apply to the employer when dealing with other employees on the job. And if the employee comes out x out of line with respect to those laws, the employer can be held responsible. The court has now in a case called jet vs. Dallas Independent School District said that the state may not be sued for the acts of its employees, even where those acts were obviously deliberately by us clearly in contravention to the federal law. And therefore, the only recourse is, of course, to sue the employee who one is not clear that he was clearly without assets, in most instances to cover the notion of damages in a racial or gender discrimination case. But more importantly, you're not able to get at the employer in terms of an injunction, that is to say an order directing the employer to change its policies with respect to this kind of practice, or at least to affirmatively direct its employees not to engage in this kind of discriminatory behavior in the future. It's two extremely bizarre decisions with what we believe are going to be fairly catastrophic consequences with respect to the access to the federal court for redressing racial and gender discrimination.

Unknown Speaker  11:42
Yes, I don't understand the decision to take a particular case and decide my fate. And

Unknown Speaker  11:53
ah, that's a very important question. And if you haven't gone to law school, it's one of those questions that you would not necessarily understand. And our court system, the puttin in the federal court system, this is not true in all state court systems. I actually flew down from Boston today where the state's highest court, which is known as the Supreme Judicial Court in Massachusetts, is permitted to give advisory opinions. So the legislature in Massachusetts will often just, you know, decide that they want to enact a piece of legislation. But rather than risk enacting it, and having it ultimately struck down by the state's highest court under the state constitution or state statute, Bill, it's closed up what we call a test balloon, they'll essentially send a copy of the draft of the statute or, you know, write up a description of what they want to put into the statute and send it over to the Supreme Judicial Court, which in turn will write them an advisory opinion, and send it back over saying we think this is going to be constitutional, or at least we don't see any problems with it as constructed, there may be problems with it as applied, but that will wait till you actually have a case. And it's brought in the court system. In the federal court system, there is no such thing as an advisory opinion. cases that come before the federal court have to involve real parties with a real live dispute, where each of them have an interest a significant interest in the outcome or the resolution of that dispute. So that the Supreme Court can't simply say, Oh, this is an open issue in the affirmative action area that we would like to decide and suddenly issue an opinion about it, or even more, you know, to the point, they can't simply say, to the public at large, we'd like X, Y or Z case to come before us so that we can resolve this particular point, no, they only can decide those cases that come before them. And only those cases that actually survive all of the procedural hurdles of getting through the federal court system or the state court system on its way to the Supreme Court. And often they're stuck with facts, or you know, a context of cases in which they don't quite fit, perhaps the point that they're trying to make, and the court is well known for being able to sort of shoehorn the facts of the case into announcing a much broader principle than might otherwise be involved, but they can't give advisory opinions. They can't. It's there. We're bound by the facts of the case. Now, the protection in that context for those of us as lawyers, is that even though we may have a case that seems very similar, coming through the court system at the time the court comes down with one of these catastrophic decisions. The way in which you argue is to distinguish the facts of your case from the facts of the case of the court decided, well, yes, I understand that you said that you can't Sue's state or state officials under Section 1983 Buttonwillow versus Michigan Department of State Police. You had a particular situation there was an affirmative action program with the state It was the state police and in the state of Michigan, they violated the terms of their affirmative action program and said, Well, that's not what we have here. What we have here is an entirely different situation. Now, it may not be entirely different to the way of the court thinking about, but at least that's the way you argue it on the facts. So it works both ways. It can be helpful for trying to overcome a negative precedent. But it also obviously, does form a presidential base that is difficult to contend with.

Unknown Speaker  15:30
And in case, which most of us are probably more familiar with, it was one of the two last term that that garnered a great deal of notoriety case called Patterson versus McLean, Credit Union. The Court decided that they were not going to overrule an earlier case precedent in a case called Runyon versus McCrary. That essentially said that one can sue under Section 1981 for racial discrimination in the employment context, as well as another context, but did say that one can only sue for employment discrimination under Section 1981. To the extent that it arises in the formation of an employment contract. Or to put it more specifically, one can only use section 1981 for racial discrimination that you are alleging has occurred in the initial hiring process. This now means that section 1981 cannot be used in the promotion area. Although the court left that open, we presume that that's the next case down the road. And they will announce that very quickly. But more importantly, the facts in Patterson versus McLean Credit Union were quite unique. This case could not have been brought under Title Seven of the 1964 Civil Rights Act because the McLean Credit Union did not have the requisite 10 or more employees. So this case could only be brought under Section 1981 If it was going to be brought it off. And Brenda Patterson alleged two things, she alleged that she had not been promoted because of racial discrimination. So you should certainly had a job at McLean credit union. So this was not about the hiring that the court says section 1981 is confined to. But she also alleged that she had been the victim of racial harassment on the job. That is to say that she had been subjected to different terms and conditions of employment based on her race. And some of those differential Terms and Conditions were quite outrageous. She had been asked on more than one occasion to clean the office to clean the bathroom at the office, she had been subjected to her employer, all of the hierarchy at McLean Credit Union were men. And all of the people who worked if you will, the front counter at the credit union were all women. She had on numerous occasions been subjected to her supervisor, the man in charge and within credit union coming down, standing over her and staring and mumbling about how slow black people are, and how really retarded they are, and their inability to do a job competently. And the only reason he had her around was because he knew he had to have at least one. He certainly had told other people in the office that he felt that black people were inherently inferior, and that he had no plans to ever promote her. And as far as he was concerned, he had only hired her because he needed to have one on the job. And this sort of thing had gone on actually over a 10 year period of time. Verbal Yes, but she also had been ordered to clean. Oh, we that was the wonderful thing. This was one of those cases where things had reached such a critical level that other people on the job were willing to come forward and testify that it had been a crime and it really reached egregious proportions. Even other people on the job had been so incensed by the overt nature of the racial animus that this man had directed at Brenda Patterson that we have testimony from several people who had worked on the job with her about the nature of these, by the way, the employer was not denying them. That's the other thing that you have to understand he was not necessarily denying them. Many of these cases are really test cases in the fullest sense of the word. He was in fact defending his right as he understood it to engage in this kind of behavior that this was in fact outside the parameters of the statute under which she had sued the McLean Credit Union. This was as far as he was concerned, perfectly lawful and acceptable behavior.

Unknown Speaker  19:48
And the Supreme Court surprised all of us because this case was actually orally argued twice. It was orally argued in the 1987 term, and we thought that Work was about to decide it and simply decide whether or not racial harassment came within the terms of 1981, when they asked for a re briefing, and a new oral argument on the issue of whether 1981 even applied to the facts of the case at all, and I'm, you know, most of us grabbed for our chest, you know, fell back in the chair and said, Oh, my God, what have they got in mind, and what they had in mind was what they came down with last February, which was essentially the narrowing of section 1981, to be only applicable to racial discrimination in the hiring stage. And what's very interesting, they said, Now, had you contract it in the hiring stage for a, if you will, discriminatory free work environment, then you would be able to sue under Section 1981, for harassment of this nature on the job, but having not contracted for a discriminatory free environment. There was no other basis for her to use section 1981. to sue the employer in this context, people are already shaking their heads I live with this stuff every day. Come on smile gang, I have to teach a new a new generation of law students that that keep hope alive.

Unknown Speaker  21:24
Well, as it stands right now, yes, it does, we feel the Title Seven of the 1964 Civil Rights Act will cover this kind of behavior, because that may be next term. But But as it stands it that is our understanding, unfortunately, for employers like McLean credit union, that do not fall within the parameters of Title Seven and 1964 civil rights that the only recourse an employee has in this kind of situation would be under state law.

Unknown Speaker  21:58
What other types of employers don't fall under Title Seven less than 10 employees or other

Unknown Speaker  22:03
up? Well, what's what's interesting is, at this juncture, really, it covers 10, or more employees, and a gross income annual income of $250,000. And it was up done to the Reagan administration and used to be 10 or more employees and 50,000 or more dollars. Now, it's 10, or more employees, and $250,000. And recent studies have indicated that that means that there probably is somewhere roughly a third to 40% of all the businesses in America that fall outside of the Title Seven, because Title Seven coverage by virtue of those prerequisites, yes. Brenda Patterson, she actually was on the verge of a nervous breakdown anyway, at the point when this lawsuit was brought, and she has gone on to locate a new job. But nothing has happened. She is not going back to a clean credit union to put it mildly. Or state law, state state law, but the the difficulty now talk about this in a second. I mean, we have a number of different themes going on with this particular court themes that have been consistent with the Chief Justice of the Supreme Court, William J. Rehnquist, whom I refer to as Billy J. One doesn't have much, you know, vengeance, as a law professor on this side of it, except to be able to sort of rename some of the players and so but but these are consistent themes in the life in the professional legal life of Billy J that are coming now he has written about them, he has talked about them, and he has now got a majority of the court who will vote with him on these things consistently, what you do, you should know, by the way, is having spent a great deal of time sort of studying Billy Jay, when he was by himself, you know, for relatively by himself and could occasionally persuading other justice or to to join him now that he has, in fact been joined by the Reagan appointees to the court. He actually is not the most conservative member of the court. The most conservative member of the court right now is Antonin Scalia. And the second most conservative member as as as sort of identified by how often the other justice voted with him is is Kennedy is Justice Kennedy. They voted together some 92% of the time in the 1980. A term were either Scalia and Kennedy only voted with Rehnquist, roughly 86% of the time, so it's not a big gap. But it's big enough to suggest that actually, I think having been on the court with a more liberal majority for some period of time may in fact have moderated justice Chief Justice Rehnquist in ways that may Make him a bit more reasonable than the two more recent appointees who clearly feel they have an ideological mandate around these issues that they should fulfill that they were almost, you know, sort of placed on the bench with the mandate, if you will, from the ranks to act in the fashion that they're acting.

Unknown Speaker  25:18
Out, the client has been through this ordeal for so long, showing it to the highest court of appeal. If you're going to turn around, you need to address this at a state level don't

Unknown Speaker  25:27
you often lose

Unknown Speaker  25:30
clients, it's more complicated than that. It's not just the loss of momentum, you may have in fact, lost the statute of limitations, which is one of the unfortunately difficult and statute of limitations is the the notion that one has to file one's claim within a certain period of time. Because there had been until the ADEA term a great deal of reliance on one's ability to get full and complete relief under the federal statutes. Often in a lawyer putting together a complaint would not even bother to research the state laws. Now, there's some question about whether that was appropriate behavior as a lawyer, but it certainly was commonplace behavior and certainly behavior that I myself might have said to someone. I mean, it's just very clear that you're going to get, you know, the fullest possible relief under the federal law. There is no reason why one ought to in fact, have to, you know, really complicate one's complaint by adding these additional state claims, many of which, by the way, were not had not been previously tested. Many of the state laws are relatively new laws, and therefore there may not even be case law on them in their case claims of first impression. And often when that happens, filing them together in the federal court system is no assurance that the federal court will resolve because their claims a first impression, the Federal Court may sever the state law claim, sending it to nuts, because they can't send it but requiring you to file it in state court anyway. And if the choice is between two lawsuits, where the state law claims two lawsuits, one in state court and one in federal court, where the state law claim is ambiguous, you're not sure how it's going to come out. And the federal courts suit which up until the ADEA term, we thought was a sure winner. Most attorneys made the decision on behalf of clients with extremely limited resources to pursue the federal claim. Now for many, many of those cases and transit in the court system, that is the death knell decision, they are clearly being turned down at the district and Circuit Court of Appeals level, and many of them have already lost the time within which to file their state law claims. But so we're really talking about advice, prospective advice to those litigating in this area, with claims within a kind of roughly five to eight year period of time, many of which will literally go down the tubes as a result of the shift on the part of the court, that last term. But we've been sent back in more ways than that this is this is really, in many respects, light action compared to what's really happening out here in practice. When I said it was more difficult to get a job. I was thinking about several cases that the court decided in this area. All the cases I mentioned to you up until now we've all been race discrimination cases, although they clearly have implications for gender discrimination as well. Since the gender discrimination standard of review in the federal court system has always been a slightly lesser standard of review by the Federal Court, the case is in terms of more difficult to get a job as well as to get promoted actually above two racial discrimination cases and two gender discrimination cases. And the word on either of these is not particularly promising. The first involves Lawrence vs. AT and T. Now note that we have shift from primarily public sector over to a major quasi public sector, but at least in the parlance of those in the legal business, at&t is still considered a private actor. Although one has to question increasingly just how private they should be, and are, in fact, the court system that the this is a bad word. This is a decision by Sandra Day O'Connor. Sandy has been doing a lot of fence sitting. Clearly you all were, you know, aware of some of her that she was the swing vote in the Webster case the abortion rights decision last spring, and again managed to seemingly fudge on that issue. Well, that's not the only area where we're standing seems to be fudging

Unknown Speaker  29:34
Lauren's involved. The at&t case involved a seniority system, adopted by AT and T fully, who, at this stage fully set 16 or 17 years ago. It's very interesting. If one looks at a number of the major actors, they're always like, four or five steps ahead of us. One of the things that we are increasingly aware of as we do this work is that For me to work as a lawyer on these issues in the abstract from sociologists and psychologists and other disciplines means that by the time I actually get a hold of information that is really relatively common parlance among sociologists, political scientists, or others, The die is cast, I can't do much about it, what AT and T did roughly 17 years ago, 1973 Actually, the year I was coming out of law school was to adopt a to change the way in which one could transfer from work in one department to work in another department. Now note 1973, as of one year after Title Seven was amended to include prohibition against sex discrimination, in employment, and AT and T had up until that point, it's still actually up until 1980, or there abouts, very sex segregated workforce. In other words, if you went into an AT and T operation departments were clearly delineated by being gender identified, there were there was work that women did, and there was work that men did. And of course, you know, this was if this, this course goes to the whole area of comparable worth, and equal pay, but that's not the issue here. Women began around 1978 or 79, to decide that they wanted to transfer from some of the women segregated departments into some of the here to for male segregated departments, and the change that had been wrought in 1973. Before 1973, if one change from one department to another, what one carried with them was known as plant wide seniority meant that if you change from one department to another, it didn't affect me, if you'd worked for AT and T for 20 years, you went from one department to another, you'd still work for a TNT for 20 years, if you'd worked with them for 12 years. And you went from one department after year 13 your seniority simply accrued again, you know, on the basis of 12, so you had another year on and your new job, and that was now 13 years seniority. In 1973, they decided that they weren't going to do seniority that way, one had to in fact, develop seniority on the base basis of one's job in a specific department. So now we had departmental seniority and not plant wide seniority. Of course, in 1973, women weren't shifting jobs from one place to the other, and no one particularly understood or thought about the implications of moving from plant wide to departmental seniority. But in 1978 79, women began to apply. And by 1980, they weren't in fact, moving from jobs, sex segregated, and women's jobs to now here to form male dominated departments. And in the early 1980s, as we all know, as a result of the mob l breakup, at&t had to engage in a major national downsizing. They let a number of workers go and the basis on which they let those workers go was seniority.

Unknown Speaker  33:24
Okay, people with the least amount of seniority were let go first. So what we began to see was women, okay, in particular, the Lawrence living the woman whose name is on this particular case herself and several other women, who before they transferred from an all woman department to or at least a women dominated department to a male dominated department had accrued somewhere like 17 or 18 years worth of seniority at the point where the constriction, and the layoffs came only had a year or two of seniority in the new male dominated department and got bumped that is to say, lost their job to men, many of whom only had four or five years seniority in the department, but had been hired directly into that department lost their jobs, not within the fact that they had 17 Or that point 19 years worth of seniority with the company, and they sue. And they sued on the basis that this otherwise facially neutral seniority system. They weren't saying that nobody basically was out, you know, alleging that, you know, the AT and T had done this intentionally or purposefully, but that this otherwise facially neutral seniority system had a disparate impact on women versus men, because it was women who had put in, you know, no honest amounts of time in the women dominated departments who were now and had moved over who were now the losers with respect to the loss of their jobs. And what the court said is that unless you can show intent to discriminate that in fact, this change from plant wide to departmental wide seniority back in 1973, was done with purposeful intent to discriminate against women, that it cannot be challenged. Their second point, which I found actually even more outrageous was that the time in which one had to have brought this lawsuit was within the statute of limitations starting from the time when the change in the seniority system actually occurred. So one would have had to have sued at the time in 1973, or at least within a three year period of 1973, about a change of seniority that no one even knew was going to affect them adversely. In 1980, when people women began to move, and that in addition, one would have had to demonstrate that there was purposeful intent to discriminate against women, in adopting that change from plant wide to departmental wide seniority, so much for a number of things that no changes that occurred anywhere outside of you know, four or five years ago, one now has to at some assumingly, Sue in a defensive posture, even when one can't quite figure out the case that one needs to make in order to preserve the right of litigation. Now, there's another problem, one can't really do that. Because if you don't really have a theory, I also teach civil procedure of the Reagan people have managed to insert a new procedural rule into the Federal Rules of Civil Procedure. These are the rules on how to get in and out of the federal court system is called rule 11. And the Reagan appointees have disparate disproportionately been using rule 11 against civil rights plaintiffs who they claim the rule basically says that you can be fined

Unknown Speaker  37:21
or held in contempt for bringing a lawsuit. That is not that is frivolous, not reasonable, or not, not reason, a not reasonable extension of existing law. And so for me to have said to you, Well, what you have to do now is just file when they make these changes, and we'll figure out how it really is adversely affecting us would risk the lawyer filing that case being subjected to rule 11 sanctions, and they are handing them out like 90 going north, we now have a study in the Third Circuit, because like we kept saying it's disproportionately affecting civil rights planes. And the my Conservative colleagues in the conservative bar was like, oh, no, you're all just making this up. There are a lot of really loving sanction cases out there, you know, everybody's being hit, we understand you all don't have money. And maybe that's why it feels worse to you. But it's really not being used, you know, to try to really strangle civil rights litigation, we now have documentation that fully 50% of the rule 11 citations are concentrated in the civil rights, human race and gender discrimination cases, that I mean, and the other 50 spent sort of spread out among all the other areas of substantive law, that litigation might arise under. You had your hand up.

Unknown Speaker  38:34
I mean, att has their management, sociological consultants and industrial engineers, and it wasn't their intent to they know that 97

Unknown Speaker  38:46
nations what you and I have what let me explain something in virtually the lb area of the law, where intent plays a very large role is in the torts area of law negligence. And the way in which we deal with intent is, you know, you don't go tripping down the stairs at you know, in Barnard Hall and, you know, trip over something and then have to go find the four or five, you know, people who were employees here and ask, did you intend to put that there to hurt somebody? In the torts or negligence area of the law, we presume that people intend the natural consequences of their acts. However, in the Civil Rights arena, intent has not come to be understood in that way. People don't mean it's quite logical. I mean, the court could easily have resolved this case by saying when you put into place something like this, regardless of whether or not they'd actually consulted the people in the business, well, maybe they should have consulted them as what you wind up saying, because it's very clear that if you've got a sex segregated operation, and do in fact put into place, a rule shifting from plant wide to departmental wide, Sinjar, you're going to do one of two things. You're either going to discourage women from shifting into male dominated departments where the men are obviously being paid more. And that's the reason women want to shift on the alternative, you are going to penalize women who do Shift, okay, by loss of their seniority in those times in which there is constriction in the workforce by doing layoffs on the basis of those with the least amount of seniority, I mean, that would be an analysis where one could conclude that the employer intended the natural consequences of their action. The court does not buy that in the Civil Rights area. And that has been been extremely difficult. So they talked about well, they thought this was a better way to go. I mean, you know, they wanted to reward people who develop skill on the job within a departmental context. And that's why they moved from plant wide to departmental wide seeing I mean, they had a number of reasons. The other thing is that you have to appreciate that part of the revolution that occurred in these cases, last term was not just a shift in the substantive law, it was a shift in the evidentiary burdens that a plaintiff has to meet to to bring their case. So that as an outsider, the only way I can get evidence of intent is to use something we call the discovery process. And discovery process only allows me to get into a corporation's files to the extent that it is relevant to the case. But more importantly, I have to be able to ask the specific question, most people don't understand how a company and one of the things that I do now is that I often wanted to have consulting with people bringing cases of this sort on how

Unknown Speaker  41:45
higher education actually keep spots, I mean, if you don't understand what to ask for, you're not going to get so and you got to ask it in this precise language otherwise, and we don't have anything like that here. Now they have something something like that. But they don't have to respond to something like that they have to respond to what you've exactly asked for. And so for many people suing particularly a major operation like at&t, it is extremely difficult to know exactly the right question to ask to produce the backup documentation that might lead you to be able to identify intent in their own records. The other thing is that, of course, when I worked for the Wall Street firm, and we were clearly, you know, counseling, our clients frequently, one of the major things that our clients paid us for, was for us to tell them in addition to obviously, representing that we did primarily antitrust litigation. But you know, after we sort of got them out from underneath the trouble that they were in, and sometimes that wasn't always possible, we wound up settling, and they had to pay a little bit of money. One of the things we would turn around and say to them is one of the reasons we were not able to really help you in any significant fashion, is because you keep too much in your own damn documentation. Okay, what we want to see in here is a three month document retention policy. Absolutely. Everything gets shredded after that, nothing else. I mean, this kid, by the way, grew out of in large measure the IBM case, I'm sorry, the Xerox case, where at the time I was working for the firm, Xerox had 23 separate lawsuits against them. And Xerox his major crime, as far as I could tell from working on this lawsuit is that Xerox, used with Xerox and Xerox, I mean, there were multiple copies of every document known demand, including the smoking gun document, I mean, they were all just sort of, kind of, you know, tangent, but the smoking gun document where they literally have circulated a memo to every member of the board, we have several copies, and each of the board members files, indicating that what they were being sued for was, having monopolized the technology in an area. This memo basically says, Yeah, let's apply for some patents where we don't have the technology because that way we own them, and nobody else can use them. Nobody else can develop in this area, and we will be the giant loop. So I mean, they had literally, you know, hoodwinked the patent office into issuing patents that made it impossible for virtually any other company to develop in any significant way in the xerographic. No to reprint reproductive technology. And what they wound up doing was settling, they paid. I mean, at that time, it wasn't big money and 73. So I don't know I think about they settle with the government for $10 million, which is just like chicken fees, absolutely nothing. And they settled with the other companies. They were sued by 22 individual companies in the Xerox business, the xeroxing business, if you will, for access to some of the technology, not sale of it, licensing of it. So they I mean, they they made out like bandits anyway, and now they shredded everything. After three months. Everything gets shredded at Xerox, Texaco. Wonderful history, and Texaco is one of the first companies in America to actually adopt this kind of document retention policy. And increasingly, by the way, you're finding even higher education is shredding documents of this sort bear and fairly rapidly after tenure decisions or May, or hiring decisions are made in order to not have available that the the backup documentation. So increasingly, this lawsuits will only turn on insider information

Unknown Speaker  45:20
on people's willingness to recognize inside when there is wrong, and to work with the outside or if you will, on redressing that wrong. Through the litigation system, it's very, very hard. I addressed the American Association of affirmative action officers. Last week, they had their annual meeting in Boston. And I mean, they feel like they're between a rock and a hard place. If they do their job properly. In most instances, they will not be working for the company that issues the paycheck, because in most instances, their company's mandate to them is to find the why of lease compliance, got to cut the line as close to the edge of the law. And if you got to cut it a little over the edge, make sure that their client, their employer is not going to get caught, caught being meaning being sued in any meaningful way. And it's an extremely difficult job for them to carry out because many of I would say 80% of the affirmative action officers in private as well as public sector positions across America are women or minorities. It is an absolutely untenable role that one finds oneself in where one hand is get literally getting paid to hold on to their job, at the expense of making sure that virtually no other women or minorities, get jobs at that level, or penetrate the company's boundaries in any significant fashion extremely difficult. The case that the second decision that actually has caused the civil rights and the women's community to coalesce and work very seriously with Congress involves legislation that has been recently introduced about four, four or five weeks ago, Ted Kennedy introduced you know, unlikely case involves a canary in Alaska. The wards co Packing Company case, the workers in the Canary are split are primarily Well, there are, again, this, we have racial segregation, as opposed to gender segregation, which we founded at&t, the less attractive, more risky, difficult jobs in the plant are done primarily by Filipino, and Alaskan Native or loot workers. And the more the plant puts it more technically, Trent, you know, skillful jobs are done by generally, as they call it, lower 40. When you're in Alaska, they refer to the rest of United States, the lower 48 workers who are brought up for seasonal work by the company. The Filipino and Alaskan native workers brought suit on the basis of the transfer policies that made it almost impossible for them to ever get promoted into better positions, no matter how long they worked with the packing company. And about differentials in pay, which they were sustaining and about some of the discrimination that was going on in the hiring policies. Literally. They were not being hired. And they you know, as one sort of spread the word of mouth. It seemed to be that whenever a Filipino or Alaskan Native showed up at the hiring office, they were always directed to work in the less desirable departments. There their basic claim was, again, a notion of disparate treatment or disparate impact, that the defendant in this case had adopted policies that had a disparate impact on them as a racially identifiable group, and the court did something most bizarre. In the past, the law had basically allowed you to show disparate impact by showing statistics, may you show that you know, and 890 8.9% of all the workers in these lower level jobs are Filipino or Alaskan natives, and that 98.9% of the workers in the more desirable jobs are in fact, whites and you go having shown that statistically, you don't have to show intent to discriminate, okay. You simply have to show the disparate impact and then the burden shifts to the defendant to come forward with some acceptable explanation for how this in fact happened.

Unknown Speaker  49:58
The court has now added an addition general requirements. Court says no, no, no, we understand about this disparate impact business, but you have to identify each and every component of an employer's hiring and promotion process. And having identified each of the components steps in the hiring and promotion process, you then also have the burden of showing that each and every one of those components is in fact racially discriminatory. You must demonstrate that before the burden shifts to the defendant to rebut your claim. The problem, of course, is that not each and every component of the employers, hiring or promotion policy is in fact going to be racially discriminatory, by the way, say that it's going to be racially discriminatory means that you have to show that there was intent to discriminate on the basis of race. So there's, you've got to show disparate impact, you've got to break the components down, and you've got to show intent to discriminate with each and every component part. Now, not only is that not going to always happen, but it flies in the face of the way in which the law basically had been operating up to now, up until now, the court taking the position that in this country, we do two things with employment discrimination law. The first is we don't allow an employer on an individual basis to discriminate on the basis of gender or race. But more importantly, we've taken the position as a country, that racial discrimination and gender discrimination need to be broken down. And that where there is this kind of statistical disparity with respect to practices by an employer, the employer ought not to be able to use those practices, once the showing has been made of the statistical disparity ought not to be able to use those practices unless he can demonstrate a job necessity in business necessity. In other words, if there's some alternative way for the employer to operate his business, and one can always presume that there is an alternative way to operate one's business without these statistically, you know, discriminatory, statistically disparate discriminatory practices, then what we have said is he has to use those, okay, you can't use something that is, in fact, statistically discriminatory, unless you can show absolute job necessity. Now, what this has done is essentially obviated that mean, we eventually get to Job necessity, but only after you've got to show now disparate impact, you've got to identify every component of the hiring or promotion process. And you've got to show that every component is in fact, intentionally discriminatory, it is a burden that cannot be met. It is essentially a burden that cannot be met. And Congress is presently looking at several different pieces of legislation, several different bird versions of it, which would remove this additional layer of identifying each and every component part of the hiring or promotion process as intentionally discriminatory. This legislation is designed to again restore the concept of disparate impact and shift the burden to the defendant at that point to demonstrate job necessity as the law was before the wards Cove decision. Last term. If you thought it was all over, it's not in a case called Martin versus Wilkes and we've been all over the country. We've been up to Alaska, we've been in Michigan, you know, at&t, a national employer. We're now going down to Alabama. Richmond, of course was in Richmond, Virginia, Brenda Patterson was in Virginia as well, Martin versus Wilkes is the name of the case that comes out of a lawsuit brought against the Alabama State Troopers for racial discrimination. This is one of those lawsuits that you know, when you work at this end of the business, you just die for this case has been going on for almost 20 years. I mean, it's just like, you know, you really want to pull your hair out. And there this particular version, the case was actually settled. Almost nine years ago, there was a consent decree between the black

Unknown Speaker  54:15
applicants to the Alabama State Troopers and the Alabama State Troopers and that consent decree essentially resulted in an affirmative action, hiring and promotion program, which the Alabama state troopers have been following since then. And Martin vs. Wilkes comes up because it is a lawsuit brought by the white state troopers white Alabama state troopers who are challenging the affirmative action program fully now, nine years later after it's been operating. The original consent decree was the result of the judge finding that the Alabama State Troopers had in fact engaged in intentional racial discrimination at The time the original lawsuit was brought, there were no black Alabama State Troopers. They're not like lots of them now, but they're certainly you know, going from none, to a few is a major change. And it was done through this particular court order. And at the time that lawsuit was brought when the affirmative action program was worked out, the white state troopers who are unionized had representatives at the table. So that the agreement, this Affirmative Action Plan was one that resulted from everybody whose interests were involved sitting at the table, but they were not named plaintiffs, or named defendants in that first lawsuit. They weren't what we call actually named participating parties in that lawsuit. But because it was a consent decree, they were at the table when this plan was worked out. In Martin versus Wilkes, they took the position that because they were not named parties, in the original lawsuit, that they had not in any way, given up any of their rights to challenge in court, the affirmative action plan. That didn't make a difference that it was nine years later, it didn't make a difference that the original court had found that there was intent to discriminate on the part of the state troopers against blacks, that they had independent, if you will, as a village as languages bested white rights as his language he's been using this for about 10 years best in white rights, best and white interests, that they are now asking the court to review with respect to this affirmative action plan. And Martin versus was only goes to the issue of whether they can even maintain the suit. The lawsuit hasn't happened yet, or at least it's probably happened now. But it had not happened at the time. This decision was and the court agreed with him that the court put it aggrieved whites are not precluded from challenging affirmative action programs adopted through consent decrees, as a result of a lawsuit of discrimination lawsuit, as long as they were not parties to that original lawsuit. The fact that they were at the table, the fact that they taught me, none of that counts. And the court went on to say that there is no timeline on when they can bring this challenge. So that you never know when it's coming, it could come 1015 years down or as long as they can prove that they are aggrieved. Their challenge will be hurt. So this case is now back down in the federal district court, wending its way now through the normal trial process, and will probably come back up again, depending on what the outcome of the litigation at the trial level is. And then I go, the only glimmer of light in all of this. And it really wasn't, is a gender discrimination case. Price Waterhouse versus Hopkins, I don't know if any of you heard about this, Ms. Hopkins, from Price Waterhouse claimed was not very feminine. In fact, he had an extremely aggressive and unduly confrontational personality was denied a partnership with Price Waterhouse and all tears from his Hopkins she sued. And the court in Price Waterhouse found in favor of Miss Hopkins

Unknown Speaker  58:24
and said that, in fact, Miss Hopkins did not have the burden of proving that the employers practices were in fact discriminatory. All she had to show was that she was qualified for the job and that there was no ostensibly rational reason why she was denied a partnership when obviously, equally qualified men were that given one. But in the end, we all sort of cheered until you read the fine print and Price Waterhouse and the fine print and Pricewaterhouse says that while we're not shifting the burden off of the the employer, we are weakening. Okay, what evidence an employer has to come forward with in order to prove that the reason for the denial of the job or the promotion was not gender based. So that it was one of those where you know, you give with one hand and you take back with the other hand. We were happy for the victory. It was a very egregious case. But the message from Price Waterhouse is because they were just really silly and stupid. I mean, they really thought they could get away with it. The club was just at its best. She was overly aggressive. She was pushy. She was masculine acting. I mean, the whole nine yards. This is what they had actually put on paper. The message from Price Waterhouse is you don't say that in the future when you want it to not a woman. Okay, access, if you will to the partnership club. What you document in the record is that her work performance wasn't quite up to par and can't quite put your finger on what it was but it was wasn't quite up to par mean, you document the record in less overtly gender discriminatory ways. And certainly that message went out very good. We had a faculty meeting instantly to talk about the implications of this with respect to the kinds of notes in minutes of meetings around tenure decisions. Certainly all of industry has sent out memos about what people are putting down on paper and for that matter, what people actually say, in meetings in which they are making these kinds of judgment or judgments or determinations about these kinds of decisions. As long as you cloak them and some semi or quasi non discriminatory fashion, the court sent the message in Pricewaterhouse that that will fly, and that you will not see another case like this. This was an egregious case, one of a kind, anybody can read and has half an ounce of brain cells will not fall into the trap that Pricewaterhouse found themselves falling into. So I mean, we went one, we lose one. What does somebody say

Unknown Speaker  1:01:02
that something is. And that is basically what they're saying is discriminatory and they begin to die. Could you bring that up? And use that as evidence to show that underlying the superficial? Other articles that they're using? The real reasons are?

Unknown Speaker  1:01:21
How are you going to prove that? How are you going to prove the the quagmire we're in now with his intent to discriminate business is just so unbelievable, man, unless you can literally get inside the mind. We've had racial discrimination cases where I mean, we knew we were in trouble because this is so gone goes back almost to like 1970 While the first case was 1976, coming out of Washington DC called Washington versus Davis. But the second case out the pike in 1978, a case called village of Arlington Heights versus HUD involved. Arlington Heights is a suburb of Chicago, which had resisted vehemently any kind of low income housing being built in their midst. And in the process of these, you know, zoning hearings that they had had, I mean, they've gotten to be real wild affairs, you know, if you don't want any black people living here, and that's not what they were calling them. You know, I mean, you know, what will happen if we let them in here, that's when we low income housing is about welfare cheats, and, you know, murderers, I mean, people literally standing on the table and screaming and some swinging going on. I mean, it's something not necessarily that different from what went on up the road here in Yonkers. But uh, you know, I mean, just screaming and hollering about this. And when we get to the Supreme Court, after a lawsuit, my several developers who wanted to build low income housing in the village of Arlington Heights, who repeatedly been turned down for the zoning clearance in order to be able to construct, the court said, and all of us have any transcripts of this, you know, this is, you know, we didn't have to bring people in, we have transcripts of this course, as well. That is true that people did say terribly discriminatory things at this session. But that's not evidence of what was in the hearts and minds of the zoning commissioners at the moment, they voted. And that's what we want to get out. That's what we're talking about. It is the hearts and minds, you know, information of the at the moment when they voted, which is the intent, because then they are the actors for the public. And so that is what we want has to get well one can ever get it that mean, I mean, one outrageous case, what's in the this is this case, goes back aways to this was a 1971. Did they finally litigate the case? 1979. It's called DPI Detroit Police Officers Association sued the city of Detroit challenging their affirmative action program, City of Detroit. I mean, you know, I mean, I had I taught a couple years at Wayne State. I mean, you know, we I learned a few things that seemed to me, Bucky went wrong, because you know, Cal Davis Medical School wouldn't confess that they have engaged in past racial discrimination mean, stand up and say it. We even went out and found two or three of the past police commissioners for the city of Detroit who came in and testify that yes, in fact, their departments had overtly consciously discriminated against black applicants in hiring and promotion mean, they said it on the record, the judge in the case, in his opinion, says, Give me a break. How can you believe someone who would confess that they had engaged in racial discrimination, he found that testimony to be inherently incredible, okay. He just counted it and threw it. I didn't know he could not possibly find that there had in fact been a sufficient violation to justify this affirmative action plan, because no one as he put it, in their right mind, as an institution would come forward and admit to engaging in past racial history. elimination. And that's the basis under which that case actually had to go up. Here we I mean, we did it. Right. Okay. And we have a judge that says no, no, that was not credible. And of course, the judge he was just was a non jury trial. And so the judge is, in fact, the person who makes the determinations about the credibility of witnesses saying that the witnesses weren't credible, the former police chiefs of the city of Detroit because they were admitting to something which he said, Of course, everyone knows is going against the law since 1964. How could you? Why would you? I mean, it doesn't make sense. It's not possible that this is credible testimony now intended. And so what I'm suggesting to you is that what the court has done here, across a myriad, but but let me let me just tell you the last case, because this one actually may be the Bugaboo that comes back to haunt all of us in higher education and elsewhere, is the Richmond versus croson decision, which, although on its face involved Minority Business Enterprise set aside, oh, by the way, 10%, we're not talking, you know, humongous sums of money. The opinion in that case, is a very, very troubling opinion. It is a Sandra Day O'Connor opinion.

Unknown Speaker  1:06:10
And, again, extremely one of these on the fence kinds of opinions. The statute in question was modeled after the Minority Business Enterprise provision established, adopted by Congress, and upheld by the United States Supreme Court in 1980, by in the case called Full love versus click snick. And so mean, Richmond essentially got out the federal record, you know, copied Xerox the statute up, copied again and adopted it. Now, let me give you a little background, we all know the Richmond Virginia is the seat of the Confederacy. And this is we are not talking about a city that has not been without its extraordinary racial problems. But a city that has worked very hard on a number of different levels to cope with those problems, not the least of which is that the city of Richmond has a black mayor. And the majority of the members of the City Council are also black in the city of Richmond, and is part of trying to essentially reconstruct, if you will, the new South. They adopted this minority business enterprise provision to try to encourage minority businesses to develop and flourish in the Richmond area. The Court strikes down the Minority Business Enterprise Program on the ground, that it was not supported by clear documentary evidence of past racial discrimination. That if that were the least of it, I mean, I mean, that boggles the mind. I mean, where are you? I mean, where do they think Richmond, Virginia, but that's neither here nor there. There is another part of this. The minority business enterprise provision was designed it included a, you know, blacks, Latinos, women, included the standard language for Minority Business Enterprise provisions that the federal government uses. So therefore, it also included Alaska Natives, and, and Native Americans, and part of the courts complaint. Once you get past the sort of lack of clear documented evidence, as they said, There's no way that the city of Richmond could ever have discriminated against laska natives or Native Americans in the letting of municipal contracts. Now, that isn't factual. Although actually probably not as true about Native Americans, as it probably is about Alaska Natives. However, the standard way of responding to a statute that is overbroad, but otherwise. All right, I mean, the court could not be quibbling about blacks and Latinos, I mean, is to simply sever those provisions, which in fact, are unlawful, that is to say, say you can't use your Minority Business Enterprise provisions for Alaska Natives. And, you know, Native Americans, if that's the way they leave the rest of it alone. No, that's not what they do. They say swept the entire statute said that Richmond has to Richmond and every other city wanting to engage in minority business enterprise has to document its past discriminatory history against each and every group that it proposes to include within its MBE provisions. Now, as ludicrous as that might seem, these studies cost humongous amounts of money. Richmond is presently engaged in a multi million dollar study to support its next version of the NBA. The city of Atlanta has led a contract, which is costing them a million point to San Francisco, which is in litigation At this moment is undergoing a study in order that is costing them over a million dollars. By the time what is essentially happening unless you are a municipality willing to spend that kind of money, we haven't even talked about whether you've got that kind of money to spend but willing to spend that kind of money. What most municipalities are saying is that it is simply not worth the effort that one has to undergo, to essentially what what you're talking about a lot of enrichment wasn't spending, you know, humongous, Monza 10 10% set aside, probably amounted to something like $20 million Max. mean, they've got to have to spend a million and a half dollars in order to be able to set aside $20 million of municipal funds in that fashion. It is an extraordinarily devastating decision in that respect. Now, one further point in this opinion, and this is the point that actually caused my hair to stand on him. I was I kind of expected the rest of this craziness.

Unknown Speaker  1:11:04
Sandra Day O'Connor says that the reason she is applying what is known as strict scrutiny to this particular, MBE is strict scrutiny is what is applied when there is race used on the part of the state overtly. Okay. And just as obviously a racial preference set aside for racial and ethnic groups. reason she said she is particularly using race race. strict scrutiny, is because she said, the mayor is black and the majority of the City Council are black. And obviously, the MBE in question is allocating governmental resources to other people of color. Now, it was a it was a quick jab, and a subtle jab. Thurgood Marshall raised it in his dissenting opinion, and said, Well, what timeout timeout, because the implication is this mean, the one part of all of this that is held, if you will, I call it the the theoretical glue that has held race relations together under the law in this country over the last 30 or 40 years, has been the notion that if we, as people of color, essentially, organize ourselves, we are a minority, we understand were a minority, I mean, you know that that has some inherent limitations attached to it. But that if we are at least able to finally register enough people to vote, get a political candidate nominated on the slate, do the kinds of campaigning that out not only has our people voting for that candidate, but clearly in Richmond, Virginia and getting a sufficient number of whites to support this candidate as well, that once in place, that candidate ought to be able to use the political process in the way in which the political process has always been used. And to the extent that we suddenly wind up in the Supreme Court. And I must say, it did particularly hurt that it was Sandy. I mean, I would have expected one of the boys, I didn't expect Sandy, suddenly to say that she by definition, perceives that the use of power by people of color, once they have acquired that position, almost like we have really sort of come into town and seize control and some illegitimate fashion, using that power to essentially spread around the resources in ways in which they had not been spread before because of racial discrimination, that we are going to be called for a higher level of accountability in the allocation of these resources, then municipalities now don't have to justify how they let contracts. They just let them. If I were to sue municipality for race discrimination, where they don't have an MBE, I've got to show intent to discriminate. When when Richmond was sued, they didn't have to show intent to discriminate, because the court presumed that because it was a clearly identified Minority Business Enterprise preference that that inherently carried with it. Okay, a badge of strict scrutiny. were suddenly me and so what the implication is, is that almost and we find this in all the reverse discrimination cases and affirming that Where are you now find minorities where there were Whites before? That is the trigger that is the intent to discriminate that the court then uses for looking over this now, put aside the cases for a second. I know we're almost out of time. The long and the short of affirmative action in the workplace. You know, as I talked to affirmative action offices right now, that's not what's happening. One, the statistics don't indicate that affirmative action has made. I mean, you would think, by the way, we hear it and we're inundated with it in the press, that, you know, the unemployment rates in the black community are down, you know, to, you know, three or 4%. Um, the reality is that the unemployment rates in the black community still remain in ordinarily disproportionately high. We are talking in cities like New York City, particularly in the age range of 18, to 30 years old, for primarily black males. Unemployment rates that top 60%, six, zero for black males. Even above that, you're still talking unemployment rates that are somewhere between 35 and 40%. And that those are fairly consistent figures, notice I said black males, because I don't want people to think that somehow black women are walking off with all the jobs, it's another one of the things that drives me bananas.

Unknown Speaker  1:15:58
Black women are not walking off with all the jobs, they are working to the extent they are working at some of the lowest rung on the ladder. And these kinds of data is not I'm not likely to change. This was sort of what affirmative action in the future, one of the greatest problems and it's sort of like, I call it the shell game down on Fifth Avenue in front of sacks. You know what you're paying attention to one peanut, another one's getting away from you. This country has become standardized testing crazy. I don't want to put off on standardized testing the entire loss, if you will, of the future of affirmative action. But I'm going to tell you right now, I'm Chair of the Board of Directors of an organization called fair tests National Center for fair and open testing, which is the only national anti standardized testing organization in the country. We recently did a study where we determined that conservatively, we were trying to be conservative, because we didn't want the study to be totally discredited or discounted. There are 100 million standardized tests administered in this country every year. By the time a young person has reached the age of 18. In the public, public or private school system, they have taken anywhere from two and a half to three dozen standardized tests. Now the test in and of themselves would not be catastrophic, but that those tests, in fact, become life determining tracking tools, that to the extent that affirmative action was never designed, to in fact, place people who were incompetent, or otherwise unqualified, into positions in this society, question of access to education, and the ability to get quality education still remain one of the Paramount obstacles to talking about the future of affirmative action in any kind of positive terms in this country. What you also need to know is that the bias of standardized testing is not merely racial, it is gender. It is class. It is rural, urban. And increasingly, evidence is coming in that it discriminates against unusually creative, or clever people as well. Absolutely.

Unknown Speaker  1:18:24
Oh, that's gender, that's gender. That's, that's me. Of course, culture comes into a class and culture do come into it. But that's one of the reasons women here do bad, you don't have to be an Indian to do badly. The women here do badly because of the incredible reliance on sports, language, sports metaphors, on many of the standardized tests. And what's interesting is that this is an industry that is less regulated, there's a dog food industry in America today. Ai, you can have greater confidence that your animal is getting food, that is not going to hurt it, then you can when you sit down to take a standardized test that can determine your entire future career. And the track it is not a regulated industry at all. It is primarily controlled by four or five large companies, although the largest, of course, is just down the road and Princeton, the otherwise known as the Educational Testing Service. In fact, they are so unregulated, and so little is known about them except what they themselves produce that up until two three years ago, it's a to know two years ago, when we took them on they had been the government provides, if you call a library of congress bibliographies on where one can find out more information about a variety of subjects. One of those is testing. When you called the government to get more information about standardized testing, the contract for providing that information was held by ETS, the Educational Testing Service, okay. At the fox guarding the hen house, and when we were finally able to persuade them, that they ought not to do this and is now in the hands of a group of researchers from Boston college education, school. Um, we found that they had, in fact consistently provided few if any sources of information critical of standardized testing, or the testing industry. We're now moving to try to change that to so people get a balanced set of information when they call the government about information like this. Something like the LSAT, which we have, this organization has really made a fairly high profile campaign about only for purposes of coalition and organizing work. It is a test that lots and lots of people are familiar with. It strikes a respondent chord, there is certainly a far greater variety of standardized tests that have far more deleterious racial and gender and class etc. Implications for for young people and their educational opportunities. The LSAT discriminates between men and women on the on the basis of every race or ethnic group, you can think of white women score consistently lower than white men, Asian women score consistently so lower than Asian men, black woman's score consistently lower than black men, Puerto Rican, women's, I mean, every ethnic and racial grouping, you can think of women score lower than men. The spread is phenomenal white men, of course, at the top end, and I have a lockstep here, black women at the very bottom, where there is almost a 300 point differential between the score of white average score of white men on the LSAT and the average score of what a black women on the LSAT and sandwiched in between their

Unknown Speaker  1:21:55
other racial and ethnic males and females with the women always lower than the men of their respective group. The bias is is is a is twofold. It has a bias in the format of the kind of test that is used. And there's a bias in terms of the content of the test. And people need to be aware that there are two levels of bias. First set of bias that we clearly see in terms of the format of the test, is that's just not our forte, what is an objective test, I love it, I asked people kind of look at me and go, why she asked me about an objective test, it's a paper and pencil test. That's all it is. Just use one. That's all it is. It does not mean that somehow, you know, it is a better form of test than any other kind of examination process that might be just means that you put the answer down by scratching in between those little little Dotty bars, you know, with a number two pencil, you know, not too dark, and make sure it doesn't spill over. That's all that that means. That kind of it. But it is a speeded Multiple Choice format, which tends to not women and certain minorities tend not to do well on women, because we are socialized and actually penalized as we are growing up. I can remember my mother saying this, and I'm now sort of taking her to task. Don't Don't do that, you know, you're gonna grow up clumsy. You know, dummy, take your time, slow down, pay attention to what you're doing. Now how many I mean, we hear that over and over again, women tend to be told that it is important for them to take care and attention. We don't you know, forget, you know, sort of men think of this thing as a game. It's like the video games at home. And that's the mean. So if you miss a couple of them, no problem. You keep going women think that each one of these questions is so important that they got to answer it right? It slows them down, you don't finish and you lose points just that way. There's also a notion that women don't like to guess that we are we are told not to guess me if you don't know something you shouldn't do. Native American children are raised not to lie. I mean, that is a very profound cultural element and aspect of their upbringing. When you get to a multiple choice test, which by the way you can do as well on by guessing as opposed to just reading the questions and really trying to reason them through reason them through. If they don't know the answer, they consider guessing a lie. That is is they consider that saying that they know something that they don't know. And hence they're disabled right off the chute. Question of the language on the test. The language is not only sports oriented, it is upper middle class Northeast Corridor male. Okay, I did not until I moved to Boston what a regatta was. And since I will never be engaged in one ever in life, but regardless shows up is one of those words which one has to try to define on SATs quite frequently, even when we pointed it out that the language is very, very esoteric rarefied male dominated language that, as all of us know, is just not necessary to get through college and to do well. I've often wanted to give William Buckley the LSAT, because he seemed to me like the quintessential, the quintessential white male or off of whom this language is sort of modeled. And I really wondered whether he would do super well on it. I assume that he would

Unknown Speaker  1:25:43
answer the legend as

Unknown Speaker  1:25:48
absolutely, absolutely. And by the way, what we do know is that there isn't always one answer to a complex. And we don't want to talk about what happens when students who come out of there challenging certain questions, because it's very clear that there was more than one answer that could properly be deemed right. Okay. When they tried to challenge ETS about their scores on that question, there have been only a handful of successful challenges. And yet there are challenges every test sitting, ETS totally disregards it. ETS is outrageous. I mean, I don't know how many of you saw standard deliver the mu if you have not, you should go get rent the video and take a look at it is very typical of what ETS does. Standard deliver involves a very poor Chicago High School Public High School in Los Angeles, with a very special teacher who went in and worked with his students around their math and science grades, and gotten them ready was a school that never really sent people on to college and he got them ready to take the LSAT as well as the science achievement examination they scored so well that ETS his response instantly was to accuse them of having cheated. And to tell them that they were not going to report this score at all, and that in order for them to have a score to report or potential college application purposes, they were going to have to take the examination again, this happens frequently, frequently, they will target or if you take the test more than once, and your score goes up considerably. ETS will often notify you that they believe that you have cheated, God forbid you should sit next to somebody in the exam whose scores in the same range as you, okay, or a cluster of people who happen to sit by each other and score relatively within the same range. ETS will notify you they will not report your score, that you have to take the test again, and you have to pay for it when you take it the second time. And the number of people's lives not to mention careers. We know that students select the colleges that they will apply to based on the scores, and therefore often will down scale the choices of their colleges, what you ought to know is that many colleges are aware of the kind of bias in these tests and will in fact, adjusted the admissions process for the bias for the group that you represent. But if they don't tell you this, okay, you have already opted out of a number of colleges and universities, which might very well admit you, notwithstanding what you believe to be inadequate test score, and of course, people walking around believing I'm stupid, because the score said I was stupid. Same same problem with the absolutely saying that it's biased. Absolutely. But very little correction done with very little correction. Yes, they do it for minority students. But even even that is done within I think other acceptably tight controlled ranges. So in other words, they are still lopping off a major segment of minority of mentees who, you know, through this proof through programs like the Clio program, Council, legal education, it's a summer institute that students can attend before they go to law school with numbers in the teens, where students have gone on to successfully matriculate and law school and pass the bar and yet would not be touched by any law school in America had they not come through that particular program. It is simply it has become a very simple shorthand way of doing college admissions. I call it you know, admissions on the cheap, because you can have minimal people's people in your operation in your office. And people feel fairly secure, but it skews the student body in ways that it ought not to, and certainly excuses good student body against the notion of the whole educational endeavor that higher education purports to be about me, particularly if you're getting people who are if we're weeding out people who are unusually creative and clever, it is depriving many of us of a classroom setting where we might otherwise begin to see different kinds of perspectives and think in different ways, if stimulated by people who have thought in those kinds of different fashions. Standardized testing isn't clearly one problem. Another problem, it seems to me is the fact that just as an overall economic issue, we are downsizing. As a country, we are economically downsizing. I don't want to tell you the statistics. But nonetheless, statistics, I looked at that there are fully a million PhDs in this country who are either unemployed or underemployed.

Unknown Speaker  1:30:14
Right. And that statistic has been fairly consistent all the way through the 80s. Over 1 million PhDs in this country, either unemployed or underemployed, we, if we don't need people at that end of the employment scale, you can rest assured that anybody short of that doctorate is in trouble when it comes to finding a job and holding on to a job that pays at a meaningful level. Affirmative Action certainly has its most difficult time when the economy is in fact contracting and constricting. And it has been contracting, and it has been constricting through most of the 80s and certainly into the 90s, as well. As I mean, it is just not real to believe that even with all of the affirmative action, you know, rules, regulations, mandates, programs, etc, that overall, an employer is going to move its workforce significantly towards more women and more minorities, although by the way, the workforce has to move towards more women. And we do need to appreciate that. But more women in generally the lowest ranks of it so that affirmative action actually in some respects has been not a God, to me, we all know we got to work. But in terms of actually penetrating the employment arena, at a level a meaningful level, in terms of real money for a lot of women in urban areas. Now, it is actually more cost effective to be on welfare than it is to work a job available to you. Okay, which will generally come with no benefits, or a benefits package that you can't afford, and still have enough money left over to clothe yourself, put a roof over your head and to take care of your children.

Unknown Speaker  1:31:59
You're talking about new jobs that when you're applying that most of those new jobs are actually lower paying jobs.

Unknown Speaker  1:32:07
That's true, by the way in the professions as well as I'm not talking to blue collar jobs in the professions. I mean, let's talk the profession. I know the best, but I know this is also happening in medicine as well. In legal education, it's just amazing to me, the number we've gone from my entering class at Columbia Law School in 1970 have 40 Women in it out of roughly 350 students. The Law School of Columbia now is somewhere between 35 and 40%. Women, I think may actually go up as high as 42% women. The analogous figures, by the way, for minority student enrollment are not as good 9019 70 the entering class had 27 Black students, the only class to surpass that number of enduring black students happened this past fall 1989 When 32 Black students were admitted in are presently in the first year class at Columbia Law School. Prior to this past fall, my class was the largest class black students ever admitted, and graduate, for that matter at Columbia Law School before or since. Yeah, wonderful, wonderful statistics. And we won't even talk about your president, former dean. And the major commitment we have here. But that that's that's very real. And the reality is the where are those women going when they graduate me now we're talking a student body that's roughly 300, of which at least 100 Every year, are women, and usually slightly more than that, they are going into what I call, there's almost been a new a new part of the profession developed since 1964. We did not have legal aid, legal services, a variety of law clinics in 1964. The profession has literally carved out this era. And it's funny because we do get to call ourselves lawyers. But if you actually look at the work that is done in many of those places, and the system context in which that work has to be done. Most of that work is not the kind of autonomous, you know, self control, high level intellectual thinking work, that we have historically equated with the practice of law in this country and that is still equated with the practice of law.