Attorney General William French Smith contends ("Yes, We Do Enforce Civil Rights Laws," Outlook, July 10) that criticism of the administration's civil rights enforcement policies and record unfairly focuses on the administration's opposition to busing as a remedy for school segregation and quotas as a remedy for employment discrimination. Unfortunately, once again this administration seems to have missed the mark.
While the administration may not be willing to admit it, discrimination on the basis of race, sex, and national origin exists in virtually all phases of our society. As a result, minorities and women continue to lag well behind white males when it comes to earnings or in access to employment, education or housing opportunities.
The magnitude of the disparity takes on greater significance when we consider just the area of employment and the following facts: the lowest black unemployment rate for the last decade is greater than the highest white unemployment rate for the same period. In the last few months, while the unemployment rate for whites has been on the decline, the unemployment rate for blacks has remained constant at more than double that of whites. Despite the federally enacted programs that prohibit maintaining different pay scales for men and women who perform "equal work," there is ample evidence that women continue to lag well behind white males with respect to pay.
There are strong indications that these persistent disparities are not chance occurrences. Data compiled and analyzed in a recent study by the U.S. Commission on Civil Rights showed that "improvement in the overall health of the economy and in the education or skill level of blacks, Hispanics, and women lead in some cases to the reduction of disparities, but not to their elimination." The commission conservatively concluded: "The suspicion, therefore, remains that discrimination continues to have a major effect on blacks, Hispanics and women in their struggle to find jobs commensurate with their qualifications and experience."
Elaborating on the conclusions of the study, the commission observed further: "We believe this report does an excellent job of exploding the myth that the younger age of black and Hispanic populations, the lack of adequate education and skills, or the changes in economic cycles are the principal cause of minority underemployment and unemployment." The commissioners concluded, as I believe this administration must, that "Instead, we must try to end discrimination directly by enforcing the law."
Enforcing the law, if it is to be effective, may mean relying for a time on remedial relief that imposes temporary group preferences. The alternative would be to provide no relief or meaningless, symbolic relief which serves only to perpetuate the community- wide harmful effects of the unlawful conduct.
The characterization of the concerns of women and minorities as dissatisfaction with the administration's policies on busing and quotas is a poor attempt to hide the truth. Busing and quotas are remedies of last resort, which are used by courts when discrimination has been proven and where other relief would be ineffective. Neither has been defended as being without negative aspects. They have been used, often with reluctance, because on balance the negative results they may generate are far outweighed by the clear and present injury that results from permitting present discrimination and the effects of past discrimination to persist.
It is noteworthy that this administration often tries to equate goals and timetables with quotas, notwithstanding the clear distinction between the two devices. As Ellen Feingold, a member of the board of the American Civil Liberties Union, noted in comments before the House subcommittee on employment opportunities, which I chair:
"Goals and quotas are both numbers, as pineapples and lemons are both fruits. But there the similarities cease. A quota is a ceiling; it is rigid, it is usually small, it has no relationship to equity or to availability, and it is designed to be exclusionary. The fact that it is a number is not its essential quality.
"A goal is just that--it is an objective which is set and toward which one strives. It is rooted in reality--related to an organization's policies and needs, and to the constraints and opportunities of the organization's environment. It is one of the most normal business practices, described by every major treatise on good management since the 1940s as an essential component of proper business management. Goals, objectives, targets, deadlines, milestones-- these are standard components of good management planning, and no manager, senior or mid-level, who wishes to do well would dream of doing without these necessary tools for business success."
This administration would have us believe that the battle for equal opportunities for minorities and women has been won. It would have us believe that discrimination, where it does exist, affects only a few individuals and hence should, and can, be fought on a case- by-case basis. It would also have us believe it has been doing everything possible to end discrimination and make the dream of equal opportunity for all Americans a reality.
When it comes to equal opportunities and civil rights for women and minorities, the attorney general seems to be satisfied with carrying out the letter, but not the spirit of the law, and with resting the administration's civil rights record on the number of cases it has initiated. However, after decades of struggling, we know the error of elevating form over substance. And, unlike this administration, we know that the significant variables in the quest for civil rights anddequal opportunity are the results achieved, and not merely efforts allegedly expended.
To assess the success of the civil rights struggle, there are no substitutes for objectively measurable factors such as the number of women and minorities in professional schools, the percentage of minorities and women in a given industry or the number and type of loans a lender is willing to make to minorities and women.
The administration's opposition to serious affirmative action measures justifies the accusation, which the attorney general now seeks to rebut, that the Department of Justice and, indeed, the entire administration, lack any real commitment to enforcing this nation's civil rights laws or ensuring equal opportunities for all its citizens.
Paraphrasing Lyndon Johnson: you do not wipe away the scars of centuries by saying, "Now you are free to go where you want, and do as you desire, and choose the leaders you please." You do not take a person who, for years, has been hobbled by chains and liberate him, bring him to the starting line of a race and then say, "You are free to compete with all the others," and still justly believe that you have been completely fair. Thus, it is not enough in 1983 for the administration to say that it is going to treat everyone the same and expect the goal of civil rights for all Americans to be achieved.