Mr. Chairman, I would submit that the performance of Federal agencies in carrying out their responsibilities to secure equal opportunity in State and local employment deserves the closest scrutiny by Congress for several reasons.

First, State and local government for several years have provided the fastest growing field of employment opportunity and, notwithstanding the impact of the current recession, this is likely to remain true for the foreseeable future.

Accordingly, there is no area where strong civil rights enforcement can be of more tangible and direct benefits to minorities and women than in State and local employment.

Second, in Government, policies of equal opportunity are likely to be closely related to the provision of equal services. As long as minorities are excluded from, or discriminated against, in public jobs, the task of securing equality in such services as police and fire protection, transportation, street maintenance and sanitation, will be made immeasurably more difficult.

And, third, while State and local officials profess a desire to take steps to restore the confidence of citizens in their government, many of these officials seem loath to recognize that minority citizens can hardly be expected to have confidence in governments in which they are treated unfairly or are not allowed to participate at all.

Federal agencies which provide funding to State and local governments have a key role, under our Constitution as well as Federal laws, in preventing discrimination.

It is not a role that most agencies have fulfilled with fidelity or firmness during recent years, although there was a period during the 1960's when administrative enforcement was a vital engine in producing civil rights programs.

It may well be that alternative mechanisms for enforcement should be considered by the Congress. For example, if the EEOC were to be given authority to issue cease and desist orders against practices of discrimination by State and local government, it might also be provided that the issuance of such orders would automatically trigger the deferral of new grants to the offending government.

After all, why should a recipient found to be in discrimination continue to receive Federal grants?

Such a provision would undoubtedly induce a great deal of corrective action without a need for resort to the courts.

But, pending such legislative reform, progress in eliminating race and sex discrimination in State and local employment will require the constant vigilance of Congress, the kind of vigilance you are exhibiting in holding these hearings.

That concludes my statement. Of course, I would be glad to respond to any questions.

Mr. HAWKINS. Thank you, Mr. Taylor, for your very helpful statement. I think it is very clear and actually needs very little in the way. of further analysis. I have just a few questions.

You indicated that the LEAA had in a sense adopted rather strong guidelines, just merely was not administering them or enforcing them. You suggested as to the ORS under the State and Local Fiscal Assistance Act that they really are lacking even in the guidelines.

Now, in view of the fact that Congress will be addressing itself to the extension of the State and Local Fiscal Assistance Act, if it fol

lows the recommendation of the President, what would you suggest we do in connection with amending the act to provide the type of safeguards that you speak of? I assume that your last suggestion would be relevant there, that the money should not go to any local government or local agency that is already discriminating. I am trying to find out what specifically should we do in amending the act to avoid the type of situation in which all of us admit is a very troublesome thing, and that is continued discrimination in spite of the receipt of Federal moneys. Mr. TAYLOR. Well, I think that there are two possible routes to take. One route would be to retain the responsibility in the Department of the Treasury for enforcing the nondiscrimination provisions of the act, but give much stronger guidance and direction to the Agency than it has right now.

I think it has all the authority it needs to enforce the law, but it is not doing it, so that one way to go would be for Congress to make quite specific how it is to enforce the law.

In my view, the elements of such a strengthened mandate would include the mandatory deferral of funds whenever the Agency does find discrimination, and by deferral I mean that no new payments would go forward until the discriminatory situation was resolved and corrected.

To do that to make that effective, Congress would probably have to do something else, and that is to impose some strict or require the Agency to impose some strict guidelines in the handling of complaints and investigations, because what happens is that these complaints and investigations go on for many, many months without the finding of discrimination, so to make this workable and the sanctions meaningful, there would probably have to be a clear mandate to set out timetables. Third, the Agency should be required to adopt affirmative regulations, and I might add here that as bad as things are in the employment aspect of their responsibilites, on the question of services it is even worse, because there there is a very clear need to develop standards for a whole variety of services that determine whether they are equal, and the Agency has done nothing at all insofar as we can determine. So one route, as I suggest, would be a much strengthened mandate from the Congress to the Department of Treasury to enforce these laws.

The other possibility would be to say that this Agency has demonstrated that it has no real interest in enforcing civil rights laws and indeed it views these as counter to their mission in a way that even other agencies that have problems don't. At least HEW and HUD have social programs to administer and, while there are often conflicts, there is some relationship of civil rights to the carrying out of the social program.

The Department of Treasury and everything its leaders have said leads you to believe they consider themselves to be bookkeepers basically. They just want to get those funds out there, and anything that prevents getting those funds out there is viewed as being totally counter to their mission.

If that is the case, then maybe we are knocking our heads against the wall in suggesting that their mandate should be strengthened, and maybe we simply ought to say that the Department of Justice or some other agency, but most likely the Department of Justice, ought to have the responsibility for enforcing the law, both through litigation and

through administrative action, and the Department of Justice should trigger the procedures for deferring grants where there is a finding of discrimination after their investigations.

There are some problems with that, in that the Justice Department has traditionally-and not just during this administration-viewed the administrative enforcement to be inferior to litigation.

They consider themselves to be court specialists and they like to be in court, so I would worry a little bit about what would happen if you gave them the administrative as well as the enforcement responsibility, but that might well be preferable to leaving the administration of the law where it is right now.

The last thing I would say is that, as you know, the groups that I work with have some very significant problems with the administration of the revenue-sharing law that go beyond the specific questions of civil rights enforcement and that have to do with the initial allocation of the funds and whether that is done on a need basis.

The question of what happens to social priorities under a program where governments are entirely free to spend almost entirely free to spend the money as they choose, the question of citizen participation, the question of whether there really is any inducement to progressive taxation, which hasn't proved to be the case, and the question of whether the so-called new federalism is really just contributing to a form of urban apartheid in this country, so I don't mean on answering your question on civil rights to suggest that the problems don't go far deeper and that Congress may not want to take a look at whether this whole law is serving the purposes that you might originally have hoped for.

This is a rather long-winded answer, but I hope it addresses the question.

Mr. HAWKINS. It does. In connection with the Albemarle decision, do you see in any specific way that the practices and procedures of State and local governments may have to be changed?

Mr. TAYLOR. Well, I do think that much more vigorous action has to be taken to examine the testing procedures of State and local governments as well as in private industry.

I would hope that the EEOC and the other agencies concerned will resolve their problems about uniform guidelines fairly quickly or at least make it clear that these guidelines apply and will be enforced in dealing with State and local employment.

Like Mr. Schnapper, I find that a very interesting part of the opinion is the suggestion that even if you can in some sense validate these tests, that you also—an employer also has to be able to demonstrate that there are no less-that there are no less onerous alternatives available for meeting the needs, while also affording equal employment opportunity.

So, in a sense, this is really a new mandate to State and local governments, as well as to private employers, to reexamine their testing practices and eliminate them as a significant barrier to equal employment opportunity.

Mr. HAWKINS. Do you think the strong support given in their decision to class action suits and backpay awards will encourage greater compliance with the law?

Mr. TAYLOR. Well, I think they will have that tendency. As I noted in my statement, backpay has not yet been a significant factor in dealing with State and local employers. Indeed, there may be some question in private suits, although I haven't really researched this, as to whether backpay is available in light of the Edelman decision of a couple of years ago raising 11th amendment problems to damage awards for private citizens.

So it probably will be a while, because the law was only amended in 1972, in any event, before backpay awards in any significant numbers are awarded against State and local governments.

I believe there has only been one consent decree that the Justice Department has obtained. I would hope the State and local governments will see the handwriting on the wall and will begin to take this seriously, but it probably will have more of an impact with respect to private industry than it will with respect to State and local employers. Mr. HAWKINS. Mr. Radcliffe.

Mr. RADCLIFFE. No, thank you.

Mr. HAWKINS. Well, I think that there are no further questions, Mr. Taylor. Again we wish to thank you for taking time out from your very busy schedule to come here today.

We certainly hope that we will be able to call on you from time to time for your services, particularly since it looks as if this committee will be suggesting some model guidelines.

We don't like to get into that phase of activity, but not only do we find it necessary to pass the laws, but we sometimes find it necessary to try to encourage the proper type of administration and guidelines. Certainly we will be calling on you.

Mr. TAYLOR. Thank you, Mr. Hawkins. Civil rights oversight is long-term employment, and I will be glad to help in any way I can. Mr. HAWKINS. Thank you very much.

The next witness is Ms. Vilma Martinez, president and general counsel, Mexican-American Legal Defense and Education Fund, San Francisco, Calif.

At long last we have a witness from the Far West. That is rather unusual.

Ms. MARTINEZ. Familiar territory to you, Congressman, I am sure. Mr. HAWKINS. We are very pleased to welcome you, and you do have your prepared statement, which will be entered in the record in its entirety at this point, and you may proceed to deal with it as you so desire.

[The prepared statement referred to follows:]

PREPARED STATEMENT OF VILMA S. MARTINEZ, PRESIDENT AND GENERAL COUNSEL, MEXICAN-AMERICAN LEGAL DEFENSE AND EDUCATION FUND, INC., SAN FRANCISCO, CALIFORNIA

Mr. Chairman and distinguished members of the House Subcommittee on Equal Opportunities :

I wish to take this opportunity to thank you for inviting me to present testimony concerning the impact of the Supreme Court's recent decision in Albemarle Paper Co. v. Moody on existing Federal policies and regulations in the areas of employment discrimination, with particular attention to testing and 'back pay considerations.

My name is Vilma S. Martinez and I am President and General Counsel of the Mexican-American Legal Defense and Educational Fund. MALDEF is a nonprofit organization which works to redress the grievances and vindicate the legal

and constitutional rights of the over six million United States citizens of Mexican ancestry.

Ours is a community which has long endured the poverty and deprivations attendant to the discriminatory employment practices which Title VII was designed to eradicate. Even ignoring the large number of seasonally unemployed farmworkers, the unemployment rate for Spanish-surnamed citizens in the Southwest is consistently about one and one-half times that of the corresponding Anglo population. The magnitude of the dilemma heightens as one approaches the barrios of the inner city. In the largely Mexican-American area of Western San Antonio, for example, the unemployment level had already soared to 25% as early as 1970." The median family income among all persons of Spanish origin continues to fall below the national average at a level of only $5600 as opposed to $8000 for all others. The consequences of historical patterns of discrimination in employment have deprived millions of Mexican-Americans of the ability to obtain the full benefits of equal opportunities in education, housing, and voting rights. The Court records of this nation reflect the discrimination against Mexican-Americans. It is interesting to note that on the same day Brown v. Board of Education was decided, the Supreme Court also handed down Hernandez v. Texas, which cleared the way for a Chicano equal protection argument by holding that Chicanos constitute a separate group for purposes of full protection under the 14th amendment. More recently, in White v. Regester, the Supreme Court in 1973 recognized again the continuing and pervasive discrimination against Chicanos in this country. Therefore, the Mexican American Legal Defense and Educational Fund considers equal employment opportunity for Mexican-Americans to be one of the highest orders of priority for our community. The enactment of Title VII of the Civil Rights Act of 1964 provided the first effective statutory basis for the federal government to carry out the national policy of equal employment opportunity in private employment by prohibiting discrimination because of an individual's national origin, sex, religion, race or color. This historic legislation was the first time in our nation's history that such a commitment had been made to our country's minorities and females. This legislation provided recognition that the unlawful employment practices of private employers, unions, and referral agencies were problems of national concern to be eradicated along with unlawful discrimination in voting rights, public accommodations, public education, and housing. From the viewpoint of almost exactly 10 years since the effective date of Title VII on July 2, 1965, there is now a basis for evaluating the effectiveness of Title VII and for defining its role in relationship to other problems in Civil Rights.

Title VII has provided an effective legal basis for securing protection of the legal rights of Mexican-Americans and other minorities and females against private employers who utilize unlawful employment practices. The development of Title VII as a legal basis for litigation has not, however, resolved the problem. Although the Courts have held that large class actions with many issues are appropriate in employment cases, the litigation is complex and lengthy. The final relief obtained in such suits is consistent with the remedial approach utilized by the Courts-including injunctive relief, financial compensation, and seniority credit.

However, the availability of legal relief does not alone assure relief to the aggrieved class. The time and cost limitations limit the number of employers in any industry or areas that can be sued to provide effective protection of employment rights under Title VII-rights available to persons discriminated against on many different bases-race, national origin, sex and religion. The substantial successes to date must be viewed with caution and with a perspective, which recognizes not only the size and scope of the problem; but also the very limited

1 Romero, Chicano Workers: Their Utilization and Development (1974), p. 83. 2 Romero, p. 83.

3 U.S. Dept. of Commerce-News.

4 See White v. Regester, 412 U.S. 755 (1973) (Voting Rights); Hernandez v. Texas, 347 U.S. 475 (1954) (Jury Selection); Education: Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189 (1973); Cisneros v. Corpus Christi, I.S.D., 476 F. 2d 142 (5th Cir., 1972) (en banc); Serna v. Portales, 499 F. 2d 1147 (10th Cir., 1974); Employment: Marquez v. Omaha Dist. Sales Office, Ford Motor Co., 440 F. 2d 1160 (8th Cir. 1971); Rodriguez v. ETMF, F. 2d (5th Cir., 1974); Guerra v. Manchester Terminal Corp., 498 F. 2d 641 (5th Cir., 1974); Espinosa v. Farah Mfg. Co., 414 U.S. 86 (1973); Sanchez v. TWA F. 2d (19th Cir., 1974); Hernandez v. Erlenbuseh, 368 F. Supp. 752 (D. Ore. (1973)); Escamilla v. Mosher Steel Co., (S.D. Tex., 1974); Mueller v. U.S. Steel Corp., F. 2d (10th Cir., 1975); and Sabala v. Western Gillette Inc., 362 F. Supp. 1142 (S.D. Tex., 1973).