N002676
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
January 22, 2002
Mr. Kenneth L. Zwick
Director
Office of Management Programs, Civil Division
U.S. Department of Justice
Main Building, Room 3140
Washington, D.C. 20530
Re: September 11 Victim Compensation Fund of 2001
Dear Mr. Zwick:
The NAACP Legal Defense and Educational Fund, Inc. ("LDF") is a non-profit corporation
established under the law of the State of New York. It was formed to assist black persons in
securing their constitutional rights through the prosecution of lawsuits and to provide legal
services to those suffering injustice by reason of racial discrimination. LDF's first
Director-Counsel was Justice Thurgood Marshall. For six decades, LDF attorneys have
represented parties in litigation in federal and state courts, including the seminal case of Brown
v.
Board of Education, 347 U.S. 483 (1954).
We urge you to consider carefully the detailed analysis submitted to you on this date by the
NOW
Legal Defense and Education Fund but write separately to express our deep concerns regarding
published reports that the Special Master of the September 11 Victim Compensation Fund,
through implementation of the Interim Final Rules, intends to use life expectancy tables1 that
discriminate against minority and female victims of the September 11 terrorist attacks. It is
simply incomprehensible to us that an agency of the United States government would sanction
the use of race-based and gender-based calculations to disadvantage people of color and women
in the determination of compensation to victims.
Published reports indicate that the Special Master intends to use the separate "work life
expectancy" tables to generated by the Bureau of Labor Standards from 1979-80 data2. By using
these tables (and any other race or gender-based tables) the federal government endorses the
concept that minority and female victims of the attack, had they lived, would have faced the
same
discrimination in the workplace and elsewhere as existed in this country during the last fifty
years. The 1979-80 data, if it is to be used, will inevitably reflect the effects of racial
discrimination in this country. This is utterly at odds with the federal government's commitment
to end race and gender discrimination. Use of race and gender-based classifications in this
context is also unconstitutional.
The federal government has, for the past fifty years, treated the struggle to end invidious
discrimination on the basis of race and gender as among its highest priorities. Pursuant to the
statutory prohibitions against discrimination contained in the Civil Rights Act of 1964, the
United States Supreme Court struck down as unlawful the use of gender-based annuity tables in
Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978). The Supreme Court
has, only recently concluded that even "benign" classifications designed to remove the effects of
this Nation's history of racial discrimination are subject to strict scrutiny. Adarand Constructors
v. Pena, 515 U.S. 200 (1995). There is no compelling national interest in calculating the value of
an African-American life, or a woman's life, at an amount lower than that of their white or male
contemporaries. Race-neutral means for making those calculations exist and should be used.
The Constitution requires nothing less.
We ask the Special Master to disavow publicly and forcefully the use of race-based and
gender-based tables for any purpose connected with the administration of the Fund. The Special
Master should also publish a detailed explanation of how award calculations will be made and
what data sources will be used. The public should be given an opportunity for comment.
The use of race and gender-based tables to calculate compensation to families of victims of the
September 11th terrorist attacks will surely be divisive, will lead to litigation and by any
measure, will be a serious mistake.
Very truly yours,
Comment by
Elaine R. Jones, Director-Counsel
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
Cc: Honorable John D. Ashcroft, Attorney General
Kenneth R. Feinberg, Special Master
__________________________________________
1In a recent article in Newsday, Deputy Special Master Michael Rozen confirmed the intended use of gender and race-based tables to calculate final damages to be paid to victims of the September 11 attacks on the World Trad Center. Stephanie Saul. Less for Women? Work Life Statistics May Limit Sept. 11 Fund Payouts to Victims, Newsday (New York, N.Y.), Jan. 4, 2002.
2We understand that those tables are published by the Bureau of Labor Statistics as Worklife Estimates: Effects of Race and Education (Bulletin 2254) (Feb. 1986) and available at http://www.bls.gov/cps/cpsb2254.pdf.