dojN002649.xml

dojN002649.xml

born-digital

email

yes

no

2002-01-22

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
January 22, 2002



Mr. Kenneth L. Zwick
Director
Office of Management of Programs, Civil Division
U.S. Department of Justice
Main Building, Room 3140
Washington, DC 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 laws 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 tables 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 calculation 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 generated by the Bureau of Labor Standards from 1979-80 data. 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 &
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 gener-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 give an opportunity for comment.

The use of race and gener-based tables to calculate compensation to families of victims of the
September 11th terrorist attacks will surely be divisive, will lead to litigations and by any measure, will
be a serious mistake.

Very truly yours,

Comment by:
NAACP Legal Defense and Educational Fund, Inc.
New York, NY

cc: Honorable John D. Ashcroft, Attorney General
Kenneth R. Feinberg, Special Master

2002-01-22