[Congressional Record Volume 141, Number 40 (Friday, March 3, 1995)]
[Senate]
[Pages S3466-S3476]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KYL (for himself, Mr. Grams, Mr. Abraham, and Mr. Craig):
S. 494. A bill to balance the Federal budget by fiscal year 2002
through the establishment of Federal spending limits; to the Committee
on the Budget and the Committee on Governmental Affairs, jointly,
pursuant to the order of August 4, 1977, with instructions that if one
Committee reports, the other Committee have thirty days to report or be
discharged.
the balanced budget/spending limitation act of 1995
Mr. KYL. Mr. President, I rise today with my colleagues, Rod Grams,
Spencer Abraham, and Larry Craig to introduce the Balanced Budget/
Spending Limitation Act of 1995, a bill designed to balance the budget
by fiscal year 2002, through the establishment of Federal spending
limits and sequestration. An identical bill is being introduced in the
House of Representatives by Representatives Jim McCrery and Mel
Hancock.
The Balanced Budget/Spending Limitation Act establishes a mechanism
to limit spending and enforce limits. It establishes a Federal spending
limit as 21.5 percent of the gross domestic product in fiscal year
1996, declining one-half percent of GDP per year to 19 percent in
fiscal year 2001.
In subsequent years, Federal spending would have to balance with
revenue but could not exceed 19 percent of the gross domestic product.
Any excess of spending over receipts or the Federal spending limits
would be eliminated by sequesters, including a new fiscal year start
sequester designed to hold a fiscal year's spending accountable for any
actual deficit in the prior year.
The Federal spending limits in the Balanced Budget/Spending Limit Act
are established in recognition of the fact, as the Senator from Idaho
said a moment ago, that revenues have fluctuated only within the narrow
bands of 18 to 20 percent of the gross domestic product for the last 40
years, despite tax increases, tax cuts, economic contractions, and
expansions and fiscal policies pursued by Presidents of both parties.
In effect, the economy has already imposed an effective limit on how
much revenue the Federal Government can raise--19 percent of the gross
domestic product, exactly the level of today. While tax rate increases
and tax cuts may produce temporary surges and declines in revenue,
revenues always adjust at about 19 percent of GDP, and that is because
changes in the Tax Code affect people's behavior. Higher taxes
discourage work, production, savings, and investment, slowing economic
growth. And with less economic activity to tax, of course, revenues to
the Treasury are never as great as the tax writers expect.
On the other hand, lower tax rates stimulate work, production,
savings, and investment so revenues to the Treasury increase even at
lower tax rates.
With that in mind, the only way that Congress really can ever balance
the budget is to ratchet spending as a share of GDP down to the level
of revenues the economy has historically been willing to bear--19
percent of GDP.
Limit spending, and there is no need for Congress to consider tax
rate increases. It would not be allowed to spend any additional revenue
that it raised. Besides, as reflected in historical trends, tax rate
increases are more likely to slow economic growth than produce
additional revenue relative to the gross domestic product.
Link spending to economic growth, as measured in terms of GDP, and a
positive incentive is created for Congress to support pro-growth
economic policies. The more the economy grows, the more Congress is
allowed to spend, although always proportionate to the size of the
Nation's economy. In other words, 19 percent of a larger GDP represents
more revenue to the Treasury and, thus, more than Congress is allowed
to spend, than 19 percent of a smaller GDP.
The advantages of the Federal spending limits are thus threefold.
First, it will get us to a balanced budget by limiting spending, not
increasing tax rates; second, it will shrink Government relative to the
size of the economy; and third, it gives Congress a strong incentive to
support policies that will keep the economy healthy and strong,
policies of less taxation, less regulation and less spending that the
American people are demanding anyway.
For those Members of the Senate who voted against the balanced budget
amendment saying Congress could do the job if it only had the courage
and the will, well, here is your chance. For those who express concern
about Social
[[Page S3467]] Security, this bill provides for protection of the trust
funds that we promised during the debate on the balanced budget
amendment. The balanced budget amendment will never be a threat to
Social Security.
Mr. President, with or without a balanced budget amendment, deficit
spending must stop. We know that. The economic security of the Nation
is at stake. The future of our children and our grandchildren is at
stake as a result of the mountain of debt Congress is leaving behind.
This bill we are introducing today defines the glidepath and includes
the enforcement mechanism to get the budget to balance, and I am going
to urge its prompt consideration by this body so that we can
immediately demonstrate to the State legislatures, to the people of
this country and, frankly, to many of our colleagues who did not
support the balanced budget amendment yesterday that we mean business,
that we mean to balance this budget by the year 2002 and that we are
prepared to begin the steps to achieve that goal. One of the first
steps should be the adoption of legislation such as this to establish
the framework for achieving our goal.
______
By Mrs. KASSEBAUM:
S. 495. A bill to amend the Higher Education Act of 1965 to stabilize
the student loan programs, improve congressional oversight, and for
other purposes; to the Committee on Labor and Human Resources.
the student loan evaluation and stabilization act
Mrs. KASSEBAUM. Mr. President, I introduce the Student Loan
Evaluation and Stabilization Act. Similar legislation has been
introduced in the House by Congressman Goodling and others.
The provisions of this bill are designed to accomplish four main
goals:
First, to cap the direct loan program at 40 percent of student loan
volume;
Second, to correct problems in the budget scoring process which
result in an inaccurate accounting of the full costs of the direct loan
program;
Third, to clarify congressional intent on a number of provisions of
the legislation which established the direct loan program; and
Fourth, to level the playing field with respect to direct loans and
guaranteed loans so that they can be evaluated based on real
differences in the administration, efficiency, and effectiveness
between the two programs.
It is no secret that I have serious reservations and concerns about
the direct loan program enacted into law last Congress in the Omnibus
Budget Reconciliation Act, otherwise known as OBRA 1993.
I am troubled that the President is proposing a further expansion of
this program in his fiscal year 1996 budget request. This proposal,
which would institute 100 percent direct lending by academic year 1997-
98, amounts to a total Federal takeover of a successful public/private
sector partnership--the Student Loan Program. This approach stands in
stark contrast to the ``reinventing'' Government message promoted by
Vice President Gore, where the focus is on privatizing more Federal
functions and reducing the size of the Federal Government.
I can support a demonstration of a direct loan program, but I believe
that the small 5-percent demonstration included in the Higher Education
Act Amendments of 1992 was adequate. I believe that OBRA 1993 went far
beyond a demonstration in allowing for the eventual replacement of 60
percent of the Federal guaranteed student loan program with a direct
loan program.
Thus, my legislation would cap the direct lending program at the
level specified in current law for the second year of the program--
permitting up to 40 percent of the total student loan volume to be made
through direct Government loans. All schools which signed participation
agreements with the Department of Education in 1994 to enter the
program in July of this year will be able to enter the program, but the
program will not expand beyond this level until Congress authorizes
such an expansion.
Restoring the direct loan program to a more appropriate demonstration
level will allow for a more thoughtful evaluation and comparison of the
guaranteed Federal Family Education Loan [FFEL] Program and the Federal
Direct Student Loan [FDSL] Programs. It will allow both programs to
operate with continued stability until Congress has enough information
to determine which program is more effective and cost-efficient for
students, institutions of higher education, and taxpayers.
Through the reconciliation process, the 103d Congress made a
substantial change in the student loan program without the benefit of
comprehensive hearings or debate or of any evaluation results of the
direct loan demonstration included in the 1992 higher education
amendments.
This change was made in order to take advantage of the current budget
treatment of direct loans--which produces an inaccurate picture of its
true budgetary consequences because certain direct loan costs are
excluded in the scoring. These distortions have been well-documented by
the Congressional Budget Office. It is unfortunate that serious policy
decisions were driven by a budget process which hid the true costs of
this program.
As evidence of this shell game, the Department of Education has
criticized the companion bill introduced by Representative Goodling
stating that it would increase costs or budget outlays by $4.9 billion
because the bill would change the budget scoring process. The
Department's analysis notes that this change in the scoring process
``does not change the long-term cost of the Direct Loan program, it
only changes when those costs are scored for budgetary purposes.''
This analysis illustrates the frustrating situation we face in
getting a handle on the real costs of direct lending. What the
materials developed by the Department say, in effect, is that current
scoring practices undercount $4.9 billion in costs for the current
direct loan program! Moving to 100 percent direct lending to claim more
savings, as proposed by the President, will only compound the problem.
We cannot and should not continue to operate in this type of budgetary
Fantasyland.
The Department's criticism is also disingenuous because a change in
scoring would not increase costs or force the Congress to pay for the
scoring change. It would simply allow the direct and guaranteed student
loan programs to be scored in the same manner so we can truly compare
the costs of the two programs.
Therefore, I have included in this legislation an amendment to the
Congressional Budget Act that would provide a more accurate comparison
of direct and guaranteed student loans.
The bill also clarifies congressional intent with respect to several
provisions of the direct loan authorization legislation. Specifically:
First, my legislation specifies that direct consolidation loans are
intended to be offered only to students with guaranteed loans who
cannot obtain consolidation loans or income-contingent repayment from
participating guaranteed loan lenders. This clarification is important,
as the administration is in the process of developing a plan that could
result in transferring millions of dollars worth of guaranteed loans
into the direct loan program through the direct consolidation loan
program. The magnitude of this program, as well as the circumstances
under which the administration envisions it would apply, goes far
beyond congressional intent in providing authority for consolidation
loans.
Second, the bill makes clear that Department officials must calculate
default rates for direct lending schools just as they do for guaranteed
loan schools. To date, Department officials have not indicated how they
will calculate default rates for direct loan schools or for students
that select income-contingent loan repayment. Many schools with high or
rising default rates entered the direct loan program because they saw
this as a way to escape penalties for high default rates or to reduce
their default rates.
Third, in order to determine the effect of income-contingent
repayment on institutional cohort default rates, the bill also requires
the Department to report various data on loans being repaid through
such repayment.
Finally, the bill clarifies certain provisions of the law which the
Department has interpreted and implemented in a way that gives direct
lending an edge over the guaranteed loan program. True comparisons
between the two programs are not possible with such differences. Thus,
my bill levels
[[Page S3468]] the playing field between the two programs.
Having described what my bill does, I would also like to clarify what
the bill does not do.
First, the changes that I am proposing will have no effect on student
access to Federal loans, on the costs of those loans to students, or on
the amount that students may borrow. There is a widespread
misconception that the direct loan program offers lower fees and
interest rates than those available to guaranteed loan borrowers. This
is simply not the case.
The issue in this debate is who should be making the loans and
providing the capital--the Federal Government or the private sector.
The issue is not the availability or cost of loans to students.
Second, my legislation will not reduce the number of repayment
options available to students. The repayment options available to
students in the guaranteed loan program are virtually identical to
those in the direct loan program. Students have multiple repayment
options available to them in both programs--including options to repay
over longer periods of time or to make smaller initial payments which
gradually increase over time as earnings increase.
In fact, my bill will increase the number of repayment options
available by permitting students in the guaranteed loan program to
repay their loans based on their incomes--an option now available only
to students participating in the direct loan program. I would hope that
students would exercise caution in selecting this option, given that it
could greatly increase the amount they end up repaying. However, I feel
the option should be made available to both guaranteed and direct loan
student borrowers--many of whom may otherwise default on their loans.
As the legislative process continues, I will be keeping an open mind
to other program changes designed to maximize the benefits of private
sector participation in the Federal student lending program while
holding down the costs to taxpayers. These changes could include steps
such as increased risk-sharing by lenders and guaranty agencies--
coupled with relief from burdensome and unnecessary regulations.
It is my hope that Congress can act promptly to correct the problems
I have identified, so that decisions regarding Federal student loans
can be made on the basis of sound policy rather than on flawed budget
scoring procedures.
Mr. President, I ask unanimous consent that the text of the bill and
additional material be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 495
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``Student
Loan Evaluation and Stabilization Act of 1995''.
(b) References.--References in this Act to ``the Act'' are
references to the Higher Education Act of 1965 (20 U.S.C.
1001 et seq.).
SEC. 2. FINDINGS.
The Congress finds that:
(1) The current public/private student loan partnership is
fulfilling the mission set for it by Congress, delivering
loans to students reliably and in a timely fashion, and
should be preserved.
(2) The Administration's dismantling of the Federal Family
Education Loan (FFEL) Program which has begun in order to
replace it with an unproven direct Government lending
program, which increases the Federal debt, further enlarges
the Federal bureaucracy, adds major new financial oversight
activities to the already overburdened Department of
Education, and forces Congress to depend on estimated budget
savings which may prove illusory, needs to be stopped so that
a true and valid comparison of the student loan programs can
occur.
(3) The Federal Direct Student Loan (FDSL) Program pilot is
only now getting started and has proceeded fairly smoothly
when dealing with 5 percent of new loan volume. This slow and
cautious approach should be continued as the volume increases
to 40 percent. This pilot program should continue to proceed
slowly and cautiously and demonstrate successful results
before expanding it to additional loan volume.
(4) While the FDSL Program pilot continues its test phase,
reform of the FFEL Program which will benefit students and
institutions of higher education, should be a continuing
priority for the Department of Education.
SEC. 3. PARTICIPATION OF INSTITUTIONS AND ADMINISTRATION OF
DIRECT LOAN PROGRAMS.
(a) Limitation on Proportion of Loans Made Under the Direct
Loan Program.--Section 453(a) of the Act (20 U.S.C. 1087c(a))
is amended--
(1) by amending paragraph (2) to read as follows:
``(2) Determination of Number of Agreements.--In the
exercise of the Secretary's discretion, the Secretary shall
enter into agreements under subsections (a) and (b) of
section 454 with institutions for participation in the
programs under this part, subject to the following:
``(A) for academic year 1994-1995, loans made under this
part shall represent 5 percent of new student loan volume for
such year; and
``(B) for academic year 1995-1996 and for any succeeding
fiscal year, loans made under this part shall represent 40
percent of new student loan volume for such year, except that
the Secretary may not enter into agreements under subsections
(a) and (b) of section 454 with any additional eligible
institutions that have not applied and been accepted for
participation in the program under this part on or before
December 31, 1994.''.
(2) by striking paragraph (3); and
(3) by redesignating paragraph (4) as paragraph (3).
(b) Elimination of Conscription.--Section 453(b)(2) of the
Act is amended--
(1) by striking subparagraph (B);
(2) by redesignating subparagraphs (A)(i) and (A)(ii) as
subparagraphs (A) and (B) respectively; and
(3) in such subparagraph (B) (as so redesignated) by
striking ``clause (i); and'' and inserting ``subparagraph
(A).''.
(c) Control of Administrative Expenses.--
(1) Administrative Expenses.--Section 458(a) of the Act is
amended to read as follows:
``(a) In General.--For each fiscal year, there shall be
available to the Secretary from funds not otherwise
appropriated, funds for all direct and indirect expenses
associated with the Direct Student Loan program under this
part.''
(2) Improved congressional oversight of administration.--
(A) Section 458(b) of the Act is amended to read as follows:
``(b) Funding Triggers.--For each fiscal year, funds
available under this section may be obligated only in such
amounts and according to such schedule as specified in the
appropriations Act for the Department of Education of a
detailed proposal of expenditures under this section.''.
(B) Section 458(d) of the Act is amended to read as
follows:
``(d) Quarterly Report.--The Secretary shall provide a
detailed quarterly report of all monies expended under this
section to the Chairman of the Committee on Labor and Human
Resources of the Senate and the Chairman of the Committee on
Economic and Educational Opportunities of the House of
Representatives. Such report shall specifically identify all
contracts entered into by the Department for services
supporting the loan programs under parts B and D of this
title and the current and projected costs of such
contracts.''
(3) Administrative cost allowance.--Section 428(f) of the
Act is amended--
(A) in subsection (A) by striking out ``For a fiscal year
prior to fiscal year 1994, the'' and inserting in lieu
thereof ``The''; and
(B) by inserting after the first sentence of subsection (B)
the following new sentence:
``For fiscal year 1996 and each succeeding fiscal year,
each guaranty agency shall elect to receive an administrative
cost allowance, payable quarterly, for such fiscal year
calculated on the basis of either of the following:
``(i) 0.85 percent of the total principal amount of the
loans upon which insurance was issued under part B during
such fiscal year by such guaranty agency; or
``(ii) 0.08 percent of the original principal amount of
loans guaranteed by the guaranty agency that was outstanding
at the end of the previous fiscal year.''
(d) Elimination of Transition to Direct Loans.--The Act is
further amended--
(1) in section 422(c)(7)--
(A) by striking ``during the transition'' and all that
follows through ``part D of this title'' in subparagraph (A);
and
(B) by striking ``section 428(c)(10)(F)(v)'' in
subparagraph (B) and inserting ``section 428(c)(9)(F)(v)'';
(2) in section 428(c)(8)--
(A) by striking ``(A)'' after the paragraph designation;
and
(B) by striking subparagraph (B);
(3) in section 428(c)(9)(E)--
(A) by inserting ``or'' after the semicolon at the end of
clause (iv);
(B) by striking``; or'' at the end of clause (v) and
inserting a period; and
(C) by striking clause (vi);
(4) in clause (vii) of section 428(c)(9)(F)--
(A) by inserting ``and'' before ``to avoid disruption'';
and
(B) by striking ``, and to ensure an orderly transition''
and all that follows through the end of such clause and
inserting a period;
(5) in section 428(c)(9)(K), by striking ``the progress of
the transition from the loan programs under this part to''
and inserting ``the integrity and administration of'';
(6) in section 428(e)(1)(B)(ii), by inserting ``during the
transition'' and all that follows through ``part D of this
title'';
[[Page S3469]] (7) in section 428(e)(3), by striking ``of
transition'';
(8) in section 428(j)(3)--
(A) by striking ``during transition to direct lending'' in
the heading of paragraph (3); and
(B) by striking ``during the transition'' and all that
follows through ``part D of this title,'' and inserting a
comma;
(9) in section 453(c)(2), by striking ``transition'' and
inserting ``institutional'' in the heading of paragraph (2);
(10) in section 453(c)(3), by striking ``after transition''
in the heading of paragraph (3); and
(11) in section 456(b)--
(A) by inserting ``and'' after the semicolon at the end of
paragraph (3);
(B) by striking paragraph (4);
(C) by redesignating paragraph (5) as paragraph (4); and
(D) in such paragraph (4) (as redesignated), by striking
``successful operation'' and inserting ``integrity and
efficiency.''
SEC. 4 DIRECT LOANS HAVE THE SAME TERMS AND CONDITIONS AS
FEDERAL FAMILY EDUCATION LOANS.
(a) In General.--Section 455(a)(1) of the Act (20 U.S.C.
1087e(a)(1)) is amended to read as follows:
``(1) Parallel Terms, Conditions, Benefits and Amounts.--
Unless otherwise specified in this part, loans made to
borrowers under this part shall have the same terms,
conditions, eligibility requirements and benefits, and be
available in the same amounts, as the corresponding types of
loans made to borrowers under section 428, 428B, 428C and
428H of this title.''.
(b) Direct Consolidation Loans.--Section 455(a)(2) of the
Act is amended--
(1) by striking ``and'' at the end of subparagraph (B);
(2) by redesignating subparagraph (C) as subparagraph (D);
and
(3) by inserting after subparagraph (B) the following new
subparagraph:
``(C) section 428C shall be known as `Federal Direct
Consolidation Loans'; and''.
SEC. 5. ABILITY OF BORROWERS TO CONSOLIDATE UNDER DIRECT AND
GUARANTEED LOANS PROGRAMS.
(a) Ability of Part D Borrowers to Obtain Federal Stafford
Consolidation Loans.--Section 428C(a)(4) of the Act (20
U.S.C. 1078-3(a)(4)) is amended--
(1) by striking ``or'' at the end of subparagraph (B);
(2) by redesignating subparagraphs (C) and (D) as
subparagraphs (D) and (E); and
(3) by inserting after subparagraph (B) the following new
subparagraph:
``(C) made under part D of this title;''.
(b) Ability of Part B Borrowers to Obtain Federal Direct
Consolidation Loans.--Section 428C(b)(5) of the Act is
amended to read as follows:
``(5) Direct Consolidation Loans for Borrowers in Specified
Circumstances.--(A) The Secretary may offer a borrower a
direct consolidation loan if a borrower otherwise eligible
for a consolidation loan pursuant to this section is--
``(i) unable to obtain a consolidation loan from a lender
with an agreement under subsection (a)(1); or
``(ii) unable to obtain a consolidation loan with an income
contingent repayment schedule from a lender with an agreement
under subsection (a)(1).
``(B) The Secretary shall establish appropriate
certification procedures to verify the eligibility of
borrowers for loans pursuant to this paragraph.
``(C) The Secretary shall not offer such consolidation
loans if, in the Secretary's judgment, the Department of
Education does not have the necessary origination and
servicing arrangement in place for such loans, or the
projected volume in the program would be destabilizing to the
availability of loans otherwise available under this part.''.
SEC. 6. INCOME CONTINGENT REPAYMENT IN THE FEDERAL FAMILY
EDUCATION LOAN PROGRAM.
(a) Insurance Program Agreement.--Section 428(B)(1)(E)(i)
of the Act (20 U.S.C. 1078(b)(1)(E)(i)) is amended by
striking ``or income-sensitive repayment schedule'' and
inserting in lieu thereof ``repayment schedule or either an
income-sensitive or income contingent repayment schedule''.
(b) Repayment Schedules.--Section 428(c)(A) of the Act is
amended by striking ``or income-sensitive repayment
schedules'' and inserting in lieu thereof ``repayment
schedules or either income sensitive or income contingent
repayment schedules''.
(c) Definitions.--Section 435 of the Act is amended by
adding a new subsection (n):
``(n) Income Contingent Repayment Schedules.--For the
purpose of this part, income contingent repayment schedules
established pursuant to section 428(b)(1)(E)(i) and
428(c)(2)(A) may have terms and conditions comparable to
terms and conditions established by the Secretary pursuant to
section 45(e)(4).''.
SEC. 7. RESERVE FUND REFORMS.
(a) Guaranty Agency Reserve Levels.--Section 428(c)(9) of
such Act (20 U.S.C. 1078(c)(9)) is amended--
(1) in subparagraph (E)--
(A) by striking ``The Secretary'' and inserting ``After
notice and opportunity for hearing on the record, the
Secretary''; and (2) in subparagraph (F)--
(A) by inserting ``dedicated to the functions of the agency
under the loan insurance program under this part'' after
``assets of the guaranty agency'' in clause (vi); and
(B) in clause (vi), by inserting before ``; or'' the phrase
'', except that the Secretary may not take any action to
require the guaranty agency to provide to the Secretary the
unencumbered non-Federal portion of a reserve fund (as
defined in section 422(a)(2))''.
(b) Additional Amendments.--Section 422 of the Act is
further amended--
(1) in the last sentence of subsection (a)(2), by striking
``Except as provided in section 428(c)(10) (E) or (F), such''
and inserting ``Such'';
(2) in subsection (g), by striking paragraph (4) and
inserting the following:
``(4) Disposition of funds returned to or recovered by the
secretary.--Any funds that are returned to or otherwise
recovered by the Secretary pursuant to this subsection shall
be retuned to the Treasury of the United States for purposes
of reducing the Federal debt and shall be deposited into the
special account under section 3113(d) of title 31, United
States Code.''.
SEC. 8. DEFAULT RATE LIMITATIONS ON DIRECT LENDING.
(a) Ineligibility Based on Default Rates.--Section
435(a)(2) of the Act (20 U.S.C. 1085(a)(2)) is amended by
inserting ``or part D'' after ``under this part''.
(b) Cohort Default Rate.--Section 435(m)(1) of the Act is
amended by:
(1) striking ``428, 428A, or 428H'' in paragraph (A) and
inserting ``428, 428A, 428H, or part D of the Act (except for
Federal Direct PLUS Loans)'';
(2) striking ``428C'' in paragraph (A) and inserting ``428C
or 455(g)'';
(3) striking ``428C'' in paragraph (C) and inserting ``428C
or 455(g)''; and
(4)(A) in paragraph (B), by striking ``only''; and
(B) in paragraph (B) by inserting ``and loans made under
part D determined to be in default,'' after ``for
instance.''.
(c) Income Contingent Repayment.--Section 435(m) of the Act
is amended by adding at the end thereof the following new
paragraph:
``(5)(A) The Secretary shall produce an annual report on
loans subject to repayment schedules under sections
428(b)(1)(E)(i), 428C(c)(2)(A), and 455(e)(4) at the end of
each fiscal year detailing, by institution and for the title
IV, part B and D programs separately and together--
``(i) the number and amount of loans scheduled for payments
that did not equal the interest accruing on the loan,
``(ii) the number and amount of loans where no payment was
scheduled to be received from the borrower due to their low-
income status,
``(iii) the number and amount of loans where a scheduled
payment was more than 90 days delinquent, and
``(iv) the projected amount of interest and principal to be
forgiven at the end of the 25 year repayment period, based on
the projected payment schedule for the borrower over that
period.
``(B) Such report shall be made available at the same time
as the reports required under section 435(m)(4) of this
Act.''.
(d) Termination of Institutional Participation.--Section
455 of the Act is amended by adding at the end the following
new subsection:
``(k) Termination of Institutions for High Default Rates.--
``(l) Methodology and criteria.--After consultation with
institutions of higher education and other members of the
higher education community, the Secretary shall develop--
``(A) a methodology for the calculation of institutional
default rates under the loan programs operated pursuant to
this part;
``(B) criteria for the initiation of termination
proceedings on the basis of such default rates; and
``(C) procedures for the conduct of such termination
proceedings.
``(2) Comparability to part b.--In developing the
methodology, criteria, and procedures required by paragraph
(1), the Secretary shall, to the maximum extent possible,
establish standards for the termination of institutions from
participation in loan programs under this part that are
comparable to the standards established for the termination
of institutions from participation in the loan programs under
part B. Such procedures shall also include provisions for the
appeal of default rate calculations based on deficiencies in
the servicing of loans under this part that are comparable to
the provisions for such appeals based on deficiencies in the
servicing of loans under part B.''.
``(3) Limitation on authorization to issue new loans under
this part.--Such standards and procedures required by
paragraphs (1) and (2) shall be promulgated in final form no
later than 120 days after date of enactment of this
paragraph. Notwithstanding any other provision of this part,
no new loan under this part shall be issued after 120 days
after the date of enactment of this paragraph if the
standards and procedures required under this section have not
been promulgated prior to that date. The authority to issue
new loans under this part shall resume upon the Secretary's
issuance of such standards and procedures.''
SEC. 9. USE OF ELECTRONIC FORMS.
Section 484(a) of the Act (20 U.S.C. 1091b(a)) is amended
by adding the following new paragraph after paragraph (a)(4):
``(5) Electronic Forms.--(A) Nothing in this Act shall
preclude the development, production, distribution or use of
the form described in subsection (a)(1) in an electronic
[[Page S3470]] format through software produced or
distributed by guaranty agencies or eligible lenders, or
consortia thereof. Such electronic form need not require the
signature of the applicant to be collected at the time the
form is submitted, if the applicant certifies the output of
the application in a subsequent document. No fee may be
charged in connection with use of the electronic form
described in subsection (a)(1).
``(B) The Secretary shall approve the use of an electronic
form submitted for approval that is not inconsistent with the
provisions of this part or part B within 30 days of such
submission. In the case of any electronic form not approved,
the Secretary shall specifically identify the changes to the
form necessary to secure approval.''.
SEC. 10. APPLICATION FOR PART B LOANS USING FREE FEDERAL
APPLICATION.
Secton 483(a) of the Act (20 U.S.C. 1090(a)) is amended--
(1) in paragraph (1)--
(A) by inserting ``B,'' after ``assistance under parts
A,'';
(B) by striking ``part A) and to determine the need of a
student for the purpose of part B of this title'' and
inserting ``part A).''; and
(C) by striking the last sentence and inserting the
following: ``Such form may be in an electronic or any other
format (subject to section 485B) in order to facilitate use
by borrowers and institutions.''; and
(2) in paragraph (3), by striking ``and States shall
receive,'' and inserting'', any guaranty agency authorized by
any such institution, and States shall receive, at their
request and''.
SEC. 11. CREDIT REFORM.
(a) Amendment.--Section 502(5)(B) of the Congressional
Budget Act (31 U.S.C. 661a(5)(B)) is amended to read as
follows:
``(B) The cost of a direct loan shall be the net present
value, at the time when the direct loan is disbursed, of the
following cash flows for the estimated life of the loan:
``(i) Loan disbursements.
``(ii) Repayments of principal.
``(iii) Payments of interest and other payments by or to
the Government over the life of the loan after adjusting for
estimated defaults, prepayments, fees, penalties, and other
recoveries.
``(iv) In the case of a direct student loan made pursuant
to the program authorized under part D of title IV of the
Higher Education Act of 1965, direct and indirect expenses,
including but not limited to the following: expenses arising
from credit policy and oversight, activities related to
credit extension, loan origination, loan servicing, training,
program promotion and payments to contractors, other
Government entities, and program participants, collection of
delinquent loans, and write-off and close-out of loans.''.
(b) Effective Date.--The amendment made by subsection (a)
of this section shall apply to all fiscal years beginning on
or after October 1, 1995, and to statutory changes made on or
after the date of enactment of this Act.
____
Summary of S. 495
The bill will do four basic things:
(1) Cap the direct loan program at 40 percent of student
loan volume.
(a) This allow for the continued implementation of the
Federal Direct Student Loan Program (FDSL) at the loan volume
currently authorized for the second year of the program
(beginning July 1995).
(b) It provides for the continued stability of the Federal
Family Education Loan Program (FFELP--previously known as the
Guaranteed Student Loan or the Stafford and PLUS loan
programs).
(c) It improves congressional oversight of administrative
expenditures.
(2) Improve the accuracy of the budget scoring process.
The bill revises the Congressional Budget Act so that
budget scoring will be fair and accurate when determining and
comparing costs associated with the FFELP loan program and
the direct lending program.
(3) Clarify congressional intent with respect to provisions
of the law establishing the direct loan program.
(a) Clarifies that direct consolidation loans are intended
to be offered only to those students who cannot obtain
consolidation loans or income-contingent repayment from
participating lenders.
(b) Clarifies that default rates should be calculated for
direct lending schools as they are for FFELP loan schools.
(c) Also requires the reporting of data on direct loans
being repaid through income-contingent repayment in order to
determine the effect of such repayment on cohort default
rates.
(4) Make the FDSL and FFELP programs more comparable so
that they can be evaluated based on ``real'' differences
between the administration, efficiency, and effectiveness of
the two programs.
(a) Clarify that the guaranteed loan program and the direct
loan program have essentially the same terms and conditions
for loans and their repayment.
(b) Allow income-contingent repayment for FFELP borrowers.
(c) Make the application processes similar for FFELP and
direct loan students.
____
Section-by-Section Analysis
Section 1. Short Title. The bill is to be cited as the
``Student Loan Evaluation and Stabilization Act of 1995.''
Section 2. Findings. The bill makes four findings upon
which the legislation is based. The findings highlight the
fact that the Federal Direct Student Loan Program (direct
loan program) is in its pilot phase and that a slow and
cautious approach toward implementing the program should be
continued. The findings further emphasize that the federal
debt, further enlarges the federal bureaucracy, adds major
new financial oversight activities to the Department of
Education, and forces Congress to depend on an estimated
budget savings that may prove illusory. In addition, the
findings note that reform of the Federal Family Education
Loan Program (guaranteed loan program) should be a continuing
priority of the Department of Education.
Section 3. Participation of Institutions and Administration
of Direct Loan Programs.
Subsection (a). Participation in direct loans is limited as
follows:
(1) five percent of new student loan volume for academic
year 1994-1995;
(2) for academic year 1995-1996 loans to those students and
parents of students attending institutions who have applied
and been accepted for participation in the direct loan
program on or before December 31, 1994.
Subsection (b). The authority of the Secretary to force
schools into the direct loan program is eliminated.
Subsection (c). Section 458 of the HEA is amended so that
administrative expenses for the direct loan program under are
made available on an entitlement basis to cover the full
administrative costs of direct loans made under Part D. These
costs are recognized on a net present value basis under the
Credit Reform Act amendment in section 11 of this
legislation.
This section also establishes ``funding triggers'' for the
release of funds under section 458. Funds may be obligated
only in such amounts and according to the schedules specified
under the Appropriations Act for the Department of Education
after submission of a detailed proposal for expenditures
under this section.
In addition, this section also directs the Secretary to
produce a detailed quarterly report of the expenditures of
monies under section 458.
Finally, this section mandates payment of an administrative
cost allowance to guaranty agencies based on the following
formula: .85 percent of the total principal amount of the
loans for which insurance was issued during the fiscal year,
or .08 percent of the original principal amount of the loans
guaranteed by the program that are outstanding at the end of
the previous fiscal year. Agencies elect which formula under
which to receive payment.
Subsection (d). References to the transition to the direct
loan program are eliminated from the HEA.
Section 4. Direct Loans Have the Same Terms and Conditions
as Federal Family Education Loans. The legislation clarifies
and strengthens Congressional intent that direct and
guaranteed loans have essentially the same terms, conditions,
eligibility requirements, and loan limits.
Section 5. Ability of Borrowers to Consolidate Under Direct
and Guaranteed Loan Programs.
Subsection (a). Borrowers of direct loans under Part D are
made eligible to consolidate such loans into a Federal
Stafford Consolidation Loan.
Subsection (b). The HEA is clarified to reflect
Congressional intent that a guaranteed loan borrower is only
eligible to obtain a direct consolidation loan when they are
unable to obtain a consolidation loan from a lender. The law
is also modified to limit eligibility of a guaranteed loan
borrower to those students who are unable to obtain a
consolidation loan with an income-contingent loan repayment
schedule from a lender.
This section also requires the Secretary to establish
appropriate certification procedures to verify eligibility of
borrowers and it prohibits the Secretary from offering
consolidation loans if the Department lacks the capacity or
if the projected loan volume would destabilize the
availability of guaranteed loans.
Section 6. Income Contingent Repayment in the Federal
Family Education Loan Program. The legislation authorizes
guaranteed student loan borrowers to repay their loans
through income-contingent repayment to lenders like in the
direct loan program.
Section 7. Reserve Fund Reforms. The legislation requires
due process procedures, including a hearing on the record,
for the return of guaranty agencies reserve funds. The
legislation further restricts the expenditure of such funds,
and those funds otherwise recovered by the Secretary, by
requiring the funds to be returned to the U.S. Treasury.
Section 8. Default Rate Limitations on Direct Lending. This
section clarifies the HEA to reflect Congressional intent
that the Secretary is required to calculate default rates for
direct lending schools and to terminate such schools if they
exceed the default rates established in the law as is done
currently for the guaranteed loan schools.
This section also requires the reporting of data on direct
loans being repaid through income-contingent repayment in
order to determine the effect of such repayment on cohort
default rates.
In addition, section 455 of the HEA is modified by
directing the Secretary to develop criteria for the
calculation of default rates for institutions participating
in the direct loan program. The methodology, criteria, and
procedures to be used in determining
[[Page S3471]] such default rates must be comparable to those
applied to schools participating in the guaranteed loan
program under Part B of the HEA. Such standards must be
promulgated no later than 120 days after the date of
enactment of this legislation or the Secretary may no longer
make any new direct loans.
Section 9. Use of Electronic Forms. This section permits
the development, production, distribution and use of an
electronic version of the common application form by guaranty
agencies, lenders, and consortium thereof to expedite the
processing of student loans. Requires that the Secretary
approve the form to ensure it is consistent with the
requirements of the HEA. Allows the applicant to certify that
the output of the application is accurate in a subsequent
document. The legislation prohibits a fee from being charged
to students in connection with the use of this form.
Section 10. Application for Part B Loans Using the Free
Federal Application. Section 483(A) of the HEA is amended to
clarify that the application may be the Free Application for
Federal Student Assistance (FAFSA). The legislation also
clarifies that the application may be in an electronic or
other format in order to facilitate use by borrowers and
institutions. Finally, this section clarifies that data shall
be available to any guaranty agency authorized by an
institution.
Section 11. Credit Reform. The bill modifies section
502(5)(B) of the Congressional Budget Act to require
consideration of direct and indirect expenses associated with
Federal Direct Student Loans, including, but not limited to,
expenses arising from credit policy and oversight, credit
extension, loan origination, loan servicing, training,
program promotion, and payments to contractors. The amendment
would apply to all fiscal years beginning on or after October
1, 1995, and to statutory changes made on or after the date
of enactment of this bill.
______
By Mr. WARNER (for himself and Mr. Robb):
S. 496. A bill to abolish the Board of Review of the Metropolitan
Washington Airports Authority, and for other purposes; to the Committee
on Commerce, Science, and Transportation.
the board of review of the metropolitan washington airports authority
abolition act of 1995
Mr. WARNER. Mr. President, on January 26, 1995, I joined with my
colleagues Senators McCain and Robb in introducing legislation in the
Senate to abolish the Board of Review of the Metropolitan Washington
Airports Authority.
Mr. President, I have been involved for many years in seeking to
devise a legislative solution to the constitutional issues that exist
due to the decisions of the Congressional Board of Review.
Unfortunately, Mr. President, I have learned that the legislation
which my colleagues and I introduced does include a provision which I
do not support. The provision is contained in section 3 of the
legislation which is the elimination of the perimeter rule with respect
to certain nonstop flights.
After further review and analysis of this provision, and after
consultation with the Governor of Virginia and the Metropolitan
Washington Airports Authority, I have learned that adoption of such a
provision would be detrimental to the current and projected operations
of Washington National Airport and Washington Dulles International
Airport. Eliminating the perimeter rule could in the short term disrupt
existing air service patterns, with nonstop flights to cities within
the perimeter being canceled as flights are added to more distant and
economically beneficial destinations. In the longer term, both the
airlines and the cities that could suffer a loss in nonstop service to
National could call for increases in the number of flights allowed at
National.
Mr. President, today I am introducing legislation along with my
colleague Senator Robb, which will seek to abolish the Board of Review
of the Metropolitan Washington Airports Authority.
Mr. President, our legislation would: First, remove the
unconstitutional sections of the Metropolitan Washington Airports Act;
second, provide a savings clause to protect all actions of the
Authority taken under the old legislation; and third direct the
Secretary of Transportation to amend the Authority's 50-year lease.
This legislation provides a necessary cure to a constitutional
deficiency as defined by the Federal courts, in the structure of the
Airports Authority, which is operating and improving the two airports
that serve the Nation's Capital and the Washington region, Washington
National and Washington Dulles International.
In April 1994, the Court of Appeals for the District of Columbia
Circuit found that the Board of Review, made up of current and former
Senators and Members of Congress, violated constitutional separation of
powers principles. This was the second time the courts have struck down
the Board of Review,
which was designed to represent users of the airports and to preserve
some Federal control over them.
The court of appeals stayed its decision until the Supreme Court had
time to consider the issue. The Supreme Court decided not to hear the
case in January, and the stay expires March 31, 1995.
Therefore, I repeat, all Congress is required to do to keep the
airports in operation is to pass this legislation. Such continued
uninterrupted operations are essential to the travel requirements of
Members of Congress and their staffs.
If the Congress does not amend the Metropolitan Washington Airports
Act by that date, the Airports Authority Board of Directors will lose
all its power to take basic, critical actions, including the ability to
award contracts, issue more bonds, amend its regulations, change its
master plans, or adopt an annual budget.
This shutdown could not come at a worse time. The Airports Authority
is in the middle of a $2 billion construction program between two
airports.
In 1986, the Congress transferred the airports to an interstate
agency created by the District of Columbia and the Commonwealth of
Virginia. We did this because we recognized that an independent state-
level authority could do what the Federal Government apparently could
not--issue revenue bonds and undertake the major construction that was
so long overdue at both airports.
The Airports Authority has done a credible job carrying out
congressional intent. It has sold over $1.3 billion in tax-exempt
bonds, and has multimillion dollar projects underway to double the size
of the Dulles terminal and replace many of the National Airport
facilities with a modern new terminal building.
As of today, the Authority has already completed $331 million in
construction projects, and has an additional $416 million under
construction. The steel superstructure at National is visible to all;
just this week, construction crews topped off the new 220-foot high air
traffic control tower there.
Thus, we cannot afford to interrupt this construction progress by
Congress not acting by March 31, 1995. The Congress must pass this
legislation now.
Mr. President, recently the House Transportation subcommittee on
Aviation adopted H.R. 1036, the Metropolitan Washington Airports
Amendments Act of 1995. This legislation contains provisions which we
cannot support at this time.
Specifically, the legislation imposes a reauthorization provision in
which the Congress would reauthorize the Airports Authority every 2
years. Also, the statutory freeze on the 37 slots under the high
density rule would be repealed. This would mean that the Federal
Aviation Administration would be able to increase slots through a
rulemaking process.
Mr. President, all the Congress must consider now--before March 31--
legislation to abolish the Congressional Board of Review. Any further
delays will result in slowing the schedule and increasing the costs of
the major construction projects at both airports.
______
By Mr. HELMS (for himself and Mr. Faircloth):
S. 497. A bill to amend title 28, United States Code, to provide for
the protection of civil liberties, and for other purposes; to the
Committee on Governmental Affairs.
act to end unfair preferential treatment
Mr. HELMS. Mr. President, momentarily I am going to send a bill to
the desk for introduction but I want to make a few remarks before I do
that.
First of all, this bill will simply get us started along a road that
the Senate ought to have taken a long time ago. Senator Dole may have a
similar bill, in which case I will gladly serve as a cosponsor of his
bill, and I feel sure that he will want to be a cosponsor of mine.
There may be others. But somebody has to start the ball rolling and
that is what I am doing here at about 18 minutes until 3 p.m. on
Friday.
[[Page S3472]] Mr. President, unless I am badly mistaken, when the
bill I shall offer today hits the hopper there is likely to be the
usual outburst of usual phony demagoguery among our liberal brethren in
the political arena and in the news media. It always happens when a
proposal is made to do away with any Federal program that was
established in the first place to attract votes for liberal candidates
and liberal issues.
The liberal brethren can begin their holier than thou lamentations,
because here comes the bill that proposes to eliminate so-called
affirmative action programs that have done more harm than good in terms
of race relations, which have been exceedingly costly to the American
taxpayers, and worst of all, have been so burdensome for people trying
to operate small businesses or, in fact, businesses of any size.
This legislation, which I shall send to the desk presently, is almost
identical to the California Civil Rights Initiative which proposes to
erase several decades of State-sponsored preferential programs in
California based on race, color, gender, or ethnic background. If you
want to call it the Helms bill that is fine, but I want to call it,
``An Act to End Unfair Federal Preferential Treatment.'' And I hope
that hereinafter it will be known as that.
This bill's principal difference with the California legislation is
that I am proposing to eliminate the same kinds of discriminatory,
expensive, and counterproductive programs on the Federal level as
California is attempting on the State level.
As I said at the outset, Mr. President, we are likely to hear and see
the customary antics by the liberal news media who always start tossing
epithets around any time efforts are proposed to put an end to Federal
programs that do not work and that have done more harm than good--in
this case, the heavy-handed effort of Government to force so-called
affirmative action down the throats of the American people of all
races.
But I say, here and now, that this legislation--indeed this issue--is
not about race--although an intellectually dishonest liberal media may
try to portray it as such. It is about fairness. It is about putting an
end to reverse discrimination at the hands of ruthless bureaucrats.
Reasonable men and women may disagree about the wisdom of the
Government's having gotten into the business of racial and other
quotas, and affirmative action in the first place. But, now is not the
time to revisit that argument, or to attempt to unscramble that egg.
And that is not what this legislation is all about.
Rather, Mr. President, this legislation is based on questions being
raised by a vast percentage of the American people. For example:
First, with a Federal debt of $4.8 trillion, can Congress justify
forcing the American taxpayers to continue paying for programs that are
today no longer needed?
Second, should Congress--which so recklessly ran up this $4.8
trillion debt--now act to do away with the social engineering
foolishness that is so harming the country?
Third, after 30 years of federally funded affirmative action
programs, it is now time to say enough is enough.
Fourth, should America return to the fundamental principles laid out
prayerfully, and with specificity, by our Founding Fathers?
Is not the answer ``yes'' to each of these questions?
Of course it is.
You see, Mr. President, the American dream has been within the reach
of citizens of all races, religions, and ethnic backgrounds because our
Nation has adhered for so many years to the principles of free
enterprise, self reliance, personal responsibility, and, of course, the
concept that every citizen should be free to pursue his or her personal
dream--based not on birthright, but rather on hard work, initiative,
talent, and character.
The now-entrenched, but nonetheless discriminatory system of
affirmative action preferences established by Congress, the courts, and
virtually every Federal agency flies in the face of the merit-based
society that the Founding Fathers envision, which is why my
legislation, aimed at removing these preferences, is called the ``Act
to End Unfair Federal Preferential Treatment.''
Mr. President, I am convinced this legislation reflects the thoughts
of countless citizens across America of every color and creed who
struggle each day to make the American dream become a reality--to own
their own homes, raise their families, and provide educations for their
children. But the all-powerful Federal Government somehow manages to
get in the way at nearly every turn. This is the thing that we must put
an end to.
Those familiar with the debate surrounding affirmative action and
quota programs likely have heard of the California Civil Rights
Initiative, which residents of that State will vote upon as early as
next March. For those unfamiliar with this initiative, it reads:
Neither the State of California nor any of its political
subdivisions or agents shall use race, sex, color, ethnicity
or national origin as a criterion for either discriminating
against, or granting preferential treatment to, any
individual or group in the operation of the State's system of
public employment, public education or public contracting.
As I stated previously, the Act To End Unfair Federal Preferential
Treatment--which I will shortly send to the desk--differs in that it
puts an end to taxpayer funding of such programs on the Federal level.
Mr. President, polls show that 73 percent of Californians support
this initiative to roll back racial and other quotas and preferences.
But California is not alone in this sentiment. According to a recent
Wall Street Journal/NBC News survey, 2 out of every 3 Americans--
including half of those who voted for President Clinton--oppose so-
called affirmative action.
This demonstrates, I believe, that the American people are once again
far ahead of their leaders in Washington. Americans recognize that such
programs are divisive, discriminatory, and in fact, harm the very
citizens they claim they want to help. In short, these programs pervert
the concept of equality. As Senator Malcolm Wallop, the great statesman
from Wyoming, put it, ``Any government that is not strictly blind in
matters of race is quite simply un-American.''
Mr. President, we simply cannot afford to continue to pour money into
ineffective and ultimately destructive affirmative action programs when
the total Federal debt, as of March 1, stood at exactly
$4,848,389,403,816.26. That is $18,404.57 for every man, woman, and
child in America.
Of course, those who pay taxes--because so many do not--will pay even
far more than that in the theoretical sense of how much it will cost to
pay off the debt.
We must stop wasting the taxpayers' money on programs that
demonstrably cannot and will not work.
If the California initiative passes, one legislative analysis
predicts that high schools and community colleges would save $120
million a year in administrative costs. Universities would save another
$50 million a year. Think of the savings we could realize if Federal
programs are terminated nationwide. It boggles the mind.
Let me offer a few examples of Government-sponsored affirmative
action programs that are so counterproductive and divisive they make me
wonder how much more of this we can swallow. These few programs are
only the tip of the iceberg.
First, the State Department has been instructed that certain new
positions must be filled with women and minorities rather than white
workers. The administration complained when a State Department list of
candidates for ambassadorial posts did not contain enough minorities
and women. The White House returned the list to Secretary Christopher.
Second, the Federal Communications Commission has for years
implemented a program where women and minorities are given special tax
breaks and special incentives to enable them to acquire mass media
facilities, such as radio and television stations.
The most well-known example is the special tax break that Viacom, the
world's second largest entertainment conglomerate, is trying to use.
Under current FCC law, Viacom can defer $1.1 to $1.6 billion in taxes
on the sale of its cable operations simply by selling them to an
African-American buyer. And this buyer just happens to be the same man
who conceived the minority tax-break program while working on FCC
issues in the Carter White House.
[[Page S3473]] This minority buyer now plans to invest $1 million of
his own money in the acquisition. I ask you, Mr. President, is this
someone in need of a Federal preference? I say no way, Jose.
Third, the Forest Service has a firefighter program where certain
positions can be filled only with women or minorities. And a North
Carolina constituent and Forest Service employee recently sent me
articles regarding an internal Forest Service document that actually
states, ``Only unqualified applicants will be considered.'' This policy
was supposed to be a set-aside for women. So much for qualifications
being important.
Fourth, and what about the Defense Department's special hiring
directive that said, ``special permission will be required for
promotion of all white men without disabilities.''
Mr. President, I have it on good authority that there are more than
160 such preference programs in place today in the Federal bureaucracy.
That is what this bill is aimed at. And who pays for them? That is
right. The American taxpayers pay for them.
Citizens visiting my office frequently note on my office wall a
picture of a man who was a friend of all of us who served with him,
Hubert Humphrey of Minnesota. Hubert was the author of the original
Civil Rights Act of 1964. True enough, Senator Humphrey and I disagreed
on just about every policy issue but we disagreed agreeably. We were
friends, nevertheless. And I respected him for having the courage of
his convictions, wrong as I thought those convictions were sometimes.
He stated many times to me that my feeling about him was mutual, and I
appreciated that.
In any event, Hubert Humphrey was exactly right when he stated during
a debate in this room over the Civil Rights Act of 1964:
* * * if there is any language [in the Civil Rights Act of
1964] which provides that any employer will have to hire on
the basis of percentages or quotas related to color, race,
religion or national origin, I will start eating the pages
one after another because it is not there.
Well, the distinguished majority leader, Mr. Dole, recently remarked,
Now we all have indigestion from living in an America where
the government too often says that the most important thing
about you is the color of your skin or the country of your
forefathers * * * that's wrong, and we should fix it.
I agree with Senator Dole. Bob Dole was on target, and hopefully the
legislation that I am introducing today will serve as a first step
toward fixing this problem.
As I said at the outset, I anticipate that Senator Dole may offer
legislation on this subject. I hope others will too so that we can all
think together and act together on a problem that should not be allowed
further to beset the greatest country on Earth.
But, Mr. President, back to Hubert Humphrey. Hubert Humphrey hated
the idea of quotas and preferential treatment based on race. He knew
instinctively that such programs, if instituted, would turn America
inside out--which is exactly what has occurred: there is much evidence
that so-called affirmative action programs have exacerbated racial
problems--not healed them. Former Secretary of Education William
Bennett put it this way.
Affirmative Action has not brought us what we want--a
colorblind society. It has brought us an extremely color-
conscious society. In our universities we have separate
dorms, separate social centers. What's next--water fountains?
That's not good, and everybody knows it.
George Weigel of the Ethics and Public Policy Center had this
observation regarding how divided a country America has become:
People have not grasped the extent to which the notion of
governmentally appointed preference groups is pernicious to
American democracy * * * They have not grasped what it means
to balkanize the United States. My guess is that there will
be a tremendous revolt against this.
Paul Sniderman of Stanford University and Thomas Piazza of the
University of California recently completed a book, ``The Scar of
Race.'' These authors demonstrate that whites are more likely to view
African-Americans in a negative light if they are first asked questions
about affirmative action. Here's what Sniderman and Piazza found:
A number of whites dislike the idea of affirmative action
so much and perceive it to be so unfair that they have come
to dislike blacks as a consequence.
Parenthetically, Mr. President, that is an awful state of affairs,
but I believe it to be true. It should not be true, but it is. The
authors continued:
Hence the special irony of the contemporary politics of
race. In the very effort to make things better, we have made
some things worse.
Sharon Brooks Hodge, an African-American writer and broadcaster,
perhaps summed it up best when she observed:
* * * white skepticism leads to African-American
defensiveness * * * Combined, they make toxic race relations
in the workplace.
And, as is the case with so many forays into social engineering by
the Federal Government, affirmative action and quota programs, have, at
the end of the day, harmed the very people their proponents designed
them to assist. Peter Schrag of the San Diego Union-Tribune hit the
nail on the head when he asked:
To what extent will the real achievements of minorities be
diminished by the suspicion that they got some sort of break?
Although Federal agencies designed affirmative action programs to
benefit victims of discrimination at the lowest rungs of the economic
ladder, today they benefit chiefly educated, middle-class minorities.
As Linda Chavez, the Hispanic leader and President of the Center for
Equal Opportunity and former staff director of the U.S. Commission on
Civil Rights under President Reagan, observed today's government
affirmative action programs benefit those who can make it on their own.
Mr. President, after 30 years of affirmative action, America now
finds itself a more racially ethnically divided society than ever
before. The cohesiveness which once brought all of us together as
Americans first is slipping away.
After 30 years, it is obvious that this social experiment called
affirmative action has outlived its usefulness. It is time for the
Federal Government to scrap these programs, and restore the principles
upon which our country was built--personal responsibility, self-
reliance, and hard work.
Mr. President, that formula for achievement was the answer 200 years
ago and it is still the same today. And I might add, it is the only
road to reaching the American dream for all our citizens, whether they
be black, white, Hispanic or Asian, men or women. The Act To End Unfair
Federal Preferential Treatment is the first step toward this dream.
Mr. President, I ask unanimous consent that the following items be
printed in the Record at the conclusion of my remarks following the
text of the bill, an August 21, 1994, article by Peter Schrag of the
San Diego Union Tribune; a February 15, 1995, article by Linda Chavez
in USA Today; and a February 13, 1995, article by Steven Roberts in
U.S. News & World Report.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 497
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Act to End Unfair
Preferential Treatment''.
SEC. 2. PUBLIC EMPLOYMENT, PUBLIC CONTRACTING, AND FEDERAL
BENEFITS.
Part VI of title 28, United States Code, is amended by
inserting after chapter 176 the following new chapter:
``CHAPTER 177--CIVIL LIBERTIES
``Sec. 3601. Public employment, public contracting, and
Federal benefits
``Notwithstanding title VII of the Civil Rights Act of 1964
(42 U.S.C. 2000e et seq.), title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.), section 15 of
the Small Business Act (15 U.S.C. 644), or any other
provision of law, no agent or agency of the Federal
Government may use race, color, gender, ethnicity, or
national origin--
``(1) as a criterion for either discriminating against, or
granting preferential treatment to, any individual or group;
or
``(2) in a manner that has the effect of requiring that
employment positions be allocated among individuals or
groups;
with respect to providing public employment, conducting
public contracting, or providing a Federal benefit for
education or other activities.
[[Page S3474]] ``Sec. 3602. Necessary classifications based
on gender
``Nothing in this chapter shall be interpreted as
prohibiting classifications based on gender that are
reasonably necessary to the normal provision of public
employment, conduct of public contracting, or provision of a
Federal benefit.
``Sec. 3603. Court order or consent decree
``Nothing in this chapter shall be interpreted as--
``(1) affecting any court order or consent decree that is
in effect as of the date of enactment of this chapter; or
``(2) forbidding a court to order appropriate relief to
redress past discrimination.
``Sec. 3604. Definitions.
``As used in this chapter:
``(1) The term `agent' means an officer or employee of the
Federal Government.
``(2) The term `Federal benefit' means--
``(A) funds made available through a Federal contract; or
``(B) cash or in-kind assistance in the form of a payment,
grant, loan, or loan guarantee, provided through any program
administered or funded by the Federal Government.''.
____
Minorities Can't Measure Up? That's What Affirmative Action Policies
Imply, Though You Won't Hear Its Liberal Backers Say So
(By Linda Chavez)
Bethesda, MD.--For years I've suspected that many liberals
favor affirmative action because they believe blacks and
Hispanics can't measure up to the same standards as whites,
but it's been difficult to get any of them to say so
publicly.
Now Rutgers University President Francis L. Lawrence, a
staunch proponent of affirmative action throughout his
career, has let the cat out of the bag.
In comments to a faculty group discussing the school's
admission criteria, Lawrence referred to blacks as a
``disadvantaged population that doesn't have the genetic,
hereditary background'' to score equally with whites on the
Scholastic Aptitude Test.
Lawrence has since apologized for his comments--which he
now says he doesn't actually believe--and students have led
angry protests demanding his resignation.
But the fact is that affirmative-action programs at
universities around the country operate as if Lawrence were
right.
They routinely apply lower admission standards to black and
Hispanic applicants, all the while pretending that such
double standards won't reinforce negative stereotypes and
stigmatize students admitted under them.
The University of California at Berkeley, for example,
admits black and Hispanic students with test scores and
grade-point averages significantly below those it requires of
both white and Asian students.
Berkeley is one of the few universities that has made
available such information, even on a limited basis.
In 1989, Berkeley turned away approximately 2,800 white
students with perfect 4.0 GPAs--straight As. But half of the
minority students it admitted that year had below a 3.53 GPA.
And contrary to the assumptions of many affirmative-action
supporters, students admitted on the basis of lower test
scores and grades aren't necessarily economically
disadvantaged graduates of poor inner-city schools.
At Berkeley, for example, the Hispanic student admitted
through the affirmative action program comes from a middle-
class family, and many if not most attended integrated
schools, often in the suburbs.
In fact, 17% of Hispanic entering freshmen admitted to
Berkeley in 1989 came from families that earned more than
$75,000 a year, as did 14% of black students.
Statistics like these make it increasingly difficult for
advocates to argue that affirmative action is intended to
benefit disadvantage minorities.
One Mexican-American student told researchers studying the
Berkeley program she was ``unaware of the things that have
been going on with our people, all the injustice we've
suffered, how the world really is. I thought racism didn't
exist, and here, you know, it just comes to light.''
No doubt she was referring to the political indoctrination
many minority students receive in such programs so they'll
know how ``oppressed'' they really are, despite attending one
of the world's elite institutions of higher learning.
But the comments that racism at Berkeley ``just comes to
light'' might just as well apply to the university's own
admission standards, which clearly do treat applicants
differently according to their race.
Affirmative action advocates can't have it both ways. A
system that depends on holding minorities to different--and
lower--standards than whites invites prejudice and bolsters
bigotry.
But it also sends a clear message to the intended
beneficiaries that those who claim to want to help minorities
don't really believe blacks and Hispanics can ever measure up
to whites.
Most supporters of affirmative action no doubt would be
horrified that anyone might interpret their intentions so
malignly. But their actions speak as loudly as words.
what others are saying
``We are happily at a time when a number of the
compensations that were earlier advanced to make up for
earlier discrimination are no longer needed.''--Calif. Gov.
Pete Wilson.
``If the president respects the goal of affirmative action
as fully as he should, he might gain political support from
voters who believe in pursuing an integrated society. * * *
But if he ignores the subject and lets critics set the terms
of the debate * * * he's likely to be stuck with affirmative
action as a thin cover for nasty, race-minded politics--the
Willie Horton issue of 1996. And it's likely to contribute to
his loss.''--Lincoln Caplan, Newsweek magazine contributing
editor.
``The people in America now are paying a price for things
that were done before they were born. We did discriminate. *
* * But should future generations have to pay for that?''--
Senate Majority Leader Bob Dole.
``We know that affirmative action has created problems,
abuses we didn't contemplate. But if you eliminate or
severely curb * * * then what?''--Calif. Lt. Gov. Gray Davis.
``(It's) going to be hell. * * * You better make sure you
prepare for it.''--Franklyn Jenifer, president of the
University of Texas at Dallas, warning college administrators
of a backlash from minority students if affirmative action
policies are removed.
____
[From the U.S. News & World Report, Feb. 13, 1995]
Affirmative Action on the Edge--A Divisive Debate Begins Over Whether
Women and Minorities Still Deserve Favored Treatment
Affirmative action is a time bomb primed to detonate in the
middle of the American political marketplace. Federal courts
are pondering cases that challenge racial preferences in
laying off teachers, awarding contracts and admitting
students. On Capitol Hill, the new Republican majority is
taking aim at the Clinton administration's civil rights
record. On the campaign trail, several Republican
presidential hopefuls are already running against affirmative
action. And in California, organizers are trying to put an
initiative on next year's ballot banning state-sanctioned
``preferential treatment'' based on race or gender.
This increasingly angry and divisive debate about the role
of race and gender in modern America could help the
Republicans unseat Bill Clinton in 1996 and change the way
many institutions allot jobs, business and benefits. A recent
Wall Street Journal NBC News survey found that 2 out of 3
Americans, including half of those who voted for President
Clinton in 1992, oppose affirmative action. The Los Angeles
Times found 73 percent of Californians back the ballot
initiative. ``The political implications are enormous,'' says
Will Marshall of the Democratic leadership Council, a
moderate group. ``Obviously, a lot of Republicans look at
affirmative action as the ultimate wedge issue.''
The assault on affirmative action is gathering strength
from a slow-growth economy, stagnant middle-class incomes and
corporate downsizing, all of which make the question of who
gets hired--or fired--more volatile. Facing attacks on such a
broad front, women's groups, civil rights organizations and
other defenders of affirmative action are circling their
wagons. Women and minorities still need preferential
treatment, they argue, because discrimination still exists,
causing blacks and other minorities to lag far behind whites
in terms of economic status. ``If African-Americans are
taking all these jobs,'' asks Barbara Arnwine of the Lawyers
Committee for Civil Rights Under Law, ``why is there double-
digit unemployment in the African-American community?'' Adds
Patricia Williams, a professor at Columbia Law School:
``There is this misplaced sound and fury about nothing.
Access is still very limited, and the numbers are still very
low.''
But the sound and fury are real. Affirmative action poses a
conflict between two cherished American principles: the
belief that all Americans deserve equal opportunities and the
idea that hard work and merit, not race or religion or gender
or birthright, should determine who prospers and who does
not. In 1965, Lyndon Johnson defended affirmative action by
arguing that people hobbled by generations of bias could not
be expected to compete equally. That made sense to most
Americans 30 years ago, but today many argue that the
government is not
simply ensuring that the race starts fairly but trying to
decide who wins it.
Moreover, many women and racial minorities are no longer
disadvantaged simply because of their race or gender. Indeed,
most of the young people applying for jobs and to colleges
today were not even born when legal segregation ended. ``I'll
be goddamned why the son of a wealthy black businessman
should have a slot reserved for that race when the son of a
white auto-assembly worker is excluded,'' says a liberal
Democratic lawmaker. ``That's just not right.''
disheartening
The critics of affirmative action include some conservative
minority and women's leaders who believe it has a destructive
effect on their own communities. Thomas Sowell, the black
economist, argues that affirmative action has created a
process of ``mismatching,'' in which competition for talented
minorities is so fierce that many are pushed into colleges
for which they are not ready. ``You can't fool kids,'' says
Linda Chavez, a Hispanic activist. ``They come into a
university, they haven't had the preparation and it's a very
disheartening experience for some of them.
[[Page S3475]] Others say affirmative action causes co-
workers to view them with suspicion. ``White skepticism leads
to African-American defensiveness,'' says Sharon Brooks
Hodge, a black writer and broadcaster. ``Combined, they make
toxic race relations in the workplace.'' Glenn Loury, an
economics profession at Boston University, says proponents of
affirmative action have an inferiority complex: ``When blacks
say we have to have affirmative action, please don't take it
away from us, it's almost like saying, `You're right, we
can't compete on merit.' But I know that we can compete.''
William Bennett, former education secretary and a leading
GOP strategist, says that ``toxic'' race relations,
aggravated by affirmative action, have led to a damaging form
of re-segregation: ``Affirmative action has not brought us
what we want--a colorblind society. It has brought us an
extremely color-conscious society. In our universities we
have separate dorms, separate social centers. What's next--
water fountains? That's not good, and everybody knows it.''
But supporters of affirmative action maintain that
arguments like Bennett's are unrealistic--even naive. ``We
tried colorblind 30 years ago, and that system is naturally
and artificially rigged for white males,'' says Connie Rice
of the
NAACP Legal Defense and Education Fund. ``If we abandon
affirmative action, we return to the old-boy network.''
Voices on both sides of the debate are starting to discuss
a possible compromise that would focus eligibility on class,
instead of on race or gender. For example, the son of a poor
white coal miner from West Virginia would be eligible for
special help, but the daughter of a black doctor from Beverly
Hills would not. ``Some of the conventional remedies don't
work as one might have hoped,'' says University of
Pennsylvania law professor Lani Guinier, whose ill-fated
nomination as Clinton's chief civil rights enforcer sparked a
storm of protest from conservatives. ``Perhaps there is an
approach that does not suggest that only people who have been
treated unfairly because of race or gender or ethnicity have
a legitimate case.''
No one questions the sensitivity of the subject. For years,
the civil rights lobby, backed by Democrats in Congress, was
so strong that critics often felt intimidated. Even today,
Democrats who disagree with affirmative action are reluctant
to voice their doubts. ``The problem is political
correctness--you can't talk openly,'' says a member of
Congress.
Democrats are talking privately, however, urging the White
House to formulate a response to the antiaffirmative-action
wave before it swamps the president and the party. At the
Justice Department, chief civil rights enforcer Duval Patrick
is ready: ``We have to engage; we can't sit to one side.''
But despite the fact that the California initiative could
cost Clinton a must-win state in 1996, the administration
seems sluggish, even paralyzed. Laments a senior adviser,
``We're going to wait until it's a crisis before reacting.''
White House political strategists admit one reason for the
inaction: The issue is a sure loser.
referee?
Caught between angry white males and the party's
traditional liberal base, White House advisers think the best
they can do is position the president as an arbiter between
two extremes. In a recent interview with U.S. News, the
president voiced his aim this way: ``What I hope we don't
have here, and what I hope they don't have in California, is
a vote that's structured in such a way as to be highly
divisive, where there have to be winners and losers and no
alternatives can be easily considered.'' Asked his views on
affirmative action, the president tried--as he often does--to
please both sides: ``There's no question that a lot of people
have been helped by it. Have others been hurt by it? What is
the degree of that harm? What are the alternatives? That's a
discussion we ought to have.''
But a senior administration official admits that the middle
ground will be an uncomfortable place: ``The civil rights
groups are going to say we're caving in if we make any
compromises. And the Republicans are going to shout,
`Quotas.''' That same tension is already developing within
the White House. U.S. News has learned that Chief of Staff
Leon Panetta is quietly asking friends on Capitol Hill
whether the president should simply endorse the California
initiative--a position sure to trigger outrage among the
president's more-liberal advisers.
Unsure how resolute the White House will be, civil rights
groups are looking for their own strategy to defend
affirmative action. One of their main jobs, they say, is to
debunk the ``myth'' that unqualified women and minorities are
being hired in large numbers. And some of the best salesmen
for affirmative action are big corporations that adjusted
long ago to the demands for a more-diverse work force, dread
bad publicity and fear the uncertainty change would produce.
James Wall, national director of human resources for Deloitte
& Touche LLP, a management consulting firm, says diversity is
good business: ``If you don't use the best of all talent, you
don't make money.''
Even so, the combination of old resentments, new economic
hardships and shifting political winds threatens to explode.
``There's a great deal of pent-up anger beneath the surface
of American politics that's looking for an outlet,'' says
conservative strategist Clint Bolick of the Institute for
Justice. It's the same anxiety that helped pass Proposition
187 in California, which sharply restricts public assistance
to the children of illegal immigrants, and thwarted Clinton's
plan to push a Mexican aid plan through Congress. ``If there
is a squeeze on the middle class,'' says GOP pollster Linda
Divall, ``people get very vociferous if they think their
ability to advance is being limited.''
Some African-American leaders insist that this white-male
anger is being stirred up by demogogues who make blacks and
women into scapegoats. Says Derrick Bell, professor of law at
New York University: ``There is a fixation among so many in
this country that their anxieties will go away if we can just
get these black folks in their place.''
But the anxieties are strong and are coupled with a growing
belief that affirmative action is another aspect of intrusive
and inefficient big government. ``The real back-to-basics
movement is not in education but in politics,'' says William
Bennett. ``We're rethinking basic assumptions about
government.''
Accordingly, the fight over affirmative action is playing
out in four arenas:
california
The real question is whether the civil rights initiative
will appear on the primary ballot in March of 1996 or on the
general-election ballot. If it appears in November, the
measure could seriously damage President Clinton's chances to
carry the nation's most populous state. That is precisely why
national Republicans are promising to raise money for the
effort--as long as organizers aim for November.
The initiative is the brainchild of two academics, Tom Wood
and Glynn Custred, who say they were alarmed by the
prevalence of ``widespread reverse discrimination'' in the
state's college system. The initiative has already attracted
some unlikely support: Ward Connerly, a black member of the
University of California Board of Regents, said last month
that he favors an end to racial and gender preferences.
``What we're doing is inequitable to certain people. I want
something in its place that is fair.'' and Hispanic columnist
Roger Hernandez wrote: ``I've never understood why Hispanic
liberals, so sensitive to slights from the racist right,
don't also take offense at the patronizing racists of the
left who say that being Hispanic makes you an idiot.''
California Assembly Speaker Willie Brown, who is black,
opposes the initiatives as an attempt ``to maintain white
America in total control.'' But other Democrats are scurrying
for cover. ``The wedge potential is absolutely scary,'' says
Ron Wakabayashi, director of the Los Angeles County Human
Rights Commission. ``The confrontation of interests looks
like blacks and Latinos on one side and Asians and Jews on
the other.''
the courts
The Supreme Court has generally supported race and gender
preferences to remedy past discrimination, but an
increasingly conservative bench has moved to limit the
doctrine. In 1989, the court struck down a program in
Richmond, Va., that set aside 30 percent of municipal
contracts for racial minorities, and that decision set off a
flurry of litigation. In the current term, the court already
has heard arguments in a key case: A white-owned construction
company is claiming that it failed to get a federal contract
in Colorado because of bonuses given to contractors that hire
minority firms.
In another case making its way toward the high court, a
black teacher in Piscataway, N.J., was retained while an
equally qualified white teacher was fired, in the name of
diversity. The Bush administration sided with the white
teacher after she sued the school board. The Clinton
administration backs the board. Two other cases relating to
education are also moving forward. In one, white students at
the University of Maryland are challenging a scholarship
program reserved for minorities. In the other, the University
of Texas law school is being sued for an admissions policy
that lowers standards for blacks and Hispanics.
While most court watchers do not expect sweeping changes in
current doctrine, the high court is closely divided on
racial-preference questions, and the deciding
votes could be cast by Justice Sandra Day O'Connor. Legal
analysts cite her opinion in a 1993 case challenging
voting districts that were drawn to guarantee a black
winner: ``racial gerrymandering, even for remedial
purposes, may balkanize us into competing racial
factions.'' The court's most likely move: require programs
to be more narrowly tailored to remedy past
discrimination.
congress
Republican victories last year mean that critics of
affirmative action now control the key committees and the
congressional calendar. A strategy session was held last
Friday at the Heritage Foundation, a conservative think tank,
bringing together about two dozen Hill staffers, lawyers and
conservative activists. Already, Rep. Charles Canady, the
Florida Republican who heads the key House subcommittee, has
written to the Justice Department requesting every document
relating to affirmative action cases. His goal oversight
hearings that try to demonstrate that the administration's
civil rights policies far exceed the original intent of
Congress.
Conservatives are considering amendments to appropriations
bills that would restrict the administration's flexibility.
There also is talk of a measure banning racial and gender
[[Page S3476]] preferences altogether. Civil rights
proponents remain confident that Clinton would veto any
measure that eviscerates affirmative action and that his veto
would survive.
campaign '96
The affirmative action issue will be test-marketed this
year by Buddy Roemer, a Republican candidate for governor of
Louisiana. But it is already intruding into the politics of
1996: California Gov. Pete Wilson has all but endorsed the
initiative and Sen. Phil Gramm of Texas, who will soon
announce his presidential candidacy, has taken over the
appropriations subcommittee that handles the Justice
Department. He will use it, predicts an administration
official, ``as a platform to rail against quotas.''
The danger for Republicans lies in going too far in
attacking affirmative action and courting resentful white
males. If the antiaffirmative-action campaign ``turns into
mean-spirited racial crap, to hell with it,'' William Bennett
warned fellow Republicans.
But the questions at the core of the affirmative action
debate remain unanswered. How much discrimination still
exists in America? And what remedies are still necessary to
aid its victims?
____
[From the San Diego Union-Tribune, Aug. 21, 1994]
The Preferential Treatment Backlash
(By Peter Schrag)
A Republican attempt to prohibit California government
agencies from discriminating for or against individuals on
the basis of race, ethnicity or gender got a three-hour
hearing in the Assembly Judiciary Committee this month,
followed by the predictable brushoff from the committee's
majority Democrats. ``It is one of the most dangerous pieces
of legislation I have witnessed in my four years here,'' said
Assemblywoman Barbara Lee, D-Oakland.
We should only be so lucky.
The California Civil Rights Initiative (CCRI), a
constitutional amendment that would have required a two-
thirds vote in each house of the Legislature in order to go
on the ballot, had as much chance as a snowball in a furnace.
It was sponsored by Assemblyman Bernie Richter of Chico and
had some 42 legislative co-sponsors, one of whom was a
Democrat and one an Independent.
It's a simply worded proposition. Its key passage says,
``Neither the state * * * nor any of its political
subdivisions or agents shall use race, sex, color, ethnicity
or national origin as a criterion for either discriminating
against, or granting preferential treatment to, any
individual or group in the operation of the state's system of
public employment, public education or public contracting.''
Put that proposition to the voters unadorned and you're
likely to get a sweep. It's as American as Abraham Lincoln
and Martin Luther King Jr.: Judge people as individuals on
what they can do, on the content of their character, not on
what group they belong to or the color of their skin.
It's not the way things work, either in the universities,
where much of the push and inspiration for CCRI comes from,
or many other places in the public arena. Everywhere there
are preferences based at least partly on something else--in
hiring, in college admissions and in a thousand subtle other
ways.
The reasons for some official preferences are obvious
enough: 1) to make up for the lingering effects of past
discrimination and 2) to try to get in the professions, in
the civil service and on the campuses people who, at the very
least, are not strikingly different in pigmentation from the
rest of the populace.
But as the backers of the CCRI point out, the thing has
gone to the point where new offenses are committed in the
effort to remedy the old: Should there be scholarships
reserved for blacks or Hispanics? Should college departments
be offered bounties for bagging minorities in their faculty
recruiting? Should there be legislative requirements of
racial proportionality, not only in university admissions,
but in graduation rates?
Should people of the right color or sex be given preference
in contracting with public agencies, even if it costs the
public more? And to what extent should success of a
particular ethnic group--Asians in academic achievement for
example--itself become a reason for race-based restrictions
against them?
In some instances, these things have reached such totemic
proportions that just questioning them is regarded as
evidence of racism.
But it's not the whole story. Even CCRI's sponsors, who now
hope to get the measure on the ballot by the initiative
route, acknowledge that there are colleges that give
preference in admission to children of alumni or, as at the
University of California, to the offspring of legislators.
And there are almost without doubt fire and police
departments, and probably other public agencies as well,
where it still doesn't hurt to be related to somebody, or at
least to know them, whatever the civil service regulations
say.
More important, there are legitimate sensibilities and
experiences that come with certain backgrounds that may well
be important in the selection of police officers or in
enriching the composition of a campus. Where two candidates
are otherwise similarly qualified, what's wrong with giving
preference to the one whose parents are immigrants and grew
up in the barrio?
CCRI's backers point out, correctly, that economic
disadvantage could be used more legitimately to accomplish
almost the same thing. But the very precision in CCRI's
language is likely to run colleges and other state agencies
afoul, on the one hand, of federal laws that encourage
affirmative action and, on the other, to invite still more
suits from disappointed applicants every time there's a
suggestion that race or gender might have been used, however
marginally, as a criterion.
All that being said, however, CCRI nonetheless reflects a
set of increasingly serious problems and grievances that, as
the state becomes ever more diverse, will become all the more
vexing.
At what point do objective criteria and real performance
become secondary to the politically correct imperatives of
diversity, as in some cases they already are, thereby making
it harder and harder to maintain standards of quality? To
what extent do preferences for marginal candidates lead to
frustration when its beneficiaries are overwhelmed?
The questions run on: To what extent will the real
achievements of minorities be diminished by the suspicion
that they, too, got some kind of break? To what extent does
the whole process generate mutually self-validating backlash
that further institutionalizes race in our society? And at
what point, given our growing diversity, do the definitional
problems about who is what--definitions, ironically, that
squint right back to the slaveholders' racial distinctions--
become both absurd and totally unmanageable?
The problem may lie as much in the idea of subjecting these
processes to a rigid legal formula as in the formula chosen.
And it lies in the unchecked spread of the idea that
everything--college admissions, college graduation, a job--is
an entitlement not to be abridged without due process.
But the complaint of the CCRI people is real enough, and it
has legs.
____________________