[Congressional Record Volume 141, Number 97 (Wednesday, June 14, 1995)]
[Senate]
[Pages S8376-S8378]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             SUPREME COURT DECISION IN ADARAND VERSUS PENA

  Ms. MOSELEY-BRAUN. Mr. President, I should like to address the issue 
of the Supreme Court decision in Adarand versus Pena.
  Mr. President, on Monday, a closely divided Supreme Court handed down 
a 5 to 4 decision in the case of Adarand versus Pena. Adarand involved 
a challenge to the provision in the small business act that gives 
general contractors on Government procurement projects a financial 
incentive to hire socially and economically disadvantaged businesses as 
subcontractors. In its opinion, the Court held that all racial 
classifications imposed by the Federal Government will henceforth be 
subjected to a strict scrutiny analysis. Strict scrutiny, Mr. 
President, is a very difficult standard to meet. Indeed, it is the most 
difficult standard the Court applies. Accordingly, Federal racial 
classifications will be found constitutional only if they are narrowly 
tailored measures that entail further compelling Government interests.
  At the outset I think it is important to note that under our system 
of government, the Constitution is what the Supreme Court says it is. 
Accordingly, ``strict scrutiny'' for Federal Government race programs 
is now the law of the land. Ever since I studied constitutional law in 
law school, I have had a profound respect for the Supreme Court and all 
that it represents in our system of laws.
  Having said that, however, Mr. President, I still believe that the 
Adarand decision was bad law. Clearly, the [[Page S8377]] Adarand case 
would not be the first time that the Supreme Court has ruled in a way 
that was just plain wrong. Who can forget the infamous Dred Scott case 
in which the Court stated that a black man had no rights which whites 
were bound to uphold, and that they were, indeed, mere property? Or 
Plessy versus Ferguson, which held that segregated facilities were in 
fact constitutional? Or the Bradwell case, in which the Supreme Court 
upheld Illinois' refusal to grant a law license to women and stating:

       Man is, or should be, women's defender. The natural and 
     proper timidity and delicacy which belongs to the female sex 
     evidently unfits it for many of the occupations of civil 
     life.

  And certainly, Mr. President, a number of my more conservative 
colleagues would say that the Court was wrong in its ruling in Roe 
versus Wade.
  Nevertheless, the Adarand decision is now the law of the land. The 
question now before us is how will we achieve the goal of true equality 
in light of this new hurdle? What should we as a Nation do with the 
continuing legacy of what was called ``the peculiar institution'' of 
slavery and Jim Crow and its aftermaths?
  The most important step I believe that we can take in light of this 
decision is to begin an honest dialog on the issue of race. The racial 
issue is clearly the most volatile and controversial issue to come 
before the Court. Indeed, it is one of the most volatile and 
controversial issues of our time.
  As Justice Ginsburg noted in her dissent, the Court applies a mere 
``intermediate'' review for classifications based on gender, while 
reserving its highest review of strict scrutiny for classifications 
based on race.
  The irony of the Adarand case is that the individual who won the 
contract at issue, Mr. Gonzalez, is not black; he is Hispanic. The 
contract at issue was awarded to a Hispanic subcontractor, yet every 
opinion, both the majority opinions and the dissents, including Justice 
Thomas' opinion implies but does not state that the driving issue at 
stake in Adarand is affirmative action for blacks. The opinions in the 
Adarand case underscore the myth that affirmative action only helps 
black people. The reality of affirmative action is that other 
minorities, and women, have benefited as much if not more than blacks 
as a group, and particularly black men.
  Affirmative action, Mr. President, was a response to the legacy of 
slavery. It was a positive action to give a boost or, if you will, to 
mainstream a community which had been segregated by law and which had 
threatened to become a permanent caste in American society.
  I believe that the originators of affirmative action showed great 
wisdom and forethought in the programs that they designed to bring 
black people into the economic mainstream. They recognized that black 
people had been legally disbarred from the opportunity to pursue 
quality education, to serve in the military, to hold a decent, high 
paying job, to pursue employment, and to participate fully in our 
economy as well as in our society. The creators of affirmative action 
sought to give a boost to black people by lifting them up, by allowing 
specific preferences for groups.
  Now, the issue of preferences when it comes to affirmative action is 
really a curious intellectual side bar. We have and take for granted 
all kinds of preferences which serve policy goals and reflect our 
society's values. There are preferences for veterans, never mind 
whether the individual veteran ever saw a battle. And I think we would 
all agree that it is a good thing to reward people who took time out of 
their private lives to serve our country in the military. There are 
preferences for seniors. I do not know too many people who would 
disagree that getting to the golden years ought to have some support 
from society as a whole. There are preferences for residents of a State 
or city in public employment, and a host of others that we could 
mention.
  So why then is the notion of affirmative action so fraught with 
controversy? And why are preferences so bad only when they arrive in 
the context of race? Justice Scalia, who wrote separately in the 
Adarand case, argues the following: He argues that it is tough cookies; 
slavery happened; it is too bad; and now you are on your own and 
nothing ought to be done about that.
  What Judge Scalia's decision fails to recognize is that it is in the 
interests of the entire country, of all of us, to take steps to resolve 
the legacy of slavery and of Jim Crow. If affirmative action is undone, 
there will be a very real cost to society as a whole, black and white, 
and others alike, all of us. The imperative for change, the imperative 
for diversity that affirmative action provided will have been removed 
and once again minorities and women will find it more difficult, if not 
impossible, to enter the economic mainstream.
  And that cost will not just be borne by the women and minorities who 
are likely to see opportunity shrink away. It will be borne by our 
society as a whole. Affirmative action is about far more than just 
equal opportunity. It is about our country's economic prosperity. We 
are one people. We are one America. We share a collective 
responsibility to guide our Nation in a constructive direction of 
opportunity for all. And we will all win when America makes it possible 
to tap the talent of 100 percent of its workers.
  Now, I know there is a particular controversy about why members of 
this generation should be required or called on to do anything to pay 
for, if you will, the ``sins of their fathers'' and what happened in 
this country 100 years ago. Justice Scalia again expressed this 
antipathy when he argued in this opinion in Adarand that there can be 
no ``creditor'' or ``debtor'' races. There is a great deal of 
resentment, we are told, by the angry white male toward the favoritism 
shown to blacks in this country.
  But, Mr. President, if blacks were so favored as a group in America, 
how many white Americans do you know would want to wake up tomorrow and 
change places? How many white males would want to wake up tomorrow 
morning and be black? The fact is that racism is a reality in this 
country, an unfortunate one but reality, and affirmative action is one 
method by which we attempt to change that reality.
  The majority opinion in Adarand fails completely to address this. 
Those in the majority I think would prefer to close their eyes and 
pretend that racism simply does not exist, but it does. And the fact 
that it does is what makes the Adarand decision such bad law.
  Some have suggested that in response to the Adarand decision we work 
on a case-by-case basis to evaluate every Federal affirmative action 
program and save those that can meet the strict scrutiny test. I agree 
that this is an appropriate and necessary activity and one that needs 
to be part of our response.
  The fact is we have an obligation to make Government accountable to 
review all programs to see if they are achieving the ends for which 
they have been designed. And so the issue is not one of review but one 
of retreat and one of retrenchment.
  Mr. President, others have suggested that the approach ought to be 
one now, instead of affirmative action, to speak of reparations--the 
old ``40 acres and a mule'' analogy.
 This approach may seem absurd at first blush but, quite frankly, if 
you read the Court's opinion in the Adarand case, it really becomes the 
logical conclusion. Justice O'Connor's majority opinion stated group 
remedies were inherently suspect; instead, Justice O'Connor stated that 
remedies should be targeted to individuals who have been the victims of 
racism. So descendants of slaves who were promised 40 acres and a mule 
would, therefore, be the logical beneficiaries of Justice O'Connor's 
formula.

  Still others have called for a nationwide apology about slavery, 
similar to that apology that many are currently pressing the Japanese 
to issue in response to their actions in World War II --or similarly, 
frankly, to the apology recently given by the United States Government 
for its internment of Japanese Americans during World War II.
  The point is that what we really need and what we have to search for 
are new solutions, solutions that will provide opportunity to those who 
face the higher barriers imposed by racism and discrimination. These 
solutions, I believe, will come in as many different forms as the 
problems that we face as a Nation. For blacks, those solutions 
[[Page S8378]] must include access to quality education, access to 
capital, and assistance with institution building.
  For women, we must make efforts to shatter the glass ceiling that 
limits participation at the highest levels and perpetuates the old boy 
network. For Asian Americans, we must seek to remove the mystery that 
surrounds the Asian community, when even fourth- and fifth-generation 
Americans are viewed with suspicion as foreign or not real Americans. I 
am certain, Mr. President, there are as many other worthwhile 
suggestions that will come forward in the coming weeks, and I look 
forward to considering and debating these and other suggestions. But 
the point is that I think the Adarand decision becomes a starting 
point, a take-off point for us to begin to have an honest dialog about 
where we are going in this Nation and how we can go there together.
  While I have the utmost respect for those who come forward with new 
ways to provide opportunity to all, I still, frankly, find it 
irresponsible that some would merely seek to limit opportunity without 
putting forward any new proposals, folks who would suggest that 
repealing our current efforts to provide opportunity without proposing 
any new solutions. This, in my opinion, is nothing more than a thinly 
veiled laissez-faire attitude toward diversity that is, at best, 
shortsighted.
  Instead of a deconstructionist approach, tearing down affirmative 
action and putting nothing in its place, I encourage my colleagues to 
join in developing creative solutions to the legacy of discrimination 
in this country. For guidance, I believe we can look to the countless 
individuals, the men and women around this country who are already 
working in the communities to ensure that the American dream is 
available for all of us and not just for some of us.
  And consider for a moment the example of LISC, Local Initiative 
Support Corporation. LISC was established in 1979 to provide financing 
and technical know-how to nonprofit community organizations, know-how 
these groups used to develop low- and moderately affordable housing and 
attract commercial investments, create jobs and expand services in 
underserved neighborhoods. We need to build on successes such as these 
rather than give up on the dream of true equality in America. There are 
enough success stories out there, there are enough examples of people 
working together to forge a true network, a true quilt of diversity 
that will reflect the best that is America. I believe we have an 
obligation to look to those examples and to replicate them wherever we 
can.
  Mr. President, also, I would like to add that while some uncertainty 
may surround Federal Government set-aside programs, there are a host of 
other activities which are in no way jeopardized by the Adarand ruling. 
While efforts such as the set-asides in the Small Business Act have 
been extremely important in helping to bring minorities into the 
economic mainstream, they, frankly, do not comprise the heart of this 
Government's efforts in regard to affirmative action.
  Despite all the attention that has been focused on the set-aside 
program, the heart of affirmative action is not set-asides. The heart 
of affirmative action, on the other hand, is, in fact, to create a 
climate in which diversity can thrive and which allows women and 
minorities to succeed. The heart of affirmative action is about 
ensuring that the qualifications of women and minorities will be 
considered and not ignored.
  Affirmative action does not seek to guarantee any individual a job or 
a contract. Rather, it seeks to give women and minorities a chance to 
succeed or fail, sink or swim, based on ability, not race or gender. 
Affirmative action, therefore, encompasses efforts such as recruiting 
at historically black colleges and universities, in addition to the Big 
Ten and Ivy League schools so that the most talented young African 
Americans will be considered for jobs and careers along with most 
talented white Americans. It includes the Executive order on 
affirmative action which requires the Federal contractors to maximize 
the percentages of women and minorities in their work force without 
ever requiring quotas or preferences.
  In short, affirmative action is, at its heart, about ensuring equal 
opportunity, not equal results. Affirmative action is not a zero sum 
gain. It does not have winners and losers. We all win when we open up 
opportunity and stir the competitive pot to allow a real meritocracy to 
develop in this country, one that is color blind and gender neutral and 
does not insist that the shackles of the past are just accidents of 
birth for which we have no collective obligation as a Nation to remove 
and overcome.
  Diversity is our strength, not our weakness--or it can be, anyway, so 
long as we do not allow those who would separate us on the basis of 
race or gender to prevail. This is not, Mr. President, ``Let's all get 
along,'' and this is not paternalism, it is an acknowledgment that we 
are all in this together. We will all rise or fall, sink or swim, 
together as Americans. Recognizing that, let us not retreat. Instead, 
let us go forward together to build on the progress that has been made 
so far. It is in our collective and national interest that we do so. 
The future of our country, and nothing less important than that, hinges 
on our response at this time in our history to this very important 
longstanding issue of the character of the American society.
  Thank you very much, Mr. President. I yield the floor and suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. PRESSLER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  

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