[Congressional Record Volume 141, Number 99 (Friday, June 16, 1995)]
[Senate]
[Page S8530]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




[[Page S8530]]


                           AFFIRMATIVE ACTION

  Mr. McCONNELL. Mr. President, I would like to address the Supreme 
Court's historic decision in the Adarand case handed down earlier this 
week. A majority of the Court, led by Justice Sandra Day O'Connor, 
found that preference and set-aside programs ordered by the Federal 
Government must be examined under the strictest judicial scrutiny. 
Justice O'Connor's opinion states that equal protection of the laws, as 
guaranteed by the Constitution, extends to every person, not to 
particular groups.
  These preference programs are based on notions of group entitlement. 
As a practical matter, this decision will make it very difficult for 
the Federal Government to justify the more than 150 preference programs 
that currently exist. This decision is an important step in making this 
Nation truly color blind.
  The case involved a Federal subcontract on a highway project. Under 
the Surface Transportation Act of 1987, Department of Transportation 
gives a bonus to a general contractor who hires subcontractors who 
qualify as socially and economically disadvantaged. Under the Small 
Business Administration definitions, disadvantaged is presumed to 
include African-Americans, Hispanic-Americans, women, native Americans, 
and other minority group members.
  Despite Adarand Construction's lowest bid on a Colorado highway 
project to build a guardrail, the general contractor gave the 
subcontract to a minority firm. Adarand sued, claiming a violation of 
its right to equal protection.
  Justice O'Connor, citing earlier affirmative action cases which had 
clouded the issue of the validity of these programs, wrote that 
classification based upon race which appear to be benign are not really 
benign, but ``are in fact motivated by illegitimate notions of racial 
inferiority or simple racial politics.''--from her own plurality 
opinion in Croson.
  This decision comes in the midst of lots of attention to these 
preference programs. There is a movement in California to abolish 
preference and set aside programs. Gov. Pete Wilson recently did away 
with preferences in State employment by executive order and there is 
likely to be a ballot initiative next year. President Clinton has 
ordered a review of Federal preference policies, and congressional 
leaders, including the majority leader, have called for close 
examination of these programs.
  Americans have no tolerance for racial discrimination, but they also 
have no patience for discrimination which is committed under the guise 
of making up lost opportunity for those who belong to certain groups. 
You can't discriminate against one group to benefit another. Justice 
Scalia said it best in his concurrence in the Adarand case,

       . . . [U]nder our Constitution there can be no such thing 
     as either a debtor or creditor race. . . . In the eyes of the 
     government, we are just one race here.

  Mr. President, in the Foreign Operations Subcommittee of the 
Appropriations Committee, which I chair, we will have an opportunity to 
review at least one of these set-aside programs. It requires a 
percentage of certain categories of foreign aid to be managed by 
minority contractors. Under the Court's decision in the Adarand case, 
we will now examine the set-aside program under the strict scrutiny 
test. The administration will have to establish a compelling interest 
to justify the continuation of preference and set-aside programs. In 
this time of very scarce dollars, and especially scarce in the context 
of foreign aid, it's hard to imagine the administration's justification 
for anything other than the most efficient and economical use of our 
foreign aid dollars.
  I look forward to the ramifications and implications of the Adarand 
case and the revision and even end to many of the Federal Government's 
preference programs and policies.
  The PRESIDING OFFICER. The Senator from Montana.

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