[Congressional Record Volume 142, Number 47 (Monday, April 15, 1996)]
[Senate]
[Pages S3253-S3255]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              CIVIL RIGHTS POLICY AND THE NATION'S FUTURE

  Mr. HATCH. Mr. President, our country stands at a crossroads in the 
path it travels in relations among the different races and ethnic 
groups that make up the American people. Down one path is the way of 
mutual understanding and goodwill; the way of equal opportunity for 
individuals; the way of seriously and persistently addressing our 
various social problems as America's problems. It is the way, 
ultimately, of greater unity among our people. Down the other path is 
the way of mutual suspicion, fear, ill will, and indifference; the way 
of group rights and group preferences. On this path we march toward 
greater division. And, on this path, the signpost is marked: equal 
results for groups, not equal rights for individuals.
  This is a time when our national leadership needs to lead us down the 
proper path. I am concerned, however, that the President views this 
subject too much as a political issue. It has been an issue which he 
has sought to manage in order to avoid an intra-party challenge or 
independent candidacy from his left, rather than simply base policy 
solely on the merits. Thus, he has firmly and resolutely defended, in 
principle, the current racial, ethnic, and gender preference regime in 
this country. And, in practice, he has preserved the vast bulk of the 
actual preferential programs, of which there are dozens at the Federal 
level and many more at other levels of government, that make up this 
regime. At the same time, he apparently believes he can nibble at the 
edges of this problem of preferences, to look like he is doing 
something meaningful about it.
  We must start with a genuine dialog on race, ethnicity, and how 
public policy can be changed for the better.
  In my opinion, the discussion of this issue must begin with the 
understanding of this country's history of discrimination against some 
people because of their membership in a particular racial, ethnic, or 
gender group.
  Indeed, one aspect of this history, the continued subjugation of 
people enslaved because of the color of their skin, is not merely an 
unspeakable evil that mocked our principles and ideals; in fact, 
slavery, together with the continuing discrimination following its 
eradication, still has consequences today.
  I think many members of the white majority in this country have 
difficulty appreciating just how significantly different and less 
hospitable an experience black people, and members of other nonwhite 
minorities, have had in our country. This does not mean, of course, 
that Irish, Italian, Eastern European, and other peoples in the white 
majority did not suffer discrimination in America, or that religious 
minorities in America, such as Catholics, Jews, and Mormons, have not 
been victimized because of their religion. Some of this discrimination, 
regrettably, still occurs. But the color line in this country, was, and 
is, one of the harshest lines that has ever confronted our people.
  It was not so long ago that State Governors stood in schoolhouse 
doors to bar black students from entering. Black and Hispanic 
youngsters were discriminated against at all levels of education in 
many parts of the country. It was not so long ago that U.S. marshals 
and Federal troops had to protect public school children and college 
students in exercising their constitutional rights. People were 
murdered because of their black, brown, and yellow skin--a crime still 
committed in our country in recent years. And people lost their lives 
in trying to remove the color line in our law.
  It was not so long ago that Americans of black and brown skin could 
return from service in our Armed Forces, be able to afford an apartment 
or house, yet be lawfully turned away because they were regarded as the 
wrong color for the neighborhood. Many of the basic necessities of 
life--jobs, housing, public accommodations, the right to vote--were 
legally denied or curtailed because of race, color, and ethnicity.
  We will never go back to those days. But we must never forget them. 
And it is necessary for white Americans to have understanding in their 
hearts, empathy in their actions and attitudes, and a willingness to 
address social problems in this country--not just the problems they and 
their neighbors face, but problems all of our people face.
  We need, in my view, a mutual understanding among the races that the 
legacy of past and present-day discrimination, and its social effects, 
must be addressed, and that our actions and remedies addressing these 
problems must be fair and must avoid penalizing innocent persons. We 
can do this.
  This mutual understanding might be summed up this way: The legacy of 
distant discrimination, committed beyond the statute of limitations of 
our civil rights laws, must be treated as a socio-economic problem, and 
not as a problem calling for preferences against innocent persons 
today. Further, present-day violations of our civil rights laws, of 
course, must be vigorously pursued; but, again, persons not victimized 
by present-day violations should not be preferred over innocent persons 
in any remedy.
  One way to illustrate this point is this: While title VII, which 
prohibits discrimination in employment, can ensure that the best 
qualified person not be denied a job because of race, ethnicity, or 
gender, title VII does nothing to help anyone become the best qualified 
person for a job.
  We need a mutual understanding that our pride in our racial, ethnic, 
and religious backgrounds in America is exactly that, pride in an 
important part of ourselves, and hostility to no other person on its 
account.
  We need a mutual understanding that we live in a free and 
good society, with all of its flaws, where opportunity and the ability 
to dream big dreams remain open to us, where progress has been made in 
making the great possibilities of America available to all, and where 
we are not yet finished.

  Indeed, I say to my fellow Americans, we are not ultimately defined 
by our race, ethnicity, or color, but by our common humanity and our 
common citizenship. American values, American principles, American 
ideals must be our guide. Our Declaration of Independence says it well: 
``We hold these truths to be self-evident, that all men are created 
equal, that they are endowed by their creator with certain

[[Page S3254]]

unalienable rights * * * .'' We had to learn that this included women 
and men other than white men, but we have learned it. We must make it 
work in every generation. We are in life's journey together. We are 
inextricably bound together by our God-given humanity, common 
citizenship, and common heritage as Americans.
  Over 200 years ago, a very wise member of our founding generation, 
Benjamin Franklin, referred to his fellow ragtag rebels in 13 
discordant, often quarreling colonies fighting the world's greatest 
superpower and said: ``if we do not hang together, we will all hang 
separately.''
  Today, I say, if we Americans do not progress together as a people, 
we will surely decline in our own separate, squabbling groups.
  Today, Americans face many challenges: world economic competition; 
instability in parts of the world, hostility in others; international 
and domestic terrorism; crime in our streets; improving our educational 
systems. We must face these challenges together.
  Some things must come from within the individual, and from within our 
families, our neighborhoods and communities. These are clearly the 
places where our work must begin and where our progress must occur. But 
we must help each other and work together.
  While we cannot, and should not, compel people to associate with one 
another socially, if all we have done is replace a government imposed 
color line with a voluntary color line imposed by our indifference, 
fear, mistrust, or superior attitudes, we will all be the losers. And, 
if all we have done is replace one set of discriminatory practices with 
another, in the name of nondiscrimination no less, we will never reach 
our full potential as a united people.
  I think it is useful to pose this fundamental question: What is it 
our fellow citizens whose skin color is other than white really want?
  I claim no special expertise. I speak for myself only as a citizen 
and public servant, to offer this observation: Americans who are part 
of a racial or ethnic minority group want decent and secure jobs; good 
schooling for their children; safety in their streets and 
neighborhoods; decent housing; a chance to go as far as their abilities 
and drive take them; a chance to earn some of the finer things in life.
  Am I not describing the very same things the white majority in this 
country wants? As different as our experiences may be, and as different 
as our skin color may be, are we Americans really so very much 
different from one another? My answer is no.
  If I am right, two things follow. First, sound general public 
policies that help all of our citizens are needed. These include 
policies to strengthen and nurture families. These policies include an 
emphasis on traditional values such as honesty, hard work, individual 
responsibility, compassion, and respect for others. I believe that 
religious institutions must play a vital role in helping foster these 
values in our young people and that government should encourage such a 
role, not place needless obstacles in the way. Sound general policies 
include tough anticrime and antidrug strategies. They include welfare 
reform aimed at fostering greater independence and self-sufficiency. 
They include sound policies for generating economic growth and job 
creation, including job training; improving our schools; and policies 
favoring housing construction and low interest rates. Reducing trade 
barriers, reducing taxes, lightening the regulatory burden, creating 
and sustaining a growing economy--all of this is the foundation of our 
progress as a people. To borrow what has become a familiar phrase--a 
rising tide lifts all boats.
  But second, Americans must understand, that for the descendants of 
slaves and for others whose history in this country includes a color 
barrier, there are special problems in achieving their piece of the 
American dream. These problems require acknowledgment and response. A 
mix of focused private and public action, guided by fair play for all, 
is called for.
  It is to this second point I now wish to turn.
  Racial, ethnic, and gender discrimination, of course, regrettably, 
continues down to the present day.
  Fortunately, this Nation finally adopted an array of civil rights 
laws aimed at eradicating discrimination based on race, ethnicity, 
color, disability, and gender. Our civil rights laws should be 
vigorously and sensibly enforced.
  But, Mr. President, there is danger and risk as we address problems 
stemming from past and present discrimination. You don't put out a 
forest fire by pouring gasoline on it, and you do not cure 
discrimination--past or present--with more discrimination.
  Every individual is made in God's image and should be treated in the 
workplace, the business world, schools, public accommodations and the 
like without regard to race, ethnicity, or gender. If we cannot stand 
as a nation for that simple, powerful, yet historically elusive 
principle today, when will we ever stand for it? And what do we stand 
for, as a nation, if we do not stand for equal opportunity for every 
individual?

  I stand for the primacy of the individual. Our rights as Americans do 
not turn on the color of our skin, our ethnic background, or our 
religious faith. Just as we should never forget that America has often 
departed from her founding principles and ideals of equal opportunity 
for individuals, we should never forget that those are the principles 
and ideals we should ever be striving to fulfill. And in our necessary 
effort to right old wrongs, let us not create new wrongs.
  A person denied a job, a promotion, a contract, a training program, 
or admission to school because of race, ethnicity, or gender should be 
made whole. In the case of employment discrimination, for example, back 
pay and the next available job with retroactive seniority should be 
made available to the victim of discrimination. The discrimination 
should be enjoined.
  But, no innocent third party should be forced to lose or delay a job, 
a promotion, a training opportunity, or be laid off in favor of a 
person not victimized by discrimination because that person is the same 
color as someone who was, in fact, discriminated against. That is the 
difference between a policy of individual rights versus group rights.
  President Clinton, in defending policies of group rights that are one 
significant part of the modern day affirmative action structure says, 
mend it, don't end it. I say, with respect to the preferences that are 
a significant part of affirmative action, two civil wrongs do not make 
a civil right.
  Affirmative action that utilizes or encourages preferences on the 
basis of race, ethnicity, or gender in actual selection decisions--
hiring, promotion, layoff, contract awards, school admissions, 
scholarship awards, government benefits--whether labeled goal, quota, 
or otherwise, is wrong and should be ended. These preferential devices 
are merely another form of discrimination. I stress that preferences 
come in many forms--not just quotas and not just in numerical 
formulations.
  It is acceptable, in contrast, for an employer to engage in 
affirmative action that calls for reviewing personnel practices to 
ensure they are free of discrimination. It is acceptable for employers 
to make an effort to recruit applicants from among those who 
traditionally do not apply for the job--or in other contexts, for a 
contract, or school admission--after which the selection is made 
without regard to race, ethnicity, or gender. In appropriate 
circumstances, other affirmative steps, targeted to disadvantaged 
persons, but open to all on a nondiscriminatory basis, are acceptable. 
Thus, a job training program aimed at the chronically unemployed, or 
the urban unemployed, is fine, so long as no one is ever turned away 
because of race, ethnicity, or gender. If such a job training program 
is established in New York City or Washington, DC, for example, no 
doubt many racial and ethnic minorities should be able to take 
advantage of it. But nonminorities also live in these cities and if 
they otherwise qualify for the program, they should not be denied entry 
because of race or be subject to express or implied numerical 
limitations. Former New York City Mayor Ed Koch testified on October 
23, 1995, before the Subcommittee on the Constitution, that he was 
unhappy at one point with the low numbers of minorities passing police 
exams in New York City. He put a training course in Harlem--open to 
all. That is affirmative action in the right sense.

[[Page S3255]]

  Instead of government setting aside a percentage of contracts on the 
basis of race, ethnicity, or gender, why not establish and foster a 
mentor program whereby established, experienced contractors provide 
advice, guidance, and contacts to new or small businesses, regardless 
of the race, ethnicity, or gender of their owners? This will benefit 
minority- and women-owned businesses without denying anyone such help. 
State and local governments, instead of trampling on equal opportunity 
by setting racial numerical requirements or goals, could sponsor 
seminars about the contract bidding process, methods of obtaining 
bonding, and so on--open to all, but located where they can benefit 
minority- and women-owned businesses. Rather than discriminate, why not 
enhance people's abilities to compete? This is what the Federal 
Government should be encouraging State and local governments to do.
  The September/October 1995 issue of The American Enterprise mentions 
an Austin, TX nonprofit organization called the National Council of 
Contractors Association [NCCA]. It was formed with a small grant from 
the city of Austin. It is 2 years old, and its help is available to all 
small businesses, though most of the businesses it helps are minority 
or women owned. NCCA provides firms with expert advice on how to win 
contracts, donates accounting services, and helps them win bonding. In 
a year and a half, NCCA helped 83 firms win 171 contracts. We should 
encourage such programs, open to all, but located where they can 
benefit minority and women owned businesses.
  I think we ought to take some calculated risks to help small 
businesses. I am willing to support a small pilot program at the Small 
Business Administration, where the Government insures the bonding of 
new, small companies owned by persons of any race or gender--with less 
net worth, fewer capital reserves, and less experience than current 
programs require. I am willing to see whether such an approach, 
especially if coupled with technical assistance, can make a difference 
in getting new small businesses off the ground and able then to compete 
in the marketplace. If it turns out that reducing current requirements 
in providing this help does not work, and these businesses do not 
successfully perform, we should then drop the program. If it does make 
a difference, we can expand it in an orderly way. But we have to try 
approaches that get us away from race and gender lines.
  Government can look for more opportunity to contract out some of its 
services--creating more opportunity for businesses, at less cost.
  Instead of racially exclusive scholarship programs operated by 
colleges, colleges could make aid available based on need, without 
racial preference. Instead of preferences in college admissions based 
on race, we need to strengthen elementary and secondary education so 
children are better able to perform pursuant to the same standards. Of 
course, taking into consideration an applicant's overcoming poverty or 
other barriers to success, as one part of the evaluation of an 
applicant, is acceptable in college admissions so long as those 
criteria are applied equally to all races, and are not thinly veiled 
proxies for race. But we need to start earlier than that. Then New York 
City Schools Chancellor Cortines proposed a math and science institute 
for 350 seventh and eighth graders to help prepare them for the 
difficult examinations for admission to three academically selective 
high schools. Students of all races and all parts of the city are 
eligible under that proposal, but the emphasis would be on those parts 
of the city that send the fewest kids to those high schools. Mostly 
black and Hispanic kids would benefit from the extra preparation. And 
the standards for admission for the three high schools would not be 
altered. As I understand it, there is to be no racial or ethnic 
preferences for admission to the preparatory program or to the three 
high schools--but an effort to improve people's abilities in this urban 
school district.
  We need to evaluate the concept of public and private school choice, 
through vouchers or similar programs. Businesses need to lend a hand to 
our public schools. It is in everyone's interest. Businesses need 
workers who can perform, or they lose out in this global economy.
  I received in the mail a report of the Lindahl Foundation, founded in 
1991 and privately endowed by the chairman of State Industries, Inc. of 
Tennessee, the largest manufacturer of water heaters in this country. 
John R. Lindahl established the foundation to ensure that any child of 
his employees has the financial aid to get an education after high 
school. He expanded it to other students in the county. It is based on 
need, aimed at academically worthy kids who may not be scholastic 
superstars, but who could do the work in college or vocational school, 
if only they could afford it. Nearly 350 young people have received 
awards of $1,000 to $4,000 as a result of this patriot's effort. The 
brochure has pictures and words of thanks from grateful young men and 
women, black and white, including one young woman who was able to 
fulfill her dream of attending Brigham Young University.
  Our public schools need to improve. The August 20, 1994, New York 
Times carried a statement from Albert Shanker, president of the 
American Federation of Teachers. He tells the story of the principal of 
an inner-city elementary school in Baltimore. The principal eventually 
prevailed upon the Baltimore school system to use a private school's 
model for teaching. The model is conservative in both educational 
philosophy and curriculum, with a strong emphasis on reading and 
writing, and specific week by week, year by year benchmarks of what the 
children should learn. The performance of the kids at this school is 
way up--a school which is 94 percent minority and where 82 percent of 
the kids are eligible for free or reduced price lunches.
  Prof. Susan Estrich has written about the efforts of the new 
California Superintendent of Education. I'll summarize the gist of the 
column by citing its title: ``A Novel School Plan: Back to Basics.''
  Some of us believe at least part of the answer also lies in reducing 
government barriers. This should include a meaningful entry level 
training minimum wage for teenagers, enterprise zones, repeal of the 
Davis-Bacon Act, and encouragement of private sector initiatives for 
everything from job training and mentoring young people from 
disadvantaged backgrounds, to ways of strengthening the family.
  Local and State governments need to remove barriers to entry into 
different occupations.
  I do not claim to have all the answers. I expect others have 
different ways of looking at these issues, and different solutions. But 
I do believe we need to talk about this in a civil and serious way.
  And I believe that a stubborn defense of preferences sidetracks us 
from finding better, fairer solutions. I will have more to say about 
this in later remarks.
  But, let us engage in this dialog. Let us examine the ramifications 
of our choice of the road to take. And let us not sweep these issues 
under the rug in our national debate. Let us deal openly with these 
issues and help lead our country down the road to a more united people.
  (The remarks of Mr. Kennedy pertaining to the introduction of S. 1668 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I yield myself 20 minutes from the time 
allotted to the minority leader.
  The PRESIDING OFFICER. The Senator is recognized for 20 minutes.

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