[Congressional Record Volume 142, Number 48 (Tuesday, April 16, 1996)]
[Senate]
[Pages S3340-S3345]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     SOCIAL POLICY AND CIVIL RIGHTS

  Mr. HATCH. Mr. President, I wish to continue the discussion about 
social policy and civil rights I began a short time ago.
  Mr. President, I support the vigorous and sensible enforcement of our 
civil rights laws and make whole relief for the victims of 
discrimination. I support affirmative action involving outreach and 
recruitment. I support training and assistance open to all who are 
seeking to enhance their ability to compete, without regard to race, 
ethnicity, or gender. I oppose preferences in the award of benefits or 
impositions of penalties based in whole or in part on race, ethnicity, 
or gender.
  Opposition to preferences should not be a device used, however 
inadvertently, to ignore the particular problems resulting from the 
legacy of prior and ongoing discrimination. Nor should opposition to 
preferences be used to weaken the kind of affirmative outreach and 
recruitment I mentioned earlier.
  Conversely, I reject the cynical use of the affirmative action label 
as a means of throwing a protective shield over preferences, as 
President Clinton and his administration have repeatedly done.
  This administration has pursued a pervasive policy of preference. The 
President's actions speak louder than his words. The Clinton 
administration has repeatedly cast its lot not on the side of equal 
opportunity for all Americans, but on the side of racial, gender, and 
ethnic preferences and equal results for groups.
  Indeed, I find both President Clinton's July 19, 1995, speech on this 
issue and his administration's review of this issue an artful dodge of 
the real issues and a vigorous assault on the principle of equal 
opportunity for all Americans.
  In his frequently gauzy July 19 speech, President Clinton never came 
to grips with the details of affirmative action preferences. He also 
repeats some false dichotomies long used by other tenacious defenders 
of preferences. He ignores the variety of ways preferences operate, and 
are defended, even under his own administration.
  Moreover, he defines affirmative action with a combination of breadth 
and vagueness, allowing him to dodge the tough issues. He does not 
understand that preferences are not only wrong, they are terribly 
divisive.
  Columnist Robert J. Samuelson has written:

       The essence of Clinton-speak is that the president is often 
     saying the opposite of what he is doing. On affirmative 
     action, he deplores those ``who play politics with the issue 
     . . . and divide the country.'' Yet, that describes Clinton 
     exactly. His eager embrace of affirmative action guarantees 
     that it will foment racial and gender rancor.

  That was from the Washington Post of August 9, 1995.
  He treats the web of local, State and Federal bureaucratic, 
legislative, and judicial rules and policies requiring the cause of 
preferences as if they were minor aberrations or barely in existence. 
They have, in fact, grown over the years, including under his policies.
  For example, he claims that sometimes employers abuse the concept--as 
if local, State, and Federal governments have not been breathing down 
many employers' necks--playing the numbers game, pressuring and 
requiring consideration of race, ethnicity, and gender in their 
employment practices. Indeed, his administration has recently issued 
guidance concerning Federal employment which provides a shocking, 
broad-based series of rationales for preferences.
  Moreover, the President, in my view, gives too much credit to 
affirmative action for progress in this country. The enactment and 
enforcement of antidiscrimination laws, a decrease in prejudice, and 
economic forces, in my view, have clearly played very important roles 
in such progress. Even his own task force admits, at least: ``It is 
very difficult * * * to separate the contribution of affirmative action 
from the contribution of antidiscrimination enforcement, decreasing 
prejudice, rising incomes and other forces.''

[[Page S3341]]

  The four directives he has issued to his agencies are largely 
misleading or irrelevant, especially in light of his administration's 
overall actions. The President says, ``No quotas in theory or practice 
* * *'' but he supports a so-called flexible goal.
  It is preferences we must oppose, however, not the label for one of 
the forms of preference. And the Clinton administration has strongly 
fostered preferences in various ways, as I will explain shortly, 
sometimes making use of numbers and sometimes not. Indeed, 
his administration has fostered outright quotas.

  With respect to numerical objectives, whether they are labeled goals 
and timetables or quotas, the harm that occurs is the exercise of 
preference based on race, ethnicity, gender, or otherwise. It is such 
preference that is wrong, rather than the precise label we place on the 
mechanism of preference.
  I think it is helpful to conceptualize the numbers approach as 
functioning along a continuum. At one end, the equal opportunity end, 
there is the requirement not to discriminate on the basis of irrelevant 
characteristics, the requirements to review selection processes to 
ensure that there is no bias and to recruit widely--and no numerical 
objective. At the other end is a requirement that does one of two 
things. First, it either establishes separate lists of those at least 
minimally qualified, based on race or gender, with alternate selection 
from these lists until a certain percentage is met, regardless of the 
relative rankings that would exist on a single list. Or, the 
requirement simply defines equal opportunity as essentially the 
proportional representation of various groups, and mandates or permits 
race or gender conscious selection procedures in order to meet that 
objective.
  In between these two ends are various levels of coercive authority 
and sanctions that require or strongly encourage the use of preference. 
Thus, somewhere between these two opposites might be what is 
euphemistically described as a ``flexible goal and timetable.'' In 
fact, this differs little, as a practical matter, from what is 
otherwise known as a quota, except in the lack of explicitly separate 
lists. It might be that an employer is pressured to reach a certain 
percentage of designated groups in his work force over a period of time 
without the explicit creation of separate lists. Sanctions remain 
available, lurking not far in the background. If an employer or school 
believes that the failure to meet a goal will result in increased 
oversight, paperwork, and required explanations; the threat of contract 
debarment, loss of Federal aid, or a lawsuit by individuals, advocacy 
groups or the Government hanging overhead; or a contempt motion 
pursuant to a court order which is already in place, then the employer 
or school is going to try to meet that number, regardless of who is 
best qualified. If an employer or school does not believe that the 
Government intends for the number to be reached, they would have to 
ask, why did the Government put the number out there? If equal 
opportunity alone is all that is required, the Government can require 
that such opportunity be afforded without setting any numerical 
requirement. I also note that, when race, ethnicity, or gender is used 
as only one factor in a decision to hire, and that one factor tips the 
decision in favor of one person and against another, that is 
discrimination, that is a preference.

  Thus, while some numerical objectives may be somewhat less coercive 
than others, they are no less objectionable. At best, we are speaking 
of matters of degree, not of kind. The Clinton Administration makes 
full use of the range of preferences.
  President Clinton next says, ``no illegal discrimination of any kind 
including reverse discrimination.'' Mr. President, this is clearly a 
verbal slight of hand. The President never defined reverse 
discrimination. As the President and his legal advisors well know, the 
courts and executive bureaucracies, regrettably, have deemed a variety 
of reverse discrimination--preferences--as legal. His own task force, 
for example, speaks approvingly of the Supreme Court's 1979 Weber 
decision. That decision permits reverse discrimination in an employer's 
training program under title VII. The Weber decision is a crucial part 
of the reverse discrimination edifice in this country. So the President 
favors reverse discrimination under the name of affirmative action, at 
least so long as a court anywhere, or a bureaucrat, says its acceptable 
or might possibly say its acceptable. The congressional testimony, 
courtroom legal arguments, and policy guidance of his Justice 
Department amply confirm this.
  Indeed, his own administration has vigorously sought to expand the 
rationales for permitting reverse discrimination. Let us not forget: 
the Clinton administration was on the losing side in the Supreme 
Court's 1995 Adarand case. The Clinton administration argued for a 
double standard based on race and ethnicity in the Federal Government's 
award of contracts and in Federal Government policy generally. 
President Clinton managed to omit that fact from his July 19, 1995, 
speech. President Clinton defended his administration's outrageous 
defense of racial preferences in layoffs in the Piscataway case.

  Next comes the President's clumsiest and most transparent cynicism: 
``no preference for people who are not qualified for any job or other 
opportunity.'' This is a longstanding dodge by the ardent defenders of 
preference and reverse discrimination. Of course, the problem with 
preferential policies is that they favor the lesser qualified over the 
better qualified.
  Finally, the President says, as soon as ``the [particular affirmative 
action] program has succeeded it must be retired.'' We have heard that 
for at least 25 years. What does the President mean by an affirmative 
action program succeeding? He does not say, directly. But a careful 
review of his speech, his task force's rationale for affirmative 
action, including preferences, and his Justice Department guidance, 
makes it clear--he does not mean equal opportunity for individuals. The 
repeated reference, as justification for affirmative action, to various 
statistical disparities makes clear that affirmative action succeeds in 
this administration when equality of result--proportionality--has been 
reached. Indeed, his Justice Department's February 29, 1996 guidance to 
Federal agencies justifying preferences and reverse discrimination in 
Federal employment authorizes those agencies to maintain 
proportionality almost continually.
  Despite misleading disclaimers, that memorandum is a wide-ranging 
defense not only of reverse discrimination well beyond current Supreme 
Court precedent. It is a thinly veiled defense of quota hiring.
  I should also point out that President Clinton takes the Adarand 
decision as if it is the final guidance on preferences. It is not. His 
own task force knows better: ``The Court's decision concerned what is 
constitutionally permissible, which is a necessary but not sufficient 
consideration in judging whether a measure is a wise public policy.'' 
There is the question of what is right. In my view, if a business has 
been discriminated against by a government entity, it should have a 
remedy. But to prefer another business because it is owned by a member 
of the same group, over an innocent business owner who belongs to a 
different group, is wrong.
  If one believes that rights inhere in individuals, not in groups, one 
has to oppose this latter type of program, a contract preference based 
on race, ethnicity, or gender. The Clinton administration celebrates 
it. Just listen to the Clinton task force's rationalization: race-
conscious contract procurement programs ``cause only a minor diminution 
of opportunity for non-minority firms. In that respect, current 
programs are balanced and equitable in the large.'' So much for 
individual rights. So much for equal opportunity for every individual. 
No reasonable person would accept such a rationale if the victims were 
minority firms, and properly so.
  The Clinton administration should tell Tom Stewart of Spokane, WA, 
who testified before the Senate Judiciary Constitution Subcommittee, 
that contract preferences generally cause only minor loss of 
opportunity. His guardrail firm has lost $10 to $15 million over 15 
years because of preferences--reverse discrimination to anyone else but 
this President and other defenders of preference and reverse 
discrimination. Mr. Stewart has numerous letters from prime contractors 
saying he was low

[[Page S3342]]

bidder but could not be retained because of set-aside requirements--the 
preferences, if you will.

  Or tell it to Lance McKinney, the president of Atherton Construction 
Co. of Salt Lake City, UT, who was not even permitted to bid on certain 
contracts because of his race. These requirements are far more 
pervasive in local, State, and Federal governments than the President 
admits. Even one contract lost because of race is one too many, but the 
Clinton administration breezily understates the scope of the problem.
  The President condescendingly tries to bundle off concern about 
preferences and reverse discrimination to economic uncertainty in the 
white middle class. The President thinks the real problems with racial, 
ethnic, and gender set-asides are those of fronts and fraud. President 
Clinton just does not get it. He is out of touch with mainstream 
America. The real problem with racial, ethnic, and gender preferences, 
including in contract awards, is that they are fundamentally unfair. 
Preferences and reverse discrimination should be ended, not tinkered 
with.
  The principle of equal opportunity demands that we avoid new forms of 
discrimination. We must not create new victims of discrimination in the 
name of affirmative action--something the President's own 
administration has, in the large, fostered and defended.
  Ted Van Dyk, a former assistant to Vice President Hubert Humphrey has 
written:

       The civil-rights fighters of the 1950s and early 1960s can 
     only be shocked that the more recent Democrats, including the 
     president, have taken that struggle for opportunity and 
     transformed it into an attempt at guaranteed outcomes. Hence 
     the official and unofficial, gender and ethnic quotas imposed 
     in staffing the administration.

  Mr. Van Dyk has also noted--and keep in mind he was former assistant 
to Vice President Hubert Humphrey, who helped to write the act of 1964.
  Mr. Van Dyk has also noted,

       Affirmative action was intended as nothing more than a late 
     footnote to central civil rights and social legislation of 
     the early and mid-1960s meant to remove from American life 
     discrimination against--or for--any person or group. The 
     objective of a generation of civil-rights fighters of all 
     races and colors had been to give every American an equal 
     chance at the starting line--but not a guaranteed outcome at 
     the finish line.
       My old boss Hubert Humphrey, principal sponsor of the 1964 
     Civil Rights Act, made clear during congressional debate that 
     quotas, racial preferences, set-asides and other 
     discriminatory measures were totally at odds with the justice 
     sought through the act. Title VII of the act, in fact, 
     explicitly bans preferences by race, gender, ethnicity and 
     religion.
       No one could have predicted then that affirmative action 
     would be transformed into a quasi-entitlement or that well-
     meaning next-generation leaders, including President Clinton 
     and Hillary Rodham Clinton, would insist on rigid racial, 
     gender and ethnic quotas in filling federal appointments.

  These quotes are from the Washington Post, March 9, 1995 edition.
  The Washington Post of September 1, 1995, reports:

       A divided Montgomery County School Board has refused to 
     overturn a school system decision denying two Asian 
     kindergartners admission into a French immersion program 
     because the transfer would upset the ethnic balance at their 
     neighborhood elementary school.

  Only after a public uproar was this particular denial overturned. How 
does the President feel about this general policy? Will his 
administration enforce equal opportunity in the Montgomery County 
schools?
  The Washington Post of October 30, 1995, reported:

       Principal Inez Sadler's Valley View Elementary School in 
     Prince George's County, Maryland faced a shortage of 50 
     students for its Talented and Gifted program, but she could 
     not choose from any of the 67 students on a waiting list. The 
     reason: all 67 students on the list are African American, 
     while all 50 available slots are reserved for children of 
     other races.

  This is pursuant to a court-ordered desegregation remedy originating 
in a 23-year-old lawsuit.
  In San Francisco, as part of a 12-year-old consent decree, Chinese-
American youngsters are being discriminated against in favor of whites, 
blacks, Hispanics, Koreans, or Japanese for entry to Lowell High 
School--and there is discrimination in the treatment among these groups 
as well. This is in the Los Angeles Times, July 13, 1995 edition.
  Only in the past few weeks has there been the possibility of some 
change in those policies.
  A 12-year-old girl was denied admission to Boston Latin School 
recently because she ran afoul of racial preferences.
  Does the President believe these practices are right? Should his 
administration have been doing something about it?
  Some of these examples point out something else President Clinton is 
oblivious to: Preferences hurt all of those outside the preferred 
groups in any given instance, not just white males. That is the dodge 
that they hide behind all the time. We are finding they are hurting 
everybody.
  Once we draw a line based on race, ethnicity, or gender, we create 
new victims of discrimination.
  When Miami Dade Community College, for example, offers five faculty 
fellowships for males of African descent, white males are not the only 
victims. Females of African descent are discriminated against, as are 
Asians and Hispanics. But this program is fully consistent with the 
administration's actual policies.
  If President Clinton is truly concerned about equal opportunity, he 
should straighten out the policies of his own administration.
  He could start with the Department of Justice, which of course, as 
chairman of the Judiciary Committee, I have the responsibility of 
overviewing. That is one reason why I am taking time to make this 
statement today.
  In 1994, the Clinton administration switched sides in a reverse 
discrimination case in Piscataway, NJ.
  In the Piscataway case, the Piscataway Board of Education decided to 
reduce the size of its Business Education Department. The choice was 
between laying off a white female or a black female with equivalent 
seniority.

  Normally, the tiebreaker between two equally senior employees facing 
a layoff is undertaken in a race-neutral manner, by drawing lots. But 
Piscataway had an affirmative action plan, which required that the tie 
be broken on the basis of race in favor of the black teacher. In 1989, 
the white teacher was discharged.
  The Bush Justice Department brought a lawsuit in January 1992 
challenging this racially discriminatory layoff under title VII of the 
1964 Civil Rights Act. In June 1993, the Clinton administration, then 
in power, filed two briefs advancing its then position that the race-
based layoff was illegal.
  Then, stunningly, after the district court ruled in favor of the 
United States and the white teacher who had intervened in the case in 
her own behalf, and granted her relief, the Clinton administration 
flip-flopped and abandoned its earlier position. It, in effect, 
switched sides and argued against the white teacher in favor of a 
policy of racial discrimination. It argued to deprive the victim of 
discrimination of the very relief it had engineered.
  The district court's straightforward legal analysis and finding in 
favor of the discriminatorily discharged teacher was challenged by the 
Clinton administration's strained legal arguments in its ideological 
drive to go beyond Supreme Court precedent to further its policies of 
reverse discrimination.
  The advocates of racial preference argue that such preferences can be 
justified as an effort to enhance racial diversity in a work force.
  I have many problems with the administration's position in this case. 
Let me mention one. I am deeply disturbed by the sweeping rationale DOJ 
advanced in support of the preference in this case. In its amicus 
brief--or friend of the court brief--the Department of Justice relied 
on Justice Steven's concurring opinion in Johnson, which defended 
preferences by public and private employers in very broad terms, 
including increasing the diversity of a work force for its own sake.
  If the open-ended view taken in DOJ's brief prevails, what is left of 
the actual language of title VII? Title VII's language bans 
discrimination in employment because of race. Narrow exceptions to 
title VII's plain language in Weber and Johnson, unfortunate as they 
are, do not extend as far as the facts in Piscataway. The Clinton 
administration's rationale in Piscataway, it seems to me, turns the 
statute upside down. It is an open invitation to widespread 
discrimination.

[[Page S3343]]

  President Clinton should have repudiated the Justice Department's 
extreme position in this case. Instead, he endorsed it. Now, he tries 
to claim he opposes reverse discrimination? In Piscataway, he advocates 
it. The court of appeals in that case has recently rejected the 
administration's effort to participate further in the case. I hope it 
upholds the lower court, notwithstanding the Clinton administration's 
change of heart.
  Moreover, the Justice Department largely echoed its Piscataway brief 
in the wide-ranging rationales it will accept for preferential hiring 
in the Federal Government. The Justice Department's claim that whenever 
an employer can produce statistics, anecdotes, or expert testimony, it 
can justify racial, ethnic, and gender preferences in order to meet its 
operational needs is a giant leap down the wrong road for this country. 
The President should repudiate this memorandum and start over again. He 
has had to countermand the Justice Department in a pornography case and 
a religious liberty case, so I am not suggesting anything new for this 
President.
  Let me be clear: I favor racial diversity and integration. The 
question is, how does an employer achieve it? I believe the proper way 
of doing so is recruiting widely, including among those who 
traditionally do not apply for a job, and then hiring on a 
nondiscriminatory basis, letting the numbers then fall where they may. 
We should not seek to achieve diversity by trumping the principle of 
equal opportunity for individuals.
  The Clinton administration, in contrast, believes diversity can and 
should be reached by discrimination and preferences, even in cases 
involving layoffs, as in the Piscataway case. Indeed, as I mentioned 
earlier, its brief in this case, after changing sides, together with 
its recent guidance to Federal agencies, embraces multiple, sweeping 
rationales for reverse discrimination with little limit, at least in 
the context of hiring, promotion, and remarkably, layoff.
  This is a recipe for the division, polarization, and balkanization of 
our people. It does not bring us together. The drafters of the 1964 
Civil Rights Act, such as Hubert Humphrey, have shown us a better way. 
Instead, President Clinton is taking us far away from the principle of 
equal opportunity for individuals.
  No matter how much the purveyors of preference try to candycoat or 
obfuscate their policies with euphemisms, they cannot mask the outright 
discrimination they are supporting. They cannot fool the American 
people.
  Let me mention just some of the other manifestations of the Clinton 
administration's policy of preference. An August 10, 1994, memorandum 
to Assistant Secretaries of Defense for Force Management; Health 
Affairs; and Reserve Affairs and to the Deputy Under Secretaries of 
Defense for Requirements and Resources and for Readiness addressed the 
subject of improving representation. It is from the Under Secretary of 
Defense for Personnel and Readiness, Edwin Dorn.

  The memorandum expresses concern about the job representation of, for 
example, minorities and women. That is a fair concern, and the issue 
becomes, how do you address that concern. The memorandum seems to call 
for recruitment of minorities and women as applicants for jobs, which I 
believe is entirely appropriate. But listen to how this concern is 
further addressed in the memorandum. Listen to how subtle pressure is 
placed on subordinates to put a premium, a preference, on irrelevant 
characteristics at the point of hiring or promotion.
  The memorandum reads in part:

       Secretary Perry is holding me responsible for improving 
     representation within the Office of Under Secretary of 
     Defense for Personnel and Readiness. For this reason, I need 
     to be consulted whenever you are confronting the possibility 
     that any excepted position, or any career position at GS-15 
     level and higher, is likely to be filled by a candidate who 
     will not enhance your organization's--and thus Personnel and 
     Readiness's--diversity. By working together, we may be able 
     to make faster progress. We know that there is a problem; it 
     may be apparent even at our own staff meetings . . .

  Notice that whenever there is a mere possibility that a person in one 
of the nonpreferred groups is even likely to be hired or promoted for 
any of the covered positions, race and gender must then come into play. 
The Defense Department may try to explain that any way it wishes. But 
the euphemistic phrase making faster progress, as a practical matter, 
means: if you are about to hire or promote a male or a nonminority, 
presumably on the basis of merit, do not do it until you check with 
your superiors and we may well prefer someone else on the basis of race 
or gender to improve our numbers. Indeed, in the next paragraph, the 
memorandum states, ``I believe that the informal process outlined above 
will produce results. If not, we will need to employ a more formal 
approach involving goals, timetables and controls on hiring 
decisions.''
  The problem to the Clinton administration is not discrimination. The 
problem to the Clinton administration is the absence of a particular 
proportion of each group. By singling out hiring and promotion of white 
males for special scrutiny, this office in DOD discriminates against 
them. While this approach is already a formal one--see me before you 
hire a white male--the threat of even more draconian measures makes it 
even more likely that his subordinates will make sure they are on board 
in their hiring to begin with.

  Antidiscrimination laws already apply to the Defense Department to 
ensure equal opportunity. The Department is also certainly capable of 
recruiting widely for job applicants. But the Clinton administration is 
going well beyond this with its pervasive policy of preference.
  If President Clinton is really serious about equal opportunity, he 
will repudiate that memorandum.
  Let us take another example of the Clinton administration's drive 
toward equal results. The November 15, 1994, FAA Weekly Employee 
Newsletter states, ``More than half of the GS-15 management positions 
recently filled through the Air Traffic National Selection System were 
minorities and females. `This is in line with Air Traffic's commitment 
to fill one out of every two vacancies with a diversity selection,' 
said acting Associate Administrator for Air Traffic, Bill Jeffers.'' 
Rather than achieve equal opportunity by recruiting widely and hiring 
fairly, without regard to irrelevant characteristics, the Clinton 
administration prides itself on a process, driven not by equal 
opportunity, but by equal results.
  When asked at a congressional hearing on June 27, 1995, whether the 
administration opposes quotas, the President's Attorney General said 
yes. Yet, when asked about the propriety of this FAA policy, the 
Attorney General refused to answer three times, hiding behind the 
President's ongoing, long-running Adarand review. There was no excuse 
for failing to repudiate the FAA's policy if this administration was 
serious about equal opportunity, rather than treating it as a political 
problem to be managed with euphemisms and dodges.
  President Clinton's omnibus health care bill in the last Congress 
provides yet another example of how this administration really views 
preferences and has sought to foster preferences and reverse 
discrimination. The Clinton health care proposal would have given a 
national council power to set limits on the number of medical students 
in various specialties and would have allocated funding among various 
medical training programs. The bill said that among the factors the 
national council must consider in allocating specialty slots is,

       . . . the extent to which the population of training 
     participants in the program includes training participants 
     who are members of racial or ethnic minority groups, [and] 
     with respect to a racial or ethnic group represented among 
     the training participants, the extent to which the group 
     is underrepresented in the field of medicine generally and 
     in various medical specialties.

  It was not enough, then, that the medical school comply with title VI 
which bans racial and ethnic discrimination in programs receiving 
Federal aid. It was not enough to recruit widely for applicants. The 
Clinton administration wanted to tell medical schools that the more 
members of a particular group they enroll, the more likely it is that 
they will get a financial allocation. How many members of the groups? 
The bill did not say, a new twist on preferences and their 
encouragement. Mr. President, if you were a rational medical school 
administrator competing for scarce Federal dollars, and this bill had 
become law, how

[[Page S3344]]

would you react? Would you simply recruit widely and then select 
medical students on the basis of merit and talent, without regard to 
race or ethnicity? Or would you make sure that race and ethnicity play 
a role in the selection of students, as well? This is a financial 
incentive for preference.
  The revised Clinton health bill, S. 2357, introduced in August 1994, 
actually added women to racial and ethnic groups in this preference 
provision. Of course, Federal law since 1972 already bans 
discrimination against women in federally assisted education programs. 
Instead of relying on our nondiscrimination laws which were written to 
protect these people and relying on recruitment of the right kind, the 
Clinton administration actually made this provision more preferential 
than it was less than a year before.
  If President Clinton is so concerned about fairness and doing the 
right thing, I respectfully suggest that, as a first step, he ought to 
stop doing the wrong thing.
  There are a number of other examples. Let me mention the Podberesky 
versus Kirwan case.
  In addition to need-based financial aid, the University of Maryland 
at College Park [UMCP] offers two merit-based scholarships. No. 1, the 
Banneker scholarship, is for black students only. Podberesky, a 
Hispanic student, applied for a Banneker scholarship. Although he met 
the minimum requirements, he was turned down because he is not black. 
He is Hispanic.
  The Department of Justice defended the program as a remedy for the 
present effects of past discrimination in Maryland's public higher 
education system. The district court ruled for the university, but the 
fourth circuit reversed and granted Podberesky summary judgment. The 
fourth circuit said that the university did not have sufficient 
evidence of present effects of its prior discrimination to justify a 
preference in its scholarship program, and, in any event, its effort is 
not narrowly tailored to serve its purported remedial purpose.
  Instead of justifying this reverse discrimination, the Clinton 
administration should be fostering race-neutral financial aid policies.
  When the California regents ended reverse discrimination in their 
policies in the California State university system, how did the Clinton 
administration respond? The President's Chief of Staff, Leon Panetta 
called it a terrible mistake. The Clinton administration sought 
to bully California and perhaps intimidate others. It initially 
threatened a possible cutoff of Federal aid and Federal contracts. Mr. 
Panetta, referring to the California universities' Federal aid, said, 
``Obviously the Justice Department and the other agencies are going to 
review the relationship.'' The President's chief civil rights enforcer, 
Assistant Attorney General Deval Patrick, called this policy of equal 
opportunity a shame. He called it unwise. In a statement that only 
George Orwell could have loved, the Clinton administration's chief 
civil rights enforcer condemned the California Regent's action as an 
abandonment of ``the ideals that have been with us since our founding 
as a nation.''

  This is another example of how the President does not get it: The 
California Regent's new policy is a step that reflects our Nation's 
ideals. If the President was truly concerned about fairness, equal 
opportunity, and against reverse discrimination, he would have 
supported Gov. Pete Wilson and the California Regents. Nothing better 
sets out the starkly different visions of this administration and those 
of us who believe in equal opportunity for all Americans than the 
Clinton administration's attempted bullying of California on this 
matter. Nothing better belies this administration's claim to be 
reformist--though the administration may tinker here and there, it is 
essentially a defender of the status quo.
  This administration is fostering preferences in mortgage lending and 
property insurance through groundbreaking misuse of fair housing and 
fair credit laws. The then acting director of the Office of Thrift 
Supervision has even questioned some of these tactics.
  The President, in undertaking his review of affirmative action, 
reminds me of the French Police Chief in the movie ``Casablanca'' who 
pretended not to know gambling was taking place in the nightclub he 
frequented. President Clinton would apparently be shocked, shocked to 
learn that reverse discrimination is openly, knowingly, and tenaciously 
fostered and defended by his administration in practice. Even now, I 
believe the Clinton administration is working hard to devise ways of 
perpetuating as much preference as possible, giving up just enough to 
make it seem as if they are doing something about it. Even then, as I 
will explain in a moment, the administration is attempting to mislead 
the American people.
  President Clinton is out of touch with mainstream America on the 
issue of equal opportunity.
  Mr. President, it is not enough to nibble at the edges of a problem.
  The administration has announced its suspension of one of the 
preference programs operated by the Federal Government. This is a 
contract set-aside program operated at the Defense Department, the so-
called rule of two program. I approve of this small, first step, but it 
is so much window-dressing thus far in the administration's review. 
Indeed, after making a large public relations splash about the 
suspension of this program, the Department of Defense made a much 
quieter announcement in the Federal Register on December 14, 1995. It 
proposed a new preference for awarding certain contracts by adding 10 
percent to the total price of all offers other than those from small 
minority businesses.

  And, shortly thereafter, the Clinton administration filed a brief in 
the Dynalantic Corp. versus Department of Defense case, which 
tenaciously defended racial contract preferences generally and under 
the section 8(a) program.
  The President may suspend a few more programs that represent the 
worst abuses. But, Mr. President, one cannot split the difference on 
the principle of equal opportunity.
  There are numerous preferential programs and policies operated by the 
Federal Government, a number of which the President can abolish. For 
example, he could eliminate the use of numerical racial, ethnic, and 
gender employment goals for Federal contractors. Executive Order 11246 
requires Federal contractors to undertake affirmative action to ensure 
nondiscrimination. It does not require numerical goals. Numerical goals 
are a bureaucratic creation which the President could end with a stroke 
of a pen.
  The section 8(a) contract set-aside program at the Small Business 
Administration is another example. Section 8(a) is intended to assist 
small businesses owned by socially and economically disadvantaged 
persons. The statute defines a socially disadvantaged person as someone 
who has been discriminated against because of racial, ethnic, or 
cultural bias. But the SBA regulations require that members of some 
racial or ethnic groups be presumed to be socially disadvantaged. All 
others seeking entry into the 8(a) program must prove they are socially 
disadvantaged. The President should order the deletion of this 
preference. All American small businessowners should have an equal 
chance to compete for 8(a) contracts.
  Moreover, aside from these three areas, there are many other Federal 
policies and programs that contain preferences. What does the President 
intend to do about them?
  What is the President's action really about? The answer seems to lie 
in the candid remark of an administration official, cited in the May 
31, 1995, New York Times. In that story, the New York Times reported 
that ``an administration official said there might be some political 
benefit if black business executives criticized the Administration's 
eventual proposals. `We want black businessmen to scream enough to let 
angry white males understand we've done something for them,' said the 
anonymous official.''
  Indeed, President Clinton went to California over the Labor Day 
weekend and claimed credit for Congress' repeal of an FCC racial 
preference in the selling of broadcast properties earlier this year. 
His administration, of course, resisted repeal of that preference, and 
then wanted it modified, not repealed. His own spokesman had to 
acknowledge as much. And, as I mentioned earlier, in December, his 
administration recently proposed a brand new preference at the 
Department of Defense and continues to defend other preferences.

[[Page S3345]]

  Let me conclude with the words of Prof. William Van Alstyne, in a 
1979 law review article:

       . . . one gets beyond racism by getting beyond it now: by a 
     complete, resolute, and credible commitment never to tolerate 
     in one's own life--or in the life or practices of one's 
     government--the differential treatment of other human beings 
     by race. Indeed, that is the great lesson for government 
     itself to teach: in all we do in life, whatever we do in 
     life, to treat any person less well than another or to favor 
     any more than another for being black or white or brown or 
     red, is wrong. Let that be our fundamental law and we shall 
     have a Constitution universally worth expounding.

  This is ``Rites of Passage: Race, the Supreme Court, and the 
Constitution:'' in the Chicago Law Review. I have to say I fully agree 
with that.
  Mr. President, this is an important set of issues. We cannot ignore 
them. We are going to divide this country more than ever if we keep 
doing this system of preferences that has been going on in this 
administration and, alas, unfortunately, in some prior administrations 
as well. I hope that we can do a lot about this. I hope that we will 
make headway against these preferences and these inappropriate 
treatments of fellow American citizens as we move on into the future.
  I hope the administration will pay attention to some of the things 
that I have brought up here today.

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