[Congressional Record Volume 142, Number 69 (Thursday, May 16, 1996)]
[House]
[Pages H5282-H5285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         EQUAL OPPORTUNITY ACT

  The SPEAKER pro tempore (Mr. Skeen). Under the Speaker's announced 
policy of May 12, 1995, the gentleman from Florida [Mr. Canady] is 
recognized for 60 minutes.
  Mr. CANADY of Florida. Mr. Speaker, this evening I rise to address 
the Equal Opportunity Act, legislation which Senator Dole and I 
introduced on July 27 of last year.
  This legislation will, if enacted, end the use of race and gender 
preferences by the Federal Government in Federal employment, Federal 
contracting, and in the administration of other Federal programs.
  The principles of equal treatment and nondiscrimination on which this 
legislation is based are principles which are at the heart of the 
American experience. They embody an ideal which generations of 
Americans have honored and sought to realize, an ideal to which we as a 
people have long aspired but an ideal which we have never fully 
attained in our life as a Nation.
  On Saturday of this week, May 18, we will mark the 100th anniversary 
of the Supreme Court's decision in Plessy versus Ferguson, the decision 
which represents the culmination of disappointment in the struggle for 
equality before the law during the 19th century.
  In Plessy by a 7-1 majority, the Supreme Court of the United States 
held that Louisiana's law requiring railroads to provide racially 
separate accommodations did not violate either the 13th or the 14 
amendments. Justice Henry Billings Brown, in delivery the court's 
opinion, explained the difference between a distinction based on race 
and prohibited discrimination.
  He said as follows:

       A statute which implies merely a legal distinction between 
     the white and colored races has no tendency to destroy the 
     legal equality of the two races or to reestablish a state of 
     involuntary servitude.

  Brown went on to observe that in the nature of things, the 14th 
Amendment could not have been intended to abolish distinctions based 
upon color. According to Brown, the 14th Amendment challenged in Plessy 
reduces itself to the question of whether the statute of Louisiana is a 
reasonable regulation.
  Brown then concluded:

       We cannot say that a law which authorizes or even requires 
     the separation of the races is unreasonable.

  This is a shameful decision. And although the segregationist doctrine 
embodied in Plessy has been rejected by the courts most strikingly in 
Brown versus Board of Education, the case itself has never been 
directly overruled. Indeed, the core holding of Plessy that Government 
may make distinctions in the treatment of its citizens based on their 
race remains the law of our land.
  Justice Harlan's dissent in Plessy, which, is recognized as the most 
famous dissent in the history of American jurisprudence, has been 
vindicated by history but the principles so eloquently articulated in 
that dissent has not finally been accepted by the courts. In words that 
would often be cited by those seeking to overthrow the Jim Crow system, 
Justice Harland pronounced:

       Our Constitution is colorblind. The law regards man as man 
     and takes no account of his surroundings or of his color when 
     his civil rights, as guaranteed by the supreme law of the 
     land, are involved.

  Harlan found a Louisiana statute unconstitutional because the 
Constitution of the United States does not permit any public authority 
to know the race of those entitled to be protected in the enjoyment of 
their civil rights.

  Simply put, Government may not have regard to the race of its 
citizens when the civil rights of those citizens are involved.
  The color-blind ideal was the touchstone of the American civil rights 
movement until the mid 1960's. In 1947, Thurgood Marshall, representing 
the NAACP Legal Defense and Educational Fund in a brief for a black 
student denied admission to the segregated University of Oklahoma Law 
School, stated that principle unequivocally. Classifications and 
distinctions based on race or color have no moral or legal validity in 
our society. They are contrary to our Constitution and laws.

                              {time}  1945

  Marshall's support for the color-blind principle, which he later, 
unfortunately, abandoned, is vividly revealed by Constance Baker 
Motley, senior United States district judge for the southern district 
of New York, in an account included in Tinsley Yarborough's biography 
of Justice Harlan. Judge Motley recalled her days working with Marshall 
at the NAACP as follows:
  Marshall had a Bible, to which he turned during his most depressed 
moments. Marshall would read aloud passages from Harlan's amazing 
dissent. I do not believe we ever filed a major brief in the pre-Brown 
days in which a portion of that opinion was not quoted. Marshall's 
favorite quotation was our Constitution is color-blind. It became our 
basic creed.
  Marshall admired the courage of Harlan more than any justice who had 
ever sat on the Supreme Court. Even Chief Justice Earl Warren's 
forthright and moving decision for the court in Brown did not affect 
Marshall in the same way. Earl Warren was writing for a unanimous 
Supreme Court. Harlan was a solitary and lonely figure writing for 
posterity.
  In the face of the vociferous opposition to the Equal Opportunity 
Act, and any other proposal to end the use of preferences, we would do 
well to remember the long battle that was fought to establish a legal 
order based on the principles set forth in justice Harlan's dissent.
  Professor Andrew Carl, in his admirable history ``The Color Blind 
Constitution,'' identifies the centrality of the color-blind principle 
to the civil rights movement. Professor Carl says as follows:

       The undeniable fact is that over a period of some 125 
     years, ending only in the late 1960s, the American civil 
     rights movement first elaborated then held as its unvarying 
     political objective a rule of law requiring the color-blind 
     treatment of individuals.

  In 1964, the U.S. Congress took a great stride forward toward the 
realization of that objective. With the passage of the Civil Rights Act 
of 1964, the Congress established a national policy against 
discrimination based on race and sex.
  It is the supreme irony of the modern civil rights movement that this 
crowning achievement was so soon followed by the creation of a system 
of preferences based on race and gender, a system contrived first 
by administrative agencies and the Federal courts and then accepted and 
expanded by the Congress.

  The 1964 Civil Rights Act constituted an unequivocal statement that 
Americans should be treated as individuals

[[Page H5283]]

and not as members of racial or gender groups; an unequivocal statement 
that no American should be subject to discrimination, which Senator 
Hubert Humphrey, the chief sponsor in the Senate of this legislation, 
defined as a distinction in treatment given to different individuals 
because of their difference race.
  Yet the ink was hardly dry on the 1964 law when a process of 
transformation began and the system of preferences was erected piece by 
piece. This took place not because Congress had failed to express its 
intention clearly, but because of a court system and an administrative 
structure determined to pursue their own purposes despite the clearly 
expressed purpose of the Congress.
  Since the issue of imposing quotas and granting preferences based on 
race to compensate for historical wrongs had been the subject of 
controversy during the year preceding congressional consideration of 
the 1964 act, Congress was careful to directly address the issue in the 
text of the law itself.
  Section 703(j) of the act stated that nothing in Title VII of the act 
shall be interpreted to require any employer to grant preferential 
treatment to any individual or to any group because of the race of such 
individual or group in order to maintain a racial balance.
  The managers of Title VII, Senator Clark of Pennsylvania, and Senator 
Case of New Jersey had submitted a joint memorandum on the subject 
where they stated, and I quote:

       Any deliberate attempt to maintain a racial balance, 
     whatever such a balance may be, would involve a violation of 
     Title VII because maintaining such a balance would require an 
     employer to hire or refuse to hire on the basis of race. It 
     must be emphasized that discrimination is prohibited to any 
     individual.

  It is, I think, impossible to imagine a clearer more unambiguous 
statement of congressional intent on the subject of racial preferences. 
But in the face of this directly expressed purpose in the law, the 
bureaucracy and the courts decided to chart their own course. In the 
place of the principles of individual rights, equal opportunity and 
nondiscrimination, which were embodied in the 1964 Civil Rights Act, 
the courts and the bureaucracy moved forward with the establishment of 
a system based on the concepts of proportional representation, group 
entitlement, and guaranteed results. This approach was foreshadowed by 
Judge John Miner Wisdom of the fifth circuit in United States versus 
Jefferson County, where he upheld school desegregation guidelines 
promulgated by the Office of Education under Title VI of the 1964 act 
and stated, and again I quote.

       The Constitution, according to Judge Wisdom, is both color-
     blind and color conscious. The criterion is the relevancy of 
     color to a legitimate governmental purpose.

  This is, indeed, a far cry from the clear principles articulated by 
Justice Harlan and doggedly pursued by the civil rights movement 
throughout most of its history.
  The concepts of proportional representation, group entitlement and 
guaranteed results found full-blown expression in the Nixon 
administration's Labor Department order No. 4, which was first issued 
in November of 1969 and was aimed at the activities of all Federal 
contractors.
  The order stated the rate of minority applicants recruited should 
approximate or equal the rate of minorities to the applicant population 
in each location.
  This was clearly a mandate for proportional representation. A more 
direct conflict with the provision of 703(j) of the 1964 Civil Rights 
Act would be impossible to devise.
  After a minor flack over order number 4, a revised order was issued 
by the Labor Department in February 1970. No substantive changes were 
made. The revised order number 4 provided that the affirmative action 
programs adopted by contractors must include goals and timetable to 
which the contractor's good faith efforts must be directed to correct 
deficiencies in the utilization of minority groups.
  This construct of goals and timetables to ensure the proper 
utilization of minority groups clearly envisioned a system of 
proportional representation in which group identity would be a factor, 
often the decisive factor, in hiring decisions. Distinctions in 
treatment would be made on the basis of race.
  The concept of proportional representation embodied in order number 4 
not only defied the intent of section 703(j) of the 1964 Civil Rights 
Act, but also contravened the express nondiscrimination provisions of 
the Executive Order it was issued to implement. That is the Executive 
Order requiring affirmative action.
  The course was set by the bureaucracy and the courts did little to 
interfere. With few exceptions, until the Supreme Court decided the 
Adarand case last year, the color-blind ideal was an eclipse. Year 
after year the system of preferences granted or imposed by the Federal 
Government grew with the active support of the Congress itself.
  The dominant attitude was captured in 1978 in the opinion of Justice 
Blackmun in the Bakke case, which dealt with a California medical 
school's policy of preferential admissions for minority students. 
Justice Blackmun distilled the rationale for preferential policies. He 
said, and I quote, ``in order to get beyond racism, we must first take 
account of race. In order to treat some persons equally, we must treat 
them differently.''
  In the face of the provision of title VI of the 1964 Civil Rights 
Act, that no person in the United States shall, on the ground of race, 
color or national origin be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance, the closely divided 
court in Bakke recognized that race could at least be a factor in 
determining eligibility for admission to an educational institution 
receiving Federal financial assistance.

  The system of preferences is based on the notion that we can only 
overcome our history of discrimination by practicing discrimination. To 
guarantee the equitable apportionment of opportunities, Americans must 
be divided, sorted and classified by race and gender. It is the 
responsibility of government not to create a level playing field for 
all Americans, but to determine outcomes based on race and gender. 
Rather than dealing with its citizens as unique individuals who are 
equal in the eyes of the law, the Government of the United States must 
treat everyone as group members, as people whose biological 
characteristics determine the scope of their claims on our government.
  The Equal Opportunity Act rejects this vision of America. It would 
overturn the status quo of race and gender preferences and return to 
the principles on which the Civil Rights Act of 1964 was based. In 
place of group rights, it would establish respect for individual 
rights.
  It is very important to focus on the specific provisions of the Equal 
Opportunity Act. Simply stated this legislation would prohibit the 
Federal Government from intentionally discriminating against or 
granting a preference to any person or group based in whole or in part 
on race, color, national origin or sex in three areas: Federal 
contracting, Federal employment, and the administration of other 
federally conducted programs or activities.
  In addition, it would prevent the Federal Government from requiring 
or encouraging Federal contractors or the recipients of Federal 
financial assistance to discriminate or grant preferences based on race 
or sex.
  Let me elaborate on a few key points. First, the bill applies only to 
Federal programs and activities. It, therefore, does not affect 
programs or policies administered by State and local governments, the 
private sector, or colleges and universities.
  Second, the Equal Opportunity Act does not affect our comprehensive 
regime of anti-discrimination laws. All forms of racial and sex-based 
discrimination that are illegal under current law would remain so under 
the Equal Opportunity Act.

  In addition, all remedies currently available to individuals who have 
been discriminated against will remain completely unaffected by this 
bill. Though you will hear claims to the contrary, it is simply not the 
case that this bill weakens, undermines or otherwise affects laws that 
make it illegal to discriminate on the basis of race and sex.

[[Page H5284]]

  Third, the bill draws an important distinction between preferential 
treatment and affirmative action. Preferential treatment is prohibited 
and affirmative action, as originally conceived, is permitted and 
expressly protected.
  I think we all recognize that the term affirmative action has come to 
describe a whole range of measures, from casting a wider net at the 
recruiting and outreach stage to outright quotas, setasides and other 
numerical preferences.
  Section 3 of the Equal Opportunity Act expressly provides that the 
government may continue affirmative action in the form of vigorous 
outreach and recruitment efforts. Steps taken to increase the size of 
the applicant pool for a contracting or employment opportunity, 
including steps targeted specifically at women and minorities, are 
permissible so long as at the decision stage all applicants are judged 
in a nondiscriminatory manner; that is, without regard to their race or 
sex.
  If the bill does not affect anti-discrimination laws or 
nonpreferential forms of affirmative action, then what does it do? It 
would, in short, put an end to all Federal programs that will require 
the Government to take into account the race or sex of American 
citizens and to treat them differently based on what group they belong 
to.
  There is frustrating unwillingness on the part of many people to 
acknowledge what we all know; namely that there are many, many such 
programs and policies currently being administered by the Federal 
Government: Contracting setasides and bid preferences, grant programs 
targeted solely at women and minorities, and hiring and personnel 
systems that are driven by numerical goals and timetables. These are 
all preference programs that, on their face, discriminate on the basis 
of race and sex, and these are the programs that would be eliminated 
under the Equal Opportunity Act.

                              {time}  2000

  The heart of the Equal Opportunity Act is found in its definition of 
preference. The bill as recently passed by the Subcommittee on the 
Constitution defines the term preference as an advantage of any kind, 
including a quota, set-aside, numerical goal, timetable, or other 
numerical objective. This functional definition makes clear that it is 
not what we call a policy, a practice, or a program that determines its 
appropriateness.
  The test is how that policy, practice, or program actually operates. 
If the policy, practice, or program gives an advantage of any kind to 
individuals because of their race or gender, it is unlawful. Those who 
oppose the Equal Opportunity Act have the burden of explaining why 
anyone should receive an advantage of any kind based on race or gender.
  The supporters of preferences realize that this burden is indeed a 
heavy one. They understand that the American people are opposed to the 
system of preferential treatment that has been erected over the years 
since 1964. They know the power of the principles of equal treatment 
and nondiscrimination. They know that Americans have an instinctive 
respect for individual rights.
  The defenders of the status quo of preferential treatment have chosen 
not to meet this challenge. They have decided that a principled defense 
of group rights and proportional representation would not be 
successful, since it is so clearly at odds with values that are central 
to the American experience. So rather than attempting such a principle 
defense of preferences, they have launched a campaign of confusion and 
distortion.
  Mr. Speaker, the recent barrage against the Equal Opportunity Act is 
just the most recent phase of the long-standing effort to conceal the 
realities of the preferential system from the American people. I can 
cite many examples of the distortions used to defend the status quo and 
to attack the Equal Opportunity Act. But the remarks delivered by 
President Clinton at the National Archives on July 19, 1995, the 
President's famous ``mend it, don't end it'' speech, stands as the 
epitome of distortions in defense of the status quo of preferences.
  The President's speech is indeed a handy compendium of the rhetorical 
devices used to obscure the issues and to mislead the American people. 
The core of the President's speech is found in the four so-called 
standards of fairness for affirmative action programs. The President 
summarized these standards as follows, and I quote:

       No quotas in theory or practice, no illegal discrimination 
     of any kind, including reverse discrimination, no preference 
     for people who are not qualified for any job or other 
     opportunity.

  And as soon as the program has succeeded, it must be retired. Any 
program that does not meet these four principles must be eliminated or 
reformed to meet them.
  This statement by the President represents an attempt to redescribe 
and redefine reality. In it, words are stripped of their ordinary, 
commonly understood meaning and infused with a new meaning. When the 
President says he is against quotas, he signals his recognition that 
the American people are against quotas, and that some other terminology 
must be used to describe the system of perferances based on race and 
gender, a system which apportions benefits based on group membership. 
But when the President denounces quotas, he fails to explain how a 
quota is different from a set-aside under which contract opportunities 
are reserved for members of a particular race or gender group. And he 
does not explain how a system of goals and timetables under which race 
and gender determine who receives a job and who does not receive a job, 
is any less unjust than a system of quotas under which race and gender 
determine who receives a job and who does not receive a job.
  When the President says no preferences for the unqualified, he 
conveniently glosses over the fact that individuals who are more 
qualified are systemically denied jobs and other opportunities solely 
because they belong to the wrong racial or gender group.
  When the President says that, as soon as a program has succeeded, it 
must be retired, he fails to specify the standard of success and he 
fails to tell us when exactly when we can expect these supposedly 
temporary programs to end.
  When the President says we should have no illegal discrimination of 
any kind, he fails to explain how the system of counting by race and 
gender can be reconciled with either the letter or the spirit of the 
Civil Rights Act of 1964. The President and the other defenders of 
preferential policies have constructed a fictitious world, a world 
where discrimination pure and simple is given another name and called 
just.
  The Equal Opportunity Act rejects that fictitious world. It rejects 
the false descriptions of the programs, policies and practices of the 
Federal Government which have been foisted on the American people by 
the defenders of the status quo. The Equal Opportunity Act is based on 
an understanding of the flaws of the system of preferences based on 
race and gender. It is based on a realistic evaluation of the way that 
system operates and the injustice for which it is responsible.
  It recognizes that the system of preferences unfairly places burdens 
on and denies opportunities to those who have been guilty of no 
wrongdoing. Simply because of their race or gender, while granting 
benefits to individuals who are not victims of discriminatory conduct, 
it recognizes that the system of preferences is by its very nature 
discriminatory and morally wrong.
  The Equal Opportunity Act is based on an understanding that the 
existence of the system of race and gender preferences unfairly casts a 
cloud over the accomplishments of individuals who are members of 
favored groups and deprives those individuals, the individuals the 
system is supposed to benefit, of the full measure of respect they are 
due for their individual achievements.
  Mr. Speaker, finally, and most importantly, the Equal Opportunity Act 
is based on the recognition that the system of race and gender 
preferences sends a message from government to the American people that 
we should think along racial and gender lines, a message which only 
reinforces prejudice and discrimination in our society.
  As long as the Federal Government is engaged in the business of 
classifying and sorting the American people into racial and gender 
groups, can we really expect to reach the goal of a society free of 
prejudice and discrimination? It has been 100 years since Justice 
Harlan

[[Page H5285]]

spoke so eloquently of the color-blind Constitution. Since that time, 
we have made much progress in reducing prejudice and discrimination in 
America. But we are far, far from the goal of a society in which 
individuals are treated as individuals and where irrelevant biological 
characteristics are treated as irrelevant.
  As we mark the 100th anniversary of the shameful Plessy decision, we 
should turn our attention again to the principles so forcefully stated 
by Justice Harlan in his renowned dissent. Those principles find 
expression here in this Congress in the Equal Opportunity Act.
  Mr. Speaker, it is time that we reaffirm the principles of equality 
before the law and nondiscrimination. We can do so clearly and 
unequivocally by passing the Equal Opportunity Act and ending the 
odious system of race and gender preferences established by the Federal 
Government. We can recognize once and for all that each American has 
the right to be treated by our government, not as a member of a 
particular race or gender group, but as an individual American citizen, 
equal in the eyes of the law.

                          ____________________