[Congressional Record Volume 143, Number 89 (Monday, June 23, 1997)]
[Senate]
[Pages S6097-S6099]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. McCONNELL (for himself, Mr. Hatch, Mr. Kyl and Mr.
Sessions):
S. 950. A bill to provide for equal protection of the law and to
prohibit discrimination and preferential treatment on the basis of
race, color, national origin, or sex in Federal actions, and for other
purposes; read the first time.
THE CIVIL RIGHTS ACT OF 1997
Mr. McCONNELL. Mr. President, I am pleased today to announce the
introduction of the Civil Rights Act of 1997. President Clinton has
asked for a national dialog on the issue of race in America. I applaud
his efforts and welcome this opportunity.
Any discussion of race must begin with the basic principle that all
are created equal. In fact, the Constitution, our Nation's most
cherished document, mandates that all individuals receive the equal
protection of the laws.
No one in our history understood the principle of equality better
than the Reverend Martin Luther King, Jr. Reverend King spoke
eloquently about a time when people would be judged by the ``content of
their character'' and not the ``color of their skin.'' He, like so many
of us do today, prayed for America to become a colorblind society.
This fundamental principle of equality is the foundation for the
Civil Rights Act of 1997, which declares that: the Federal Government
shall not discriminate against or grant a preference to any individual
or group based on race, color, national origin, or sex.
The Federal Government must lead by example. We must promote a nation
where our citizens are seen as individuals and not as mere members of a
group. We must declare that the immutable traits of race and sex will
not be relevant in Federal contracting and employment. Simply put, the
Federal Government should not decide who gets the contract or who gets
the job based on race and gender.
No Winners in a World of Government Preferences
Throughout our nation's long history, we have established that
certain immutable traits should be irrelevant in life. Yet, in direct
defiance of this principle, the Federal Government has engineered
policies and programs to award valuable Federal dollars, jobs, and
contracts to individuals based on the immutable traits of race and
gender. In fact, last summer, the Congressional Research Service found
that the Federal Government runs approximately 160 race and gender
preference programs.
These preference practices and programs serve to divide, rather than
unite. There are no winners in a world of government-sponsored set-
asides and quotas.
First, Government preferences harm the very ones it seeks to help.
Minorities who receive affirmative action preferences are often
stigmatized and stereotyped. And, the stigma doesn't stop with those
who receive the preferences. The cloud also unfairly hovers over the
heads of all the other minorities whose accomplishments are not based
on their race or gender, but purely on merit. All of this serves to
reinforce group stereotypes at a time when we so desperately need to
move beyond division.
Second, every time the Government grants a preference to one person
based on race or gender, it discriminates against another based on race
and gender. Discrimination by any other name is still discrimination.
And, it still strikes at the very heart and soul of the person being
discriminated against.
Let me put a face on this discrimination, as reported recently in the
Wall Street Journal:
Michelle Doe is a 16-year-old girl and a straight-A student
from a humble background in Corpus Christi, TX. She decided
that she wanted to go to summer camp. The camp was called
Camp Planet Earth, and was funded by the Federal Government's
National Science Foundation.
Michelle applied and became a finalist. Her hopes were
dashed, however, during the interview stage where it became
clear that she wasn't eligible for the camp. Why wasn't she
eligible? Was it her grades? No, she was a straight-A
student. Was it her application form? Did she forget to
answer a question on her application? No.
Michelle was denied the opportunity to go summer camp
because of her race. You see, ``the program was for
`minorities' only,'' and Michelle was not a minority.
In the words of the Wall Street Journal, ``[w]hen Michelle went
looking for some productive way to spend her summer, she soon
discovered that the government divides people according to skin
color.''
Third, race and gender preferences create a downward spiral of
division and animosity in our national melting pot. Government
preferences put individuals into little group boxes and then pit them
against each other. African-Americans against Hispanic-Americans
against Asian-Americans against Caucasian-Americans.
Some have even gone so far to calculate the amount of money that one
race owes to another. For example--and I promise that I'm not making
this up--Richard America, a lecturer at the
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Georgetown University School of Business, has written a book that he
calls, ``Paying the Social Debt: What White America Owes Black
America.'' According to the Washington Post, Mr. America has estimated
that ``White America Owes Black America'' five to ten trillion dollars.
With all due respect to Mr. America, I cannot imagine a mentality
that is more un-American. Our Nation cannot survive and thrive with
this type of ledger sheet mentality. Justice Scalia summed up this
point very poignantly in Adarand, and I quote:
Individuals who have been wronged by unlawful racial
discrimination should be made whole; but under our
Constitution there can be no such thing as either a creditor
or debtor race. * * * In the eyes of the government, we are
just one race here. It is American.
Courts and the American People Understand the Danger and Divisiveness
of Racial Preferences
The courts and the American people understand the danger and
divisiveness of racial preferences.
First and foremost, the Supreme Court has ruled that racial
preferences deserve the most exacting and strict scrutiny. In the
landmark case of Adarand, the Court ruled that racial preferences will
be allowed to stand only where they meet a compelling government
interest that is narrowly tailored to redress specific past
discrimination.
Just this month, the district court in Adarand ruled that the Federal
highway construction program at issue in that case did not meet the
Supreme Court's strict scrutiny standard and, thus, violated of the
equal protection clause.
Second, lower courts, including the third, fourth, and fifth
circuits, have recently struck down affirmative action programs.
Additionally, a panel of the ninth circuit has upheld the decision of
the California voters to ban preferences in California State
government.
Last, and most importantly, the American people understand that
preferences forever defer the dream of a colorblind society. Public
opinion polls show that large majorities of Americans oppose racial
preferences, including a large percentage of minorities. For example, a
recent Washington Post-ABC News survey showed that not even a majority
of African-Americans favor preferences.
A recent Zogby poll asked Americans about their view of this
legislation. The question asked ``Would you support a federal law to
ban discrimination and preferential treatment in the government?'' An
overwhelming 83 percent of Americans stated that they would support
such a law, including 79 percent of African-Americans.
The American people and the courts understand this issue and I am
hopeful that the Congress and the President will understand this issue
as well as they do.
conclusion
The President said over the weekend that he wants to ``break down the
barriers in our lives, our minds, and our hearts.'' The President must
realize that the Federal Government has to take the lead in removing
these barriers. He must realize what the American people know--that
is--race and gender preferences serve only to raise barriers and to
widen the breach.
I firmly believe that, in a matter of years, we will look back upon
our Government's current race and gender preferences and shake our
heads and wonder how we could have ever allowed such discriminatory and
divisive practices to occur for so long. The Civil Rights Act of 1997
is the next step in our Nation's struggle to overcome discrimination
and to achieve unity as a nation of individual Americans, not groups.
We must provide genuine opportunities to all disadvantaged
individuals, regardless of race or gender. These opportunities can
become a reality through a comprehensive empowerment strategy that
includes: strict enforcement of the laws against discrimination, court-
ordered remedial action for victims of specific acts of discrimination,
and targeted outreach and recruiting efforts to encourage all qualified
minorities to apply for Federal employment and contracts. We must also:
improve our education system through competition and school choice,
provide economic opportunities through reduced regulatory and tax
burdens, move more and more persons from the welfare roll to the
payroll, and finally, make the streets safer for every American child.
I would like to close today by quoting Ward Connerly, who so
valiantly led the fight in California to end discrimatory preferences.
In his recent letter to the President, Mr. Connerly wrote:
For the American experiment with democracy to succeed and
for every American to have an equal chance to compete to
fulfill our dreams, it will be necessary for the factory
worker, the bus driver, the police officer, the fire
official, the secretary, and all other Americans to embrace
the principle of equality and to believe fervently in the
proposition that ``race has no place in American life or
law.''
I also want to say a special word of gratitude to Senators Hatch,
Kyl, and Sessions for their co-sponsorship of this civil rights
legislation. Their leadership and integrity will be invaluable in our
fight for all Americans to be treated as equal in the eyes of the law.
I ask unanimous consent that the text of the bill and a summary of
the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 950
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Civil Rights Act of 1997''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) the fifth and fourteenth amendments to the Constitution
guarantee that all individuals are entitled to equal
protection of the laws, regardless of race, color, national
origin, or sex;
(2) the Supreme Court, in Adarand Constructors, Inc. v.
Pena, 515 U.S. 200 (1995), recently affirmed that this
guarantee of equality applies to Federal actions;
(3) the Federal Government currently conducts over 150
programs, including contracting programs, that grant
preferences based on race, color, national origin, or sex;
and
(4) the Federal Government also grants preferences in
employment based on race, color, national origin, or sex.
(b) Purpose.--The purpose of this Act is to provide for
equal protection of the laws and to prohibit discrimination
and preferential treatment in the Federal Government on the
basis of race, color, national origin, or sex.
SEC. 3. PROHIBITION AGAINST DISCRIMINATION AND PREFERENTIAL
TREATMENT.
Notwithstanding any other provision of law, neither the
Federal Government nor any officer, employee, or agent of the
Federal Government shall--
(1) intentionally discriminate against, or grant a
preference to, any person or group based in whole or in part
on race, color, national origin, or sex, in connection with--
(A) a Federal contract or subcontract;
(B) Federal employment; or
(C) any other federally conducted program or activity; or
(2) require or encourage a Federal contractor or
subcontractor, or the recipient of a license or financial
assistance, to discriminate intentionally against, or grant a
preference to, any person or group based in whole or in part
on race, color, national origin, or sex, in connection with
any Federal contract or subcontract or Federal license or
financial assistance.
SEC. 4. AFFIRMATIVE ACTION PERMITTED.
This Act does not prohibit or limit any effort by the
Federal Government or any officer, employee, or agent of the
Federal Government--
(1) to encourage businesses owned by women and minorities
to bid for Federal contracts or subcontracts, to recruit
qualified women and minorities into an applicant pool for
Federal employment, or to encourage participation by
qualified women and minorities in any other federally
conducted program or activity, if such recruitment or
encouragement does not involve granting a preference, based
in whole or in part on race, color, national origin, or sex,
in selecting any person for the relevant employment, contract
or subcontract, benefit, opportunity, or program; or
(2) to require or encourage any Federal contractor,
subcontractor, or recipient of a Federal license or Federal
financial assistance to recruit qualified women and
minorities into an applicant pool for employment, or to
encourage businesses owned by women and minorities to bid for
Federal contracts or subcontracts, if such requirement or
encouragement does not involve granting a preference, based
in whole or in part on race, color, national origin, or sex,
in selecting any individual for the relevant employment,
contract or subcontract, benefit, opportunity, or program.
SEC. 5. CONSTRUCTION.
(a) Historically Black Colleges and Universities.--Nothing
in this Act shall be construed to prohibit or limit any act
that is designed to benefit an institution that is an
historically Black college or university on the basis that
the institution is an historically Black college or
university.
(b) Indian Tribes.--This Act does not prohibit any action
taken--
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(1) pursuant to a law enacted under the constitutional
powers of Congress relating to the Indian tribes; or
(2) under a treaty between an Indian tribe and the United
States.
(c) Certain Sex-Based Classifications.--This Act does not
prohibit or limit any classification based on sex if--
(1) the classification is applied with respect to
employment and the classification would be exempt from the
prohibitions of title VII of the Civil Rights Act of 1964 by
reason of section 703(e)(1) of such Act (42 U.S.C. 2000e-
2(e)(1)); or
(2) the classification is applied with respect to a member
of the Armed Forces pursuant to statute, direction of the
President or Secretary of Defense, or Department of Defense
policy.
(d) Immigration and Nationality Laws.--This Act does not
affect any law governing immigration or nationality, or the
administration of any such law.
SEC. 6. COMPLIANCE REVIEW OF POLICIES AND REGULATIONS.
Not later than 1 year after the date of enactment of this
Act, the head of each department or agency of the Federal
Government, in consultation with the Attorney General, shall
review all existing policies and regulations that such
department or agency head is charged with administering,
modify such policies and regulations to conform to the
requirements of this Act, and report to the Committee on the
Judiciary of the House of Representatives and the Committee
on the Judiciary of the Senate the results of the review and
any modifications to the policies and regulations.
SEC. 7. REMEDIES.
(a) In General.--Any person aggrieved by a violation of
section 3 may, in a civil action, obtain appropriate relief
(which may include back pay). A prevailing plaintiff in a
civil action under this section shall be awarded a reasonable
attorney's fee as part of the costs.
(b) Construction.--This section does not affect any remedy
available under any other law.
SEC. 8. EFFECT ON PENDING MATTERS.
(a) Pending Cases.--This Act does not affect any case
pending on the date of enactment of this Act.
(b) Pending Contracts and Subcontracts.--This Act does not
affect any contract or subcontract in effect on the date of
enactment of this Act, including any option exercised under
such contract or subcontract before or after such date of
enactment.
SEC. 9. DEFINITIONS.
In this Act, the following definitions apply:
(1) Federal government.--The term ``Federal Government''
means executive and legislative branches of the Government of
the United States.
(2) Preference.--The term ``preference'' means an advantage
of any kind, and includes a quota, set-aside, numerical goal,
timetable, or other numerical objective.
(3) Historically black college or university.--The term
``historically Black college or university'' means a part B
institution, as defined in section 322(2) of the Higher
Education Act of 1965 (20 U.S.C. 1061(2)).
The Civil Rights Act of 1997--Summary
The Civil Rights Act of 1997 is designed to bring the
Federal Government into compliance with the Equal Protection
Clause of the United States Constitution, and to ensure that
the federal government treats all people equally, without
regard to their race or sex.
The bill contains two main operative provisions:
(1). Prohibits the Federal Government from discriminating
against, or granting preferences to, individuals based in
whole or in part on race, color, national origin, or sex, in
connection with federal contracts, employment, or other
programs or activities.
(2). Prohibits the Federal Government from requiring or
encouraging federal contractors, subcontractors, licensees,
or recipients of federal assistance, to discriminate, or
grant preferences to individuals on the basis of their race,
color, national origin, or sex.
The Act defines ``preference'' as ``an advantage of any
kind'' including quotas, set-asides, goals, timetables, and
other numerical objectives.
The bill expressly protects the Federal Government's
ability to engage in outreach, recruiting, and marketing
efforts--the original form of affirmative action.
The bill maintains the full range of judicial remedies
currently available to proven individual victims of race or
sex discrimination.
The bill contains exemptions for historically Black
colleges and universities, Indian tribes, and for sex-based
bona fide occupational qualifications that are already exempt
under Title VII of the Civil Rights Act of 1964 or applied in
the Armed Forces.
The Act requires the heads of each department or agency to
modify all existing policies and regulations to comply with
the Act and report to the Senate and House Judiciary
Committees the results of the modification.
The Act is limited to Federal Government actions and would
not affect voluntary programs adopted by State and local
governments, or private sector entities.
Mr. HATCH. Mr. President, last year, I stated on the Senate floor
that ``our country stands at a crossroads on 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. * * * Down the other path is the way of mutual
suspicion, fear, ill will, and indifference; the way of group rights
and group preferences.''
I am proud to stand today with my colleagues in the House and the
Senate, and others who have worked so hard for the cause of equal
opportunity, to announce the introduction of the Civil Rights Act of
1997. The act represents our best efforts to recommit the Nation to the
ideal of equal opportunity for every American--to emphasize that we
must resist the temptation to define the Nation's problems in narrow
racial terms, and rather must roll up our sleeves and begin the hard
work of dealing with our problems as Americans, and as fellow human
beings.
Of course, our critics will imply that those of us who today reject
divisive racial preferences and distinctions do so because we
underestimate the social, economic, and discriminatory obstacles some
Americans face. President Clinton, for example, told his audience in
San Diego last week that ``[t]he vast majority of [Californians who
supported that state's Proposition 209] did it with a conviction that
discrimination and isolation are no longer barriers to achievement.''
But that is just plain wrong.
To the contrary, last week in the Senate Judiciary Committee we heard
from a panel of ordinary citizens who movingly told us of their
experiences with discrimination in America. Among them was a Chinese-
American mother from San Francisco, Charlene Loen, who told us how her
young son Patrick was denied admission to an elite public magnet
school, Lowell High School, because he is Chinese. The school
district's efforts to ensure diversity among its students led it to
employ a system of racial preference that had the effect of capping
Chinese enrollment in many of its schools, forcing Chinese children to
score much higher on entrance exams than children of other races. At
virtually every public school Ms. Loen approached, she was first asked
whether Patrick was Chinese, and when learning that he was, would
inform Ms. Loen that Patrick need not apply. The Chinese quota was in
effect full. Ladies and gentlemen, that is not the promise of America.
There should be no question that discrimination indeed continues to
deny opportunities to too many Americans. At the Judiciary Committee's
recent hearing we heard from black Americans, white Americans, Asian-
Americans, and even a victim of an outrageous hate crime. But the
question that we all must answer is whether one American's racial
suffering should be valued above another's. It is a question that will
only become more complicated and more urgent as our population grows
ever more diverse.
As we in the Judiciary Committee now know, when we prefer individuals
of one race, we must by definition discriminate against individuals of
another. But America's great social divide can never be crossed until
we begin the work of building a bridge of racial reconciliation. By
saying today, with the introduction of this act, that the Federal
Government stands for the principle that racial discrimination in all
its forms is wrong, we hope to take a small step forward on the path to
healing the Nation's racial wounds by recognizing that every American
is equal before the law.
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