[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]

       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

[[Page S6098]]

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--

[[Page S6099]]

       (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.

                          ____________________