[Congressional Record Volume 144, Number 2 (Wednesday, January 28, 1998)]
[Extensions of Remarks]
[Pages E33-E34]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           AFFIRMATIVE ACTION

                                 ______
                                 

                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                      Wednesday, January 28, 1998

  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday, January 7, 1998 into the Congressional Record:

                    The Future of Affirmative Action

       The President's Initiative on Race, a series of recent 
     federal court decisions, and voter referenda in California 
     and Texas have all focused national attention on the future 
     of affirmative action. Affirmative action has provided 
     economic, political and educational opportunities for blacks 
     and other historically disadvantaged minorities, as well as 
     for women. The issue today is whether those programs should 
     be continued.


                     History of affirmative action

       Affirmative action has its roots in the civil rights era of 
     the 1960s. The federal government imposed affirmative duties 
     on the public and private sector alike to remedy past and 
     present discrimination against blacks and other minorities. 
     It is based on the idea that the constitutional guarantee of 
     equal protection requires more than ending discrimination, 
     but means that government should create remedies and 
     incentives for people who have suffered bias. Affirmative 
     action included everything from desegregation plans in 
     schools and universities to set-aside programs in government 
     contracts to efforts to improve minority representation in 
     the workplace.
       Over the last decade, however, the Supreme Court has worked 
     to limit the use of race-based preferences at all levels of 
     government. The Court has held that local, state and federal 
     programs designed to benefit minorities are unconstitutional 
     unless they serve a compelling government interest and are 
     narrowly tailored to address past discrimination. The Court's 
     decisions, reflecting the conservatism of its majority, are 
     based on the view that the Constitution is a color-blind 
     document which, in general, neither tolerates discrimination 
     against minorities nor affirmative efforts in their behalf.
       The Court has not said that all affirmative action programs 
     are unconstitutional, but has placed a heavy burden on 
     government to demonstrate the need for them. It is generally 
     accepted that affirmative action can be used to remedy 
     specific instances of discrimination against minorities. 
     Governmental entities may also use outreach and recruitment 
     efforts to expand the pool of minority applicants for jobs, 
     contracts, and college admissions.
       On the other hand, governments may not use rigid quotas on 
     behalf of minorities, nor may they justify affirmative action 
     programs based on the history of discrimination in society 
     at-large. The federal government is now reviewing its 
     affirmative action policies to comply with recent Court 
     decisions.


                      Diversity as a justification

       It is uncertain, however, whether governments can use race 
     as a way to promote diversity, rather than remedy past 
     discrimination. Advocates of affirmative action argue, for 
     example, that local police departments have a strong interest 
     in hiring minorities to patrol in minority neighborhoods or 
     infiltrate minority gangs. Likewise, governments may want to 
     hire minorities to serve in schools with heavy minority 
     populations.
       Public debate has focussed most recently on the use of race 
     in college and graduate school admissions. The Supreme Court 
     held in a landmark 1978 decision that a university could take 
     the race of applicants into account in its admissions process 
     to foster the diversity of its student body. The Court 
     reasoned that diversity would bring a wider range of 
     perspectives to the university and would contribute to a more 
     robust exchange of ideas, which is central to the mission of 
     higher education.
       That 1978 decision, however, is in doubt given recent Court 
     rulings on race-based preferences. One federal court of 
     appeals ruled that the University of Texas could not use race 
     as a factor in law school admissions. In addition, California 
     voters approved a state referendum barring racial preferences 
     in the state's education, employment, and contracting 
     systems, including admissions decisions in the state 
     university system. The effect of these actions has been to 
     curtail sharply minority enrollment at public universities 
     and graduate programs in Texas and California.


                    Debate over affirmative action:

       The public debate on affirmative action has been polarized. 
     Supporters say that while the situation has improved, racism 
     persists in this country, and that affirmative action is 
     needed to remedy the effects of discrimination. Affirmative 
     action programs, they will note, have provided opportunities 
     for millions of minorities, expanding the American middle 
     class and strengthening our political system and economy. 
     They will also point out the hypocrisy in the debate over 
     university admissions policies. While critics attack racial 
     preferences, they say nothing about preferences based on 
     athletic ability, alumni connections, or other factors.
       Opponents respond that affirmative action is fundamentally 
     unfair, that people should succeed or fail based on 
     character, talent and effort, not race. While critics 
     acknowledge that racism persists in our society, they say 
     affirmative action leads to double standards which heighten 
     rather than reduce racial tensions. Government, in this view, 
     can

[[Page E34]]

     boost educational and workplace opportunities for minorities 
     by improving educational performance in the K-12 years and 
     encouraging recruiting policies aimed at attracting a broader 
     pool of candidates.


                              Conclusion:

       The goal of public policy should be to make sure that all 
     of us have the opportunity to develop our talents to the 
     fullest. While I oppose quotas or rigid preferences, I see 
     affirmative action plans as a tool to create a more inclusive 
     work place and open up opportunities for all persons. Real 
     equality of opportunity is the key to minority advancement. 
     Where discrimination has existed, it is fair to provide an 
     equal opportunity to catch up. Affirmative action can promote 
     equal consideration, and not reverse discrimination. Critics 
     have been more successful in challenging affirmative action 
     than in developing effective alternatives.
       My view is that compensating for past discrimination is 
     acceptable if done by using special training programs, talent 
     searches and targeted financial help, and by helping 
     disadvantaged groups compete. I do not, however, want to 
     predetermine the results of competition with a system of 
     quotas. Government should act to promote racial integration, 
     help disadvantaged persons improve their circumstances, and 
     proscribe intentional racial discrimination, but it should 
     not assure outcomes in hiring, contracting, and admission for 
     higher education.

     

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