(Archived document, may contain errors)

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April 30, 1996

THE DOLE-CANADY BILL: AN IMPORTANT FIRST STEP

INTRODUCTION

By making race a relevant criterion... in its own affairs, government teaches the public that the apportionment of rewards and penalties can legitimately be made according to race... and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. -Justice Potter Stewart, dissenting in Fullilove v. Klutznick, 448 U.S. 448 (1980). Unfortunately, government in America has made race a relevant criterion. Racial and gender preferences pervade the federal government: employment quotas for minority and female employees; contract "set-asides" reserved exclusively for minority and female firms; and "bid preferences" where up to 10 percent is added to the bids of nonminority firms to aid minority and female firms. Defenders characterize these programs as contain- ing mere "goals and timetables." Such Orwellian terminology, however, cannot disguise the obvious fact that a preference by any other name is still a preference. Last July, Senator Robert Dole (R-KS) and IRepresentative Charles Canady (R-FL) in- troduced the Equal Opportunity Act of 1996. The Dole-Canady bill attempts to restore the colorblind principle to federal law by prohibiting the federal government from grant- ing any preference to any person based in whole or in part on race, color, national origin, or sex. Specifically, Dole-Canady contains two main provisions: 1) It prohibits the use of preferences based on race, color, national origin, or sex by the federal government in %/ federal employment, The awarding or administering of federal contracts, and Any other federally conducted program or activity; 2) It prohibits the federal government from requiring or encouraging any federal contrac- tor or subcontractor to grant preferences based on race, color, national origin, or sex to employees, suppliers, or subcontractors.

GOALS AND PREFERENCES

Section 8 of the Dole-Canady bill defines "preference" as "an advantage of any kind, 2 and includes a quota, set-aside, numerical goal, timetable, or other numerical objective." This is one of the bill's most important provisions because it attempts to prohibit prefer- ences from being disguised in other forms. The Dole-Canady bill prohibits the federal government from using and requiring a "numerical goal, timetable, or other numerical ob- jective" because such goals and timetables are indistinguishable from quotas. Laurence Silberman, as Undersecretary of Labor in the Nixon Administration, helped devise the re- gime of employment goals and timetables now imposed on private businesses. Silber- man, now a federal circuit judge, later wrote: I now realize that the distinction we saw between goals and timetables on the one hand, and unconstitutional quotas on the other, was not valid. Our use of numerical standards in pursuit of equal opportunity has led ineluctably to the ve7 quotas, guaranteeing equal results, that we initially wished to avoid.

Section 3 of the bill expressly protects the federal government's nonpreferential affirm- ative action programs. Such programs include outreach, recruiting, and marketing efforts to encourage qualified minorities to apply for federal employment and bid on federal con- tracts. All such programs are permissible under Dole-Canady provided no preferences are involved.

RHETORIC VS. REALITY

Despite its clear language and narrow focus, the purpose and effect of the Dole-Canady bill have been subject to serious misinterpretation in some quarters. For example: "[Aln all out, in-your-face attack, a walking away from hard-earned civil rights gains." -William Raspberry, Colummst.4

A "safe haven for sophisticated bigots." 5 -Representative Barney Frank (D-MA).

"It's an incredible rollback. It would basically take away equal opportunities for women and minorities." -Rosemary Dempsey, Vice President, National Organization for Women.

A "unilateral disarmament in the war on racism and discrimination." -Representative Nita M. Lowey (D-NY).

Discrimination Remains Illegal.

In reality, the bill does none of these things. It would not address, amend, or weaken any civil rights laws and protections in any way. Discrimi- nation would still be absolutely illegal, subject to the same penalties. Nothing in the bill would impair the federal enforcement and prosecution of civil rights laws and violations. In fact, Section 8(l) of the bill exempts the federal judiciary, thus ensuring the courts' power to order remedial relief to victims in discrimination cases. Civil suits for employ- ment and contract discrimination also would be unaffected. Contrary to the claims of some, nothing in the Dole-Canady bill would prevent the use of numerical disparities as evidence in discrimination trials; juries still could consider such "numerical evidence" in deciding whether discrimination occurred in a particular case. In sum, Dole-Canady does not address any issues involving civil rights or employ- ment litigation. All it does is prohibit the federal government from using and requiring ra- cial and gender preferences. Private Preferences. The Dole-Canady bill does not prohibit state and local govem- ments, colleges and universities, or private businesses, including federal contractors, from granting racial, ethnic, or gender preferences otherwise permitted by law-pro- vided such programs are truly voluntary and not adopted pursuant to pressure from the federal government. However, it does prevent the federal government from "requiring or encouraging" federal contractors from adopting such preferences. Currently, contractors and subcontractors are required to adopt rigid quotas and preferences as a condition of re- ceiving and maintaining federal contracts. Consistent with Civil Rights Act of 1964. It is indisputable that Dole-Canady is con- sistent with both the letter and the spirit of the Civil Rights Act of 1964, and that the cur- rent regime of preferences is not. For example, Senator Hubert H. Humphrey (D-MN), the floor manager of the landmark 1964 Act, assured the Senate specifically that "nothing in the bill would permit any official or court to require any employer or labor union to give preferential treatment to any minority group."8 More important, the Dole-Canady bill's concept of discrimination is consistent with the definition of discrimination in the 1964 Act: in the words of Senator Humphrey, "a distinction in treatment given to differ- ent individuals because of their different race."9 Politically Popular Support. An overwhelming number of Americans disapprove of racial and gender preferences. A recent poll showed that 84 percent of the American pub- lic opposes "favoring a minority who is less qualified than a white applicant, when filling a job in a business that has few minority workers." 10 However, traditional, nonpreferen- tial forms of affirmative action are favored. For example, 73 percent of those polled ap- prove of companies making "special efforts to find qualified minorities and women and then encouraging them to apply for jobs with that company. I'll This strongly suggests that the goals of the Dole-Canady bill are supported by the American people.

WHERE THE CLINTON ADMINISTRATION STANDS

Following last year's landmark Supreme Court ruling in Adarand Constructors, Inc. v. Pena, 12 which held that all racial classifications by government are sub ect to the strictest j judicial scrutiny, the Clinton Administration unveiled a five-month long study of federal affirmative action programs.13 This review did not recommend the elimination of a sin- gle federal preference program. 14 In fact, despite the nearly impossible standard for gov- ernment preferences announced in Adarand, President Clinton personally endorsed virtu- ally all existing federal race and gender preferences in a July 19 speech. Examples of the Administration's commitment to race-based affirmative action abound: X Assistant Attorney General Walter Dellinger has defined affirmative action as "a group-based remedy: where a group has been subject to discrimination, individual members of the group can benefit from the remed T@ even if they have not proved that they have been discriminated against personally."

Says Associate Attorney General John Schmitt, "Race can be taken into account as a preference." 16 Deputy Assistant Secretary of Labor Shirley Wilcher believes that "it's absolutely ab- surd that anyone would think affirmative action programs constitute reverse discrimi- nation."17 Says Assistant Attorney General for Civil Rights Deval Patrick, the Clinton Admini- stration "firmly and unequivocally opposes" the Dole-Canady bill. 18 And President Clinton, in his July 19, 1995, address on affirmative action made it clear that "where our legitimate objectives cannot be achieved through such means, the federal government will continue to support lawful consideration of race, ethnic- ity, and gender" in federal programs.

LIMITED YET SIGNIFICANT

Although the Dole-Canady bill focuses only on the activities of the federal govern- ment, it would have a significantly broad impact. In all, there are over 160 different fed- eral programs that contain racial and gender preferences. Dole-Canady would eliminate such preferences from these programs. For example, under Dole-Canady the 2.8 million federal employees that comprise 3.1 percent of America's total workforce20 would no longer be subjected to preferential hiring and promotion practices. Even more important, roughly one-third of all private employers in the United States contract with the federal govemment,21 and employees of these private-sector federal contractors comprise approximately 28 percent of the nation's workforce.22 The Dole-Ca- nady bill prohibits the federal government from requiring or encouraging these federal contractors to employ racial or gender preferences. In other words, the bill frees up to one-third of America's private employers from a particularly burdensome federal require- ment.

CONCLUSION

Although the Dole-Canady bill is narrow in scope, it would accomplish one very im- portant objective: the restoration of colorblind law to the federal government. This is a goal that can and should be supported by all Americans of goodwill. In the eloquent words of Supreme Court Justice Antonin Scalia: . 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.23

Rhett DeHart Special Counsel to Edwin Meese III