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The Civil Rights Act of 1997

Civil Rights Practice Group Newsletter - Volume 1, Issue 3, Fall 1997
By Charles T. Canady
December 01, 1997

On June 17, 1997, I introduced the Civil Rights Act of 1997 (H.R. 1909) in the U.S. House of Representatives. The bill now has 95 House cosponsors, and Senators Mitch McConnell and Orrin Hatch have introduced companion legislation in the U.S. Senate.

The Civil Rights Act of 1997 contains two main operative provisions:

1) The Act 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) The Act 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" and includes a "quota, set-aside, goal, timetable, or other numerical objective." The bill expressly permits the Federal government to engage in nondiscriminatory affirmative action: 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 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.

Since the beginning of the 104th Congress the House Judiciary Subcommittee on the Constitution has held nine in-depth hearings on the general topic of government sponsored race and sex preferences. By now, the subcommittee has heard testimony from a wide range of witnesses, and we have conscientiously and respectfully considered all viewpoints. When all of those viewpoints are considered, the concept of federal government-sponsored preferences on the basis of race or sex remains exceedingly difficult to defend as a matter of legal or moral principle.

The subcommittee has taken extensive testimony from distinguished members of Congress, scholars, and members of the bar, all experts on civil rights. But perhaps most relevant, we have heard from numerous witnesses who have personally tasted the sting of federal government sanctioned discrimination. These citizens personally experienced the hard truths of being denied an opportunity solely because of the color of their skin or sex.

The Civil Rights Act of 1997 is simple, direct, and clear: it prohibits federal government discrimination and preferences on the basis of race and sex. Most of the arguments against this legislation are anything but simple, direct, and clear; they do not specifically address the simple issue of whether federal government preferences on the basis or race and sex are wise policies consistent with American legal and moral principles.

Those who heard President Clinton's commencement speech last summer at the University of California-San Diego know that he professed allegiance to "diversity" and "affirmative action." I noticed that he did not mention "equal protection of the law," or "preferential treatment." The Clinton Administration's action -- and inaction -- speak even louder than words: the Administration has consistently and unerringly defended each and every brick in the pervasive wall of preferential government programs that the Civil Rights Act of 1997 would end. After pledging nearly tow years ago to "mend it, don't end it," and to "study" this matter prior to acting, the paralysis of analysis in the Clinton Administration continues, and the wall of preferences still stands as tall and insurmountable as ever. Recent regulatory proposals from the Administration would build this wall of preferences even higher. It is obvious that Congressional action securing civil rights for all Americans is long overdue.

The legislation is titled the civil Rights Act of 1997 because the present system of discriminatory preferential treatment for a select group of Americans based upon race and gender is the opposite of civil rights, and the opposite of equal protection. It is the opposite of the self-evident truth upon which this great National was forged, that all people are created equal. The legislation presents Congress with a stark choice in enforcing the Fourteenth Amendment and in formulating public policy: either the federal government will treat people equally, without regard to race and gender, or it will treat them unequally, by granting preferential treatment to some. This is a choice Congress must make.

The American people have already made their choice. In our Nation's most racially diverse state, historic efforts like the California Civil Rights Initiative show that we as a people are preparing to finally move beyond divisive government-sanctioned discrimination and preferences. Unfortunately, the President came to California to pontificate on this topic about six months too late, since Californians had already spoken loud and clear at the ballot box that government must get out of the special preference business. The courts have already made their choice as well. In recent years, courts at all levels have struck down government preference programs as unconstitutional, and the Ninth Circuit has specifically validated the California Civil Rights Initiative as a matter of law. Most of the current federal preference programs are wholly unsupported by any specific evidence of past discrimination against the favored groups, as required by the Supreme Court.

It is irresponsible for Congress, sworn to uphold the Constitution, to allow these unconstitutional preference programs to continue. Although the Administration fought the California Civil Rights Initiative before and after its passage, the President's words cannot change the fact that the people have now enshrined the California Civil Rights Initiative in the state's Supreme Law, the state constitution.

California's initiative will continue to grow and gain momentum. The great historical trend in America flows away from preferential treatment based upon immutable characteristics and in favor of equal protection for all. Someday, Americans will look back to this debate and wonder why our government continued these immoral and unconstitutional preference policies on such a grand scale. Our grandchildren will be ashamed that our government denied equal protection to some because of the color of their skin, just as we are ashamed that our government once denied equal protection to others for the same reason.

With this legislation, the debate can continue in Congress over the true meaning of the Equal Protection Clause. Which way should America be headed as we approach the Twenty-First Century: Should the Federal Government be engaged in the dangerous and divisive business of counting, sorting, and preferring people because of their race, or should the government treat all people equally, without regard to these characteristics we are given at our birth? This is the clear question, to which there is a clear answer. The clever platitudes of those who seek to continue preferences mean little to real citizens, like Tom Lamprecht, who was denied an FCC broadcast license because, in the words of the FCC administrative law judge, Lamprecht "suffers from a birth defect. He was born a white Anglo-Saxon male. They are not in demand under the commission's present deregulatory comparative scheme." The Constitution Subcommittee heard the testimony of Mr. Lamprecht and others who were similarly denied their right to equal protection of the law. Shortly after the hearing, the Constitution Subcommittee considered the Civil Rights Act of 1997 and reported it favorably to the full Judiciary Committee on a voice vote, with no amendments adopted. Even opponents of the legislation reluctantly concede that real people are hurt by the federal preferences the bill would abolish. The subcommittee witnesses harmed by preferences sued to vindicate their civil rights in courts at every level from a state trial court to the United States Supreme Court, and after long legal battles demonstrated that the various government preference programs they challenged were unconstitutional. Despite this finding, however, for various reasons none of the unconstitutional preference programs they challenged have been actually discontinued. This show that the present system of laws is inadequate to protect fully the civil rights of all Americans and demonstrates the urgent need for the Civil Rights Act of 1997.

When the government grants preferences on the basis of race, it teaches the people that discrimination is acceptable. Our laws must reflect the principle that the government discrimination on the basis of race or sex is not to be tolerated. Americans look to our government to exemplify what is right and just. So long as the federal government recognizes people as unequal under the law, we cannot achieve the fundamental truth the American people already know: we are all entitled to equal protection of the law. This legislation will ensure that the federal government leads the way in respecting this basic American principle.

Representative Canady, Republican of Florida, is the author of the Civil Rights Act of 1997 and serves as Chairman of the House Judiciary Subcommittee on the Constitution.

Editor's Note: On November 6, the House Judiciary Committee approved a motion by Republican Rep. George Gekas (R-PA) to table the Civil Rights Act of 1997, effectively killing the bill. Rep. Canady will likely reintroduce the bill next year.