Subcommittee Hearing on "H.R. 1909: The Civil Rights Act of 1997"
June 26, 1997
2141 Rayburn House Office Building
9:00 a.m.
Discrimination on the basis of race, creed, color, sex, age or religion must not be tolerated, even if the government attempts to use such criteria to end existing discrimination. Creating discrimination to end discrimination is not an acceptable solution. Only through the rigorous enforcement of our civil rights laws can we end this scourge, and ensure equal opportunity for all in our society.
I would like to focus my comments on the general proposition that the Civil Rights Act of 1997 addresses; namely, that it is morally wrong for the government to discriminate among its citizens on the basis of their race. Everything else is secondary. I can give you examples showing that affirmative action has been counterproductive, and the supporters of it can point to people they claim who have benefited from it. But if we never depart from the fundamental issue of whether it is right or wrong, we will have the guidance we need to answer this question.
I had the exceptional honor to clerk for Justice Byron White in 1978, the year California v. Bakke was decided. I was given the task of reading the entire history of the 1964 Civil Rights Act. It took me over three months. Then I briefed the Justice on what I found. What I found was a commitment to the principle I have stated today -- that the government must not discriminate against its citizens on the basis of race. No one argued that you can use race provided, on balance, it did more good than harm in creating role models. No one said that you can use race to distinguish among its citizens if it creates a diverse work place and mirrors the diversity of America. Hubert Humphrey, Senator Clifford Case, Congressman Morris Udall - heroes of the civil rights movement to a person argued that it was morally wrong for the government to distinguish among citizens on the basis of race. That is why Title VI was put into the Civil Rights Act in 1964. and which was at issue in Bakke.
Let me turn to the Bakke decision. Do you recognize how very narrowly we decided to go down this path? It was a four-to-one-to-four decision. Four Justices said it was acceptable for the University of California at Davis to use racial considerations in its admission policy. Four Justices said it was never acceptable to use racial considerations, and only one, Justice Powell, said it was acceptable to use race, but just a little bit; an intellectually indefensible position, rejected by the eight other Justiccs. Among the four who rejected the use of race were Justices Stewart, Stevens, Chief Justice Burger and Rehnquist, now Chief Justice. Our liberal friends tend to dismiss decisions by Burger and Renhnquist; they are wrong to do so. But to them I point to Justices Stewart and Stevens. No one accuses the late Justice Stewart as being a far right conservative. Justice Stevens is probably the most liberal member of the Supreme Court today.
When I was reading the legislative history of the Civil Rights Act, I was also given the task of reading all of the briefs in the Bakke case. They go uncommented upon today, but if you go back and look at those who submitted amicus curie briefs and read them you get a strong sense of the danger many felt at the notion of the government using race. For example, B'nai B'rith submitted a brief which said that it is all well and good for the University of California at Davis Medical School to create 15 places for blacks only, which they did, until you realize that those who don't get into this pool of applicants even to be considered were more likely to be Jewish than gentile.
The Bakke case held that you could use racial considerations, a little bit, five-to-four. If one Justice had held to the principle the other four Justices did, we would have never gone down this road, and what we would have had is a pragmatic and effective program to help those people in need regardless of their race. Had this happened, I'm convinced that the history of race relations in our country over the last 20 years would have been changed for the better.
Because of the position I take, I do not devote much time in my remarks as to how affirmative action has done harm. There are many others who can make this case very well. And there are others who can come back and say it does good. Abstract from that: You cannot do good by doing bad. But in my State of California I had one experience as a Congressman that I thought I would conclude with.
When I first served in the House of Representatives, I received a letter in my office from a constituent who had applied to Boalt Hall, the University of California's Law School at Berkeley. She had received a response from the University of California saying that, "you are on the top 1/3 of the Asian waiting list." This is not 1949, not 1899, this is 1989 when I was a freshman congressman. There was a blank in the letter where the number "1/3 " was written in and another blank where the word "Asian" was written in before the words "waiting list" to tell her where she stood in the eyes of the state. Is there is any purported good that can justify that? To tell her that she is viewed by her state as top 1/3 for an Asian? This state that did not give Chinese-Americans the right to sue in civil court until the later part of the Century? My state that went along with the internment of Japanese-Americans purely on the basis of their race during the Second World War? My state that coined the hideous phrase, "Chinaman's chance" because it was the Chinaman who was sent to put the explosives in the Sierra Nevada when building the railroads, and if the Chinaman came back after the explosives went off. that was alright, but if he did not, well, that was the "Chinaman's chance"? My state told a citizen that she was in the top 1/3 on the Asian waiting list. You can't do right by doing wrong.
I believe the Civil Rights Act of 1997 successfully addresses this proposition by
seeking to do away with preferences, set-asides and quotas in any kind of federal
employment, contracting, programs, and activities. That is why I am happy to stand with
my colleagues as a cosponsor of this bill today.
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