Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, if I could take a second.

Mr. HATCH. Mr. President, I know the distinguished Senator from Washington would like to make some remarks, but let me just make a few comments about the remarks of my distinguished friend from Georgia. I do not entirely disagree with Senator Nunn, the distinguished Senator from Georgia. At the outset, I want to call my colleagues' attention to the fact that the Congress has already acted in this area this year. Section 378 of the National Defense Authorization Act of fiscal year 1996, which is already law, specifically provides the military can provide training facilities, sensors, protective clothing and antidotes to Federal, State, and local law enforcement in chemical and biological emergencies. From this country's earliest days, the American people have sought to limit military involvement in civilian affairs. In the wake of the terrible tragedy in Oklahoma, with the heightened sensitivity to the threat of terrorism this country faces, some feel like giving the military a more prominent role in combating terrorism both here and abroad. This is not a policy we should rush into. I must add, I support the provision, which is known as the Nunn- Thurmond provision, in the Senate bill. Americans have always been suspicious of using the military in domestic law enforcement, and rightly so. Civilian control of the military and separation of the military from domestic law enforcement feature prominently in the early history of this country, from the Declaration of Independence to the Constitution and Bill of Rights. Indeed, the Declaration of Independence listed among our grievances against the King of England that he had ``kept among us, in times of peace, Standing Armies without the Consent of our legislature,'' and had ``affected to render the Military independent of and superior to the Civil Power.'' It was abuse of military authority in domestic affairs, especially in the South after the Civil War, that motivated Congress to impose the first so-called posse comitatus statute. The term ``posse comitatus'' means power of the country and has as its origin the power of the sheriff through common law to call upon people to help him execute the law. The statute, in 18 U.S.C. 1385, prevents the Federal Government from using the Army or Air Force to execute the law, except where Congress expressly creates an exception. Domestic law enforcement thus remains as is, in the hands of local communities. Currently, as I understand it, Congress has created only limited exceptions to the Posse Comitatus Act. The President can call out the military if terrorists threaten the use of nuclear weapons or if the rights of any group of people are denied and the State in which they reside is unable or unwilling to secure their lawful rights. The military is also authorized to share intelligence information with Federal law enforcement in attempts to combat drug trafficking. These are limited exceptions to the act, however, and do not generally empower the military to be actively involved in the enforcement of domestic laws. We have done well with a separation between military authority and domestic law enforcement. Although this proposal seems sensible and appears simply to expand upon the military's preexisting authority, to become involved if the use of nuclear weapons or biological or chemical weapons is threatened, it may, in fact, be unnecessary. The premise underlying this amendment is that there does not exist among civilian law enforcement the expertise to deal effectively with chemical or biological agents. However, I believe that such expertise is available outside of the military. Particularly in the area of chemical agents, civil authorities and even the private sector have considerable experience in containing these substances. Moreover, the military can already assist civil authorities in all aspects of responding to the type of crisis contemplated by this amendment but one: The actual use of military personnel to disable or contain the device. The military can lend equipment, it can provide instructions and technical advice on how to disable or contain a chemical or biological agent, and it can train civil authorities, if necessary. The one thing that this amendment adds to the military's ability to assist civil law enforcement is the permission to put military personnel on the scene and inject them directly into civilian law enforcement. This is, in my view, the one thing we should not do. This amendment would raise troubling implications going to the heart of the Posse Comitatus Act. It recognizes, as it must, that whenever law enforcement personnel are engaged in an evolving criminal event, there are unpredictable and exigent circumstances. The personnel on the scene must be able to take the necessary steps, including making arrests, conducting searches and seizures and sometimes using force to protect lives and property. Yet, the posse comitatus statute was enacted precisely to ensure that the military would not engage in such civilian law enforcement functions. Let me just say this. I agreed to the language that the distinguished Senator would like to put back in this bill in the Senate bill. I would not be unhappy if that language was in this bill. Unfortunately, the reason it is not is because we have people in the other body who basically are concerned about some of these issues that I have just raised. Rightly or wrongly, they are concerned, and we were unable in our deliberations, as much as we got this bill put together, as much as we have made it a very strong bill, we were unable to get that provision in. Let us just be brutally frank about this. If there is a motion to recommit on this issue, or any other issue, and that motion is approved by the Senate, then the antiterrorism bill is dead. If we do not, there will be a chance to put it through. Frankly, we have a very good bill here. It may not have every detail in it that I would like to have. It does not have every detail in it that the chairman of the House Judiciary Committee would like to have or our distinguished colleagues Senators Biden or Nunn would like to have. I might add, it does not have all the provisions in it that Congressmen Barr and McCollum and Buyer and Schiff and others would like to have. Nobody is totally going to get everything they want in this bill. But what it does have is a lot of good law enforcement provisions that will make a real difference, in fact, right now against terrorism in our country and internationally. We simply cannot shoot the bill down because we cannot get a provision in at this particular time that we particularly want. We all understand this process. We all understand that we cannot always get everything in these bills that we want to. But I will make a commitment to my friend and colleague from Georgia, as I have on other matters. I do not disagree with him in the sense that this is something that perhaps we should do. I will make a commitment to do everything in my power to make sure we look at it in every way, and if we do not do it here--and I suggest we should not do it here on this bill under these circumstances--then I will try later in a bill that we can formulate that will resolve some of these conflicts that both the distinguished Senator from Delaware and I and the distinguished Senator from Georgia and I would like to see in this bill--and others, I might add. So there is no desire to keep anybody's provision out of the bill. There is no desire to not solve this problem. The problem is we cannot do it on this bill and pass an antiterrorism bill this year. I think one reason the President called me last Sunday, I am sure, is because he has been asking us to get him a terrorism bill. This is it. This is the week to do it. I think we have done a really extraordinary job of bringing this bill back from what it was when the House passed its bill. I give credit to the House Members. There have been a lot of wonderful people over there who have worked hard on this. I have mentioned some of them in my remarks here today. But certainly the distinguished chairman over there, Chuck Schumer, and others, and Bob Barr and others, have worked very hard on this bill. None of us have everything we want in this bill. And none of us want to see it go down to defeat because of any one provision that we can solve later as we continue to study and look at this matter. Also, one of the problems we have had in trying to bring together people on this very important piece of legislation is that there have been some perceptions over in the House as a result of some of the mistakes that law enforcement has made that perhaps we might be going too far if we follow completely the Senate bill as it came out of the Senate Chamber. I think those perceptions are wrong, but the fact is they are there. I think we have to work on them and educate and make sure that we, by doing future bills, will resolve these problems, solve them in the minds of not only Members of the House of Representatives who have complaints against some of this information, but also in the minds of others who would like their own provisions in the bill. I have to say there are some--and I do not include the distinguished Senator from Georgia among them--but there are some who are just plain and simply trying to stop this bill. They hate the habeas corpus provisions of this bill. I know the distinguished Senator from Georgia does not, that he is with me on those issues, but they do. And they will use any strategy to try to stop this bill because they do not want to have death penalty reform. This bill is going to bring that to all of us. It is worth it. If that is all we had in this bill, it is the one provision that every victim who appeared here yesterday and in the past has said they want more than anything else. There is a very good reason to pass this bill for that reason alone. But there are so many other good provisions in the bill that we ought to pass it. We ought to pass it, even though one or more provisions that we think might make the bill better cannot be put into it at this time. We have really worked our guts out to come out with a bill that I think can be supported in a bipartisan manner. We have really worked hard on that. I do not care who gets the credit for this bill. I can say we have worked very, very hard to have a bill that all of us can be proud of. And I think we do have one. Does it have everything in it? No. But it has so much in it that we really have to go ahead and get it done. If this motion or any subsequent motions to recommit are passed, this bill will be dead. I think that would be one of the most tragic things that this body could do this week, just a few days before the anniversary date of the Oklahoma City bombing. Yesterday, we had people from Pan Am 103 here as well. We had others. Frankly, they all asked us to get this bill through. I am doing everything I can to get it through. So I hope people will vote against this motion even though I myself have a great deal of respect for the Senator from Georgia, a great deal of empathy for his position, and I would, even if I did not understand it, I would want to support him as I often have done through the years here on the floor of the U.S. Senate. I think basically that says it. I hope people will vote against any motion to recommit because it would be tragic for this bill to go down. I cannot imagine the majority voting it that way. I hope they will not in this particular instance. I yield the floor. Mr. NUNN addressed the Chair.

Mr. HATCH. Mr. President, I ask unanimous consent that reading of the motion be dispensed with.

Mr. HATCH. I agree with the 35, but all of those oppose the bill anyway. But it is a lot more than 35 people who will vote. I just wanted to make that statement. I thank the Senator from Georgia.

Mr. HATCH. If the Senator will yield, that would be fine with me-- one-half hour equally divided. I am prepared to go and get it done. This is that important. The President has asked for it. He said he wants it as quickly as we can do it. We have all week, but we might as well find out whether we can do it at all. I believe we can, and with cooperation we can get this done. I am happy to cooperate and do it that way--just go bing, bing, bing, from here on out.

Mr. HATCH. If the Senator will yield, we need to see what all the motions are. We need to know what those are. We would appreciate that.

Mr. HATCH. Mr. President, I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask unanimous consent that during the consideration of the conference report to accompany the terrorist bill, the time on the conference report be limited to 20 minutes equally divided in the usual form, and all motions to recommit be limited to the following time restraints; that they be relevant in subject matter of the conference report or Senate- or House-passed bills and that they not be subject to amendments: 30 minutes equally divided in the usual form on each motion. I further ask unanimous consent that following the disposition of all motions to recommit, if defeated or tabled, the Senate proceed to vote on adoption of the conference report, all without any intervening action or debate.

Mr. HATCH. I move to reconsider the vote.

Mr. HATCH. Mr. President, I move to table the motion and ask for the yeas and nays.

Mr. HATCH. Mr. President, what is the pending business?

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. I suggest the absence of a quorum.

Mr. HATCH. I hope so. I think so.

Mr. HATCH. I think we are but the majority leader asked me to put the quorum call.

Mr. HATCH. Yes. I am happy to.

Mr. HATCH. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I wish to continue the discussion about social policy and civil rights I began a short time ago. Mr. President, I support the vigorous and sensible enforcement of our civil rights laws and make whole relief for the victims of discrimination. I support affirmative action involving outreach and recruitment. I support training and assistance open to all who are seeking to enhance their ability to compete, without regard to race, ethnicity, or gender. I oppose preferences in the award of benefits or impositions of penalties based in whole or in part on race, ethnicity, or gender. Opposition to preferences should not be a device used, however inadvertently, to ignore the particular problems resulting from the legacy of prior and ongoing discrimination. Nor should opposition to preferences be used to weaken the kind of affirmative outreach and recruitment I mentioned earlier. Conversely, I reject the cynical use of the affirmative action label as a means of throwing a protective shield over preferences, as President Clinton and his administration have repeatedly done. This administration has pursued a pervasive policy of preference. The President's actions speak louder than his words. The Clinton administration has repeatedly cast its lot not on the side of equal opportunity for all Americans, but on the side of racial, gender, and ethnic preferences and equal results for groups. Indeed, I find both President Clinton's July 19, 1995, speech on this issue and his administration's review of this issue an artful dodge of the real issues and a vigorous assault on the principle of equal opportunity for all Americans. In his frequently gauzy July 19 speech, President Clinton never came to grips with the details of affirmative action preferences. He also repeats some false dichotomies long used by other tenacious defenders of preferences. He ignores the variety of ways preferences operate, and are defended, even under his own administration. Moreover, he defines affirmative action with a combination of breadth and vagueness, allowing him to dodge the tough issues. He does not understand that preferences are not only wrong, they are terribly divisive. Columnist Robert J. Samuelson has written: The essence of Clinton-speak is that the president is often saying the opposite of what he is doing. On affirmative action, he deplores those ``who play politics with the issue . . . and divide the country.'' Yet, that describes Clinton exactly. His eager embrace of affirmative action guarantees that it will foment racial and gender rancor. That was from the Washington Post of August 9, 1995. He treats the web of local, State and Federal bureaucratic, legislative, and judicial rules and policies requiring the cause of preferences as if they were minor aberrations or barely in existence. They have, in fact, grown over the years, including under his policies. For example, he claims that sometimes employers abuse the concept--as if local, State, and Federal governments have not been breathing down many employers' necks--playing the numbers game, pressuring and requiring consideration of race, ethnicity, and gender in their employment practices. Indeed, his administration has recently issued guidance concerning Federal employment which provides a shocking, broad-based series of rationales for preferences. Moreover, the President, in my view, gives too much credit to affirmative action for progress in this country. The enactment and enforcement of antidiscrimination laws, a decrease in prejudice, and economic forces, in my view, have clearly played very important roles in such progress. Even his own task force admits, at least: ``It is very difficult * * * to separate the contribution of affirmative action from the contribution of antidiscrimination enforcement, decreasing prejudice, rising incomes and other forces.'' The four directives he has issued to his agencies are largely misleading or irrelevant, especially in light of his administration's overall actions. The President says, ``No quotas in theory or practice * * *'' but he supports a so-called flexible goal. It is preferences we must oppose, however, not the label for one of the forms of preference. And the Clinton administration has strongly fostered preferences in various ways, as I will explain shortly, sometimes making use of numbers and sometimes not. Indeed, his administration has fostered outright quotas. With respect to numerical objectives, whether they are labeled goals and timetables or quotas, the harm that occurs is the exercise of preference based on race, ethnicity, gender, or otherwise. It is such preference that is wrong, rather than the precise label we place on the mechanism of preference. I think it is helpful to conceptualize the numbers approach as functioning along a continuum. At one end, the equal opportunity end, there is the requirement not to discriminate on the basis of irrelevant characteristics, the requirements to review selection processes to ensure that there is no bias and to recruit widely--and no numerical objective. At the other end is a requirement that does one of two things. First, it either establishes separate lists of those at least minimally qualified, based on race or gender, with alternate selection from these lists until a certain percentage is met, regardless of the relative rankings that would exist on a single list. Or, the requirement simply defines equal opportunity as essentially the proportional representation of various groups, and mandates or permits race or gender conscious selection procedures in order to meet that objective. In between these two ends are various levels of coercive authority and sanctions that require or strongly encourage the use of preference. Thus, somewhere between these two opposites might be what is euphemistically described as a ``flexible goal and timetable.'' In fact, this differs little, as a practical matter, from what is otherwise known as a quota, except in the lack of explicitly separate lists. It might be that an employer is pressured to reach a certain percentage of designated groups in his work force over a period of time without the explicit creation of separate lists. Sanctions remain available, lurking not far in the background. If an employer or school believes that the failure to meet a goal will result in increased oversight, paperwork, and required explanations; the threat of contract debarment, loss of Federal aid, or a lawsuit by individuals, advocacy groups or the Government hanging overhead; or a contempt motion pursuant to a court order which is already in place, then the employer or school is going to try to meet that number, regardless of who is best qualified. If an employer or school does not believe that the Government intends for the number to be reached, they would have to ask, why did the Government put the number out there? If equal opportunity alone is all that is required, the Government can require that such opportunity be afforded without setting any numerical requirement. I also note that, when race, ethnicity, or gender is used as only one factor in a decision to hire, and that one factor tips the decision in favor of one person and against another, that is discrimination, that is a preference. Thus, while some numerical objectives may be somewhat less coercive than others, they are no less objectionable. At best, we are speaking of matters of degree, not of kind. The Clinton Administration makes full use of the range of preferences. President Clinton next says, ``no illegal discrimination of any kind including reverse discrimination.'' Mr. President, this is clearly a verbal slight of hand. The President never defined reverse discrimination. As the President and his legal advisors well know, the courts and executive bureaucracies, regrettably, have deemed a variety of reverse discrimination--preferences--as legal. His own task force, for example, speaks approvingly of the Supreme Court's 1979 Weber decision. That decision permits reverse discrimination in an employer's training program under title VII. The Weber decision is a crucial part of the reverse discrimination edifice in this country. So the President favors reverse discrimination under the name of affirmative action, at least so long as a court anywhere, or a bureaucrat, says its acceptable or might possibly say its acceptable. The congressional testimony, courtroom legal arguments, and policy guidance of his Justice Department amply confirm this. Indeed, his own administration has vigorously sought to expand the rationales for permitting reverse discrimination. Let us not forget: the Clinton administration was on the losing side in the Supreme Court's 1995 Adarand case. The Clinton administration argued for a double standard based on race and ethnicity in the Federal Government's award of contracts and in Federal Government policy generally. President Clinton managed to omit that fact from his July 19, 1995, speech. President Clinton defended his administration's outrageous defense of racial preferences in layoffs in the Piscataway case. Next comes the President's clumsiest and most transparent cynicism: ``no preference for people who are not qualified for any job or other opportunity.'' This is a longstanding dodge by the ardent defenders of preference and reverse discrimination. Of course, the problem with preferential policies is that they favor the lesser qualified over the better qualified. Finally, the President says, as soon as ``the [particular affirmative action] program has succeeded it must be retired.'' We have heard that for at least 25 years. What does the President mean by an affirmative action program succeeding? He does not say, directly. But a careful review of his speech, his task force's rationale for affirmative action, including preferences, and his Justice Department guidance, makes it clear--he does not mean equal opportunity for individuals. The repeated reference, as justification for affirmative action, to various statistical disparities makes clear that affirmative action succeeds in this administration when equality of result--proportionality--has been reached. Indeed, his Justice Department's February 29, 1996 guidance to Federal agencies justifying preferences and reverse discrimination in Federal employment authorizes those agencies to maintain proportionality almost continually. Despite misleading disclaimers, that memorandum is a wide-ranging defense not only of reverse discrimination well beyond current Supreme Court precedent. It is a thinly veiled defense of quota hiring. I should also point out that President Clinton takes the Adarand decision as if it is the final guidance on preferences. It is not. His own task force knows better: ``The Court's decision concerned what is constitutionally permissible, which is a necessary but not sufficient consideration in judging whether a measure is a wise public policy.'' There is the question of what is right. In my view, if a business has been discriminated against by a government entity, it should have a remedy. But to prefer another business because it is owned by a member of the same group, over an innocent business owner who belongs to a different group, is wrong. If one believes that rights inhere in individuals, not in groups, one has to oppose this latter type of program, a contract preference based on race, ethnicity, or gender. The Clinton administration celebrates it. Just listen to the Clinton task force's rationalization: race- conscious contract procurement programs ``cause only a minor diminution of opportunity for non-minority firms. In that respect, current programs are balanced and equitable in the large.'' So much for individual rights. So much for equal opportunity for every individual. No reasonable person would accept such a rationale if the victims were minority firms, and properly so. The Clinton administration should tell Tom Stewart of Spokane, WA, who testified before the Senate Judiciary Constitution Subcommittee, that contract preferences generally cause only minor loss of opportunity. His guardrail firm has lost $10 to $15 million over 15 years because of preferences--reverse discrimination to anyone else but this President and other defenders of preference and reverse discrimination. Mr. Stewart has numerous letters from prime contractors saying he was low bidder but could not be retained because of set-aside requirements--the preferences, if you will. Or tell it to Lance McKinney, the president of Atherton Construction Co. of Salt Lake City, UT, who was not even permitted to bid on certain contracts because of his race. These requirements are far more pervasive in local, State, and Federal governments than the President admits. Even one contract lost because of race is one too many, but the Clinton administration breezily understates the scope of the problem. The President condescendingly tries to bundle off concern about preferences and reverse discrimination to economic uncertainty in the white middle class. The President thinks the real problems with racial, ethnic, and gender set-asides are those of fronts and fraud. President Clinton just does not get it. He is out of touch with mainstream America. The real problem with racial, ethnic, and gender preferences, including in contract awards, is that they are fundamentally unfair. Preferences and reverse discrimination should be ended, not tinkered with. The principle of equal opportunity demands that we avoid new forms of discrimination. We must not create new victims of discrimination in the name of affirmative action--something the President's own administration has, in the large, fostered and defended. Ted Van Dyk, a former assistant to Vice President Hubert Humphrey has written: The civil-rights fighters of the 1950s and early 1960s can only be shocked that the more recent Democrats, including the president, have taken that struggle for opportunity and transformed it into an attempt at guaranteed outcomes. Hence the official and unofficial, gender and ethnic quotas imposed in staffing the administration. Mr. Van Dyk has also noted--and keep in mind he was former assistant to Vice President Hubert Humphrey, who helped to write the act of 1964. Mr. Van Dyk has also noted, Affirmative action was intended as nothing more than a late footnote to central civil rights and social legislation of the early and mid-1960s meant to remove from American life discrimination against--or for--any person or group. The objective of a generation of civil-rights fighters of all races and colors had been to give every American an equal chance at the starting line--but not a guaranteed outcome at the finish line. My old boss Hubert Humphrey, principal sponsor of the 1964 Civil Rights Act, made clear during congressional debate that quotas, racial preferences, set-asides and other discriminatory measures were totally at odds with the justice sought through the act. Title VII of the act, in fact, explicitly bans preferences by race, gender, ethnicity and religion. No one could have predicted then that affirmative action would be transformed into a quasi-entitlement or that well- meaning next-generation leaders, including President Clinton and Hillary Rodham Clinton, would insist on rigid racial, gender and ethnic quotas in filling federal appointments. These quotes are from the Washington Post, March 9, 1995 edition. The Washington Post of September 1, 1995, reports: A divided Montgomery County School Board has refused to overturn a school system decision denying two Asian kindergartners admission into a French immersion program because the transfer would upset the ethnic balance at their neighborhood elementary school. Only after a public uproar was this particular denial overturned. How does the President feel about this general policy? Will his administration enforce equal opportunity in the Montgomery County schools? The Washington Post of October 30, 1995, reported: Principal Inez Sadler's Valley View Elementary School in Prince George's County, Maryland faced a shortage of 50 students for its Talented and Gifted program, but she could not choose from any of the 67 students on a waiting list. The reason: all 67 students on the list are African American, while all 50 available slots are reserved for children of other races. This is pursuant to a court-ordered desegregation remedy originating in a 23-year-old lawsuit. In San Francisco, as part of a 12-year-old consent decree, Chinese- American youngsters are being discriminated against in favor of whites, blacks, Hispanics, Koreans, or Japanese for entry to Lowell High School--and there is discrimination in the treatment among these groups as well. This is in the Los Angeles Times, July 13, 1995 edition. Only in the past few weeks has there been the possibility of some change in those policies. A 12-year-old girl was denied admission to Boston Latin School recently because she ran afoul of racial preferences. Does the President believe these practices are right? Should his administration have been doing something about it? Some of these examples point out something else President Clinton is oblivious to: Preferences hurt all of those outside the preferred groups in any given instance, not just white males. That is the dodge that they hide behind all the time. We are finding they are hurting everybody. Once we draw a line based on race, ethnicity, or gender, we create new victims of discrimination. When Miami Dade Community College, for example, offers five faculty fellowships for males of African descent, white males are not the only victims. Females of African descent are discriminated against, as are Asians and Hispanics. But this program is fully consistent with the administration's actual policies. If President Clinton is truly concerned about equal opportunity, he should straighten out the policies of his own administration. He could start with the Department of Justice, which of course, as chairman of the Judiciary Committee, I have the responsibility of overviewing. That is one reason why I am taking time to make this statement today. In 1994, the Clinton administration switched sides in a reverse discrimination case in Piscataway, NJ. In the Piscataway case, the Piscataway Board of Education decided to reduce the size of its Business Education Department. The choice was between laying off a white female or a black female with equivalent seniority. Normally, the tiebreaker between two equally senior employees facing a layoff is undertaken in a race-neutral manner, by drawing lots. But Piscataway had an affirmative action plan, which required that the tie be broken on the basis of race in favor of the black teacher. In 1989, the white teacher was discharged. The Bush Justice Department brought a lawsuit in January 1992 challenging this racially discriminatory layoff under title VII of the 1964 Civil Rights Act. In June 1993, the Clinton administration, then in power, filed two briefs advancing its then position that the race- based layoff was illegal. Then, stunningly, after the district court ruled in favor of the United States and the white teacher who had intervened in the case in her own behalf, and granted her relief, the Clinton administration flip-flopped and abandoned its earlier position. It, in effect, switched sides and argued against the white teacher in favor of a policy of racial discrimination. It argued to deprive the victim of discrimination of the very relief it had engineered. The district court's straightforward legal analysis and finding in favor of the discriminatorily discharged teacher was challenged by the Clinton administration's strained legal arguments in its ideological drive to go beyond Supreme Court precedent to further its policies of reverse discrimination. The advocates of racial preference argue that such preferences can be justified as an effort to enhance racial diversity in a work force. I have many problems with the administration's position in this case. Let me mention one. I am deeply disturbed by the sweeping rationale DOJ advanced in support of the preference in this case. In its amicus brief--or friend of the court brief--the Department of Justice relied on Justice Steven's concurring opinion in Johnson, which defended preferences by public and private employers in very broad terms, including increasing the diversity of a work force for its own sake. If the open-ended view taken in DOJ's brief prevails, what is left of the actual language of title VII? Title VII's language bans discrimination in employment because of race. Narrow exceptions to title VII's plain language in Weber and Johnson, unfortunate as they are, do not extend as far as the facts in Piscataway. The Clinton administration's rationale in Piscataway, it seems to me, turns the statute upside down. It is an open invitation to widespread discrimination. President Clinton should have repudiated the Justice Department's extreme position in this case. Instead, he endorsed it. Now, he tries to claim he opposes reverse discrimination? In Piscataway, he advocates it. The court of appeals in that case has recently rejected the administration's effort to participate further in the case. I hope it upholds the lower court, notwithstanding the Clinton administration's change of heart. Moreover, the Justice Department largely echoed its Piscataway brief in the wide-ranging rationales it will accept for preferential hiring in the Federal Government. The Justice Department's claim that whenever an employer can produce statistics, anecdotes, or expert testimony, it can justify racial, ethnic, and gender preferences in order to meet its operational needs is a giant leap down the wrong road for this country. The President should repudiate this memorandum and start over again. He has had to countermand the Justice Department in a pornography case and a religious liberty case, so I am not suggesting anything new for this President. Let me be clear: I favor racial diversity and integration. The question is, how does an employer achieve it? I believe the proper way of doing so is recruiting widely, including among those who traditionally do not apply for a job, and then hiring on a nondiscriminatory basis, letting the numbers then fall where they may. We should not seek to achieve diversity by trumping the principle of equal opportunity for individuals. The Clinton administration, in contrast, believes diversity can and should be reached by discrimination and preferences, even in cases involving layoffs, as in the Piscataway case. Indeed, as I mentioned earlier, its brief in this case, after changing sides, together with its recent guidance to Federal agencies, embraces multiple, sweeping rationales for reverse discrimination with little limit, at least in the context of hiring, promotion, and remarkably, layoff. This is a recipe for the division, polarization, and balkanization of our people. It does not bring us together. The drafters of the 1964 Civil Rights Act, such as Hubert Humphrey, have shown us a better way. Instead, President Clinton is taking us far away from the principle of equal opportunity for individuals. No matter how much the purveyors of preference try to candycoat or obfuscate their policies with euphemisms, they cannot mask the outright discrimination they are supporting. They cannot fool the American people. Let me mention just some of the other manifestations of the Clinton administration's policy of preference. An August 10, 1994, memorandum to Assistant Secretaries of Defense for Force Management; Health Affairs; and Reserve Affairs and to the Deputy Under Secretaries of Defense for Requirements and Resources and for Readiness addressed the subject of improving representation. It is from the Under Secretary of Defense for Personnel and Readiness, Edwin Dorn. The memorandum expresses concern about the job representation of, for example, minorities and women. That is a fair concern, and the issue becomes, how do you address that concern. The memorandum seems to call for recruitment of minorities and women as applicants for jobs, which I believe is entirely appropriate. But listen to how this concern is further addressed in the memorandum. Listen to how subtle pressure is placed on subordinates to put a premium, a preference, on irrelevant characteristics at the point of hiring or promotion. The memorandum reads in part: Secretary Perry is holding me responsible for improving representation within the Office of Under Secretary of Defense for Personnel and Readiness. For this reason, I need to be consulted whenever you are confronting the possibility that any excepted position, or any career position at GS-15 level and higher, is likely to be filled by a candidate who will not enhance your organization's--and thus Personnel and Readiness's--diversity. By working together, we may be able to make faster progress. We know that there is a problem; it may be apparent even at our own staff meetings . . . Notice that whenever there is a mere possibility that a person in one of the nonpreferred groups is even likely to be hired or promoted for any of the covered positions, race and gender must then come into play. The Defense Department may try to explain that any way it wishes. But the euphemistic phrase making faster progress, as a practical matter, means: if you are about to hire or promote a male or a nonminority, presumably on the basis of merit, do not do it until you check with your superiors and we may well prefer someone else on the basis of race or gender to improve our numbers. Indeed, in the next paragraph, the memorandum states, ``I believe that the informal process outlined above will produce results. If not, we will need to employ a more formal approach involving goals, timetables and controls on hiring decisions.'' The problem to the Clinton administration is not discrimination. The problem to the Clinton administration is the absence of a particular proportion of each group. By singling out hiring and promotion of white males for special scrutiny, this office in DOD discriminates against them. While this approach is already a formal one--see me before you hire a white male--the threat of even more draconian measures makes it even more likely that his subordinates will make sure they are on board in their hiring to begin with. Antidiscrimination laws already apply to the Defense Department to ensure equal opportunity. The Department is also certainly capable of recruiting widely for job applicants. But the Clinton administration is going well beyond this with its pervasive policy of preference. If President Clinton is really serious about equal opportunity, he will repudiate that memorandum. Let us take another example of the Clinton administration's drive toward equal results. The November 15, 1994, FAA Weekly Employee Newsletter states, ``More than half of the GS-15 management positions recently filled through the Air Traffic National Selection System were minorities and females. `This is in line with Air Traffic's commitment to fill one out of every two vacancies with a diversity selection,' said acting Associate Administrator for Air Traffic, Bill Jeffers.'' Rather than achieve equal opportunity by recruiting widely and hiring fairly, without regard to irrelevant characteristics, the Clinton administration prides itself on a process, driven not by equal opportunity, but by equal results. When asked at a congressional hearing on June 27, 1995, whether the administration opposes quotas, the President's Attorney General said yes. Yet, when asked about the propriety of this FAA policy, the Attorney General refused to answer three times, hiding behind the President's ongoing, long-running Adarand review. There was no excuse for failing to repudiate the FAA's policy if this administration was serious about equal opportunity, rather than treating it as a political problem to be managed with euphemisms and dodges. President Clinton's omnibus health care bill in the last Congress provides yet another example of how this administration really views preferences and has sought to foster preferences and reverse discrimination. The Clinton health care proposal would have given a national council power to set limits on the number of medical students in various specialties and would have allocated funding among various medical training programs. The bill said that among the factors the national council must consider in allocating specialty slots is, . . . the extent to which the population of training participants in the program includes training participants who are members of racial or ethnic minority groups, [and] with respect to a racial or ethnic group represented among the training participants, the extent to which the group is underrepresented in the field of medicine generally and in various medical specialties. It was not enough, then, that the medical school comply with title VI which bans racial and ethnic discrimination in programs receiving Federal aid. It was not enough to recruit widely for applicants. The Clinton administration wanted to tell medical schools that the more members of a particular group they enroll, the more likely it is that they will get a financial allocation. How many members of the groups? The bill did not say, a new twist on preferences and their encouragement. Mr. President, if you were a rational medical school administrator competing for scarce Federal dollars, and this bill had become law, how would you react? Would you simply recruit widely and then select medical students on the basis of merit and talent, without regard to race or ethnicity? Or would you make sure that race and ethnicity play a role in the selection of students, as well? This is a financial incentive for preference. The revised Clinton health bill, S. 2357, introduced in August 1994, actually added women to racial and ethnic groups in this preference provision. Of course, Federal law since 1972 already bans discrimination against women in federally assisted education programs. Instead of relying on our nondiscrimination laws which were written to protect these people and relying on recruitment of the right kind, the Clinton administration actually made this provision more preferential than it was less than a year before. If President Clinton is so concerned about fairness and doing the right thing, I respectfully suggest that, as a first step, he ought to stop doing the wrong thing. There are a number of other examples. Let me mention the Podberesky versus Kirwan case. In addition to need-based financial aid, the University of Maryland at College Park [UMCP] offers two merit-based scholarships. No. 1, the Banneker scholarship, is for black students only. Podberesky, a Hispanic student, applied for a Banneker scholarship. Although he met the minimum requirements, he was turned down because he is not black. He is Hispanic. The Department of Justice defended the program as a remedy for the present effects of past discrimination in Maryland's public higher education system. The district court ruled for the university, but the fourth circuit reversed and granted Podberesky summary judgment. The fourth circuit said that the university did not have sufficient evidence of present effects of its prior discrimination to justify a preference in its scholarship program, and, in any event, its effort is not narrowly tailored to serve its purported remedial purpose. Instead of justifying this reverse discrimination, the Clinton administration should be fostering race-neutral financial aid policies. When the California regents ended reverse discrimination in their policies in the California State university system, how did the Clinton administration respond? The President's Chief of Staff, Leon Panetta called it a terrible mistake. The Clinton administration sought to bully California and perhaps intimidate others. It initially threatened a possible cutoff of Federal aid and Federal contracts. Mr. Panetta, referring to the California universities' Federal aid, said, ``Obviously the Justice Department and the other agencies are going to review the relationship.'' The President's chief civil rights enforcer, Assistant Attorney General Deval Patrick, called this policy of equal opportunity a shame. He called it unwise. In a statement that only George Orwell could have loved, the Clinton administration's chief civil rights enforcer condemned the California Regent's action as an abandonment of ``the ideals that have been with us since our founding as a nation.'' This is another example of how the President does not get it: The California Regent's new policy is a step that reflects our Nation's ideals. If the President was truly concerned about fairness, equal opportunity, and against reverse discrimination, he would have supported Gov. Pete Wilson and the California Regents. Nothing better sets out the starkly different visions of this administration and those of us who believe in equal opportunity for all Americans than the Clinton administration's attempted bullying of California on this matter. Nothing better belies this administration's claim to be reformist--though the administration may tinker here and there, it is essentially a defender of the status quo. This administration is fostering preferences in mortgage lending and property insurance through groundbreaking misuse of fair housing and fair credit laws. The then acting director of the Office of Thrift Supervision has even questioned some of these tactics. The President, in undertaking his review of affirmative action, reminds me of the French Police Chief in the movie ``Casablanca'' who pretended not to know gambling was taking place in the nightclub he frequented. President Clinton would apparently be shocked, shocked to learn that reverse discrimination is openly, knowingly, and tenaciously fostered and defended by his administration in practice. Even now, I believe the Clinton administration is working hard to devise ways of perpetuating as much preference as possible, giving up just enough to make it seem as if they are doing something about it. Even then, as I will explain in a moment, the administration is attempting to mislead the American people. President Clinton is out of touch with mainstream America on the issue of equal opportunity. Mr. President, it is not enough to nibble at the edges of a problem. The administration has announced its suspension of one of the preference programs operated by the Federal Government. This is a contract set-aside program operated at the Defense Department, the so- called rule of two program. I approve of this small, first step, but it is so much window-dressing thus far in the administration's review. Indeed, after making a large public relations splash about the suspension of this program, the Department of Defense made a much quieter announcement in the Federal Register on December 14, 1995. It proposed a new preference for awarding certain contracts by adding 10 percent to the total price of all offers other than those from small minority businesses. And, shortly thereafter, the Clinton administration filed a brief in the Dynalantic Corp. versus Department of Defense case, which tenaciously defended racial contract preferences generally and under the section 8(a) program. The President may suspend a few more programs that represent the worst abuses. But, Mr. President, one cannot split the difference on the principle of equal opportunity. There are numerous preferential programs and policies operated by the Federal Government, a number of which the President can abolish. For example, he could eliminate the use of numerical racial, ethnic, and gender employment goals for Federal contractors. Executive Order 11246 requires Federal contractors to undertake affirmative action to ensure nondiscrimination. It does not require numerical goals. Numerical goals are a bureaucratic creation which the President could end with a stroke of a pen. The section 8(a) contract set-aside program at the Small Business Administration is another example. Section 8(a) is intended to assist small businesses owned by socially and economically disadvantaged persons. The statute defines a socially disadvantaged person as someone who has been discriminated against because of racial, ethnic, or cultural bias. But the SBA regulations require that members of some racial or ethnic groups be presumed to be socially disadvantaged. All others seeking entry into the 8(a) program must prove they are socially disadvantaged. The President should order the deletion of this preference. All American small businessowners should have an equal chance to compete for 8(a) contracts. Moreover, aside from these three areas, there are many other Federal policies and programs that contain preferences. What does the President intend to do about them? What is the President's action really about? The answer seems to lie in the candid remark of an administration official, cited in the May 31, 1995, New York Times. In that story, the New York Times reported that ``an administration official said there might be some political benefit if black business executives criticized the Administration's eventual proposals. `We want black businessmen to scream enough to let angry white males understand we've done something for them,' said the anonymous official.'' Indeed, President Clinton went to California over the Labor Day weekend and claimed credit for Congress' repeal of an FCC racial preference in the selling of broadcast properties earlier this year. His administration, of course, resisted repeal of that preference, and then wanted it modified, not repealed. His own spokesman had to acknowledge as much. And, as I mentioned earlier, in December, his administration recently proposed a brand new preference at the Department of Defense and continues to defend other preferences. Let me conclude with the words of Prof. William Van Alstyne, in a 1979 law review article: . . . one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one's own life--or in the life or practices of one's government--the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding. This is ``Rites of Passage: Race, the Supreme Court, and the Constitution:'' in the Chicago Law Review. I have to say I fully agree with that. Mr. President, this is an important set of issues. We cannot ignore them. We are going to divide this country more than ever if we keep doing this system of preferences that has been going on in this administration and, alas, unfortunately, in some prior administrations as well. I hope that we can do a lot about this. I hope that we will make headway against these preferences and these inappropriate treatments of fellow American citizens as we move on into the future. I hope the administration will pay attention to some of the things that I have brought up here today.

Mr. HATCH

Mr. HATCH. Mr. President, I understand there is a bill due for its second reading.

Mr. HATCH. Mr. President, I object to further proceedings on this matter at this time.

Mr. HATCH

Mr. HATCH. Mr. President, since we have just turned to the illegal immigration reform bill, I ask the indulgence of the two managers for a few minutes. I want to pay tribute to my friend and colleague, the senior Senator from Wyoming. For some 17 years--really, 17 years plus-- Senator Simpson has taken on the difficult and often thankless task in dealing with the immigration issue, an issue which stirs the emotions, and one which people become very passionate about. He has always taken on this task with spirit, diligence and intelligence. His views were always thoughtful. From time to time, I have disagreed with my friend from Wyoming on some immigration issues, but the record should be crystal clear that my friend from Wyoming is a man of great good will, a good will he brings to this issue. He often takes unfair criticism. Indeed, to borrow one of many pithy phrases I will soon miss from my friend, my friend has had several metric tons of garbage dumped on him over this issue-- although garbage is not the exact word he uses. The abuse is very much undeserved. I express my warmth, affection, and respect for my friend from Wyoming as we continue this important debate, and respect for his staff, also, which has worked so hard on these issues. I want him to know that I, as chairman of the Judiciary Committee, particularly appreciate his help and his work in the markup of this very important bill. I just want him to know how much we respect him and others who are working on this bill, as well.

Mr. HATCH

Mr. HATCH. I am delighted to.

Mr. HATCH. Mr. President, I ask unanimous consent that I be given an additional 2 minutes so that I can personally pay my respects to Ron Brown and his family.

Mr. HATCH

Mr. HATCH. Mr. President, today I introduce a bill that would permit the Federal District Court of the Central Division of Utah to hold court in Provo and St. George. Under the relevant statutory provision, title 28, United States Code, section 125, District Court for the Northern Division of Utah may be held only in Ogden, and District Court for the Central Division of Utah may be held only in Salt Lake City. The central division of Utah, however, is quite expansive: it encompasses 23 counties and spreads from the Salt Lake region down to Utah's southern border. Due to the division's size, those involved in district court proceedings, whether as litigants, jurors, or lawyers, must travel to Salt Lake City for district court. The district judges and others in Utah have become concerned about inconveniences that have arisen due to the statutory constraints on the places of holding court in Utah. On January 9, 1996, the district judges for the District of Utah voted to approve an amendment to title 28, United States Code, section 125 that would permit district court for the central division of Utah to be held not only in Salt Lake City, but also in Provo and St. George. The bill I introduce today embodies those changes. The Utah State Bar supports the bill. This bill will help Utahns by facilitating the administration of justice in Utah, and by permitting easier access to the district courts to citizens and litigants throughout Utah, who have often had to travel to Salt Lake City to have their cases and concerns heard. Provo itself is a significant city with a population of 86,835. The neighboring city of Orem, UT, adds a population of 67,561 to Provo's immediate region. St. George, while a smaller city, is located in the southwest corner of Utah, and would provide a convenient location for citizens of southern Utah. The minor modifications embodied in the bill will place Utah in a similar position to many other States in which district court may be held at numerous statutorily designated locations. The vast majority of States enjoy far more than two places in which district court can be held. Just to cite a few examples, 13 cities in Alabama are designated as cities in which district court may sit, 11 cities in Arkansas are so designated, 17 cities in Georgia are named, 12 cities in Iowa are included, and 23 cities in Oklahoma are listed. Under current law, only Delaware, Hawaii, Maine, New Hampshire, and Rhode Island stand with Utah in having two or fewer locations in which district court may be held. Utah is the largest of those States. Even with the change, a mere four cities in Utah will be designated as places for holding district court. I note for my colleagues that the bill does not require any additional appropriations or any courthouse construction. It simply permits court to be held in two additional locations. I ask unanimous consent that the entire text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, our country stands at a crossroads in 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. It is the way, ultimately, of greater unity among our people. Down the other path is the way of mutual suspicion, fear, ill will, and indifference; the way of group rights and group preferences. On this path we march toward greater division. And, on this path, the signpost is marked: equal results for groups, not equal rights for individuals. This is a time when our national leadership needs to lead us down the proper path. I am concerned, however, that the President views this subject too much as a political issue. It has been an issue which he has sought to manage in order to avoid an intra-party challenge or independent candidacy from his left, rather than simply base policy solely on the merits. Thus, he has firmly and resolutely defended, in principle, the current racial, ethnic, and gender preference regime in this country. And, in practice, he has preserved the vast bulk of the actual preferential programs, of which there are dozens at the Federal level and many more at other levels of government, that make up this regime. At the same time, he apparently believes he can nibble at the edges of this problem of preferences, to look like he is doing something meaningful about it. We must start with a genuine dialog on race, ethnicity, and how public policy can be changed for the better. In my opinion, the discussion of this issue must begin with the understanding of this country's history of discrimination against some people because of their membership in a particular racial, ethnic, or gender group. Indeed, one aspect of this history, the continued subjugation of people enslaved because of the color of their skin, is not merely an unspeakable evil that mocked our principles and ideals; in fact, slavery, together with the continuing discrimination following its eradication, still has consequences today. I think many members of the white majority in this country have difficulty appreciating just how significantly different and less hospitable an experience black people, and members of other nonwhite minorities, have had in our country. This does not mean, of course, that Irish, Italian, Eastern European, and other peoples in the white majority did not suffer discrimination in America, or that religious minorities in America, such as Catholics, Jews, and Mormons, have not been victimized because of their religion. Some of this discrimination, regrettably, still occurs. But the color line in this country, was, and is, one of the harshest lines that has ever confronted our people. It was not so long ago that State Governors stood in schoolhouse doors to bar black students from entering. Black and Hispanic youngsters were discriminated against at all levels of education in many parts of the country. It was not so long ago that U.S. marshals and Federal troops had to protect public school children and college students in exercising their constitutional rights. People were murdered because of their black, brown, and yellow skin--a crime still committed in our country in recent years. And people lost their lives in trying to remove the color line in our law. It was not so long ago that Americans of black and brown skin could return from service in our Armed Forces, be able to afford an apartment or house, yet be lawfully turned away because they were regarded as the wrong color for the neighborhood. Many of the basic necessities of life--jobs, housing, public accommodations, the right to vote--were legally denied or curtailed because of race, color, and ethnicity. We will never go back to those days. But we must never forget them. And it is necessary for white Americans to have understanding in their hearts, empathy in their actions and attitudes, and a willingness to address social problems in this country--not just the problems they and their neighbors face, but problems all of our people face. We need, in my view, a mutual understanding among the races that the legacy of past and present-day discrimination, and its social effects, must be addressed, and that our actions and remedies addressing these problems must be fair and must avoid penalizing innocent persons. We can do this. This mutual understanding might be summed up this way: The legacy of distant discrimination, committed beyond the statute of limitations of our civil rights laws, must be treated as a socio-economic problem, and not as a problem calling for preferences against innocent persons today. Further, present-day violations of our civil rights laws, of course, must be vigorously pursued; but, again, persons not victimized by present-day violations should not be preferred over innocent persons in any remedy. One way to illustrate this point is this: While title VII, which prohibits discrimination in employment, can ensure that the best qualified person not be denied a job because of race, ethnicity, or gender, title VII does nothing to help anyone become the best qualified person for a job. We need a mutual understanding that our pride in our racial, ethnic, and religious backgrounds in America is exactly that, pride in an important part of ourselves, and hostility to no other person on its account. We need a mutual understanding that we live in a free and good society, with all of its flaws, where opportunity and the ability to dream big dreams remain open to us, where progress has been made in making the great possibilities of America available to all, and where we are not yet finished. Indeed, I say to my fellow Americans, we are not ultimately defined by our race, ethnicity, or color, but by our common humanity and our common citizenship. American values, American principles, American ideals must be our guide. Our Declaration of Independence says it well: ``We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights * * * .'' We had to learn that this included women and men other than white men, but we have learned it. We must make it work in every generation. We are in life's journey together. We are inextricably bound together by our God-given humanity, common citizenship, and common heritage as Americans. Over 200 years ago, a very wise member of our founding generation, Benjamin Franklin, referred to his fellow ragtag rebels in 13 discordant, often quarreling colonies fighting the world's greatest superpower and said: ``if we do not hang together, we will all hang separately.'' Today, I say, if we Americans do not progress together as a people, we will surely decline in our own separate, squabbling groups. Today, Americans face many challenges: world economic competition; instability in parts of the world, hostility in others; international and domestic terrorism; crime in our streets; improving our educational systems. We must face these challenges together. Some things must come from within the individual, and from within our families, our neighborhoods and communities. These are clearly the places where our work must begin and where our progress must occur. But we must help each other and work together. While we cannot, and should not, compel people to associate with one another socially, if all we have done is replace a government imposed color line with a voluntary color line imposed by our indifference, fear, mistrust, or superior attitudes, we will all be the losers. And, if all we have done is replace one set of discriminatory practices with another, in the name of nondiscrimination no less, we will never reach our full potential as a united people. I think it is useful to pose this fundamental question: What is it our fellow citizens whose skin color is other than white really want? I claim no special expertise. I speak for myself only as a citizen and public servant, to offer this observation: Americans who are part of a racial or ethnic minority group want decent and secure jobs; good schooling for their children; safety in their streets and neighborhoods; decent housing; a chance to go as far as their abilities and drive take them; a chance to earn some of the finer things in life. Am I not describing the very same things the white majority in this country wants? As different as our experiences may be, and as different as our skin color may be, are we Americans really so very much different from one another? My answer is no. If I am right, two things follow. First, sound general public policies that help all of our citizens are needed. These include policies to strengthen and nurture families. These policies include an emphasis on traditional values such as honesty, hard work, individual responsibility, compassion, and respect for others. I believe that religious institutions must play a vital role in helping foster these values in our young people and that government should encourage such a role, not place needless obstacles in the way. Sound general policies include tough anticrime and antidrug strategies. They include welfare reform aimed at fostering greater independence and self-sufficiency. They include sound policies for generating economic growth and job creation, including job training; improving our schools; and policies favoring housing construction and low interest rates. Reducing trade barriers, reducing taxes, lightening the regulatory burden, creating and sustaining a growing economy--all of this is the foundation of our progress as a people. To borrow what has become a familiar phrase--a rising tide lifts all boats. But second, Americans must understand, that for the descendants of slaves and for others whose history in this country includes a color barrier, there are special problems in achieving their piece of the American dream. These problems require acknowledgment and response. A mix of focused private and public action, guided by fair play for all, is called for. It is to this second point I now wish to turn. Racial, ethnic, and gender discrimination, of course, regrettably, continues down to the present day. Fortunately, this Nation finally adopted an array of civil rights laws aimed at eradicating discrimination based on race, ethnicity, color, disability, and gender. Our civil rights laws should be vigorously and sensibly enforced. But, Mr. President, there is danger and risk as we address problems stemming from past and present discrimination. You don't put out a forest fire by pouring gasoline on it, and you do not cure discrimination--past or present--with more discrimination. Every individual is made in God's image and should be treated in the workplace, the business world, schools, public accommodations and the like without regard to race, ethnicity, or gender. If we cannot stand as a nation for that simple, powerful, yet historically elusive principle today, when will we ever stand for it? And what do we stand for, as a nation, if we do not stand for equal opportunity for every individual? I stand for the primacy of the individual. Our rights as Americans do not turn on the color of our skin, our ethnic background, or our religious faith. Just as we should never forget that America has often departed from her founding principles and ideals of equal opportunity for individuals, we should never forget that those are the principles and ideals we should ever be striving to fulfill. And in our necessary effort to right old wrongs, let us not create new wrongs. A person denied a job, a promotion, a contract, a training program, or admission to school because of race, ethnicity, or gender should be made whole. In the case of employment discrimination, for example, back pay and the next available job with retroactive seniority should be made available to the victim of discrimination. The discrimination should be enjoined. But, no innocent third party should be forced to lose or delay a job, a promotion, a training opportunity, or be laid off in favor of a person not victimized by discrimination because that person is the same color as someone who was, in fact, discriminated against. That is the difference between a policy of individual rights versus group rights. President Clinton, in defending policies of group rights that are one significant part of the modern day affirmative action structure says, mend it, don't end it. I say, with respect to the preferences that are a significant part of affirmative action, two civil wrongs do not make a civil right. Affirmative action that utilizes or encourages preferences on the basis of race, ethnicity, or gender in actual selection decisions-- hiring, promotion, layoff, contract awards, school admissions, scholarship awards, government benefits--whether labeled goal, quota, or otherwise, is wrong and should be ended. These preferential devices are merely another form of discrimination. I stress that preferences come in many forms--not just quotas and not just in numerical formulations. It is acceptable, in contrast, for an employer to engage in affirmative action that calls for reviewing personnel practices to ensure they are free of discrimination. It is acceptable for employers to make an effort to recruit applicants from among those who traditionally do not apply for the job--or in other contexts, for a contract, or school admission--after which the selection is made without regard to race, ethnicity, or gender. In appropriate circumstances, other affirmative steps, targeted to disadvantaged persons, but open to all on a nondiscriminatory basis, are acceptable. Thus, a job training program aimed at the chronically unemployed, or the urban unemployed, is fine, so long as no one is ever turned away because of race, ethnicity, or gender. If such a job training program is established in New York City or Washington, DC, for example, no doubt many racial and ethnic minorities should be able to take advantage of it. But nonminorities also live in these cities and if they otherwise qualify for the program, they should not be denied entry because of race or be subject to express or implied numerical limitations. Former New York City Mayor Ed Koch testified on October 23, 1995, before the Subcommittee on the Constitution, that he was unhappy at one point with the low numbers of minorities passing police exams in New York City. He put a training course in Harlem--open to all. That is affirmative action in the right sense. Instead of government setting aside a percentage of contracts on the basis of race, ethnicity, or gender, why not establish and foster a mentor program whereby established, experienced contractors provide advice, guidance, and contacts to new or small businesses, regardless of the race, ethnicity, or gender of their owners? This will benefit minority- and women-owned businesses without denying anyone such help. State and local governments, instead of trampling on equal opportunity by setting racial numerical requirements or goals, could sponsor seminars about the contract bidding process, methods of obtaining bonding, and so on--open to all, but located where they can benefit minority- and women-owned businesses. Rather than discriminate, why not enhance people's abilities to compete? This is what the Federal Government should be encouraging State and local governments to do. The September/October 1995 issue of The American Enterprise mentions an Austin, TX nonprofit organization called the National Council of Contractors Association [NCCA]. It was formed with a small grant from the city of Austin. It is 2 years old, and its help is available to all small businesses, though most of the businesses it helps are minority or women owned. NCCA provides firms with expert advice on how to win contracts, donates accounting services, and helps them win bonding. In a year and a half, NCCA helped 83 firms win 171 contracts. We should encourage such programs, open to all, but located where they can benefit minority and women owned businesses. I think we ought to take some calculated risks to help small businesses. I am willing to support a small pilot program at the Small Business Administration, where the Government insures the bonding of new, small companies owned by persons of any race or gender--with less net worth, fewer capital reserves, and less experience than current programs require. I am willing to see whether such an approach, especially if coupled with technical assistance, can make a difference in getting new small businesses off the ground and able then to compete in the marketplace. If it turns out that reducing current requirements in providing this help does not work, and these businesses do not successfully perform, we should then drop the program. If it does make a difference, we can expand it in an orderly way. But we have to try approaches that get us away from race and gender lines. Government can look for more opportunity to contract out some of its services--creating more opportunity for businesses, at less cost. Instead of racially exclusive scholarship programs operated by colleges, colleges could make aid available based on need, without racial preference. Instead of preferences in college admissions based on race, we need to strengthen elementary and secondary education so children are better able to perform pursuant to the same standards. Of course, taking into consideration an applicant's overcoming poverty or other barriers to success, as one part of the evaluation of an applicant, is acceptable in college admissions so long as those criteria are applied equally to all races, and are not thinly veiled proxies for race. But we need to start earlier than that. Then New York City Schools Chancellor Cortines proposed a math and science institute for 350 seventh and eighth graders to help prepare them for the difficult examinations for admission to three academically selective high schools. Students of all races and all parts of the city are eligible under that proposal, but the emphasis would be on those parts of the city that send the fewest kids to those high schools. Mostly black and Hispanic kids would benefit from the extra preparation. And the standards for admission for the three high schools would not be altered. As I understand it, there is to be no racial or ethnic preferences for admission to the preparatory program or to the three high schools--but an effort to improve people's abilities in this urban school district. We need to evaluate the concept of public and private school choice, through vouchers or similar programs. Businesses need to lend a hand to our public schools. It is in everyone's interest. Businesses need workers who can perform, or they lose out in this global economy. I received in the mail a report of the Lindahl Foundation, founded in 1991 and privately endowed by the chairman of State Industries, Inc. of Tennessee, the largest manufacturer of water heaters in this country. John R. Lindahl established the foundation to ensure that any child of his employees has the financial aid to get an education after high school. He expanded it to other students in the county. It is based on need, aimed at academically worthy kids who may not be scholastic superstars, but who could do the work in college or vocational school, if only they could afford it. Nearly 350 young people have received awards of $1,000 to $4,000 as a result of this patriot's effort. The brochure has pictures and words of thanks from grateful young men and women, black and white, including one young woman who was able to fulfill her dream of attending Brigham Young University. Our public schools need to improve. The August 20, 1994, New York Times carried a statement from Albert Shanker, president of the American Federation of Teachers. He tells the story of the principal of an inner-city elementary school in Baltimore. The principal eventually prevailed upon the Baltimore school system to use a private school's model for teaching. The model is conservative in both educational philosophy and curriculum, with a strong emphasis on reading and writing, and specific week by week, year by year benchmarks of what the children should learn. The performance of the kids at this school is way up--a school which is 94 percent minority and where 82 percent of the kids are eligible for free or reduced price lunches. Prof. Susan Estrich has written about the efforts of the new California Superintendent of Education. I'll summarize the gist of the column by citing its title: ``A Novel School Plan: Back to Basics.'' Some of us believe at least part of the answer also lies in reducing government barriers. This should include a meaningful entry level training minimum wage for teenagers, enterprise zones, repeal of the Davis-Bacon Act, and encouragement of private sector initiatives for everything from job training and mentoring young people from disadvantaged backgrounds, to ways of strengthening the family. Local and State governments need to remove barriers to entry into different occupations. I do not claim to have all the answers. I expect others have different ways of looking at these issues, and different solutions. But I do believe we need to talk about this in a civil and serious way. And I believe that a stubborn defense of preferences sidetracks us from finding better, fairer solutions. I will have more to say about this in later remarks. But, let us engage in this dialog. Let us examine the ramifications of our choice of the road to take. And let us not sweep these issues under the rug in our national debate. Let us deal openly with these issues and help lead our country down the road to a more united people. (The remarks of Mr. Kennedy pertaining to the introduction of S. 1668 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') Mr. DORGAN addressed the Chair.